Opinion
MMXCV156013233S
08-04-2016
Premier Partners & Associates, LLC v. Planning and Zoning Commission of the Town of Cromwell
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward S. Domnarski, J.
The plaintiff, Premier Partners & Associates, LLC, (Premier) submitted applications for a subdivision, a special permit, and site plan approval to the defendant, Planning and Zoning Commission of the Town of Cromwell (Commission), to permit development of two parcels of land located at the intersection of Court Street and Shunpike Road. The proposed development consisted of three office buildings, an existing house, and two multifamily apartment buildings. The two apartment buildings would be three stories high and each would contain twenty apartment units. The plaintiff requested the Commission to modify the landscape buffer requirements contained in the regulations. The regulations suggested a fifty-foot buffer and the plaintiff proposed a seventeen-foot landscaped buffer. On February 3, 2015, the Commission denied all three applications.
Premier timely filed an appeal from the denial of all three applications. The defendant has not contested any procedural issues in either its brief or argument. From the evidence presented at a hearing held on June 15, 2016, the court finds that the plaintiff is aggrieved.
The plaintiff, in its initial brief, argued that the Commission's refusal to modify the landscape buffer was illegal, arbitrary, and an abuse of its discretion. In its brief, the Commission first argued that the Commission properly denied Premier's special exception application, and also argued that the Commission properly denied the requested modification to the landscaper buffer requirement. In its reply brief, Premier argued that there was not substantial evidence before the Commission to deny the special permit. The court has carefully reviewed the record, the briefs, and arguments of counsel. Although the Commission gave as its second reason for denial the failure of the special permit application to meet the special permit requirements of the regulations, the court chooses to address that reason first.
STANDARD OF REVIEW
" General Statutes § 8-2(a) provides in relevant part that local zoning regulations may provide that certain . . . uses of land are permitted only after obtaining a special permit or special exception . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values . . . The terms special permit and special exception are interchangeable . . . A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values . . . An application for a special permit seeks permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district . . . When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity . . . [Its] function . . . [is] to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply . . . [The Appellate Court has] observed that the nature of special [permits] is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site . . . Review of a special permit application is inherently fact-specific, requiring an examination of the particular circumstances of the precise site for which the special permit is sought and the characteristics of the specific neighborhood in which the proposed facility would be built." (Citations omitted; internal quotation marks omitted.) Meriden v. Planning and Zoning Commission, 146 Conn.App. 240, 244-45, 77 A.3d 859 (2013).
" [C]ourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . The trial court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board's] findings . . . [E]vidence 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 . . . Where the board states its reasons on the record we look no further . . . More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons . . . We, in turn, must determine whether the court properly concluded that the board's decision to [deny the application for a special permit] was arbitrary, illegal or an abuse of discretion . . . The evidence, however, to support any such [decision] must be substantial . . ." (Citations omitted; internal quotation marks omitted.) Oakbridge/Rogers Avenue Realty, LLC v. Planning & Zoning Board, 78 Conn.App. 242, 247-48, 826 A.2d 1232 (2006).
" In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule . . . The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] . . . 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 . . . 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 commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 427, 941 A.2d 868 (2008), quoting Meriden v. Planning and Zoning Commission, supra, 146 Conn.App. 240.
DISCUSSION
In its second reason for denial of the special permit application, the Commission stated: " it fails to meet the criteria contained in Section 8.7.E numbers 1, 2 and 3(1) and (2) of the Zoning Regulations." ROR 98. Those specific sections of the regulations are as follows:
8.7.E. Special Permit Criteria
1. Compatibility with the Plan of Conservation and Development.
That the proposed use is consistent with the current Cromwell Plan of Conservation and Development.
2. Suitable Location for Use.
The location and size of the site, the nature and intensity of the operations involved in or conducted in connection with the use, and the location of the site with respect to streets giving access to it are such that the use shall be in harmony with the appropriate and orderly development in the district in which it is located and shall promote the welfare of the Town.
3. Appropriate Improvements.
(1) The design elements of the proposed development will be attractive and suitable in relation to the site characteristics, the style of other buildings in the immediate area, and will enhance the existing and probable future character of the neighborhood in which the use is located.
