Opinion
No. FST CV 08-4015041 S
September 6, 2011
MEMORANDUM OF DECISION
This is an administrative appeal to the Superior Court from the decision of the Zoning Board of the City of Stamford (ZB) approving a Coastal Area Management application (CAM) in accordance with Gen. Stat. § 22a-90, et seq. and the coastal area management portion of the zoning regulations of the City of Stamford, Sections 7-14 through 7-17, #125.00 paragraph 2. The City of Stamford sought CAM approval for the construction of improvements to a municipally-owned park known as West Beach Park, which included the conversion of two existing natural turf athletic fields to artificial turf and the reconstruction and repaving of one parking lot. A substantial amount of time was spent at the four trial days concerning the format, accuracy and completeness of the Return of Record in this case as well as Return of Record in the companion Zoning Board of Appeals administrative appeal, FST CV 08-4015507 S. In May 2009 the court ordered that both appeals be consolidated for trial and a single brief be filed in both administrative appeals. A separate Memorandum of Decision of even date herewith has been issued in the companion Zoning Board of Appeals administrative appeal (ZBA).
For many years the City of Stamford has owned and maintained the property in question as a municipal park. It is on the waters of Long Island Sound. Each of the individual and entity plaintiffs claim that they are neighbors of West Beach Park, some immediately adjacent and some a distance away. In addition, one of the parties is an entity entitled Save West Beach Park.
The City of Stamford submitted to the Stamford Zoning Board (ZB) a detailed Coastal Site Plan Review Application signed on July 11, 2008 by Louis Casolo, Jr., P.E. of the City of Stamford, Bureau of Engineering. Return of Record #2. The Application disclosed that West Beach Park is 28.4 acres in size and the project area is 7.85 acres. The Project Description stated: "Improvements to existing athletic fields including regrading and installation of artificial turf, parking lot improvements, and landscaping." No buildings were proposed. The Coastal policy affected by the project was "general development." The Coastal resources on which the project is located or which will be affected by the project were: "beaches and dunes, Tidal wetlands, estuarine embayments, coastal floor hazard areas, coastal waters, shorelands and general resource." The Application alleged that: "No adverse impacts are expected to result from the project. Water quality, visual quality and wildlife habitat may benefit as described in the attached report." Construction plans and an aerial map were submitted with the CAM Application.
The following information is contained in the City's CAM Application. Return of Record #2. West Beach Park is also known as Cummings Park West. Cummings Park is a separate public park located adjacent to West Beach Park to its east. West Beach Park is fully developed with a variety of public facilities. The entire Long Island shoreland of the park is a sandy public beach called West Beach. Immediately landward of West Beach is a parking lot, concession building, a lifeguard and first aid station and a beach pavilion with bathrooms. Further landward of these facilities is a public storm water pumping station. There is an estuary cove adjacent to the beach that leads to extensive boat mooring systems with piers, pilings, floats and docks. It appears the docks can accommodate over 200 boats. To the north of the West Beach swimming facility and located in that estuary cove is an existing public boat launching facility and dock with its own boat trailer parking area immediately landward. Further landward of the boat launching facility is the roadway that accesses West Beach followed by a larger public parking lot that is surrounded by an existing hurricane barrier.
Landward of all of these public facilities are the existing athletic fields and open spaces of the remainder of West Beach Park. The closest athletic field to the boat launch area is 500 feet. That same athletic field is located 550 feet from the waters of Long Island Sound at the sands of West Beach. The athletic fields of West Beach Park consist of two baseball diamonds, three soccer fields and other open areas for athletic activities and contests. This application relates to two of the soccer fields. The closest part of the two soccer fields that are the subject of this application is 1,000 feet from the waters of Long Island Sound at the sands of West Beach and 700 feet from the public boat launch site. There are five public paved parking lots on the West Beach Park property; one adjacent to West Beach, one nearest the boat launching area, two at the southern end of the park inland of the hurricane barrier and one adjacent to Shippan Avenue. This last parking lot is in the most northerly section of West Beach Park furthermost from the beach and it is the smallest parking lot. The reconfiguration and repaving of this existing small paved parking lot is one of the subjects of this CAM application.
The drawings that accompany the CAM Application show the new traffic flow of the reconfigured and repaved parking lot with handicapped spaces, loading zone, crosswalks and landscaping. Return of Record #3. Pedestrian walkways have been added. A screening of trees abut the north easterly side of the soccer fields closest to a condominium project. The two soccer fields face approximately east-west adjacent to each other. The northerly and southerly sides of the two soccer fields would have a four-foot chain link fence to prevent balls and players from inadvertently moving into the pedestrian or vehicle areas. There would be no fencing on the other two sides. The westerly side of the field, closest to Shippan Avenue, would contain some landscaping, benches and timber guard rails. The grass turf on both fields would be replaced with artificial turf. The two soccer fields would be open and accessible at all times, other than when games are being played on the fields, for walking, passive recreation, active recreation and pedestrian use to access other areas of West Beach Park including the boat launching area and the beach. The drawings, application and site plans state that the project will not alter or affect the beach, dunes, tidal wetlands, estuarine embayments and coastal waters or any access to these facilities during the construction of the improvements and thereafter.
The CAM application was assigned a number: CSPR-838. The ZB held a hearing and approved the Coastal Site Plan Application with one slight modification on September 15, 2008. The eleven plaintiffs appealed this CAM decision of the ZB to the Superior Court. The plaintiffs claim two forms of relief in their June 18, 2009 Brief (#114.00, page 2). "1. Reverse the decision of the Zoning Board for conducting itself, making findings and reaching a decision unlawfully under Connecticut statutes, the Stamford Charter or common law" and 2. Reverse the decision of the Zoning Board for its particular failure to adhere to the provisions of the Coastal Management Act., Conn. Gen. Stat. § 22a-90 et seq., and the Environmental Protection Act, Conn. Gen. Stat. § 22a-19, where evidence of environmental impact was undisputed and/or conceded by the defendant City or its experts." The defendants denied each of these claims and do not concede that the plaintiffs' environmental evidence was either undisputed or conceded by the City of Stamford.
Nine of the eleven plaintiffs in this ZB appeal have filed a lawsuit against the Zoning Board of Appeals (ZBA) of the City of Stamford principally claiming that the Zoning Enforcement Officer had no subject matter jurisdiction to issue a zoning permit for this same project at West Beach Park because Stamford Charter Sec. C6-30-13 had not been complied with, in that the Planning Board of the City of Stamford neither reviewed nor issued a report for this project. See consolidated ZBA appeal FST CV 08-4015507 S. A similar subject matter jurisdiction claim is being made in this ZB appeal.
The power of the commission to require that the plaintiff file a coastal site plan and impose conditions on its approval is derived from the Coastal Management Act (act), General Statutes §§ 22a-90 through 22a-112. The act delegates the administration of the state-wide policy of planned coastal development to local agencies charged with responsibility for zoning planning decisions. See General Statutes §§ 22a-105, 22a-106. The act envisages a single review process, during which proposals for development within the coastal boundary will simultaneously be reviewed for compliance with local zoning requirements and for consistency with the policies of planned coastal management. (Internal quotation marks omitted.) DeBeradinis v. Zoning Commission, 228 Conn. 187, 195-96, 635 A.2d 1220 (1994).
With respect to review of a coastal site plan, [p]roceedings before planning and zoning commissions are classified as administrative. (Internal quotation marks omitted.) Id., 198-99 "The court's function was to determine on the basis of the record whether substantial evidence has been presented to the [commission] to support its findings . . . Furthermore, a reviewing court cannot substitute its judgment as to the weight of the evidence before the commission and on factual issues material to the reasons for the commission's decision because it is within the province of the commission to determine the credibility of witnesses . . . Not only is a reviewing court prohibited from substituting its judgment for that of the commission, but the decision of the commission must be sustained if an examination of the record discloses evidence that supports any one of the commission's reasons . . . The question is not whether the trial court would have reached the same conclusion but whether the record before the [commission] supports the decision reached." (Citations omitted; internal quotation marks omitted.) Pelliccione v. Planning Zoning Commission, 64 Conn.App. 320, 332-33, 780 A.2d 185, cert. denied, 258 Conn. 915, 782 A.2d 1245 (2001).
Pinchbeck v. Planning and Zoning Commission, 69 Conn.App. 796, 799-800 (2002).
The Connecticut Coastal Management Act (CAM) permits municipalities to "adopt a municipal coastal program. "(a) In order to carry out the policies and provisions of this chapter and to provide more specific guidance to coastal area property owners and developers, coastal municipalities may adopt a municipal coastal program for the area within the coastal boundary and landward of the mean high water mark." Gen. Stat. § 22a-101(a).
Stamford has adopted its own Coastal Area Management regulations. Rapoport v. Stamford Zoning Board of Appeals, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 05-4007594 S (November 13, 2008, Tierney, J.T.R.); See #125.00 paragraph 2 "Coastal Site Area Management Regulations" pages 7-14 through 7-16 Section 7.T of the Stamford Zoning Regulations.
There are eleven named plaintiffs in this Zoning Board administrative appeal (ZB). The first named plaintiff, William F. Polotaye, testified and offered his property deed as well as two versions of a subdivision map. Trial exhibits: Ex. 1, Ex. 2 and Ex. 3. Ex. 2 is a certified copy of the subdivision map recorded in the Stamford land records. Ex. 3 is a blown-up version of Ex. 2 with Mr. Polotaye's property colored yellow adjacent to West Beach Park colored green. His property is immediately adjacent to West Beach Park but over 600 feet from the area of proposed park improvements. He testified that he has been the owner of his property continuously since 1977. In paragraph 10 of his complaint he claims statutory aggrievement as an abutter. The court finds that William F. Polotaye is statutorily aggrieved. "In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, `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." Gen. Stat. § 8-8(a)(1): Caltabiano v. Planning and Zoning Commission, 211 Conn. 662, 663, 670 (1989).
Eight of the named plaintiffs are Rosalie Mastropaolo, Giuseppe Masone, Angela Masone, Mimoza E. Noga, Pjerin Noga, Mark Blechman, Miralley Blechman and MM Shippan, LLC. In paragraph 10 of their complaint they claim both statutory aggrievement and classical aggrievement. None of the above plaintiffs testified during the three-day trial. Karen Murphy, who is a named plaintiff in this ZB administrative appeal, testified. She testified that she owns property at 68 Saddle Rock Road, Stamford, Connecticut located one mile from West Beach Park.
The testimony of Karen Murphy and the trial exhibits that she offered in support of that testimony attempted to show that the above named eight plaintiffs all own property abutting West Beach Park. Trial Ex. 4 is entitled "Abutters Report"; colored in yellow are the names of the above mentioned eight plaintiffs. Ex. 5 is a similar report with similar yellow markings which appears to be dated July 19, 2010, the day before the trial commenced. Karen Murphy testified that she obtained Ex. 4 and Ex. 5 from the City of Stamford Assessor's office and she marked them in yellow. Ex. 6A, Ex. 6B, Ex. 6C, Ex. 6D, and Ex. 6E are certified copies of deeds in the names of the eight plaintiffs each with the certificate dated July 19, 2010 issued by the Town Clerk of the City of Stamford. These five deeds were respectively dated October 17, 1997, October 4, 1966, July 20, 2000, July 20, 1999 and June 23, 1999. Ex. 7 is a map prepared by Karen Murphy purportedly showing the location of the properties of the eight plaintiffs. West Beach Park is marked yellow and some residential property adjacent to West Beach Park are marked pink. The individual residential properties of the eight plaintiffs are not delineated in Ex. 7. Ex. 8, 9, 10, 11 and 12 are maps that have been colored showing respectively the individual properties of Rosalie Mastropaolo, Giuseppe and Angela Masone, Mimoza E. and Pjerin Noga, Mark B. and Miralle Y. Blechman and MM Shippan, LLC. The Blechmans' names slightly vary in the deed and complaint. Ex. 9 and Ex. 10 are copies of the same subdivision map as Ex. 2 and Ex. 3 with West Beach Park in green and certain lot numbers in yellow for the Noga and Masone lots. The other three maps are site plans recorded in the Stamford land records with West Beach Park in green, the property borders in orange and on Ex. 8 a house or condominium building in yellow. These site plans appear to confirm to the legal descriptions contained in the five Ex. 6 deeds. Ex. 13 are certified copies of five field cards from the City of Stamford Assessor's office. The print date of each field card is September 23, 2010. These five field cards contain an address and the names of the eight plaintiffs under the section "CURRENT OWNER": "Giuseppe Masone TR and Angela Masone TR" is listed as "Current Owner" of 64 Rippowam Road. This court finds that TR means Trustee. Exhibit 1 though 13 were also offered at trial in the companion consolidated Zoning Board of Appeals administrative appeal, FST CV 08-4015507 S.
The plaintiffs have the burden of proving aggrievement. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493 (1978). These eight named plaintiffs, in order to establish statutory aggrievement, must demonstrate the continuing ownership of "land that abuts or is within a radius of one hundred feet of any portion of the land included in the decision of the board." Gen. Stat. § 8-8(a)(1); Goldfeld v. Planning and Zoning Commission of the Town of Greenwich, 3 Conn.App. 172, 177 (1985); Pollio v. Conservation Commission, 32 Conn.App. 109, 113 (1993). "In order to retain standing as an aggrieved person, a party must have and must maintain a specific, personal and legal interest in the subject matter of the appeal throughout the course of the administrative appeal." Id. 113; Bethlehem Christian Fellowship, Inc. v. Planning and Zoning Commission, 58 Conn.App. 441, 444 (2000); Craig v. Maher, 174 Conn. 8, 9 (1977) ("sustain that interest throughout the course of the appeal").
It would appear simple for the above named eight plaintiffs to prove statutory aggrievement. They would come to court on any of the initial three trial days July 20, 2010, September 24, 2010 and November 10, 2010 and testify that they have continuously owned real property abutting West Beach Park from the date of the commencement of the zoning proceedings to the date of trial. The plaintiff, William F. Polotaye, did just that and the court has found him statutorily aggrieved. For some reason, neither offered nor explained to this court, none of the other eight plaintiffs appeared in court ready to testify. The deeds only show ownership at one point in time. The assessor's records are insufficient to establish continuing ownership of the abutting property. The Masones apparently transferred their property to a Trust, a separate entity that is not a party to this administrative appeal. In Pollio v. Conservation Commission, the court examined the title documents submitted and those documents did not show continuing ownership throughout the application and appeal process. Id. 115. So too the documents in evidence only demonstrate ownership at best at two points in time, not the continuous ownership necessary to establish statutory aggrievement. The court finds that the eight plaintiffs, Rosalie Mastropaolo, Giuseppe Masone, Angela Masone, Mimoza E. Noga, Pjerin Noga, Mark Blechman, Miralley Blechman and MM Shippan, LLC are not statutorily aggrieved in accordance with Gen. Stat. § 8-8(a)(1). Crawford v. Ledyard Zoning Board of Appeals, Superior Court, judicial district of New London, Docket Number CV 09-5013858 (March 1, 2011, Purtill, J.T.R.) [ 51 Conn. L. Rptr. 560].
These eight plaintiffs allege statutory aggrievement because they claim to be "owners of land that abuts or is within a radius of 100 feet of the land involved in the decision of the Board," in the September 29, 2008 complaint. They did not allege aggrievement by reason of any other statute including the environmental intervenor statute, Gen. Stat. § 22a-19. These eight plaintiffs cannot be aggrieved under the environmental intervenor statute because: (1) aggrievement on this ground has been rejected by appellate courts; Jaeger v. Connecticut Siting Council, 52 Conn.Sup. 14, 25, affirmed 128 Conn.App. 243 (2011); (2) the plaintiffs have not alleged such a statutory standing in this appeal to the Superior Court; (3) the plaintiffs have not claimed such statutory standing in their briefs; (4) the plaintiffs have not demonstrated that they filed a "verified pleading" as required by Gen. Stat. § 22a-19(a); and (5) these eight plaintiffs admitted in pleadings that they are not intervenors. #120.00, page 7. The court finds that these eight named plaintiffs have not proven statutory aggrievement and the court further finds that these eight named plaintiffs are not statutorily aggrieved.
Classical aggrievement requires a twofold showing. "[F]irst, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) Id., 410
Douglas v. Planning Zoning Commission, 127 Conn.App. 87, 97 (2011).
. . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected. (Citations omitted; internal quotation marks omitted.)
Wellswood Columbia, LLC v. Hebron, 295 Conn. 802, 810 (2010); Sheridan v. Planning Board of the City of Stamford, 159 Conn. 1, 13 (1969).
Proof of classical aggrievement requires a significant evidentiary record. Abel v. Planning and Zoning Commission, 297 Conn. 414, 437, fn.19 (2010). No evidence was offered at trial that any of these eight plaintiffs were classically aggrieved. The court finds that these eight plaintiffs are not aggrieved parties since they are neither statutorily aggrieved or classically aggrieved.