(2) The location, nature and height of buildings, walls, and fences, planned activities and the nature and extent of landscaping on the site will be such that the use shall not hinder or discourage the appropriate development and use of adjacent land and buildings or impair the value thereof. ROR 102 p. 176.
The proposed development is located at the intersection of Shunpike Road and Court Street and consists of approximately 5.3 acres. The entire development lies in a Local Business (LB) Zone. Multi-family dwelling units, such as the proposed apartment buildings, are allowed only by special permit. It is apparent from the transcript of February 3, 2015 meeting, at which the Commission deliberated and rendered decisions on the applications, that the commissioners were not in favor of the proposed apartment buildings located on the commercial development site. The common theme expressed by the commissioners was that the apartments were not appropriate for this area. The task for the court is to determine if there is substantial evidence in the record to support denial of the special exception application for failing to meet the criteria contained in the specified zoning regulations.
8. 7. E.1, Compatibility with the Plan of Conservation and Development
Several commissioners stated that the proposed development did not comply with the plan of development. At the public hearing held on October 21, 2014, a member of the public, Pete Hanson, maintained that the proposal did not comply with the Plan of Development. He stated that the Plan of Development indicated that the parcels in the north end of town, where this site is located, be used as a business park. He also noted that the plan did not call for residential development in the business park area. ROR 105, p. 33-35. The court has carefully reviewed the Plan of Conservation and Development. ROR 104. The Plan of Conservation and Development did propose a premium business park in the largely undeveloped northern section of the town, in the vicinity of the proposed development. ROR 104, p. 28. There is no mention of higher density multifamily buildings in this business park area. The plan did recognize the need for a mixed commercial use where " higher density multifamily buildings might be acceptable in a 'commercial business' mixed use zone." ROR 104, p. 28. There are mixed used commercial zones proposed in the plan, but they do not include the area of the proposed development. See maps in ROR 104, p. 27, 30. Since the Plan did not propose multifamily residential buildings in the general project area, the proposed project is not consistent with the plan. This lack of consistency with the Plan of Development amounts to substantial evidence upon which to deny the special permit based upon section 8.7.E.1.
8.7.E.2, Suitable Location for Use
As stated, the property is in a LB local business zone and it abuts a R-25 zone. The purpose of the R-25 zone is " [t]o cover those areas of Cromwell where development has occurred and should continue to occur, at less intense densities . . ." (Emphasis added.) ROR 102, p. 29. The proposed development would create four lots. Lots 1 and 2 would each contain a proposed office building. Lot 3 would contain an existing house. On lot 4, two three-story apartment buildings, each containing twenty units, would be built. Access to the commercial buildings and apartment buildings located on lot 4 would be from both Shunpike Road and Court Street. In addition, the site plan application depicted another parcel, an approved lot which was not part of the subdivision, which has been referred to as the Court Street lot. Access to the Court Street lot would be over a portion of lot 4.
At the public hearings, many residents spoke against the proposal and specifically mentioned the unsuitability of the apartment buildings as they related to the surrounding area. In general, the commissioners were in favor of the commercial uses in the proposed development and they were not in favor of the two apartment buildings. The common concern was that forty apartments should not be located in the middle of a commercial development This concern is related to the nature and intensity of the proposed use, which criteria are specifically included in section 8.7.E.2. The proposed use containing forty apartments would certainly increase the intensity of use of the subject property, over that allowed by the permitted commercial use. There is substantial evidence in the record to support the denial of the special permit application for failing to meet the criteria of section 8.7.E.2. See Meriden v. Planning & Zoning Commission, supra, 146 Conn.App. 244 (substantial evidence of increase of intensity of use can support denial of special exception where intensity is a criterion contained in the zoning regulations).
8.7.E.3(1)(2) Appropriate Improvements
Section 8.7E.3(1) requires that the design elements of the proposed development be suitable in relation to the style of other buildings in the immediate area and will enhance the existing and future character of the neighborhood. Several commissioners expressed concern that three-story apartment buildings were not suitable for this area of the town. ROR 110, p. 11-14. Admittedly, " suitability" is a general standard which involves a determination based upon the discretion of the Commission, without definite, objective standards. However, decisions based upon general standards contained in the regulations are allowed.