The tenth and eleventh plaintiffs, Karen Murphy and Save West Beach Park, are both named plaintiffs. They have not specifically alleged that they are either statutorily aggrieved or classically aggrieved in paragraph 10 of the September 29, 2008 Appeal. #100.10. The nine other plaintiffs have made that claim in paragraph 10 of the complaint. A Verified Notice of Intervention directed to the Zoning Board of the City of Stamford for the West Beach Park improvement project and CAM application numbered CSPR-838 was sent to the Zoning Board on July 28, 2008. Return of Record #7. The Verified Notice of Intervention was acknowledged before a Notary Public on July 28, 2008. It was signed by Karen Murphy who described herself as acting "Individually and as a member of Save West Beach Park." The Verified Notice of Intervention states: "The Intervenor Save West Beach Park is an association comprised of citizens of the City of Stamford dedicated to preserving and protecting West Beach Park including its environment and ecological communities. The Intervenor Karen Murphy is a resident of Stamford, Connecticut." Return of Record #7, paragraph 2. The two plaintiffs, Karen Murphy and Save West Beach Park, claim aggrievement as follows: "The plaintiffs Karen Murphy and Save West Beach Park are aggrieved persons entitled to bring this appeal because they were intervenors in the administrative proceedings before the Board under Conn. Gen. Stat. § 22a-19, are intervenors in this judicial review under Conn. Gen. Stat. § 22a-19, and are persons whose use of West Beach Park, which is greater than that of most residents of the City of Stamford, has been specially and injuriously affected by the decision of the Board." #100.10, paragraph 11. By the allegation of paragraph 11 the court believes Karen Murphy and Save West Beach are claiming statutory aggrievement under Gen. Stat. § 22a-19 as well as classical aggrievement.
There was no evidence offered at trial of classical aggrievement. The court finds that Karen Murphy is not a classically aggrieved party.
Save West Beach Park is not a person. It is named as a plaintiff with the same address as the plaintiff, Karen Murphy. The complaint alleges that: "The plaintiff Save West Beach Park is an association of Stamford citizens who enjoy using West Beach Park in Stamford and is an intervenor in both the proceedings before the Board and these proceedings as well." #100.10, paragraph 3. Thus Save West Beach Park is claiming statutory aggrievement as an environmental intervenor as well as classical aggrievement.
The first question is does Save West Beach Park have to meet the associational standing test?
In evaluating the standing of an association, we have adopted the federal test for associational standing articulated in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). "Under that test, [a]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." (Internal quotation marks omitted.) Connecticut Associated Builders Contractors v. Hartford, 251 Conn. 169, 185, 740 A.2d 813 (1999).
Fort Trumbull Conservancy v. Alves, 279 Conn. 430, 435-36 (2001).
The plaintiffs have the burden of proof as to aggrievement. Neither party briefed or argued associational standing. This court therefore is not going to consider the issue of whether the Save West Beach Park has or needs to establish associational standing.
Save West Beach Park equally claims standing to raise environmental issues pursuant to Gen. Stat. § 22a-19 ". . . any person, partnership, corporation, association, organization or other legal entity may intervene as a party . . ." Gen. Stat. § 22a-19(a). Save West Beach Park alleged that it "is an association of Stamford citizens who enjoy using West Beach Park in Stamford." #100.10 paragraph 3. No evidence was offered at trial about Save West Beach Park and how this plaintiff was formed and organized. The plaintiffs' brief is silent on that subject. The plaintiffs' oral argument did not discuss that subject. The defendants' Answer to paragraph 3 of the plaintiffs' complaint stated: "The Defendants have no knowledge and leave Plaintiffs to their proof." #109.00.
The plaintiff, Save West Beach Park, must establish by evidence its legal status. The statute, although permitting any person to intervene only permits a "legal entity" to intervene. The use of the adjective "legal" in the list of non-persons who may intervene, applies to each of the named non-persons. A partnership must be a legal entity. A corporation must be a legal entity. An association must be a legal entity. An organization must be a legal entity. If that were not the requirement, the word "legal" in the statute would have no meaning, since any entity whether legally organized and existing or not would have standing. The legislature could not have meant the word "legal" to be read out of the statute. Every word in this statute is presumed to have meaning. Vibert v. Board of Education, 260 Conn. 167, 176 (2002). "It is well established that, in construing statutory language, [n]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . and no word in a statute is to be treated as superfluous. (Internal quotation marks omitted.) State v. Anderson, 227 Conn. 518, 528, 631 A.2d 1149 (1993); see also Vibert v. Board of Education, 260 Conn. 167, 176, 793 A.2d 1076 (2002) (every word in statute presumed to have meaning)"; Komondy v. Zoning Board of Appeals, 127 Conn.App. 669, 685-86 (2011); HVT, Inc. v. Law, 300 Conn. 623, 641 (2011).
By its terms, § 22a-19 specifically determines both (1) the parties that may intervene and (2) the proceedings into which those parties may intervene. Under both of these prongs, the legislature employed broad and all-inclusive language. With regard specifically to the parties permitted to intervene, the legislature designated an all encompassing list of all possible legal entities: partnerships, corporations, persons, associations, organizations, other legal entities and political subdivisions of the state and instrumentalities and agencies thereof. In addition, the repeated use in § 22a-19 of the word "any" — e.g., "any administrative, licensing or other proceeding." "any judicial review thereof," "any political subdivision of the state," "any instrumentality or agency of the state or of a political subdivision thereof." "any person, partnership, corporation, association, organization or other legal entity" — indicates an intention to allow the broadest possible range of parties to intervene in an expansive spectrum of proceedings. "Although the word `any' sometimes may, because of its context, mean `some' or `one' rather than `all,' `[i]ts meaning in a given statute depends on the context and subject matter of the law.'" Commission on Human Rights Opportunities v. Board of Education, 270 Conn. 665, 707, 855 A.2d 212 (2004); accord King v. Board of Education, 203 Conn. 324, 334, 524 A.2d 1131 (1987) (as used, "`any' means `all' or `every'"); see Commission on Human Rights Opportunities v. Board of Education, supra, 707 ("[w]e think that [the] repeated use [of `any'] here in the context of a remedial statute counsels a broad, rather than a narrow, meaning"); see also McManus v. Commissioner of Environmental Protection, 229 Conn. 654, 663, 642 A.2d 1199 (1994) ("environmental statutes are remedial in nature and should be construed liberally to accomplish their purposes").
Avalonbay Communities, Inc. v. Zoning Commission of the Town of Stratford, 280 Conn. 405, 413-14 (2006) (Municipality entitled to intervene).
It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue . . . An estate is not a legal entity. It is neither a natural nor artificial person, but is merely a name to indicate the sum total of the assets and liabilities of the decedent or incompetent . . . Not having a legal existence, it can neither sue nor be sued." (Citations omitted; internal quotation marks omitted.)
Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600 (1985).
Various entities have been declared not to be legal entities. SCG Capital Corp Profit Sharing Trust v. Green, Superior Court, judicial district of Tolland, Docket Number CV 09-5005319 S (March 25, 2010, Sferrazza, J.) [ 49 Conn. L. Rptr. 555] (a common-law trust is not a legal entity and possesses no capacity to sue); Isaac v. Mount Sinai Hospital, supra, 3 Conn.App. 598-600 (an estate is not a legal entity and suit must be brought by the fiduciary of the estate); Groton Open Space Association v. Groton, Superior Court, judicial district of New London at New London, Docket Number CV 08-4008020 (February 9, 2011, Purtell, J.T.R.) (although referred to as an association, the plaintiff had standing since it was a non-profit corporation established for conservation and environmental preservation in Southeastern Connecticut). A trade name has no standing to sue. Coldwell Banker v. Compu Sci, Superior Court, judicial district of Hartford at Hartford, Docket Number HHD-CV-03 0825180 S (November 12, 2010, Sheldon, J.) [ 51 Conn. L. Rptr. 10]; Elementary School Building Committee of the Town of Fairfield v. Placko, Superior Court, judicial district of Fairfield at Bridgeport, Docket Number FBT CV 02-0398162 S (February 21, 2003, Rush, J.) [ 34 Conn. L. Rptr. 168] (a building committee appointed by the Town Board of Education was not a legal entity that could sue).
There was no evidence of the organization and nature of Save West Beach Park. The Return of Record in the ZB file contains no evidence of its organization and nature. There was no proof that it was on file with any governmental filing agency such as the Connecticut Secretary of State, Connecticut Department of Revenue Services, or Town Clerk of the City of Stamford. The mere allegation in a Notice of Intervention and a Superior Court administrative appeal is not evidence of its organization and nature. No list of members, officers or membership requirements were presented to the ZB or this court. If Save West Beach Park was a group of individuals engaged in a long-standing Friday night poker game, it could call itself an association but that does not make the Friday night poker group a legal entity for the purposes of intervening under Gen. Stat. § 22a-19. The court finds that Save West Beach Park is not a "legal entity" and thus cannot satisfy the aggrievement requirement and standing of Gen. Stat. § 22a-19.
There was no evidence at trial about Save West Beach Park's use of West Beach Park. Save West Beach Park has failed to prove classical aggrievement. Citizens Against Overhead Powerline Construction v. Connecticut Siting Council, Superior Court, judicial district of New Britain at New Britain, Docket Number CV 10-6004927 S (March 24, 2001, Cohn, J.) [ 51 Conn. L. Rptr. 882].
Karen Murphy has failed to allege and prove statutory aggrievement by reason of owning real property that abuts or is within one hundred feet of the property in question, Gen. Stat. § 8-8(a)(1). There was no evidence at trial about Karen Murphy's use of West Beach Park. She has failed to prove classical aggrievement. She claims standing as an intervenor under Gen. Stat. § 22a-19. "To further its goal of protecting the environment, the EPA waives the traditional aggrievement requirement in two ways . . . Second, § 22a-19 authorizes any citizen or other entity, without having to first establish aggrievement, to intervene in an existing proceeding." Hyllen-Davey v. Plan and Zoning Commission, 57 Conn.App. 589, 593 (2000).
Karen Murphy filed a verified Notice of Intervention in the Zoning Board proceeding. Return of Record #7. "If a person participates in the administrative proceeding under § 22a-19, then that person may bring an appeal under § 22a-19 for the limited purpose of raising environmental issues." Id. 598; Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 715 (1989). "An intervenor's standing pursuant to § 22a-19 strictly is limited to challenging only environmental issues covered by the statute, and only those environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding into which the party seeks to intervene. Nizzardo v. State Traffic Commission, 259 Conn. 131, 148, 788 A.2d 1158 (2002)." Douglas v. Planning Zoning Commission, supra, 127 Conn.App. 103. The court finds that the plaintiff, Karen Murphy, by filing the Verified Notice of Intervention before the ZB is an intervenor who has the right to challenge environmental issues that are within the jurisdiction of the Stamford Zoning Board in considering a Coastal Area Management application.
The plaintiffs, Karen Murphy and Save West Beach Park, claim that the ZB "in its decision erred and acted illegally" for eleven separate reasons. These eleven separate reasons are contained in paragraph 12 of the complaint. They raise these issues under their claimed status as environmental intervenors. Those eleven claims are contained in bold subparagraphs in this Memorandum of Decision. The court is guided by the following cases in determining whether or not these claimed irregularities are within the power of a Gen. Stat. § 22a-19 intervenor to raise. Douglas v. Planning Zoning Commission, supra, 127 Conn.App. 103, fn.7 (alleging ten errors none of which support intervenor standing); Pond View, LLC v. Planning Zoning Commission, 288 Conn. 143, 159 (2008); and Fort Trumbull Conservancy v. New London, 282 Conn. 791, 797-98 (2007). "Claimed noncompliance with zoning statutes or zoning regulations are not within that scope. Allegations of noncompliance with procedural requirements do not give rise to standing to challenge the commission's action pursuant to § 22a-19(a)." Douglas v. Planning Zoning Commission, supra, 127 Conn.App. 103. ("(f) The Commission voted on an Amendment without defensible standards and without standards protective of water quality, erosion and flooding" was held to be procedural and is essentially a claim of lack of standards in the legislative adoption. Id. 103, fn.7).
The court will apply the above standards to each of the eleven enumerated sections of paragraph 12 of the plaintiffs' complaint, #101.00 in order to determine if the plaintiffs, Karen Murphy and Save West Beach Park, have standing under Gen. Stat. § 22a-19 as intervenors to raise these issues. Pond View, LLC v. Planning and Zoning Commission, 288 Conn. 143, 163 (2008). (The environmental intervenors lacked standing because they failed to raise any environmental issues in accordance with § 22a-19.) The court finds that paragraphs 12(a), (b), (c), (d), (e), (g), (h), (j) and (k) of the plaintiffs' complaint are all procedural and not environmental.
Paragraph 12(f) of the plaintiffs' complaint states: "Its decision was inconsistent with and violative of the requirements, goals and policies of the Coastal Management Act, Conn. Gen. Stat. § 22a-90 et seq." The plaintiffs' brief #114.00 only considers three specific portions of the requirements, goals and policies of CAM that they claim were not considered by the ZB; (1) proximity to the water; Gen. Stat. § 22a-92(a)(3); (2) encourage public access; Gen. Stat. § 22a-92(a)(6) and (3) national interest; Gen. Stat. § 22a-92(a)(10). Even these three reasons outlined in paragraph 12(f) are couched in procedural non-compliance terms in the plaintiffs' brief. "The following applicable `goals and policies in Conn. Gen. Stat. § 22a-92' were never considered by the Zoning Board in its deliberations or written about in its approval of the CAM application." #114.00, page 12. The court therefore finds that reason 12(f) is procedural and not environmental. This court will discuss these three specific portions of the goals and policies of CAM in section (1) of this Memorandum of Decision since the plaintiff, William F. Polotaye, is statutorily aggrieved and thus entitled to raise procedural issues.
Paragraph (i) of the plaintiffs' complaint states: "It approved a proposal that was reasonably likely to impair the public trust in the air, water, or other natural resources of the State in lieu of a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare." The plaintiffs' brief, #114.00 pages 14-15 makes two arguments under this feasible and alternative heading: (1) Gardiner v. Conservation Commission, 222 Conn. 98, 109 (1992) requires only proof of "minimal environmental harm" and (2) the displacement of over four acres of parkland with 600,000 pounds of turf from shredded used tires is an impairment and destruction of the land, a natural resource. The plaintiffs' two arguments violate two procedural administrative appeal rules: (1) the reviewing court cannot make its own findings of fact, and (2) the agency does not have to consider a feasible and reasonable alternative until there is a finding of impairment of natural resources. Both of these arguments require the court to review the record to determine if the ZB found impairment. If the ZB did not find impairment, the ZB is not required to determine a feasible and prudent alternative. Gen. Stat. 22a-19(b); Paige v. Town Planning Zoning Commission, 235 Conn. 448, 462-63 (1995). In effect paragraph (i) is a substantial evidence claim. A substantial evidence argument is procedural and not environmental. The court finds that reason 12(i) is procedural not environmental.
The court concludes that all of the eleven reasons set forth in the paragraph 12 of the plaintiffs' complaint are procedural in nature and do not rise to the level of environmental issues that a Gen. Stat. § 22a-19 intervenor can raise. The court finds that the plaintiff, Karen Murphy, and the plaintiff, Save West Beach Park, are not aggrieved even as a Gen. Stat. § 22a-19 intervenors since they are not raising environmental issues with the framework of the CAM legislation. Diamond 67, LLC v. Planning and Zoning Commission of the Town of Vernon, 127 Conn.App. 634, 645, cert. denied 301 Conn. 915 (2011).
This ZB administrative appeal has been filed by the only aggrieved party, the plaintiff, William F. Polotaye, in a timely and procedurally proper manner in the Superior Court. The plaintiffs have filed a multitude of claims in this case. The Return of Record is nothing less than massive. The court spent four days on trial. A minor portion of trial involved hearing from only two witnesses concerning the subject of aggrievement. The balance of the trial was spent dealing with the various legal issues as well as managing and organizing the large Return of Record. In considering this matter one member of the Zoning Board stated "I did not really see anything in all this 25 tons of paper that made me feel that there was greater damage from the artificial turf than already exists now." Another Board Member commented on the extensive filings measuring it in the area of 5 reams of paper. The Return of Record in this file is over 12 inches high and contains well over 3,000 pages, hundreds of which are printed on both sides.
Paragraph 12 of the plaintiffs' appeal alleged that the Zoning Board "in its decision erred and acted illegally" in eleven numbered subparagraphs. This court will address each of the eleven numbered subparagraphs of paragraph 12.
(a) It did not recognize that the application containing the proposal was invalidly filed and filed without proper legal authority.
(b) It has no jurisdiction to entertain the application or the proposal within it.
(c) It ignored the mandatory requirements of the Stamford City Charter in entertaining the proposal in the application.
(d) It exceeded its authority in its decision, and failed to respect its own required procedures and those required by law.
These four claims all relate to paragraph 8 of the plaintiffs' complaint: "At no time prior to and up through September 15, 2008 was the proposal referred to the Planning Board of the City of Stamford for a report." The plaintiffs claim this failure to refer and obtain a report from the Planning Board violates the Charter of the City of Stamford and is an issue of subject matter jurisdiction. The parties separately briefed the issue of subject matter jurisdiction in this case and in the companion ZBA case. The court will treat paragraphs 12(a), (b), (c), and (d) as related to the Charter issue. The plaintiffs' briefs and oral argument treated these four subparagraphs as only related to the Charter issue.