The Appellate Court has acknowledged that " Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process . . . If the special permit process were purely ministerial there would be no need to mandate a public hearing." (Emphasis added.) Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, 29 Conn.App. 1, 6-7, 613 A.2d 1358 (1992); see also T. Tondro, Connecticut Land Use Regulation (2d Ed. 1996 Sup.) p. 64; Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627, 711 A.2d 675 (1998).
Section 8.7.E.3(2) requires that the buildings and the nature and extent of landscaping on the site shall not hinder the use of adjacent land or impair the value thereof. The developer proposed a seventeen-foot landscaped buffer between the property line of the adjacent residential property, located at 106 Court Street, and the edge of a two-lane access driveway. This access driveway would service the developer's Court Street property, the two commercial and two apartment buildings. In addition, this accessway would service an existing commercial office building located at 110 Court Street. See ROR 96.
Section 5.1.D.2(5) of the Regulations contains a landscape buffer requirement of fifty feet between proposed vehicular areas located in the LB zone, and adjacent residential districts. ROR 102, p. 91. Several commission members expressed concern about the effect the proposed development would have on the value of 106 Court Street. They noted that the requested modification would reduce the buffer width by more than fifty percent. Commissioners Cordone, Floyran, Waters, Kelly. ROR 110, p. 12-13. It is not unreasonable for the members of the Commission to find that the value of 106 Court Street would decrease if a two-lane driveway, serving three commercial buildings and forty apartments, were built within seventeen feet of the property line. " It is well established that lay members of a commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety, traffic congestion or local property values." United Jewish Center v. Brookfield, 78 Conn.App. 49, 57, 827 A.2d 11 (2003).
Due to the nature and scope of the proposed development, it was reasonable for the Commission to find that development was not suitable for the area and would impair the value of adjacent land. There is substantial evidence to support denial of the special exception application because it did not comply with Section 8.7.E(1) and (2) of the regulations.
In its reply brief the plaintiff argues that " Premier made painstaking efforts to demonstrate how and why it complied with each of the permit criteria." As to the height of the proposed apartment buildings, the plaintiff correctly states that they comply with the thirty-five foot height limitation of the regulations and would be no taller than the existing commercial building that is adjacent to the site at 110 Court Street. Although the commission members did remark on the height of the apartment buildings, the overall comments focused on the number of apartments, forty, and their unsuitability for the area.
The plaintiff maintains in its brief that the proposed development was consistent with the goals and objectives of the Plan of Conservation and Development because it is a mixed-use development providing apartments. The project may be a mixed use one, but the plaintiff ignores the fact, as discussed earlier, that the Plan does not recommend mixed use in the area of the project.
The plaintiff states that the evidence the Commission " relied upon in determining that the proposed apartments would negatively impact surrounding property values was based solely on inappropriate and unsubstantiated comments from members of the public." A review of the transcripts for the public hearings indicates that a very few of the many people who spoke against the applications made negative statements about tenants who might occupy the proposed apartments. The court cannot find that those negative comments formed the basis for the Commission's findings. A member of the public who opposed the application, a real estate broker, stated that property values would be affected. ROR 105, p. 50. As noted earlier, commission members may rely on their personal knowledge regarding property values. The plaintiff's arguments do not negate the evidence regarding impairment of value of the adjacent land.
The plaintiff claims that the Commission cited traffic as a reason for denying its application. Although traffic is mentioned in the Commission's brief, the court cannot find that it was a stated reason for denial of the application. Traffic concerns regarding the project were mentioned at the public hearings and in the deliberative session held on February 3, 2015. The Regulations contain a special permit criteria set forth in Section 8.7.E.4, Suitable Transportation Conditions, which provides that the proposed use not " unreasonably increase traffic congestion." The Commission did not mention this section, or traffic concerns, in its official collective statement, the notice of decision denying the special exception. For this reason, the court cannot consider traffic issues as a reason to deny the special exception application. " In zoning cases, we have held that, when a zoning commission has formally stated the reasons for its decision, the court should not go behind that official collective statement . . . [and] attempt to search out and speculate [on] other reasons which might have influenced some or all of the members of the commission to reach the commission's final collective decision." (Internal quotation marks omitted.) Gibbons v. Historic District Commission, 285 Conn. 755, 769, 941 A.2d 917 (2008).