In their initial brief on this issue, the plaintiffs did not claim any lack of subject matter jurisdiction #114.00 pages 9-10, 16-20. The defendants did not defend on the basis of a subject matter jurisdiction claim. The plaintiffs' initial brief addressed this issue as follows: "The conduct of the defendant Stamford Zoning Board in entertaining the City's CAM application before referring the proposal for a report from the Stamford Planning Board renders the defendant's approval invalid. The conduct of the Zoning Enforcement Officer in granting a permit for the project before it was referred [to] the Stamford Planning Board for a report was illegal, and the Zoning Board of Appeals should have sustained the plaintiffs' appeal from the issuance of the permit." #114.00, page 20. The court notes that the same initial brief was filed in both the ZB and ZBA administrative appeals. What relief could be granted by a Superior Court in this ZB appeal when some of the wrongdoing was alleged to have been committed by a separate zoning agency, the ZBA, was not addressed by the plaintiffs' brief.
On July 20, 2010, the first day of trial, the plaintiffs noted that this claim raises a lack of subject matter jurisdiction. This court ordered further briefing on the issue. The plaintiffs' Reply Brief addresses the jurisdiction issue as follows: "The two zoning agencies lacked jurisdiction because the Charter of the City of Stamford directed that no City agency had power to act until the municipal improvement proposal which is the subject of these appeals was `referred to the Planning Board for a report.' Stamford City Charter, § C6-30-13" (#120.00, page 4).
The plaintiffs now state that this argument raises lack of subject matter jurisdiction: that the Zoning Enforcement Officer had no subject matter jurisdiction to either consider or grant the zoning permit and that the ZBA had no subject matter jurisdiction to hear and uphold the decision of the Zoning Enforcement Officer. This lack of subject matter jurisdiction also affected the power of the ZB to hear and decide the CAM application. Both parties submitted separate briefs on the jurisdiction issues prior to the completion of the trial. The plaintiffs' subject matter jurisdiction claim is that the Charter of the City of Stamford Sec. C6-30-13 was not complied with by the City and therefore there is a lack of subject matter jurisdiction.
The plaintiffs acknowledge that there is no Connecticut case supporting their claim of lack of subject matter jurisdiction. "There are no reported decisions in Connecticut that undersigned counsel can locate that state explicitly that a failure to properly refer a municipal improvement project to a Planning Board, as required by Stamford Charter § C6-30-13 or Conn. Gen. Stat. § 8-24, deprives subsequent reviewers of `subject matter jurisdiction' over the project." Plaintiffs' Subject Matter Jurisdiction Brief #124.00, page 5. The plaintiffs cite cases from Ohio, New York, Michigan and Kentucky supporting their position. The plaintiffs at oral argument did direct this court to Connecticut cases holding that compliance with Gen. Stat. § 8-24 is mandatory and failure to comply with Gen. Stat. § 8-24 invalidates its action. CT Page 19353 Trivalent Realty Co, Inc. v. Westport, 2 Conn.App. 213, 217-18 (1984); Jeschor v. Guilford, 143 Conn. 152, 158 (1956); Sheehan v. Altschuler, 148 Conn. 517, 523-26 (1961); Leoni v. Water Pollution Control Authority, 21 Conn.App. 77, 84 (1990).
The section of the Stamford Charter at issue is contained in the Public Works section of the Charter and not in the zoning section. Supplement to Return of Record #125.00. The section heading states: "Procedure for Reviewing Public Works Proposals." It was promulgated in 1953 as Special Act 619 in Sec. 523 and was amended by a November 7, 1995 referendum. The language remains more or less the same since 1953.
No action shall be taken by the City on any proposal involving the location, acceptance, widening, narrowing or extension of streets, bridges, parkways and other public ways; the location, relocation, acquisition of land for, abandonment, sale or lease of airports, parks, playgrounds and other municipally-owned properties, schools and other public buildings; the extent and location of public utilities and terminals, whether publicly or privately owned, for light, water, power, transit and other purposes; and the extent and location of public housing projects and the redevelopment, reconditioning or improvement of specific areas as defined herein above until it has been referred to the Planning Board for a report. The failure of said Board to report within sixty days after the date of official submission to it shall be taken as approval of the proposal. In case of the disapproval of the proposal by said Board, the reasons for disapproval shall be recorded and transmitted to the Board of Representatives. A proposal disapproved by the Planning Board shall thereafter only be adopted by a two-thirds (2/3) vote of the Board of Representatives.
Stamford Charter Sec. C6-30-13.
The plaintiffs claim that at no time was a formal request made to the Planning Board for approval specifically under Stamford Charter Sec. C6-30-13 by the City of Stamford and no report was ever issued by the Planning Board on this project in accordance with Sec. C6-30-13. The court has not been able to locate such a Planning Board referral or such a Planning Board report in the Return of Record of this appeal. The plaintiffs' August 16, 2010 brief contains the following statement of fact: "The defendants do not dispute that no coastal site plan application was ever submitted to the Stamford Planning Board for review and consideration." #124.00, page 3. The defendants have not pointed out to this court any such formal review or report by the Planning Board either in the Return of Record or in evidence offered at trial. The defendants do claim that this project was reviewed prior to September 15, 2008 by the Planning Board at separate hearings. The defendants make four arguments in their combined brief dated August 4, 2009 #117.00 submitted in their two consolidated administrative appeals: (1) the Stamford Planning Board reviewed and approved this project previously; (2) the language of Charter Sec. C6-30-13 does not apply to this project on city owned land that will continue to be used for the same park/recreation purposes, (3) a Coastal Management Act application is to be filed with only one agency, the Zoning Board, by statute and regulation; and (4) the Planning Board referral or report is directory, not mandatory.
No Connecticut court has discussed Stamford Charter Sec. C6-30-13 in this context. Two trial court injunction decisions affirmed by one Appellate Court decision have discussed the claim that failure to refer and obtain approval from the Planning Board was a jurisdictional defect. Both these injunction lawsuits were dismissed based on the plaintiffs' lack of taxpayer standing and Save West Beach Park's lack of classical aggrievement. Karen Murphy was a plaintiff in both cases and both cases involved the project at issue. Karen Murphy v. City of Stamford, et al., Superior Court, judicial district of Fairfield at Bridgeport, Docket Number, CV 08-4024500 S (June 9, 2008, Frankel, J.); Save West Beach Park, et al. v. City of Stamford, et al., Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV 08-4024470 S (June 9, 2008, Frankel, J.) (Both of these lawsuits sought to enjoin the City of Stamford from installing artificial turf fields at West Beach Park and claimed a violation of Stamford Charter Sec. C6-30-13); Murphy v. City of Stamford, 115 Conn.App. 675, 679, cert. denied 294 Conn. 902 (2009) (Affirming the dismissal in Murphy v. Stamford, et al., CV 08-4024500 S in a Per Curiam decision released on July 14, 2009) #117.00.
In the project involved in this lawsuit, the City wished to convert two existing grass athletic fields to two artificial turf playing fields as well as reconfigure and repave an adjacent parking lot. Return of Record #2. The Zoning Enforcement Officer issued a zoning permit on September 19, 2008 at the request of the City made after the Zoning Board approved the City's CAM application on September 15, 2008. This ZB administrative appeal involves the CAM approval. The issuance by the Zoning Enforcement Officer of a zoning permit on September 19, 2008 is not in the Return of Record in this CAM application since the CAM approval occurred four days earlier on September 15, 2008. The parties did brief these facts in this ZB appeal.
The court will now review the four arguments offered by the defendants on the issue of jurisdiction of the Zoning Enforcement Officer and the ZBA and the resulting jurisdiction by the ZB over the CAM application:
(1) "The Stamford Planning Board reviewed and approved this project previously."
The parties requested that the court consolidate these two administrative appeals for trial and further requested that a single brief be filed in both cases. There are two separate lawsuits: two separate administrative appeals before two different municipal boards. The Return of Record before the Zoning Board is massive. Counsel in their briefs and oral argument conflate the facts that are contained in both Returns of Record to the effect of creating a single Return of Record. If that is the parties' intent, it is error for this court to consider in an administrative appeal facts contained in a Return of Record presented before another administrative agency. "The court files in any actions consolidated pursuant to this section shall be maintained as separate files and all documents submitted by counsel or the parties shall bear only the docket number and case title of the file in which it is to be filed." P.B. § 9-5(c). This rule does not state that the pleadings in one file become the pleadings in the other file, when both files are consolidated. This rule does not state that Returns of Record in administrative appeals, customarily coded in by the clerk as a pleading with a designated computer pleading number, creates one single Return of Record where two administrative appeals from two different agencies are consolidated. It was imprudent for the parties to request consolidation, for the court to order consolidation and a single brief on May 9, 2009 and for this court to confirm consolidation by its own order. This court is only considering the Return of Record in this ZB administrative appeal. The information in the ZBA Return of Record is thin on the issue of how many times and on what dates the Planning Board approved this project. In its separate Memorandum of Decision in the ZBA appeal, this court quoted language from the return of record in the ZBA file. In the ZBA Memorandum of Decision the court concluded as follows: "The ZBA's Return of Record is sufficient for this court to conclude that there was substantial evidence before the ZBA that the Planning Board had approved this project and the Board of Representatives had approved this project by more than a 2/3 vote."
The court will now review the facts contained in the Return of Record in this ZB administrative appeal, and only, this ZB Return of Record. The Stamford Planning Board reviewed this matter on three separate dates; August 21, 2007, November 13, 2007 and February 5, 2008. Both financial and environmental matters were considered by the Stamford Planning Board. The Planning Board approved the project. The details of these three presentations, transcripts and supporting documents submitted by the City to the Planning Board are in this ZB appeal Return of Record. The defendants extensively briefed these Planning Board proceedings in this appeal with citations to the ZB Return of Record. #123.00 pages 8-15. Although the subject of the three Planning Board meetings involved a capital project, not a Charter Sec. C6-30-13 reference for a report, the essence of the project including its environmental components were presented to the Planning Board in considerable detail and they were reviewed, voted on and approved by the Planning Board in these three meetings well before the Zoning Board approved the CAM application on September 15, 2008.
(2) "The language of Charter Sec. C6-30-13 does not apply to this project on city owned land that will continue to be used for the same park/recreation purposes."The project did not involve the "location, acceptance, widening, narrowing, or extension of streets, bridges, parkways and other public ways." It involved adjustments to an existing parking lot, its repair, installing cross-walks, handicap parking, restriping and change of the interior configuration of traffic within an existing parking lot. The existing or proposed parking lot is not a "street, bridge, parkway or other public way." The reconfiguration and repaving of this existing parking lot does not involve "the location, acceptance, widening, narrowing or extension." From the plain language of sec. C6-30-13, that Charter section is not applicable to the parking lot improvements.
The court finds that the two athletic fields are "parks, playgrounds and other municipally-owned properties." This project did not involve the "location, relocation, acquisition of land for, abandonment, sale or lease of airports, parks, playgrounds or other municipally owned properties." It involved two existing grass soccer fields and the improvement of these two grass fields with artificial turf. The location of the two artificial turf fields were in the same location as the two grass fields. There was no relocation of the athletic fields. No land or property had to be acquired by the City of Stamford for this project. No park land was sold, leased, or otherwise conveyed or proposed to be sold, leased, or otherwise conveyed. The City of Stamford owned these two athletic fields and parking lot and the City of Stamford would continue to own these two athletic fields and parking lot after the project was completed. The two existing athletic fields were not abandoned. Their prior use was continued. Return of Record #2. From plain language of Sec. C6-30-13, that Charter section is not applicable to the turf replacement of two existing athletic fields.
(3) "A Coastal Management Act application is to be filed with only one agency, the Zoning Board, by statute and regulation."
The Coastal Management (CAM) statute requires that "Coastal municipalities shall undertake coastal site plan reviews in accordance with the requirements of this chapter." Gen. Stat. § 22a-105(a). The CAM review is not contemplated to be a public hearing and is to be conducted simultaneously with other zoning site plan reviews. The Coastal Management Act, Sections 22a-90 through 22a-111 of the General Statutes, "envisages a single review process, during which proposals for development within the coastal boundary will simultaneously be reviewed for compliance with local zoning requirements and for consistency with the policies of planned coastal management." Vartuli v. Sotire, 192 Conn. 353, 358 (1984); (Stamford CAM application); Dean v. Norwalk Zoning Commission, Superior Court, judicial district of Stamford-Norwalk of Stamford, Docket Number CV03-0193760 S (November 4, 2004, Radcliffe, J.).
Municipalities may adopt their own coastal management program. Gen. Stat. § 22a-104. Stamford has done so in Section 7.T, Stamford Zoning Regulations, Coastal Area Management Regulations, pages 7-14 to 7-16. Supplement Return of Record #125.00. Under its General Procedures 6; "The Zoning Board may at its discretion hold a public hearing on any application for coastal site plan approval." The Stamford Planning Board has no zoning site plan review authority and is not mentioned in Section 7.T of the Stamford Zoning Regulations as a reviewing board for a CAM application. Only the Zoning Board is designated by the Stamford CAM regulations as the reviewing agency. The CAM statutes contemplated that one review will occur. "The board or commission reviewing the coastal site plan shall . . ." Gen. Stat. § 22a-105(e). Stamford Charter Sec. C6-30-13 was adopted in 1953 decades before the adoption of the CAM review procedures. When CAM was approved the Stamford Charter Sec. C6-30-13 was not amended to include CAM review by the Planning Board. By state statutes and Stamford Zoning Regulations only one CAM review is required and that review is to be conducted by one agency, the Stamford Zoning Board, not the Stamford Planning Board. Vartuli v. Sotire, supra, 192 Conn. 358.
(4) "The Planning Board referral or report is directory, not mandatory."
The rules of statutory construction apply to municipal regulations and charter provisions. Arminio v. Butler, 183 Conn. 211, 217 (1981). The plaintiffs argue that Charter Sec. C6-30-13 commences with a negative term, "no Action" and the use of the word "shall," all of which combined make the charter provision mandatory. The defendants disagree and state that not all provisions of statutes that contain the word "shall" are construed as mandatory. Discover Bank v. Mayer, 127 Conn.App. 813, 817 (2011). The defendants also argue that the test for directory/mandatory has been considered and reaffirmed by a recent Appellate Court case. Weinstein, et al. v. Inland Wetlands Agency of the Town of Madison, et al., 124 Conn.App. 50 (2010). Weinstein was a consolidated appeal, in which the defendants including the Madison Inland Wetlands Agency and the property owner claim that the trial court erred in sustaining the abutting landowner's appeal "on the ground that the agency's decisions were invalidated by its alleged failure to comply with the reporting requirements of Gen. Stat. § 8-26 and § 11.5 of the Madison inland wetlands regulations." Id. 52. The owner wished to subdivide his property, which required Planning and Zoning Commission approval. Two wetlands activities were proposed. The Madison Inland Wetlands Agency held a hearing on the application, approved the two wetlands activities but failed to issue a report to the Planning and Zoning Commission. Gen. Stat. § 8-26(e) contains a reporting requirement. "The commission shall not render a decision until the inland wetlands agency has submitted a report with its final decision to the commission." Section 11-5 of the Madison Inland Wetlands Regulations also contains a reporting requirement.
If an activity authorized by the inland wetland permit also involves an activity which requires zoning or subdivision approval, a special zoning permit, variance or special exception, a copy of the decision and report on the application shall be filed by the [i]nland [w]etlands [e]nforcement [o]fficer with the . . . [c]ommission, and/or [z]oning [b]oard of [a]ppeals within fifteen days of the date of decision." This regulation requires the inland wetlands enforcement officer (officer) to file "the decision and report" with the commission within fifteen days of the agency's decision. It does not, however, mandate that the decision of the agency is rendered invalid if the officer does not adhere strictly to this time frame.
Weinstein, et al. v. Inland Wetlands Agency of the Town of Madison, et al., supra, 124 Conn.App. 56.
The Weinstein court reversed the trial court. "It is also patently clear that the time provision is designed to secure order, system and dispatch . . . Accordingly, we conclude that pursuant to the express statutory and regulatory language at issue, the agency's decisions were not invalid solely because the officer did not timely file the `decision and report.'" Id. 57.
Weinstein restated the following test:
The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words . . . Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply . . . A reliable guide in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision.
Lauer v. Zoning Commission, 246 Conn. 251, 262 (1998)
Each of the Connecticut cases cited by the plaintiffs predate the 1998 Lauer v. Zoning Commission decision. None of the cited cases conduct an analysis of why Gen. Stat. § 8-24 under the facts of that case are mandatory. The Lauer case involved a special permit issued by the Redding zoning commission. Section 5.1.2 of the Redding Zoning regulations required that a copy of the application together with all maps, plans and reports be referred by the Commission to four municipal agencies for a report: Board of Selectmen, Conservation Commission, Health Department and Planning Department. It appears that no such referrals were made nor any reports issued by these four agencies. The Appellate Court found Section 5.1.2 directory and not mandatory, it pertained to order, system and dispatch and contained no invalidation language. The court held that the Commission was the one agency designated to determine if the special permit complied with the regulations and the factors contained therein.