While traffic concerns cannot serve as an " official" reason to deny the application, it was reasonable, and within their discretion, for the commission members to consider the evidence of increased traffic, comments of the public, and their own knowledge of the area, as they related to the special exception criteria of " intensity" and " suitability" of the use.
The record demonstrates that the plaintiff's counsel, engineers and consultants who developed and supported the applications, made a thorough and professional presentation to the Commission. In this case, the Commission was not persuaded to find compliance with the special exception criteria. " The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] . . . 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." (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513, 636 A.2d 1342 (1994).
The Landscaped Buffer
The first reason for denial of the special permit was that the Commission denied the request to modify the required landscape buffer. Section 5.1.D.2 of the regulations discusses landscaped buffer requirements. Subsection (2) provides " [u]nless modified by the Commission, multi-family dwelling uses, including vehicular areas, shall provide a landscape buffer along each lot line." Subsection (3) provides that " the depth of the landscape buffer . . . shall be determined by . . . the following diagrams as a guide." There are no following diagrams in the regulations, but subsection (5) does contain a grid showing minimum buffers. On the grid, uses are on the left and zones are on the top. The grid indicates that where the LB zone is adjacent to a residential district, the situation in this case, the minimum buffer is fifty feet. Subsection (4) states " [w]here circumstances warrant, the Commission may reduce the buffer width and/or planting requirements due to existing vegetation or other factors . . ." This is the section of the Regulations that the plaintiff relies on.
The development plan proposed by the plaintiff contained a seventeen-foot buffer in the vicinity of 106 Court Street where a fifty-foot buffer is required. To understand the plaintiff's claims on this issue, further description of the layout and history of the project is necessary. Earlier in time, the Commission approved a subdivision which created a lot at the corner of Shunpike Road and Court Street. An office building known as 110 Court Street was constructed on this lot. The lot is owned by Kane Street Associates, an entity controlled by the same individual who controls the plaintiff. Presently, the driveway entrance to 110 Court Street is at a location that is west of the Court Street parcel, approximately 200 feet from the intersection of Court Street and Shunpike Road. As noted earlier, the Court Street parcel is also owned by the plaintiff and it proposed to build an office building on this site.
In pre-application discussions, the Cromwell Fire Marshal requested that the existing driveway for 110 Court Street be relocated to the east. The Fire Marshal also requested that the driveway also service the Court Street parcel, and provide access to lot 4 of the subdivision, which contained the two commercial buildings and the two apartment buildings. The proposed subdivision land contained a fifty-foot strip, approximately 175 feet in length, which ran from Court Street to the interior of the remaining land to be subdivided. The plaintiff agreed to the Fire Marshal's request and it proposed to relocate the driveway onto this strip. Because of the narrowness of this strip, there is only a seventeen-foot buffer between the edge of the proposed two-lane driveway and 106 Court Street, which lies in the abutting residential zone.
The plaintiff maintains that the " Commission's refusal to modify the discretionary fifty-foot landscape buffer was unreasonable, arbitrary, illegal and an abuse of its discretion given that the Zoning Regulations provided the Commission with flexibility to adjust the guidelines when warranted." In Irwin v. Planning & Zoning Commission, supra, 244 Conn. 627, our Supreme Court stated, " [g]enerally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply."
It is clear from the record that the Commission concluded that the circumstances presented by the proposed development did not warrant reduction of the buffer width. It is notable that the narrowest minimum buffer permitted under the grid contained in Section 5.1.D.2. (5) is 20 feet. Such a buffer is required between the DC Zone, Downtown Cromwell Zone, and a residential zone or use. The proposed buffer was three feet less than that narrowest minimum buffer contained in the Regulations. Several of the members of the Commission noted that the proposed buffer was less than 50% of the required minimum. Several members also expressed concern for the close proximity of the two-lane driveway to the house located on 106 Court Street.
The term " buffer" is not defined in the regulations, however Section 1.6.c of the Regulations specifically provides that terms not defined in the regulations be interpreted by consulting a comprehensive general dictionary. Merriam-Webster's Collegiate Dictionary Tenth Edition contains the following definition of buffer: " something that serves as a protective barrier." The purpose of the landscape buffer, the narrowness of the buffer proposed, and the perceived impact of the development upon the adjacent property all constitute substantial evidence. The court cannot find the Commission's denial of the buffer modification was unreasonable, arbitrary, illegal or an abuse of its discretion.
To support the requested buffer modification, the plaintiff engaged a landscape architect, Elizabeth Kirmmse. Kirmmse prepared a detailed and extensive landscape plan, which included a six-foot high fence running down the middle of the proposed buffer area. She described and explained the plan in detail at the October 21, 2014 public hearing. The plaintiff argues that the comprehensive plan prepared by Kirmmse complied with the intent of the landscape buffer regulation and the Commission abused its discretion in failing to accept the buffer modification inherent in the plan. This argument fails to recognize " [t]he credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] . . ." West Hartford Interfaith Coalition v. Town Council, supra, 228 Conn. 513. Since the Commission did not determine that there were circumstances that warranted a reduction of the buffer requirement, it was within their discretion to deny the buffer modification.
The plaintiff makes the additional argument that by denying the buffer modification, the Commission is improperly forcing the plaintiff to use its Court Street property to provide access to the property. It is the plaintiff's claim that putting the accessway on the Court Street property would make it undevelopable and would amount to an unconstitutional taking. The record facts do not support this claim.
It is undisputed that the development plan, proposed by the plaintiff, for 192 Shunpike Road, with its commercial and apartment buildings, would require access to Court Street, as well as Shunpike Avenue. As the plaintiff's counsel admitted at the argument hearing held on June 15, 2016, because of the configuration of 192 Shunpike Road, any access to Court Street over the fifty-foot strip, which is part of 192 Shunpike Road, would require a buffer modification. This is so since the fifty-foot strip is part of the required buffer for the project, and any access driveway located on the strip reduces the buffer width. This is without regard to whether access to 110 Court Street is relocated or not. There is no evidence in the record to establish that the relocated access requested by the town required an increase in the size of the accessway that further reduced the buffer area. For this reason, any discussion of the relocated driveway for 110 Court Street is not relevant to the issue of the buffer modification.
For the plaintiff to develop its property, as it proposed, it needed Court Street access and a buffer modification. In this case, the plaintiff chose not to utilize the other Court Street property that it controlled, and instead, it chose to seek a buffer modification. The Commission, in the exercise of its discretion, decided not to allow the modification. There is nothing in the record to establish that 192 Shunpike Road cannot be developed without access to Court Street. The boundary survey for the project, ROR 96, sheet 2, shows 217 feet of frontage on Shunpike Road in a portion of the parcel that is undeveloped. It is understandable that the plaintiff chose to develop its property in a way to maximize its potential. Here, the Commission found that the proposed development did not warrant modification of the buffer requirement. " The maximum possible enrichment of a particular landowner is not a controlling purpose of zoning." DeForest & Hotchkiss Co. v. Planning & Zoning Commission, 152 Conn. 262, 272, 205 A.2d 774 (1964).
The Site Plan and Subdivision Applications
As noted earlier, in conjunction to the application for special permit, the plaintiff filed a resubdivision application and an application for site plan approval. All three applications incorporated the reduced buffer. The Commission denied the re-subdivision application because it did not comply with the minimum landscape buffer requirement contained in Section 5.1.D.2. (5) of the Zoning Regulations. Section 302 of the Subdivision Regulations requires an application to conform to the Zoning Regulations. The Commission denied the Site Plan application because it did not comply with the buffer requirement contained in the Zoning Regulations. The plaintiff does not argue that it is entitled to approval of the re-subdivision and the site plan without an approved reduced buffer. Since the applications did not meet the buffer requirements of the Regulations, there is substantial evidence to support the denial of the re-subdivision application and the site plan application.
For the foregoing reasons, the appeal is dismissed.