The plaintiffs argue that a state statute contains parallel requirements to Charter Sec. C6-30-13; Gen. Stat. § 8-24. In a discussion of the effect of a referral under Gen. Stat § 8-24 together with a CAM application, our Supreme Court has held that "The report issued by the commission therefore has no binding effect on the municipality." Fort Trumbull Conservancy, LLC v. Planning and Zoning Commission of New London, 266 Conn. 338, 348 (2003). The Fort Trumbull court also stated that the legislative intent of a CAM application is one review, not multiple CAM reviews. "If the legislature had intended that each of the applications and referrals listed in § 22a-105(b) trigger a separate coastal site plan review, it would not have included within the definition of coastal site plan each of the types of planning or zoning applications and referrals listed in §§ 22a-105(b) and 22a-93(13). Moreover, if the legislature's intent had been to require a separate coastal site plan review, it likely would have incorporated into the act specific provisions tailored to site plan approval similar to these found in General Statutes § 8-3(g), which governs site plan review generally." Id. 351. "The legislature therefore intended the coastal site plan review to be part of the planning or zoning application or § 8-24 referral and not a separate review." Id. 353.
By its terms Gen. Stat. § 8-24 is not applicable to this project. The parking lot is not "any street, bridge, parkway or other public way." Gen. Stat. § 8-24(1). The project did not "locate, relocate, substantially improve, acquire land for, abandon, sell or lease any airport, park, playground or other municipally owned property or public building." Gen. Stat. § 8-24(2). The existing athletic fields remain in the same location for the same use as already in existence. None of the other subsections of Gen. Stat. § 8-24 are applicable. The court finds that the cases cited by the plaintiffs under the authority of Gen. Stat. § 8-24 not persuasive.
Applying the Lauer test to Stamford Charter Sec. C6-30-13 the court finds: (1) there is no language expressly invalidating any action after noncompliance with the Planning Board's referral and/or reporting procedures; (2) there is affirmative language that expressly provides that if the Planning Board fails to report within sixty days after the date of official submission to it that shall be taken as approval of the proposal; (3) there is specific affirmative language that the Board of Representatives can approve a proposal after being disapproved by the Planning Board by a super majority vote of two-thirds by the Board of Representatives; (4) the Board of Representatives approved this project by more than a two-thirds vote (5) Stamford Charter Sec. C6-30-13 is designed to secure order, system and dispatch in the proceedings; (6) Stamford Charter Sec. C6-30-13 does not involve a matter of substance; (7) Stamford Charter Sec. C6-30-13 is directory, not mandatory and; (8) the failure of the City of Stamford to refer the project to the Planning Board for a review under Charter Sec. C6-30-13 does not invalidate the zoning permit issued by the Zoning Enforcement Officer, the decision of the Zoning Board of Appeals in dismissing the appeal from the Zoning Enforcement Officer nor the Zoning Board's approval of the CAM application.
Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged . . . Although related, the court's authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute. (Citations and internal quotation marks omitted.)
Amodio v. Amodio, 247 Conn. 724, 727-8 (1999).
[W]e often have recognized a distinction between subject matter jurisdiction and the proper exercise of authority to act under a particular statute . . . Whereas [s]ubject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . the authority to act refers to the way in which that power [to hear and to determine the controversy] must be exercised in order to comply with the terms of the statute . . . We have maintained that [a] court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . and, [o]nce it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. (Citations and internal quotation marks omitted.)
O'Connell v. Doody, 124 Conn.App. 1, 6, n. 9 (2010).
On the one hand, a challenge may allege that a tribunal's action exceeds its statutory authority. Such a challenge raises a jurisdictional claim. On the other hand, a challenge may allege that a tribunal's action misconstrues its statutory authority. Such a challenge raises a claim of statutory construction that is not jurisdiction.
Cantoni v. Xerox Corporation, 251 Conn. 153, 162 (1999).
The plaintiffs' claim of a Charter violation does not impact subject matter jurisdiction.
The ZB granted CAM approval on September 15, 2008. There is no evidence that the Zoning Enforcement Officer (ZEO) issued a zoning permit prior to September 15, 2008. Thus the Return of Record in this ZB case is silent on the ZEO's action. They are only relevant in the ZBA appeal. The court therefore will not consider the ZEO's statutory or regulatory actions since those events occurred after September 15, 2008.
The plaintiffs must prove the allegations of their complaint. Bridge Street Associates v. Water Pollution Control Authority, 15 Conn.App. 140, 143-44 (1988). Paragraph 12(a), (b), (c), and (d) require the plaintiffs to prove that the Planning Board was not referred this project and the Planning Board did not issue a report. This court recognized that this requires the plaintiffs to prove a negative. Charter Sec. C6-30-13 states: ". . . until it has been referred to Planning Board for a report." It is not the defendants' burden to prove that the project was referred to the Planning Board under Charter Sec. C6-30-13 and that the Planning Board issued a report, it is the plaintiffs' burden of proof to show these events did not occur. Northeast Enterprises v. Water Pollution Control Authority, 26 Conn.App. 540, 543 (1992). The court finds from a review of the court file, the Return of Record in this ZB administrative appeal and the trial evidence before this court that the plaintiffs have failed to sustain their burden of proof that this project was not "referred to Planning Board for a report." Stamford Charter Sec. C6-30-13.
For the reasons stated the plaintiffs cannot prevail on its paragraph 12(a), (b), (c), and (d) allegations.
(e) It denied the plaintiffs the right to cross-examine the applicant's agents and witnesses. CT Page 19364
At the commencement of the plaintiffs' opposition at the September 8, 2008 ZB meeting, James Fulton, the attorney who represented the plaintiffs in this appeal, attempted to ask Louis Casolo, Jr., P.E., city engineer for the City of Stamford and a witness for the City of Stamford, a question. In response to Mr. Fulton's question of Mr. Casolo, Ms. Kapiloff, the Chair of the ZB then stated: "He will address you in his rebuttal. We don't have cross conversations at our meetings." Mr. Fulton then said: "Are you not going to permit me to cross-examine Mr. Casolo?" Ms. Kapiloff, "No." Mr. Fulton said: "Then I will proceed to another area" and then Mr. Fulton presented his opposition evidence. Return of Record #40, page 29. Mr. Fulton failed to furnish an offer of proof to the ZB either orally or in writing as to the nature of the questions that he wished asked and the information that he wished to adduce on cross-examination of Louis Casolo, Jr. State v. Gould, 127 Conn.App. 354, 360 (2011); In re Alison M., 127 Conn. 197, 223 (2011). Mr. Fulton did not request any further cross-examination of Mr. Casolo nor did he readdress this issue at any other time during the two meetings of the ZB on September 8, 2008 and September 15, 2008. He also did not make any statements concerning the information that he failed to offer and that could only be offered through cross-examination of Mr. Casolo. The plaintiffs are claiming that is an issue of first impression and requests a ruling by this court that all presenters, whether in favor of or opposed to an application before any zoning agency, are to be given full cross-examination rights in order to be apprised of all of the facts.
The plaintiffs offer the following quotation for that proposition.
"While proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence . . . nevertheless, they cannot be so conducted as to violate the fundamental rules of natural justice . . . Due process of law requires that the parties involved have an opportunity to know the facts upon which the commission is asked to act, to cross-examine witnesses and to offer rebuttal evidence. The commission could not properly consider additional evidence submitted by an applicant after the public hearing without providing the necessary safeguards guaranteed to the opponents of the application and to the public. This means a fair opportunity to cross-examine witnesses, to inspect documents presented and to offer evidence in explanation or rebuttal . . . Not to do so would deny those opposing the application the right to be fully apprised of the facts on which the board is asked to act." Pizzola v. Planning and Zoning Commission of Plainville, 167 Conn. 202, 207-08 (1974).
Pizzola did not involve any request for or denial of cross-examination. The plaintiffs claimed that "the commission acted illegally and improperly and abused its discretion in requesting from Zenga and in receiving and considering, the traffic report prepared by his chosen traffic consultant without giving the plaintiffs an opportunity to inspect the report and present rebuttal evidence of their own." Id. 204. The traffic report was submitted to the commission after the public hearing ended. Id. 206. Pizzola stands for the following proposition: "The use of such assistance, however, cannot be extended to 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." Id. 208. It does not require cross-examination of witnesses at a zoning hearing.
This quotation has been repeated in numerous administrative appeal decisions. Parsons v. Board of Zoning Appeals, 140 Conn. 290, 297 (1953) (Unsworn statement of counsel at hearing held not error. No cross-examination requested or denied); Welch v. Zoning Board of Appeals, 158 Conn. 208, 212-13 (1969) (Receipt of letter after hearing closed. No cross-examination requested or denied); Connecticut Fund for the Environment v. Stamford, 192 Conn. 247, 249 (1984) (Administrative appeal from the Stamford Environmental Protection Board and non-environmental evidence was excluded. No cross-examination was requested or denied). The court concludes that the cross-examination portion of the Pizzola quotation is dicta and is not binding on this court.
The Pizzola cross-examination quotation was developed from a 1949 Supreme Court case, Wadell v. Board of Zoning Appeals, 136 Conn. 1 (1949). St. Aedan's Church obtained a side yard variance from the Board of Zoning Appeals of the City of New Haven. The plaintiff, an abutting neighbor, appealed. The trial court's decision dismissing the plaintiff's appeal was upheld. The principal issue was whether the board exceeded its discretion in granting the variance. One procedural issue was also discussed.
"After the church had completed its offer of evidence before the board, the attorney for the plaintiffs asked to cross-examine the principal witness called by it; permission to do so was refused; and the president of the board stated, "We don't permit that." Thereafter, the president stated, "If you wish to ask questions ask them through the board." At the hearing before the court, he explained that it was the practice of the board not to permit any cross-examination of witnesses and gave as the reason that experience had shown that to do so brought about personal recriminations, finally ending in a row and usually bringing out things which had no bearing on the case." Id. 8.
The Wadell court then proceeded to consider two Connecticut cases, neither of which involved administrative appeals: Fordianis Petition, 99 Conn. 551, 561 (1923) (Contested trial to a city court judge held error to deny complete cross-examination of multiple witnesses): Bishop v. Copp, 96 Conn. 571, 575 (1921) (Jury trial in a will contest). Each of these decisions held in effect, that: "Cross-examination is the greatest aid to the ascertainment of the truth which the advocate possesses." Wadell v. Board of Zoning Appeals, supra, 136 Conn. 8.
The Wadell court then attempted to distinguish the above rule in court trials from the proceedings before zoning boards. The Wadell court, citing cases from other jurisdictions, attempted to implement a rule that quasi-judicial hearings before the zoning boards should permit cross-examination. It does not follow that the proposed rule discussed in Wadell is applicable to the matter before this court since a CAM application is considered by the ZB in its administrative capacity. DeBeradinis v. Zoning Commission, supra, 228 Conn. 198-99; Red Hill Coalition, Inc. v. Town Plan and Zoning Commission, supra, 212 Conn. 733.
Finally the Wadell court found that the invocation of the rule of the right of cross-examination would not be appropriate under the facts of the case.
"In their brief the plaintiffs claim that the purpose of the cross-examination they sought was to show that the school could be placed in other locations on the property of the church, and that placing it in close juxtaposition to the church, as proposed, would destroy the present symmetry and beauty of the buildings along McKinley Avenue. Cross-examination for the first purpose stated would not have been germane to any testimony of the witness on direct, and the claim for the second purpose loses its force in view of the statement by the plaintiffs' attorney to the board that the plaintiffs did not object to the erection of the school provided it was kept within the restrictions of the ordinance. We cannot find that the board committed harmful error in this case in refusing to permit cross-examination of the witness." Id. 10.Wadell stands for the proposition that the plaintiff must demonstrate exactly what facts they have been deprived of presenting before the zoning board through the use of cross-examination. Such a showing by the plaintiff requires an offer of proof, which the plaintiffs failed to offer in this case. Koslik v. Commissioner of Corrections, 127 Conn.App. 801, 807-08 (2011); In re Lukas K., 300 Conn. 463, 474-75 (2011).
The plaintiffs had more than ample opportunity to research, organize and present facts to the ZB. Their Verified Notice of Intervention caused the July 2008 ZB meeting to be postponed. The plaintiffs obtained a continuance of the August meeting. The City was required to present its material by September 3, 2008. The City complied with that request with 59 separate documents. Return of Record #24. Binder III is all of the City's material submitted on September 3, 2008. The City presented a Power Point presentation of the September 8, 2008 meeting. Return of Record #29. The plaintiffs had seen this Power Point presentation by the City at other venues and meetings before September 8, 2008. The plaintiffs proposed and submitted further opposition material on September 8, 2008 after the completion of the City's presentation. The ZB meeting did not conclude the CAM application on September 8, 2008. Another ZB meeting was scheduled for September 15, 2008. The City was instructed to furnish a written response to the plaintiffs' opposition by September 11, 2008. Return of Record #40, page 146. The plaintiffs offered detailed written rebuttals before the September 15, 2008 ZB meeting to the City's September 11, 2008 comments. Return of Record 31 and 35. The plaintiffs were present at the September 15, 2008 ZB meeting and actually participated in countering the City's rebuttal arguments including presenting plaintiffs' expert testimony. The plaintiffs responded to questions asked by the ZB at the September 15, 2008 meeting. The proceedings before the ZB were consistent with the usual and customary format for hearings of zoning agencies. Komondy v. Zoning Board of Appeals, 127 Conn.App. 669-79, fn.8 (2011).
Despite the language of Pizzola there is no Connecticut case that indicates that there is an absolute right of cross-examination at zoning hearings. The plaintiff has not pointed to the ZB transcripts, the Return of Record or evidence and testimony before this court of the facts that would have been brought out had Mr. Casolo been cross-examined by Mr. Fulton.
[N]ot all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown. (Emphasis added; internal quotation marks omitted.) Murach v. Planning Zoning Commission, supra, 205; accord Anziano v. Board of Police Commissioners, 229 Conn. 703, 713, 643 A.2d 865 (1994) ("a demonstration of procedural irregularities would not require us to set aside the board's decision in the absence of a showing of material prejudice"); Owens v. New Britain General Hospital, 32 Conn.App. 56, 69 n. 5, 627 A.2d 1373 (1993) ("[a]n administrative proceeding is not `tainted' by procedural irregularities unless substantial rights of the parties have been prejudiced"), aff'd, 229 Conn. 592, 643 A.2d 233 (1994).
Komondy v. Zoning Board of Appeals, supra, 127 Conn.App. 688.
There was no evidence whatsoever that the plaintiffs opposing the City's CAM application were deprived of any right to offer facts. The parties were required to submit their material well in advance of the September 8, 2008 meeting giving each party the opportunity to examine that material. The plaintiffs heard the City's presentation on September 8, 2008 and had further opportunity to prepare rebuttal by the September 15, 2008 meeting. The extensive record consisting of multiple file folders described by various ZB members as either in reams or tons belies the plaintiffs' claim that they were deprived of the opportunity to offer facts and opinions before the ZB. The "proceedings before zoning and planning boards and commissions are informal . . ." Megin v. Zoning Board of Appeals, 106 Conn.App. 602, 608 (2008). Under the circumstances of this CAM application, the ZB was correct not to permit cross-examination of Mr. Casolo. "Similarly, our Supreme Court has explained that the procedural right involved in such administrative proceedings properly is described as a right to fundamental fairness, as distinguished from the due process rights implicated in juridical proceedings." Grimes v. Conservation Commission, 243 Conn. 266, 273 n. 11 (1997). There is no blanket right of cross-examination in Connecticut by presenters before zoning agencies. State v. Shakir, 130 Conn.App. 458, 464, 468 (2011) (No right of cross examination in a violation of probation hearing, which proceedings are informal and strict rules of evidence do not apply).
(f) Its decision was inconsistent with and violative of the requirements, goals and policies of the Coastal Management Act, Conn. Gen. Stat. § 22a-90 et seq.The plaintiffs' initial brief dated June 18, 2009 touched on four arguments that could fit under the umbrella language in paragraph 12(f). #114.00
(I) "The Zoning Board did something at the outset that was to narrow the focus of its ultimate deliberations — it decided in its public notice to consider the issue of `unreasonable pollution,' and only that issue at its two meetings." #114.00, page 5.
This claim appears to be based on a phrase in the Notice of postponement of the original July 28, 2008 ZB meeting. The ZB scheduled a regular meeting for July 28, 2008 at 6:00 p.m. to consider four items: minutes approval of prior meetings, a text amendment, the Mill River CAM application, and CSPR-838, the City of Stamford West Beach Park CAM application. The Agenda stated: "CSPR-838 CITY OF STAMFORD (West Beach Park), Shippan Avenue, improvements to existing facilities at West Beach Park including installation of two synthetic turf soccer fields, parking lot reconfiguration and resurfing, site drainage, landscaping and installation of pedestrian amenities." Return of Record #8. On July 28, 2008, just before the ZB meeting, Karen Murphy and Save West Beach Park filed a Verified Notice of Intervention with the ZB. Return of Record #7. In paragraph 8 of the Verified Notice of Intervention these two plaintiffs stated: "As a result, the proposal contemplated by the Application is anticipated to have a significant adverse and unnecessary impact on and to pollute both the on-site groundwater and the waters of Long Island Sound due to site runoff that shall not achieve appropriate water quality objectives prior to discharge into Long Island Sound."
The ZB adjourned CSPR-838 due to the receipt of the Verified Notice of Intervention and rescheduled the matter to August 18, 2008. A formal Notice of this continuance was submitted at the July 28, 2008 meeting, which the plaintiffs have partially quoted in their brief. #114.00, page 5. Salient portions of the Notice of continuance are as follows: "This petition requests that tonight's meeting to discuss the application be re-scheduled to allow the petitioner to present evidence to the zoning board of unreasonable pollution to coastal resources. The Law Department has advised the Zoning Board that it must allow the Intervenor the opportunity to present evidence of `unreasonable pollution' to coastal resources caused by this project, and that we should grant the request to reschedule the meeting for this purpose." "It is important that the public know that the new meeting scheduled for Monday, August 18, 2008 will not be conducted as a public hearing. Only information (written and oral) on the petition's claim of `unreasonable pollution' will be considered at that meeting. The Zoning Board is not required to hold a public hearing under the Coastal Management Act, and the Notice of Intervention, pursuant to Section 22a-19 C.G.S. does not require a public hearing." Return of Record #9 and #12. The ZB meeting was continued from August 18, 2008 to September 8, 2008 at the request of the two intervening plaintiffs. Return of Record #14, #15, #16, #17 and #18. The two intervening plaintiffs were given until August 27, 2008 to present materials to the ZB and the City of Stamford would have until September 3, 2008 to respond in writing. Both parties provided voluminous materials in conformity with these procedures. Intervenor's Binder of Materials. Return of Record #23 (Binder II); City of Stamford Binder of Materials. Return of Record #24 (Binder III). In addition Binder I contains Return of Record #1 through #22, half of which is Intervenor's opposition material. Return of Record #10, #11, #16, #17a) through #17n), #22. The other half of Binder I is the City's CAM application and plans. Return of Record #1, #2, and #3a) through #3p). A small portion of Binder IV contains minutes, agendas and legal notices. Most of Binder IV consists of material provided by the parties at the September 8, 2008 and September 15, 2008 ZB meetings as well as the transcripts of these two meetings. The September 8, 2008 meeting transcript is 148 pages. Return of Record #40. The September 15, 2008 meeting transcript is 131 pages. Return of Record #41.
The Chair of the ZB made some comments of a procedural and administrative nature at the commencement of the September 8, 2008 meeting, the first of two lengthy meetings on the CAM application. After the Chair introduced herself she stated: "The Zoning Board will now consider application CSPR-838 coastal site plan review, application of the City of Stamford to install an artificial turf field at West Beach Park and other improvements." Return of Record #40, page 2. "This is not a public hearing, and testimony will be limited to the applicants and the intervenors, including expert witnesses testifying on behalf of the intervenors." Return of Record #40, page 2. "The procedure for tonight's meeting will be as follows. The applicant will go first. Then the intervenors who are represented by Attorney Fulton will then have the opportunity. And the applicant gets to make the final statement in rebuttal, if that's necessary." "The Zoning Board is here tonight to decide only the claim of unreasonable pollution of coastal resources on the public trust in the air and water, and consistency of the application with applicable coastal area management policies." Return of Record #40, page 3.
The court has reviewed the entire Return of Record and the transcripts of the two ZB hearings. The court concludes that the ZB heard and considered evidence on the "consistency of the application with applicable coastal area management policies." The court concludes that the ZB heard and considered the requirements, goals and policies of the Coastal Management Act, Gen. Stat. § 22a-90, et seq. The court concludes that the ZB did not limit the meeting and its consideration of the evidence submitted at either of the two meetings just to the petition's claim of unreasonable pollution. The Agenda of the three postponed meetings contained no statement that the meeting was only limited to the petition's claim of unreasonable pollution. Return of Record #20, #26, #32. The plaintiffs' attempt to take one phrase out of context cannot succeed. This is a technical argument that has not succeeded.
(II) "The plaintiff-intervenors submitted information about how artificial turf fields: Produce leachates, . . . Promote bacterial infections, . . . Have led public officials to . . . advocate further study and testing, . . . and Reach temperatures as high as 180 degrees Fahrenheit during the summer time." #114.00, page 5.
These factual arguments are improperly addressed to this court. This administrative appeal to the court prevents this court from making its own factual findings. "The court's function was to determine on the basis of the record whether substantial evidence has been presented to the commission to support its findings . . . Furthermore, a reviewing court cannot substitute its judgment as to the weight of the evidence before the commission and on factual issues material to the reasons for the commission's decision because it is within the province of the commission to determine the credibility of witnesses." Pelliccione v. Planning and Zoning Commission, supra, 64 Conn.App. 332-33.
The court will reserve discussion of these claims until paragraph 12(l) dealing with whether or not there was substantial evidence in the Return of Record to support the ZB's decision.
(III) "The following applicable `goals and policies' in Gen. Stat. § 22a-92 were never considered by the Zoning Board in its deliberations or written about in its approval of the CAM application." (1) "Dependant upon proximity to water or the shorelands." Gen. Stat. § 22a-92(a)(3); (2) "Encourage public access to the waters of Long Island Sound." Gen. Stat. § 22a-92(a)(6) and "Facilities and resources which are in the national interest as defined in Section 22a-93, and if so, whether it should be `excluded' because it may reasonably be sited outside the coastal boundary." Gen. Stat. § 22a-92(a)(10). #114.00, page 10-12.
This court will discuss these three issues in item (l); "The Zoning Board considered only the issue of unreasonable pollution and failed to consider all the other requirements of the coastal area management including the goals and policies of the coastal area management."
(IV) Two other goals and policies of CAM were never considered by the Zoning Board: "Without significantly disrupting the natural environment"; Gen. Stat. § 22a-92(a)(1) and "competing uses on the shorelands"; Gen. Stat. § 22a-92(a)(4). #114.00, pages 13-15.
This court will also discuss these two issues in item (1); "The Zoning Board considered only the issue of unreasonable pollution and failed to consider all the other requirements of the coastal area management including the goals and policies of the coastal area management."
The plaintiffs' Reply Brief dated September 21, 2009 touched on two more arguments that could fit under the umbrella language paragraph 12(f). #120.00
(V) "The Zoning Board failed to evaluate the non-environmental goals and policies of the Coastal Management Act." #120.00, pages 11-12.
This reason is a restatement of issue (III) and (IV) discussed above. This court will discuss these issues in item (l).
(VI) "The Zoning Board failed to evaluate the environmental goals and policies of the Coastal Management Act." #120.00, pages 12-15.
This is a restatement of the two of the above issues in (IV) above as to Gen. Stat. § 22a-92(a)(1) "without significantly disrupting the natural environment" and Gen. Stat. § 22a-92(a)(4) "competing uses on the shoreland." This court will discuss these issues in item (l).
(g) Its procedures and decision failed to comply with the requirements of Conn. Gen. Stat. § 7-131n.
Gen. Stat. § 7-131n is headed "Taking of land previously intended for use as park or for other recreational or open space purposes, and contains the following language: "If any municipality takes any land, for highway or other purposes, which land was purchased for park or other recreational or open space purposes . . . such municipality shall provide comparable replacement land of least equal in value of the land taken . . ." The plaintiffs are claiming that this 7.85 acres of land was taken by the City of Stamford from the City of Stamford, land that was set aside for recreational or open space use and devoted that land to another use. The plaintiffs argue that the language: "Other recreational or open space purposes" applies to this CAM application. The plaintiffs further argue that the taking of land with grass and devoting it to artificial turf fields prevents the public from using that grass area for a picnic, walking or other open space pursuits. The plaintiffs claim that the artificial turf fields can only be used for soccer, football or rugby. The plaintiffs claim that the use of West Beach Park changed and under Gen. Stat. § 7-131n a hearing was required; "provided before such municipality takes such land for highway or other purposes it shall hold a public hearing." They claim there was no public hearing when the grass turf was changed to artificial turf, thus this was a taking in violation of Gen. Stat. § 7-131n.
The evidence in the Return of Record, which the court examined, demonstrates that previous to the CAM application that section of West Beach Park contained many athletic fields, all covered in grass. At all times, before and after the CAM approval, the 7.85 acres was and is owned by the City of Stamford. After the CAM application was approved, the City of Stamford obtained the necessary capital and financial approvals in order to make these improvements. The CAM appeal did not stay the construction of the improvements and the plaintiffs did not obtain an injunction to stop their construction. No one testified that the land could not be used in the same park fashion as it was previously to CAM application. The park was being used for park and recreational purposes before September 15, 2008 and continued to be used for park and recreational purposes thereafter. The narrow construction offered by plaintiffs on Gen. Stat. § 7-131n has not persuaded this court that the statute is applicable. The court heard no evidence and the record contains no evidence that the artificial turf soccer fields, when soccer games are not being played, cannot be used for dog walking, softball, flag football, kite flying, frisbee tossing, walking, wiffleball, ultimate frisbee, tag, duck duck goose, double dutch, running or passively admiring the scenery. Return of Record #41, page 72. Return of Record #23, Exhibit 47, pages numbered 71 and 85. The plaintiffs' brief #114.00, page 4, outlines other non-soccer uses of the two grass fields. The plaintiffs incorrectly state that the "proposed artificial turf fields were slated for and restricted to one use and one use only-soccer." #114.00, page 4. There is no such limitation in the record. Return of Record #40, page 17; Return of Record #23, Exhibit 47; pages numbered 71 and 85.
Prior to the CAM application the 7.85 acres was used for "park or other recreational or open space purposes." That portion of Gen. Stat. § 7-131n has been satisfied. The City of Stamford is a "municipality." That portion of Gen. Stat. § 7-131n has been satisfied. There is no evidence that the City of Stamford conducted a public hearing. The 7.85 acres is conceded to be "land" for the purpose of Gen. Stat. § 7-131n. Therefore, the only issue is whether the City of Stamford "takes any land." The plaintiffs have the burden of proof to demonstrate that the portion of the land formerly used for athletic fields and now used for athletic fields constitutes a "taking" when the covering of those existing athletic fields changes from natural turf to artificial turf.
The plaintiff briefs are silent on any case authority that so defines a "taking." #114.00, pages 23-24, #120, pages 21-23. The plaintiffs are left with the argument that with grass turf, the fields were used for sledding, cross-country skiing and football and others who do not bring a soccer ball with them. There is no evidence in the Return of Record nor provided at trial that the athletic fields will be limited to only soccer. The plans in the Return of Record demonstrates the contrary.
No Connecticut trial courts or appellate courts have discussed Gen. Stat. § 7-131n. A similar statute was discussed upon a reservation of eleven questions to the Supreme Court involving portions of two city public parks being taken for state highway purposes under Gen. Stat. § 7-131j. Meriden v. Highway Commissioner, 169 Conn. 655, 656 fn.1 (1975). The change of turf on an existing athletic field bears no resemblance to governmental takings in eminent domain condemnation, inverse condemnation or zoning taking matters. Commissioner of Transportation v. Isis Realty Associates, 121 Conn.App. 13-19 (2010); Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 211-14 (1998); Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 298-99 (2008); Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 151 (1976).
The plaintiffs have stretched Gen. Stat. § 7-131n well beyond its bounds. The plaintiffs have failed to sustain their burden of proof as to paragraph 12(g).
(h) It relied in its deliberations and decision making upon its own inquiries outside the record, which it had never shared with the intervenors, any of the plaintiffs, anyone who appeared before the Board or the public.
[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly. (Internal quotation marks omitted.) Turner v. American Car Rental, Inc., 92 Conn.App. 123, 130, 884 A.2d 7 (2005). "[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited . . . [A]ssignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims." (Internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 634-35, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). Briefs submitted to this court require rigorous research and analyze the facts in support of a claim or argument when it has not been briefed adequately. For this reason, we decline to review the claim.
Mundell v. Mundell, 110 Conn.App. 466, 478 (2008).
This rule of abandonment applies to trial courts in administrative appeals. Connecticut Light and Power Company v. Department of Public Utility, 266 Conn. 108, 120-21 (2003).
This reason was stated in paragraph 12(h) of the plaintiffs' Complaint. The plaintiff offered no evidence on this subject at trial, made no oral argument at trial and failed to include this argument in their briefs. The plaintiffs may have explicitly abandoned this claim at oral argument. The court treats this claim as abandoned. The plaintiffs cannot prevail on paragraph 12(h).
(i) It approved a proposal that was reasonably likely to impair the public trust in the air, water, or other natural resources of the State in lieu of a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.There are two claims set forth in this one sentence: (1) the Zoning Board failed to consider a feasible and prudent alternative to the artificial turf athletic fields and (2) the Zoning Board failed to consider and mention each and every one of the policies and requirements, policies and goals of CAM. This second claim appears to be restated in paragraph (j): "The reasons given by the Board in its decision were erroneous."
The general rule for a Superior Court review of a CAM appeal is as follows:
Our review of the board's approval of the defendants' application for the coastal site plan review is guided by DeBeradinis v. Zoning Commission, 228 Conn. 187, 635 A.2d 1220 (1994).11 In that case, our Supreme Court held that "[c]onclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record . . . 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 . . . The action of the commission should be sustained if even one of the stated reasons is sufficient to support it . . . The evidence, however, to support any such reason must be substantial . . . 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." (Citations omitted; internal quotation marks omitted.) Id., 198-201; see also Pinchbeck v. Planning Zoning Commission, supra, 69 Conn.App. 800 (proper standard of trial court review of coastal site plan is whether decision supported by substantial evidence). When the zoning body fails to state reasons for its decision on the record, the reviewing court has a duty to search the entire record before it to find a basis for the board's decision. Gagnon v. Inland Wetlands Watercourses Commission, 213 Conn. 604, 608, 569 A.2d 1094 (1990).
Hescock v. Zoning Board of Appeals of Stonington, 112 Conn.App. 239, 248-50 (2009).
The court will review the substantial evidence claims including the reasons stated by the ZB for its decision on the record and this court's search of the entire Return of Record in paragraph 12(k) of this Memorandum of Decision. In paragraph 12(k) the plaintiffs claim: "The findings and decision of the Board were not supported by sufficient evidence."
The court will now consider the first portion of paragraph 12(i); (1) the Zoning Board failed to consider a feasible and prudent alternative to the artificial turf athletic fields. The plaintiff's complaint alleges the feasible and prudent alternative claim paragraph 12(i) and in the plaintiffs' first brief dated June 18, 2009. #114.00, pages 15-16.
The Coastal Management Act is found in Chapter 44, Gen. Stat. § 22a-90 through 22a-111. Gen. Stat. § 22a-19 is applicable to an agency hearing CAM applications, despite the fact that it is contained in the general sections of Title 22a. The statute is headed "Administrative proceedings." It is Gen. Stat. § 22a-19(b) that mentions feasible and prudent alternative.
In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect as long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.
Gen. Stat. § 22a-19(b).
The ZB in conducting its review and consideration of the City of Stamford's CAM application was bound by Gen. Stat. § 22a-19(b). Karen Murphy and Save West Beach Park have intervened in this ZB administrative proceeding under Gen. Stat. § 22a-19. As intervenors they must assert "That the proceedings or actions for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." Gen. Stat. § 22a-19(a). "By its plain terms, General Statutes § 22a-19(b) requires the consideration of alternative plans only when the commission first determines that it is reasonably likely that the project would cause unreasonable pollution, impairment or destruction of the public trust in the natural resource at issue." Paige v. Town Planning and Zoning Commission, supra, 235 Conn. 462-63. "We agree with the court that once the commission made no finding of unreasonable impairment of natural resources, it no longer had an obligation to consider alternative plans." Evans v. Plan and Zoning Commission, 73 Conn.App. 647, 658 (2002).
Neither brief filed by the plaintiffs point out a finding by the ZB of "unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state . . ." Gen. Stat. § 22a-19(b). The plaintiffs have not demonstrated where in the Return of Record such a finding is contained. The court has examined the Return of Record and cannot locate any finding by the ZB of such "unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state." Neither the formal decision letter, the minutes nor the transcript contain any such finding. Return of Record #36, #39 and #41. The evidence and opinions offered by the plaintiffs before the ZB as to such impairment was contested by the defendants. Return of Record #17j, page 22. Return of Record #34, Exhibit C. Such evidence offered by one party in a contested administrative appeal does not rise to the level of a finding of impairment by a zoning board. So too comments by a dissenting member do not rise to the level of a finding by the entire ZB of such "unreasonable pollution impairment or destruction of the public trust in the air, water or other natural resources of the state." Return of Record #41, pages 113-16, 124-25, 129-30. Quarry Knoll II Corporation v. Planning and Zoning Commission, 256 Conn. 674, 736, fn.33 (2001).
The plaintiffs offered the retention of the natural turf as a feasible and prudent alternative. Return of Record #17g. Return of Record #23, Exhibits 28 and 29. By not adopting that suggestion offered by the plaintiffs, the ZB rejected the continuation of the natural turf as a feasible and prudent alternative. Thus if the ZB had found impairment, which they did not, the ZB fairly considered the natural turf and rejected it as a feasible and prudent alternative. The plaintiffs therefore could not succeed on paragraph 12(i) since the ZB did not find impairment and the ZB rejected the natural turf alternative based on the facts presented at the two meetings on September 8, 2008 and September 15, 2008.
Assume that the ZB made a finding of "unreasonable pollution, impairement or destruction of the public trust in the air, water or the natural resources of the state." The plaintiffs still have the burden of proof to demonstrate that the ZB did not consider and did not reject a feasible and prudent alternative. The minutes contain deliberations and findings by members of the ZB rejecting natural turf as a feasible and prudent alternative. See comments in Return of Record #41 by Mr. Parsons, Mr. Kaufman, Mrs. Nakian and Mrs. Kapiloff, the four members of the ZB that approved the CAM application. This four-member majority of the ZB "considered all relevant surrounding circumstances and facts" and concluded that there was no "feasible and prudent alternation." Gen. Stat. § 22a-19(b). The court finds, even assuming that the record contains a finding by the ZB of impairment, that the ZB considered, deliberated and rejected natural turf as a feasible and prudent alternative to the proposed artificial turf. This court cannot substitute its judgment on the facts found by an administrative agency.
The plaintiffs have failed to sustain its burden of proof on paragraph 12(i)(1): The ZB failed to consider a feasible and prudent alternative to the artificial turf athletic fields.
The court will now consider the second portion of the plaintiffs' claim in paragraph 12(i)(2): The Zoning Board failed to consider and mention each and every one of the requirements, policies and goals of CAM. The plaintiffs make this claim in their first Brief: "The Board should have deliberated and written about these applicable issues and policies . . ." #114.00, page 12. The plaintiff's complaint fails to allege this claim. Despite briefing this issue the plaintiffs failed to amend their complaint. The plaintiffs' failure to allege this itemization claim in its complaint is a waiver of that claim before this court. Mundell v. Mundell, supra, 110 Conn.App. 478.
Despite the fact that this court has concluded that the plaintiffs have waived the itemization claim, the court will consider this claim. The CAM statutes requires: "A municipal board or commission, approving, modifying, conditioning or denying a coastal site plan on the basis of the criteria listed in subsection (b) of this section shall state in writing the finding and reasons for its actions." Gen. Stat. § 22a-106(d).
In approving any activity proposed in a coastal site plan, the municipal board or commission shall make a written finding that the proposed activity with any conditions or modifications imposed by the board: (1) Is consistent with all applicable goals and policies in section 22a-92; (2) incorporates as conditions or modifications all reasonable measures which would mitigate the adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities.
Gen. Stat. § 22a-106(e).
This statute, the other CAM statutes and the Title 22a procedural statutes do not render void a CAM decision for the agenc's failure to "state in writing the finding and reasons for its actions." The decisions of a CAM agency are bound by the general rules applicable to written decisions of other administrative agencies including zoning boards and commissions.
We conclude that the board's approval of the defendants' application for coastal site plan review is supported by substantial evidence in the record. First, we agree with the plaintiffs that the board was required to submit its findings on the application for coastal site plan review in writing. General statutes § 22a-106(e) provides in relevant part that "[i]n approving any activity proposed in a coastal site plan, the municipal board or commission shall make a written finding that the proposed activity . . . (1) [i]s consistent with all applicable goals and policies in section 22a-92; [and] (2) incorporates as conditions or modifications all reasonable measures which would mitigate the adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities." The board's failure to state its reasons in writing is not fatal, however, because, when the board fails to make written findings, the reviewing court must search the record for sufficiency of evidence supporting the board's decision. See Bishop v. Zoning Board of Appeals, 92 Conn.App. 600, 606-07, 886 A.2d 470 (2005), cert. denied, 277 Conn. 906, 894 A.2d 986 (2006).
Hescock v. Zoning Board of Appeals, supra, 112 Conn. 249.
The court will review the substantial evidence claim including the reasons stated by the ZB for its decision on the record and this court's search of the Return of Record in paragraph 12(k) of this Memorandum of Decision: In paragraph 12(k) the plaintiffs claim: "The findings and decision of the Board were not supported by sufficient evidence."
The plaintiffs argue that the ZB must consider each and every CAM factor contained in the CAM statutes and make a finding, either in writing, or on the record of each and every CAM factor. Such an itemization requirement is not found in the language of the CAM statutes. The plaintiffs have pointed to no case law that engrafts an itemization requirement on the CAM agency. The language of the statutes directing the CAM agency to perform its duties use, by and large, the word "consider." Gen. Stat. § 22a-106(b)(1) "Consider the characterization of the site . . ."; Gen. Stat. § 22a-106(b)(2) "consider the potential effects . . ."; Gen. Stat. § 22a-19(b) "considering all relevant surrounding circumstances." Other words are used giving direction to the CAM agency: Gen. Stat. § 22a-106(b)(3) "follow all applicable goals and policies . . ."; Gen. Stat. § 22a-106(e)(1) "Is consistent with all applicable goals and policies in section 22a-92." None of these phrases create a mandatory obligation for the CAM agency to itemize in detail each of the goals or policies of CAM in its written decision and then to separately detail in writing the agency's findings and reasons for each of CAM's goals and policies.
No statute requires that each of the requirements, goals and policies of CAM must be individually and specifically discussed by the CAM agency at its meeting. No statute requires that each of the requirements, goals and policies of CAM must be individually and separately contained in the agency's written decision. No statute contains a requirement that the failure to discuss and write about each and every individual CAM requirement, goal and policy renders the agency's decision void. The court finds that the CAM statutes are directory rather than mandatory when it comes to the itemization requirement the plaintiffs are claiming. Lauer v. Zoning Commission, supra, 246 Conn. 262.
Similar standards have been applied in a court's consideration of statutory criteria. A prime example is the determination of alimony and property division in dissolving a marriage. "When rendering judgment in a dissolution case, before making property distributions and financial orders, the court must consider the criteria set forth in General Statutes §§ 46b-81 and 46b-82." Wiegand v. Wiegand, 129 Conn.App. 526, 538, fn.6 (2011). "In awarding alimony, the court must consider all of these criteria . . . It need not, however, make explicit references to the statutory criteria that it considered in making its decision or make express findings to each statutory factor." Kovalsick v. Kovalsick, 125 Conn.App. 265, 271 (2010). The court need not give each factor equal weight or recount every factor in its decision as long as the decision reflects a proper consideration and a weighing of the statutory factors. See Puris v. Puris, 30 Conn.App. 443, 449-50 (1993). "A ritualistic rendition of each and every statutory element would serve no useful purpose." Kiniry v. Kiniry, 299 Conn. 308, 332 (2010). In making appointments for a conservator the state requires that the Probate Court "shall consider" the enumerated factors in Gen. Stat. § 45a-650(h). The Appellate Court ruled that the following order of the Probate Court satisfied the requirement of ruling on the statutory factors when its decision stated expressly "having considered the factors set forth in § 45c-650(h) . . ." "Within the context of the statute, the court went no further than was expressly provided by the legislature." Falvey v. Zurolo, 130 Conn.App. 243, 262 (2011). See also the court's consideration of sixteen factors in determining child custody orders in Gen. Stat. § 46b-56(a). The legislature knew how to require the itemization of statutory factors in a decision. "In determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding . . ." Gen. Stat. § 17a-112(k). Seven enumerated factors are then stated in the statute. Case law has confirmed that trial courts terminating parental rights must itemize, discuss and rule on each of the statutory factors. In re Sarah O., 128 Conn.App. 323, 332 (2011); In re Quantira M., 60 Conn.App. 96, 103 (2000); In re Sarah M., 19 Conn.App. 371, 375 (1989).
CAM has been in effect in Connecticut for well over thirty years. CAM decisions have been amply litigated. The plaintiffs have not disclosed any court decision that requires a CAM agency to itemize in its findings each and every requirement, policy and goal of CAM, with the resulting failure to do so rendering the CAM decision void. State v. Wright, 114 Conn.App. 448, 462-63 (2009); Wright Brothers Builders, Inc. v. Dowling, 247 Conn. 218, 229 (1998); Jefferson Garden Associates v. Greene, 202 Conn. 128, 144-45 (1987); Samperi v. Inland Wetlands Agency, 226 579, 596, fn.15 (1993). "(Alternatively, the plaintiffs and the cross appellant seem to imply that the agency, at a minimum, should have explicitly stated that `we find that a feasible and prudent alternative does not exist.' We see no value in requiring an inland wetlands agency to make such a ritualistic assertion that would add nothing to the reviewing court's search of the record for substantial evidence to support an inland wetlands agency's determination.")
Our Supreme Court discussed and dismissed a similar itemization claim in a West Haven Inland Wetlands Agency appeal.
They assert that, in order to manifest compliance with the statute, the agency was required, not only explicitly to consider every alternative presented at the public hearing, but also to make an explicit finding that the alternative presented by the applicant was the only feasible and prudent alternative. Because the agency never made an express finding that no other feasible and prudent alternatives exist and because the record of the agency's deliberations does not show that each and every alternative presented by the opposition at the public hearing was explicitly considered, the plaintiffs and the cross appellant argue that the trial court should not have dismissed their appeal. We disagree.
Samperi v. Inland Wetlands Agency, supra, 226 Conn. 587.
The legislative intent of CAM was to have one review to be conducted within the existing planning and zoning framework. "[W]e conclude that the text of the various sections, taken together, strongly suggests that a coastal site plan review was intended to be part and parcel of the planning and zoning application or referral that triggers the coastal site plan review, including a referral under § 8-24." Fort Trumbull Conservancy, LLC v. Planning and Zoning Commission, 266 Conn. 338, 351 (2003).
This language evinces an intent to incorporate coastal site review into the existing planning or zoning procedures for reviewing applications and referrals. If the legislature had intended that each of the applications and referrals listed in § 22a-105(b) trigger a separate coastal site plan review, it would not have included within the definition of coastal site plan each of the types of planning or zoning applications and referrals listed in §§ 22a-105(b) and 22a-93(13). Moreover, if the legislature's intent had been to require a separate coastal site plan review, it likely would have incorporated into the act specific provisions tailored to site plan approval similar to those found in General Statutes § 8-3(g), which governs site plan review generally. Id. 351
[T]his proposal allows municipalities the authority, through their existing planning and zoning to evaluate impacts of developments on their coastal resources through the site plan review. And this review is designed to be compatible with existing planning and zoning procedures. Id. 355-56
One can immediately see the practicality of the rule that a CAM reviewing agency need not make explicit written finding as to each and every statutory factor, by reading four CAM statutes: Gen. Stat. § 22a-106 Criteria and process for action on coastal site plans; Gen. Stat. 22a-91 Legislative findings; Gen. Stat. § 22a-92 Legislative goals and policies; and Gen. Stat. § 22a-93 Definitions. These nine pages of statutes written single space contain a plethora of factors.
Gen. Stat. § 22a-106 Criteria and process for action on coastal site plans, requires compliance with "other lawful criteria and conditions," an open sesame standard. This statute requires consideration of "coastal resources," as defined in Gen. Stat. § 22a-93, which in Gen. Stat. § 22a-93(7) contains fourteen separate sub-definitions. Future water-dependent development activities must be considered. The requirements of Gen. Stat. §§ 22a-92 and 22a-93 are also contained within Gen. Stat. § 22a-106.
Gen. Stat. § 22a-91 Legislative findings, contains seven general categories each with sub-considerations such as population growth, wildlife, tidal rivers, streams and creeks, urban waterfront uses and municipal and private developments.
Gen. Stat. § 22a-92 Legislative goals and policies, contains four general sections. Gen. Stat. § 22a-92(c) is only applicable to federal and state agencies. The Stamford Zoning Board is not a federal or state agency. Gen. Stat. § 22a-92(d) is only applicable to a state or federal agency that is receiving state or federal funds. Therefore, only Gen. Stat. § 22a-92(a) and (b) are relevant to this project. Gen. Stat. § 22a-92(a) outlines ten numbered general goals and policies with virtually each of the ten containing a number of activities. Gen. Stat. § 22a-92(b) contains two further lengthy subsections. Subsection (1) contains a listing of ten policies for development phrased in a general manner. Many of the ten policies contains subsections. Subsection (2) contains a listing of ten policies concerning coastal land and water resources within coastal boundaries. These ten policies in subsection (2) are different from the policies in subsection (1).
Gen. Stat. § 22a-93, the definition section, contains eighteen references. Five of these references contain a number of subsections: (7) "Coastal resources" with fourteen subsections; (14) "Facilities and resources which are in the national interest" contains ten subsections; (15) "Adverse impacts on coastal resources" contains eight subsections; (16) "Water-dependent uses" contains an unnumbered listing of a dozen considerations, and (17) "Adverse impacts on future water-dependent development opportunities" contains three or four subsections.
The court has attempted to count the number of criteria, requirements, goals and policies listed in these four statutes but has been unable make an accurate count. It appears that these four CAM statutes in the aggregate contain well over fifty separate categories, many of which by themselves are vague and contain unlimited subcategories such as "other lawful criteria and conditions" in Gen. Stat. § 22a-106.
CAM is addressed to municipal boards that are composed of community volunteers. Komondy v. Zoning Board of Appeals, supra, 127 Conn.App. 684, fn.9. In this court's opinion to require a CAM reviewing agency to discuss in every CAM meeting each of over fifty separate categories, marshal facts, expert opinions and evidence that is related to each of these separate categories, take a separate vote on each category, and then render a written finding on each of these separate categories, is to impose a Sisyphean chore on community volunteers. Clarke v. Commissioner of Correction, 249 Conn. 350, 360 (1999).
The ZB's final decision letter dated September 17, 2008 stated: "The Board found the project consistent with all applicable goals and policies set forth in the CAM Act and approved the project . . ." Return of Record #36. This stated reason in compliance with the CAM statutory procedures. This is typical of court approved CAM decisions. Bradsell v. Zoning Commission of the City of Norwalk, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number CV 92-0128105 (March 10, 1994, Lewis, J.) (The Zoning Commission's CAM decision stated that "the project complies . . . with all applicable coastal reserve and use policies").
This court concludes that the plaintiffs' claim that the ZB failed to consider and mention each and every one of the requirements, policies and goals of CAM in this application is the epitome of a hypertechnical argument. "Our Supreme Court repeatedly has enjoined us to eschew applying the law in such a hypertechnical manner that we would elevate form over substance." Thurlow v. Hulten, 130 Conn.App. 1, 10 (2011).
(j) The reasons given by the Board in its decision were erroneous.
This issue has been discussed paragraph (12)(i) above in the itemization claim and will be further discussed in the next paragraph 12(k) regarding the substantial evidence claim. The plaintiffs did not separately brief this erroneous reason claim in any of its three briefs. #114.00, #130.00 and #124.00. The court then will assume that the conclusions reached by the court in paragraph 12(i) and (k) will adequately respond to the claims of error and illegality made by the plaintiffs in paragraph 12(j).
(k) The findings and decision of the Board were not supported by sufficient evidence.
The court will treat these two claims in paragraphs 12(j) and 12(k) as a substantial evidence argument. The plaintiffs' briefs and oral argument do not indicate otherwise.
If the zoning authority's decision is reasonably supported by the evidence in the record, the reviewing court is not able to disturb that decision on appeal. Bora v. Zoning Board of Appeals of Town of Norwalk, 161 Conn. 297, 299-300 (1971). It is the role of the Superior Court, when an appeal is taken, to review the record to determine whether the zoning board acted properly in the exercise of its functions and not to substitute its judgment for the judgment of the zoning authority. DeMaria v. Planning Zoning Commission, 159 Conn. 534, 540 (1970). A court's review of a zoning decision is based on the record, which properly includes knowledge which zoning board members gain through personal observation of the site or personal knowledge of the area involved. Oakwood Development Corporation v. Zoning Board of Appeals, 20 Conn.App. 458, 460, cert. denied, 215 Conn. 808 (1990).
"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, (2004) "Evidence is sufficient to sustain an agency's finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 548 (1996).
"A 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 marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791 (1994). "Where the board states its reasons on the record we look no further." Westport v. Norwalk, 167 Conn. 151, 161 (1974). "The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision . . . In an appeal from the decision of a zoning board, we therefore review the record to determine whether there is a factual support for the board's decision, not for the contentions of the applicant." Id. 79. "Where a zoning board of appeals 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.) Moon v. Zoning Board of Appeals, 291 Conn. 16, 25 (2009).
The ZB approved the CAM application by a vote of 4-1. The ZB stated its reasons for its CAM approval in three locations in the Return of Record: The formal decision letter to the Zoning Enforcement Officer dated September 17, 2008, Return of Record #36, the minutes of the ZB for the September 15, 2008 meeting, Return of Record #39 and the transcript of the ZB deliberations for the September 15, 2008 meeting, Return of Record #41.
The formal decision letter dated September 17, 2008 Return of Record #36 states as follows:
At its meeting held on, Monday, September 15, 2008, the Zoning Board reviewed the above captioned application to construct improvements to existing facilities at West Beach Park including installation of two synthetic turf soccer fields, parking lot reconfiguration and resurfacing, site drainage, landscaping and installation of pedestrian amenities, for a property known as West Beach Park, located on Shippan Avenue, Stamford, CT. Coastal resources identified on and contiguous to the site are classified as "Beaches and Dunes," "Tidal Wetlands," "Estuarine Embayments," "Coastal Flood Hazard Areas," "Coastal Waters," "Shorelands," and "General Resource" with applicable CAM policies including "General Development."
The Board found the project consistent with all applicable goals and policies set forth in the CAM Act and approved the project, subject to the following condition:
1) Submission of a plan to monitor the drainage from the artificial turf fields for water quality, subject to the approval by Land Use Bureau Staff.
You may certify that this application has been reviewed and approved in accordance with the requirement of the Coastal Management Act and a zoning permit and building permit may be issued.
Paragraph (1) contains the only condition. There were no other conditions or modifications to the City's CAM application. Return of Record #2.
The minutes of the Zoning Board for the September 15, 2008 meeting, Return of Record #39 states as follows:
Mrs. Kapiloff announced that she was ending the evidence gathering portion of the proceedings and that the Board would now deliberate on the application, and announced that Mr. Kaufman would be seated for the deliberations.
Mrs. Cosentini remarked that she felt that natural grass was a viable alternative and was not in favor of approving artificial turf, but that she thought the other components of the project were good. She said that artificial turf would restrict use of too much of the park.
Mr. Parson said that he disagreed with Mrs. Cosentini, and that the City has tried natural turf fields and they haven't worked due to heavy usage and maintenance issues. He said that City, state and federal officials have investigated artificial turf fields and concluded that there is no risk of harm to human beings. Mr. Parson commented that the tone of some of the intervenors statements concerned him, and that a number of speakers took positions that were not defensible.
Mr. Kaufman said that he didn't think the intervenors understood the scientific literature and felt that they had not proven their argument that the artificial turf fields would have an adverse impact. He said that runoff from natural grass fields contains pollution that is probably even greater than anything coming from artificial turf.
Mrs. Nakian commented that most of the City's parks are dedicated to a particular use and that the Park Master Plan calls for two soccer fields at West Beach Park. She said the park has a history of difficulty maintaining grass fields. She said that the intervenors, in her opinion, had not made a convincing presentation that there would be unreasonable pollution, and reminded Board members that the State Health Department, Connecticut Department of Environmental Protection and Bureau of Aquaculture have all said that the artificial turf fields would be OK. Summarizing her position, Mrs. Nakian said that the benefits of the proposed turf fields are great and the risk of adverse pollution is extremely slight.
Mrs. Kapiloff noted that they had heard from the City's maintenance supervisor about the difficulties of maintaining grass and the potential pollution impacts of fertilizers and fungicides. She said that she did not think that there was a serious risk of pollution and that the City needed playable fields. Mrs. Kapiloff pointed out that it was true that the UConn football stadium field used natural grass, but that all of their practice fields receiving the heaviest use were made of artificial turf. She noted that the New York Jets football team plays all of its home games on an artificial turf field.
Mrs. Cosentini said that she thought the City should try the approach to natural turf management recommended by Mr. Osborne.
Mr. Parson commented that the Board was only considering consistency with Coastal Area Management policies, and that he did not feel that the intervenors had made their case.
Mr. Kaufman added that natural grass fields attract Canada geese which result in significant amounts of pollution. He suggested that the Board consider approving the application with a condition that the City implement a program to sample and test runoff coming from the fields.
Mrs. Kapiloff called for a motion to approve the application subject to the condition that the City implement a water quality monitoring program. Mr. Parson made the motion, seconded by Mrs. Nakian and approved by a vote of 4 to 1. (Voting in favor: Kapiloff, Parson, Nakian and Kaufman. Voting against: Mrs. Cosentini.)
The transcript of the September 15, 2008 meeting, Return of Record #41 contains no more findings or reasons than contained in the formal decision letter and minutes.
The formal decision letter states that the ZB heard the application, heard from the applicants and the intervenors, reviewed the application, reviewed the applicable CAM goals and policies, and "found the project consistent with all applicable goals and policies set forth in the CAM Act and approved the project." The ZB formal decision letter permitted the Zoning Enforcement Officer to "certify that this application has been reviewed and approved in accordance with the requirement of the Coastal Management Act and a zoning permit and building permit may be issued." Return of Record #36.
The court finds that the ZB complied with the CAM statutes in that it did "state in writing the findings and reasons for its action." Gen. Stat. § 22a-106(d). The formal decision letter, Return of Record #36, complies with this statutory requirement and contains the reasons for the ZB's actions. The court need not search the record to find the reasons for the ZB's actions.
This is a substantial evidence argument. The court cannot make its own determination of questions of fact and cannot substitute its judgment for that of the Board. The court has only a "limited scope of judicial review of zoning matters." Horn v. Zoning Board of Appeals, 18 Conn.App. 674, 676 (1989). The ZB approved the CAM application and made findings in accordance with the CAM application that the use would not unreasonably impair the public trust in the air, water or the natural resources of the state as required by Gen. Stat. § 22a-92a. The court has reviewed the record and finds that there is substantial evidence to support this reasoning of the Board. The Board's decision must be upheld. Id. 677. The defendants have briefed the salient portions of the Return of Record supporting the CAM approval in their August 4, 2009 brief. #117.00, pages 2 through 16. The plaintiffs' attorney conceded that studies have confirmed that artificial turf fields are safe. "I realize that there are some studies and some opinions that artificial turf fields are safe and fine in every way." Return of Record #40, page 127. "The presence of conflicting studies . . ." Return of Record #40, page 128. "The paper itself comes out on the side of everything is safe." Return of Record #41, page 89. "We are aware that these are certificating studies in this area." Return of Record #41, page 106.
CAM does not require that the applicant demonstrate no adverse impact on natural resources. "Without significantly disrupting either the natural environment or sound economic growth." Gen. Stat. § 22a-92(a)(1); "giving preference to uses that minimize adverse impacts on natural coastal resources." Gen. Stat. § 22a-92(a)(4); "so as to minimize damage to and destruction of life and property." Gen. Stat. § 22a-92(a)(5); "to minimize adverse impacts on coastal resources." Gen. Stat. § 22a-92(b)(1)(D); "that hazards to life and property are minimized" Gen. Stat. § 22a-92(b)(2)(F); "minimizes adverse impacts" Gen. Stat. § 22a-92(b)(2)(I): "Through the promotion of nonstructural mitigation measures" Gen. Stat. § 22a-92(b)(2)(J); "To minimize risk of spillage of petroleum products." Gen. Stat. § 22a-92(c)(1)(A); "potential adverse impacts . . . are acceptable" Gen. Stat. § 22a-106(a); "the acceptability of potential adverse impacts. Gen. Stat. § 22a-106(b); "unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." Gen. Stat. § 22a-19(a).
According to the Board's statements this was one of most intensive documented CAM application that was ever heard by the Stamford ZB. Paper upon paper has been provided to assist the ZB in its deliberations. The record indicates that the ZB members had the opportunity to review each and every single one of the documents. Many of the members indicated that they had done so prior to rendering the decision. The ZB members conducted extensively questioning at the second hearing. Return of Record #41, pages 22-112. The court spent considerable time reviewing those documents in the four days of trial. This court had full opportunity to review each and every single one of those thousands of documents. A review of those documents consumed hours and hours of both the ZB's time and the court's time.
The ZB has heard dozens of CAM applications and well knows the CAM regulations and statutes. This was a simple application in which two existing grass athletic fields were being modified to two artificial turf athletic fields along with the reconfiguration and paving of an adjacent parking lot. Despite all the briefs, despite all the paper, despite all the arguments, this was a simple CAM application. If the fields had been located further away from the coast, CAM would not apply and the plaintiffs would have had no right to file an administrative appeal. Because of the happenstance that these two athletic fields were located 1,000 feet from the waters of Long Island Sound and 700 feet from the public boat launch site located in the estuary area here the plaintiffs have been given an opportunity to raise what this court believes are a never ending series of hypertechnical arguments.
(l) The Zoning Board considered only the issue of unreasonable pollution and failed to consider all the other requirements of the coastal area management including the goals and policies of the coastal area management.The plaintiffs did not allege the above defects in their complaint. This item (l) is in addition to the eleven subsections of paragraph 12 of the plaintiffs' complaint already discussed.
In their Reply Brief the plaintiffs claim that the ZB only discussed and determined the environmental factors in CAM. The plaintiffs cite the following from the defendants' brief: "The record has ample evidence to support the Zoning Board decision that the plaintiffs did not show the two artificial turf fields would constitute unmeasurable pollution of coastal resources on the public trust in the air and water." Plaintiffs' Reply Brief #120.00, page 2 quoting from Defendants' Brief #117.00, page 2. The plaintiffs' selection of this one sentence from the defendants' brief is an attempt to misdirect the reason stated by the ZB for the approval of this application which is: "The Board found the project consistent with all applicable goals and policies set forth in the CAM Act and approved the project . . ." "You may certify that this application has been reviewed and approved in accordance with the requirement of the Coastal Management Act and a zoning permit and building permit may be issued." Formal Decision Letter of the ZB dated September 17, 2008, Return of Record #36. The court has reviewed the record and has determined that the ZB considered all the CAM requirements, goals and policies in its September 17, 2008 approval. AvalonBay Communities, Inc. v. Inland Wetlands and Watercourses Agency, 130 Conn.App. 69, 74-75 (2011).
The plaintiffs argue that the record is devoid of any evidence whatsoever of any of the following three non-environmental standards. #114.00, page 12. The court reserved discussion of these three claims in paragraph 12(f)(III).
(1) "To give high priority and preference to uses and facilities which are dependent upon proximity to the water or the shorelands immediately adjacent to marine and tidal waters." Gen. Stat. § 22a-92(a)(3).
(2) "To encourage public access to the waters of Long Island Sound." Gen. Stat. § 22a-92(a)(6).
(3) Whether the new soccer fields were among "facilities and resources which are in the national interest as defined in section 22a-93" . . . and if so, whether it should be excluded because it "may reasonably be sited outside the coastal boundary." Gen. Stat. § 22a-92(a)(10).
In addition this Memorandum of Decision reserved six other factual matters to be discussed in this item (l) some of which may be environmental in nature.
(4) artificial turf fields produce leachates;
(5) artificial turf fields promote bacterial infections;
(6) artificial turf fields have led public officials . . . to advocate further study and testing;
(7) artificial turf fields can reach temperatures as high as 180 degrees Fahrenheit during the summertime;
(8) "without significantly disrupting either the natural environment or sound economic growth." Gen. Stat. § 22a-92(a)(1).
(9) "To resolve conflicts between competing uses on the shorelands adjacent to marine and tidal waters." Gen. Stat. § 22a-92(a)(4).
Items (8) and (9) were reserved for discussion of these two issues to item (l) in paragraph 12(f)(IV). Items (4), (5), (6) and (7) were reserved for discussion of these four issues to item (l) in paragraph 12(f)(II).
The City of Stamford has owned West Beach Park for generations. If any one of the members of the ZB had no familiarity with the area of West Beach Park, a review of the CAM application and the attached maps clearly laid out the general location and the surroundings of the neighborhood of West Beach Park. Return of Record #2. Return of Record #29 first and last page Return of Record #40, pages 6-8. The CAM application shows that West Beach Park fronts on the waters of Long Island Sound and the estuary cove where the boat launching site is located. The maps offered in the Return of Record demonstrated that fact. That map contains a legend which this court used to determine the distances in this Memorandum of Decision. Such information is in the Return of Record. The map shows that the entirety of the land adjacent to the waters of Long Island Sound are currently being used as the sandy West Beach. The estuary cove portion of West Beach Park is been used for boat launching docks and moorings. Both comply with the public water access requirements of Gen. Stat. § 22a-92a-(6). The changes of grass on two athletic fields 1,000 feet from the waters of Long Island Sound to artificial turf, could not possibly alter the public access to the waters. The new parking lot on Shippan Avenue and pedestrian access ways would in fact improve public access. The entire waterfront of West Beach Park, its entire shorelands is devoted to water-dependent activities including a hurricane barrier. None of the existing water-dependent facilities would be changed by this project over 1,000 feet distant. This fact by itself is sufficient to satisfy virtually each and every requirement, goal and policy of CAM.
The ZB is not to be held to a standard in which all rationality and common sense is to be discarded in order to give credence to the arguments offered by the plaintiffs. The court believes that these nine issues are just another version of a substantial evidence claim. The court has reviewed the findings of the ZB and finds that there is substantial evidence for each of the CAM factors, both environmental and non-environmental, in the record before the ZB.
The court will now discuss each of the above stated nine claims and reference where within the Return of Record substantial evidence appears. AvalonBay Communities, Inc. v. Inland Wetlands and Watercourses Agency, supra, 130 Conn.App. 74-75; AvalonBay Communities, Inc. v. Zoning Commission, 130 Conn. 36, 53-54 (2011).
(1) "Dependent upon proximity to the water or the shorelands." Gen. Stat. § 22a-92(3), contains a general goal and policy of CAM and states "To give high priority and preference to uses and facilities which are dependent upon proximity to the water or shorelands immediately adjacent to marine and tidal waters."
The plaintiffs neither briefed nor argued the requirement of "immediately adjacent" or the other water-dependent uses that already covering the waterfront and shorelands of West Beach Park. The athletic fields at issue are not "adjacent" to the marine and tidal waters and are hardly "immediately adjacent," which means even closer. 1,000 feet is not "adjacent." Boris v. Garbo Lobster Co., 58 Conn.App. 29, 33 fn.5 (2000) No party suggested that any of the existing water-dependent uses; beach, boat launching, boat moorings and docks be either discontinued or substituted. Return of Record #2 including the maps, photographs and plans therein is substantial evidence of the proposals' compliance with Gen. Stat. § 22a-92(3). No other document, testimony, expert opinion or comment is necessary for the record to reflect compliance with Gen. Stat § 22a-92(3).
The City of Stamford has owned West Beach Park for many years and has maintained the subject athletic fields for the use of its residents and guests. The City of Stamford is a private property owner and it has the right to continue to use the park as it has in the past. As such it has a property right consistent with a goal and policy of CAM; Gen. Stat. § 22a-92(a)(6) "constitutionally protected rights of private property owners."
"While it is conceded that another goal of the act under § 22a-92(a)(3) is `To give high priority and preference to water uses and facilities which are dependent upon proximity to the water or the shore lands immediately adjacent to marine and tidal waters;' the act does not place greater emphasis upon subsection (a)(3)'s goals and policies than subsection (a)(6)'s goals and policies." Citywide Properties, LLC v. The Planning and Zoning Commission of Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV 08-4023167 S (January 6, 2010, Owens, J.T.R.); "We concluded that the trial court incorrectly assumed that the legislature intended that the preservation and enhancement of coastal resources had priority over vested property rights. Dean v. Zoning Commission, 96 Conn.App. 561, 569 (2006)." Dean-Moss Family Limited Partnership v. Five Mile River Works, Inc., 130 Conn.App. 363, 366 (2011).
The court finds there is substantial evidence in the record satisfying the CAM requirement, goal and policy of "dependent upon proximity to the water or the shorelands." Gen. Stat. § 22a-92(a)(3).
(2) "To encourage public access to the waters of Long island Sound." Gen. Stat. § 22a-92(a)(6). The evidence in the record established that the existing two athletic fields are in poor shape. One of the purposes of improving the athletic fields is to increase their use. Some security and safety is being provided by the proposal where none existed previously. The parking lot is being improved with addition of handicap parking spaces, pedestrian cross walks, traffic flow and more parking spaces. The water uses of the boat launching area, docks, moorings, water view and beach are all being preserved. Common sense dictates that a greater use of the reconfigured parking lot and increased and improved use of the two artificial turf athletic fields would attract those using those facilities and their family members and guests to use the existing water-dependent uses before, during and after any activities that take place on the two artificial turf athletic fields. Return of Record #2, page 5 and Return of Record #3, Return of Record #40, page 96.
The CAM application demonstrates that the entire waterfront is already fully developed with water-dependent uses. No one offered evidence of vacant shorefront in West Beach Park. Therefore under these circumstances Gen. Stat. § 22a-92(a)(6) can only be applicable to access to not the creation of water-dependent uses that already exist. The ZB is entitled to use its common sense and inferences to determine that this project will only increase access to the already existing water-dependent uses.
The court finds there is substantial evidence in the record satisfying the CAM requirements, goals and policies of encouraging public access to the waters of Long Island Sound. Gen. Stat. § 22a-92(a)(6).
(3) "Facilities and resources which are in the national interest as defined in Section 22a-93" and if so, whether it should be excluded because it "may reasonably be sited outside the coastal boundary." Gen. Stat. § 22a-92(a)(10). The plaintiffs briefed this claim in its first brief. #114.00, page 12 and its second brief #120.00, page 12. They only cited the language of the statutory section. No factual or legal argument was furnished. No case citing what "national interest" is under Gen. Stat. § 22a-92(a)(10) was furnished to this court. The court could find but one Connecticut case, a trial court decision, that mentions CAM's "national interest" and that case only cited the statute in footnote 2 in its entirety without any comment on "national interest." Read v. Planning and Zoning Commission, Superior Court, judicial district of New London, Docket Number 514658 (January 4, 1993, Hurley, J.) [ 8 Conn. L. Rptr. 700]. As such it would appear that this issue is of first impression.
"National interest" as contained in Gen. Stat. § 22a-92(a)(10) is followed immediately thereafter by "as defined in section 22a-93." There is no definition of "national interest" in Gen. Stat. § 22a-93 and thus the definition of "Facilities and resources which are in the national interest." is of no help. Gen. Stat. § 22a-93(a)(14). The failure of the plaintiffs to give this court sufficient authority to determine what "national interest" means, is the equivalent of the plaintiffs' abandoning that claim. Neither of the trial briefs on "national interest" contain any case citation and for that further reason, the plaintiffs have abandoned that claim. Mundell v. Mundell, supra, 110 Conn.App. 428.
In addition Gen. Stat. § 22a-92(a)(10) only relates to insuring that "the state and the coastal municipalities prove adequate planning for facilities and resources which are in the national interest." None of the ten itemized facilities mentioned in the subsections of Gen. Stat. § 22a-93(14) are included in this CAM proposal. None are mentioned in the application, Return of Record #2 or the plans, Return of Record #3. An examination of the remainder of the return of record reveals that none of these facilities or resources were "planned." The silence in the record is substantial evidence that none of these facilities were planned.
Gen. Stat. § 22a-92(a)(10)(A) reads: "May reasonably be sited outside the coastal boundary." The plaintiffs have not even hinted that the existing grass athletic fields should or could be moved to another area that is outside the CAM boundary. All parties concede that the existing athletic fields and the parking lot are within the coastal boundary and thus a CAM application must be filed. Since neither party suggested moving the fields and parking lot out of the coastal area, the plaintiffs' reliance on this subsection (10) is self defeating. The plaintiffs argued for keeping the parking lot and the two athletic fields in the same location, albeit with a grass surface to the two athletic fields.
The plaintiffs, having failed to adequately brief and argue this claim, they have abandoned it. Even if the claim is not considered abandoned, the plaintiffs have failed to demonstrate that the return of record, fairly read, does not contain substantial evidence that the CAM requirement, goal and policy in Gen. Stat. § 22a-92(a)(10) was not satisfied.
(4) Artificial turf produces leachates. The plaintiffs offered documents and arguments that a variety of chemical substances would permeate the surface of the field, leach into the soil and possibly eventually pollute the waters of Long Island Sound. Return of Record #17(d), #114.00, page 5. Return of Record #23, Exhibit 24. Defendants offered evidence that such leachates would not occur, or if it did occur would not adversely impact the public interest in the air, water and natural resources of the state. Return of Record #6, (Environmental Protection Board memo July 23, 2008 finding project consistent with CAM). Return of Record #2, pages 6, 7 and 8. Return of Record #24e, ("unlikely to result in adverse effects on ecological receptors"). Return of Record #40, pages 17-22. (Studies included in Return of Record.) Return of Record #40, pages 142-44. Return of Record #34. Return of Record #41, pages 12-16, 59, 62, 64-65, 67.
It is within the privilege of the ZB to weigh the evidence. If there is conflicting evidence in the record, the ZB is entitled to draw its own factual conclusions, which this court is powerless to overrule. Return of Record #17m, page 1, Return of Record #23, pages 5-6. In effect the plaintiffs are attempting to argue their pollution and impairment evidence de novo before this court. This they cannot do.
The court finds that there is substantial evidence in the record to satisfy the CAM requirements goals and policies of protecting the public interest in the air, water and natural resources of the state from pollution, impairment and destruction in regards to artificial turf producing leachates. Gen. Stat. § 22a-92(a)(1).
(5) Artificial turf promotes bacterial infections. Both sides offered evidence and testimony at the ZB hearings supporting their respective positions. #114.00, page 5. Return of Record #41 pages 64-65, 67. The plaintiffs' documents in the record do not support this claim. Return of Record #23, Exhibit 6 is a list of titles of studies. The studies themselves were not provided in the record just their titles. Return of Record #23, Exhibit 27 is a 31-page promotional material prepared by a natural turf purveyor. The copy in the file was stapled shut. The pagination of this material appeared to be out of order such that pages 10 and 23 are on the same page in the Return of Record. The court could not locate the plaintiffs' cited phrase of "microbial system" on page 23 of this publication where bacteria is discussed. The other statements on page 23 are not supported by scientific studies or data. The court has found such a "microbial system" quote in Return of Record #23, Exhibit 7 page 3 and Return of Record #34, Exhibit YY.
This is not a claim that should be argued to this court de novo. This is a substantial evidence issue. The defendants offered evidence of lack of bacterial infection. Return of Record #24, Exhibits bb, dd, ff, ii, and jj. The ZB was free to accept that evidence.
The court finds that there is substantial evidence in the record to satisfy the CAM requirements, goals and policies of protecting the public interest in the air, water and natural resources of the state from pollution, improvement and destruction in regards to artificial turf promoting bacterial infections. Gen. Stat. § 22a-92(a)(1).
(6) Artificial turf fields have led public officials to advocate further study and testing.
The ZB had substantial evidence before it that the requirements, goals and policies of CAM were complied with by this application. The court has already found that fact.
The defendants, by focusing on the argument that certain public officials called for further study and testing of artificial turf athletic fields, was required to defeat a strawman. The record reflects that indeed public officials have requested further studies and testing. Return of Record #23, Exhibits 16 and 17, Return of Record #17K. The defendants have failed to disprove that fact. The plaintiffs having succeeded in proving that certain public officials have requested further study and testing, have not shown that one of these public bodies was the defendant, the Stamford Zoning Board. The mere fact that others have requested further study and testing, albeit public officials, is not proof that any of the CAM requirements, goals and policies were violated by this application. It is not a CAM requirement, goal or policy that all public officials agree on the safety of artificial turf before a CAM application can be approved.
Return of Record #23, Exhibit 6 is an August 7, 2008 three-page letter from Congresswoman Rosa L. DeLauro to the United States Consumer Product Safety Commission. The letter considered the safety of children playing on the artificial surface. The letter was written in response to a report released by the Consumer Product Safety Commission (CPSC), which appeared to be favorable to the use of artificial turf athletic fields. Congresswoman DeLauro quotes that CPSC report as "issuing the message that synthetic turf fields are `OK to Install, OK to Play on.'" If anything, this August 7, 2008 letter conveys the message that artificial turf fields have been declared safe by a leading governmental agency. Return of Record #24, Exhibit W.
Return of Record #23, Exhibit 17 is an August 19, 2008 two-page press release issued by the Connecticut Attorney General's Office. It quotes from the same CPSC report. The CPSC report was not furnished to the ZB and is not in the Return of Record.
The plaintiffs' claim in (6) is a strawman argument and even if proven does not defeat the substantial evidence finding already made by this court.
(7) Artificial turf can reach temperatures as high as 180 degrees Fahrenheit during the summertime. Mr. Casolo, when mentioning this issue in his presentation on behalf of the defendants, questioned whether this is a CAM goal, requirement or policy. "With all due respect. I don't know if temperature falls within your board's purview." Return of Record #40, page 22. This court agrees with Mr. Casolo that the temperatures of the surface of the artificial turf field in the summertime reaches temperature that prevent bare feet from using the field. Return of Record #40, page 23. Return of Record #41, page 16. For example, on the day that the artificial turf field would reach 180 degrees Fahrenheit, no bare footed person would be able to cross the sands of West Beach to enter the waters of Long Island Sound. Dudley Moore in the movie "Ten" conclusively established that fact, a fact known to everyone who is of walking age. The record is silent on the effect on the waters and shorelands of the 180 degree surface temperature located 1,000 feet away. Return of Record #40, page 54. Surely, the very hot artificial turf would heat the air close to the surface and some of that heated air may eventually find its way to the shore. It is speculation as to what the air temperature of that heated air would be at the time it arrived at the shore. Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 557-59 (2011). The plaintiffs submitted a study demonstrating surface temperatures as high as 127 degrees Fahrenheit resulting in ambient air temperature no higher than 80 degrees Fahrenheit. Return of Record #23, page 2. The ZB had substantial evidence to conclude that high surface temperature of artificial turf would not result in high ambient air temperatures at that location. There was no evidence that heating air to 180 degrees is dangerous to the air itself or any of its molecules. Return of Record #41, page 16-19, Return of Record #23, Exhibit 23 pages 4 and 5. There is no evidence in the record of any effect this heated air would have on any other natural resources. Return of Record #40, page 23-24, Return of Record #34, Return of Record #41, pages 16-19.
The plaintiffs have established that artificial turf athletic fields have higher surface temperatures than grass fields. Return of Record #23, Exhibits 7, 8, 9, 10, 11, 13, 14, 15, 18 and 27. The evidence in the record demonstrates that grass fields also have higher temperatures than the surrounding air temperature in the summer time. The evidence in the record mentions temperatures on the surface of artificial turf fields much lower than 180 degrees Fahrenheit. Return of Record #40, page 69. Return of Record #41, pages 52-53. The above mentioned documents address only one effect from the high surface temperatures; that the artificial turf fields cannot be used at these times. The inability of athletes to use the field during periods of high temperatures is not a requirement, goal or policy of CAM. Decrease or increase of public access to existing non-water dependent uses is not a requirement, goal or policy of CAM.
The court finds that the safety of a participant on an artificial turf athletic field from high temperatures over and above the temperatures usually found on natural grass on that same day is not a CAM goal, policy or requirement. The plaintiffs have failed to cite any authority that it is.
There are many public concerns with replacing grass turf with artificial turf that have no bearing on CAM application: aesthetic appearances, higher use, use by those who did not previously use the natural grass athletic fields, installation costs, and maintenance costs. Return of Record #23, Exhibit 15, page 1. Return of Record #24, Exhibit i (San Francesco). Return of Record #40, pages 8-9. In this light the safety of those who use the artificial turf field is not a CAM consideration. Nor would the respective benefits and detriments of a grass versus artificial field be a CAM consideration such as turning ability, skin burns after falling, ankle and knee problems when turning or changing directions and the surface temperatures on a hot day.
The court finds that the surface temperature of the artificial turf field versus the surface temperature of a natural grass field is not relevant in a CAM application.
(8) "Without significantly disrupting either the natural environment or sound economic growth" Gen. Stat. § 22a-92a(1). This entire statute section reads: "To insure that the development, preservation or use of the land and water resources of the coastal area proceeds in a manner consistent with the capability of the land and water resources to support development, preservation or use without significantly disrupting either the natural environment or sound economic growth." Gen. Stat. § 22a-92(a)(1).
The plaintiffs argue that: "The applicants' proposal in this case significantly disrupts the natural environment because it replaces over four (4) acres of that natural environment (soil) with 600,000 pounds of tire crumb artificial turf from shredded used tires." #114.00, page 13. The plaintiffs' argument on Gen. Stat. § 22a-92(a)(1) ends with that statement. The record does reflect that the existing natural grass and the turf that it grows on would be removed and artificial turf installed in its place. The area of the two athletic fields is 187,000 square feet, approximately four acres. The plaintiffs have established these facts and nothing in the record disputes these facts. Still the artificial turf is built on existing soil. If removal of soil, any amount of soil was prohibited by CAM, the statute would so state. Any construction on land would remove some amount of soil. The removal of soil by itself cannot be the significant disruption of the natural environment contained in Gen. Stat. § 22a-92(a)(1). The plaintiffs have cited no legislative history nor case law to support this argument. The top 6 inches of soil would be removed. There was substantial evidence before the ZB that the "soil" being removed was actually contaminated and very little actual uncontaminated soil would be removed. Return of Record #23, Exhibits 31, 32, 38, 43 (June 30, 2008 letter). Return of Record #24, Exhibit d, page 2. Return of Record #24, Exhibit b Planning Board 11/13/07 transcript.
The plaintiffs failed to offer any other concrete examples of facts of significant disruption. The closest evidence of any other disruption was the drainage from the artificial fields. The defendants presented a full and complete designed drainage system. Return of Record #5 and 6. Return of Record #40, pages 12-13. Return of Record #3. The new drainage system was one of the major improvements offered by this project. Return of Record #3 demonstrated the drainage system with pipes, manholes and other appurtenances. Mr. Casolo testified that the drainage system would solve the ponding and poor drainage that was occurring on the grass athletic fields. Return of Record #40, page 14. This was supported by expert testimony. Return of Record #41, pages 26-36. Return of Record #29, Power Point presentation. The plaintiffs disagreed and offered opposition testimony attempting to demonstrate that various chemicals would cause leachates from the tire crumbs athletic field to drain into and pollute in the waters of Long Island Sound and affect the marine life in the waters and shorelands. Return of Record #16, Return of Record #10. The defendants offered rebuttal evidence. Return of Record #23, Exhibit 24. Return of Record #17(d). Return of Record #24, Exhibit CC. Return of Record #24, Exhibit Z, Return of Record #24, Exhibit h.
The ZB was entitled to find the defendants' presentation more persuasive. The court finds that this is a substantial evidence argument. The court finds that there is substantial evidence in the record to satisfy the CAM requirements, goals and policies in regards to the drainage for this project. Return of Record #23, Exhibit 42, (February 21, 2008 letter). The court finds that there is substantial evidence in the record that the project would not significantly disrupt the natural environment.
(9) "Competing uses on the shoreland." Gen. Stat. § 22a-92(a)(4). The plaintiffs take this CAM requirement, goal and policy out of context and place the competing uses as the natural grass surface of the athletic fields as opposed to the proposed artificial turf surface. Return of Record #40, pages 89-94. "To resolve conflicts between competing uses on the shorelands and adjacent to marine and tidal waters by giving preference to uses that minimize adverse impacts on natural coastal resources while providing long term and stable economic benefit." Gen. Stat. § 22a-92(a)(4). There are three separate thoughts in this statutory subsection.
(A). It must be uses on shorelands adjacent to marine and tidal waters. (B). It must minimize adverse impacts on natural coastal resources and (C). There must be economic benefits. None these three thoughts require the comparison of natural versus artificial turf.
First, the court finds that the use in question under Gen. Stat. § 22a-92(a)(4) must be very near to the water., i.e., "on the shorelands and adjacent to marine and tidal waters." The two athletic fields are 700 feet distant from the estuary cove and 1,000 feet away from the waters of Long Island Sound. They are not "adjacent to marine and tidal waters." Thus for that reason alone a quick glance at the CAM application and its supporting maps in Return of Record #2 and 3, satisfies this CAM requirement, goal and policy.
Second, there must be consideration of economic benefits. The presentation by Mr. Casolo before the ZB offered substantial evidence that the artificial turf is economically more beneficial than the natural grass surface. Return of Record #40, page 8. Return of Record #29.
Finally, there is the standard of "minimize adverse impacts." Case law defines that consideration as locating a non-water dependent use in areas suitable for water dependent uses. Logic, without need for any further evidence, indicates an existing athletic field located 1,000 feet from a public beach and 700 feet from public boat launching area is not a water-dependent use and unless a canal is dug connecting the two, can never be a water-dependent use.
"Further, the CCMA requires the minimization of adverse impacts on future water-dependent development opportunities and activities. Such adverse impacts are defined to include locating non-water-dependent uses at sites that are physically suited for water-dependent uses for which there is reasonable demand or have been identified for water-dependent uses in the plan of development of the municipality or the zoning regulations." Boris v. Lobster Co, Inc., 58 Conn.App. 29-33 fn.5 (2000).
For all these reasons the court finds that there is substantial evidence in the record to satisfy CAM requirement, goal and policy of competing uses in the shorelands. Gen. Stat. § 22a-92(c)(4).
It is well settled in Connecticut that the decisions of zoning authorities are afforded great deference, and they are to be overruled only when it is found that the authority had not acted fairly, with proper motive and upon valid reason. McMahon v. Board of Zoning Appeals, 140 Conn. 433, 438 (1953); Mallory v. West Hartford, 138 Conn. 497, 505 (1952). "Where it appears that an honest judgment has been reasonably and fairly exercised after a full hearing, courts should be cautious about disturbing the decision of the local authority." McMahon, supra, 140 Conn 438; Kutcher v. Town Planning Commission, 138 Conn. 705, 710 (1952). "Moreover, courts grant an agency particular deference when it has expertise in a given area and a history of determining factual and legal questions similar to those at issue." Celentano v. Rocque, 282 Conn. 645, 653 (2007); see also MacDermid, Inc. v. Dep't of Environmental Protection, 257 Conn. 128, 139, 778 A.2d 7 (2001)." Ethics Commission v. Freedom of Information Commission, 302 Conn. 1, 20 (2011).
The Zoning Board administrative appeal filed by the plaintiffs is hereby dismissed.