Opinion
No. CV 06 4010949, CV 06 4010815S, CV 06 4009459S
October 3, 2007
MEMORANDUM OF DECISION
These are three separate appeals by the plaintiff Riverfront Future Partners from actions by boards of the Town of Rocky Hill (town). In the first case, the plaintiff appeals from a May 24, 2006, decision of the town planning and zoning commission (PZ) denying its application for a special permit and site plan approval to construct 80 units of active adult, age-restricted housing. In the second case, the plaintiff appeals from a May 10, 2006, decision of the town open space and conservation commission, acting as the town's inland wetlands commission (wetlands commission), to deny a permit to the plaintiff for activities related to the construction of the proposed housing. While the Department of Environmental Protection (DEP) was not a party at the wetlands commission, it has been named a respondent to this appeal under General Statutes § 22a-43(a). In the third case, the plaintiff appeals from a January 4, 2006, decision of the town PZ to revise its zoning regulations and zoning map as such pertain to the premises where the housing is proposed.
Turning to the first appeal, on December 12, 2005, the plaintiff applied to the PZ for a special permit and site plan approval for the construction of 80 active adult condominium units on property situated on Meadow Road and Glastonbury Avenue. Return of Record (ROR), No. 7. The subject property is comprised of several parcels formerly used as an oil distribution terminal, a manufacturing facility and a cement storage facility. There are several outbuildings on the property, including a water tower, underground oil storage tanks, and an abandoned cement tower. All the parcels are contaminated.
The property slopes to the east from railroad tracks until it reaches a bank along the Connecticut River where it drops sharply to the edge of the water. The building plans called for the construction of four two-story structures situated perpendicular to the Connecticut River, as well as associated parking and facilities. (ROR, No. 121). The existing structures were to be removed, and remediation of the contaminated soils was to take place. Fill was to be brought to a portion of the site during the construction process.
The plaintiff filed its application pursuant to the town Zoning Regulations §§ 7.27, 9.32 and 9.4. Section 7.27 allows for housing for the elderly in the specific zoning districts (which includes the zone of these premises) subject to special permit and site plan approvals. The housing for the elderly is also subject to conditions relating to acreage, utilities, parking, living area, and landscaping.
These regulations were effective at the time of the application; the new regulations in effect as of February 1, 2006, under question in the third case herein, do not apply.
Section 9.32 sets forth the special permit procedure. The section provides in part: "In evaluating a Special Permit application, the Commission shall take into consideration the health, safety, and welfare of the public, in general, and the immediate neighborhood, in particular, and shall prescribe reasonable conditions and safeguards to insure the accomplishment of the following objectives: (a) Harmony with Development — That the proposed use shall be of such location, size, and character that, in general, it will be in harmony with the appropriate and orderly development of the district in which it is proposed to be situated and shall not tend to depreciate the value of property in the neighborhood and shall not be detrimental to the orderly development of adjacent properties in accordance with the zoning classification of such properties; (b) Site Plan Objectives — That the Site Plan submitted as part of a Special Permit application shall accomplish the Site Plan objectives described in Section 9.4, particularly in that it shall not create traffic or fire hazards and shall not block or hamper the traffic circulation pattern . . ."
Section 9.4 establishes the procedure for site plan approval. Section 9.46 lists criteria for approval. The PZ is to take into account, among other things, the appropriateness of use relative to size and intensity of the proposed development and its effect on the "conformity to the Plan of Development and Zoning Regulations, and any other applicable regulations or ordinances; the existence of other land uses in the area and the effect thereon from the proposed development;" "the capacity of adjacent and feeder streets to accommodate the projected traffic volumes;" obstruction of light or air; the effect on property values in the area; "the physical characteristics of the land including soil conditions"; "the nature, location and height of buildings, walls, stakes, fences, and existing landscaping to the site;" location of points of ingress and egress and parking; and "other criteria in the interest of the public, safety, health, and welfare, as prescribed by these Regulations."
The PZ held hearings on the application on February 23, March 23, 2006, April 20, 2006, April 26, 2006, and May 24, 2006. At the hearings the plaintiff presented evidence that fill would be brought to the site mostly in the area between the front of the buildings and the railroad tracks. The plaintiff's witness Cassidy stated that no fill would be done in the 100-year flood plain. The plaintiff submitted an erosion and sedimentation control plan. The plaintiff agreed to phase in construction and not to commence activity until the environmental remediation was completed.
The plaintiff filed a report regarding wetlands concluding that the cleanup would be beneficial and would have no impact on wetlands and watercourses. A further report indicated that there was no harm to species or to water quality in the Connecticut River. Cassidy gave a report indicating that drainage would be improved by the development. A second report showed that the occupants of the proposed buildings would have ingress and egress from the buildings even if a flood exceeded a 500-year event. The site plan showed that impervious coverage (such as buildings and pavement) was reduced from 43.2% before development to 31.5% after development. A traffic study stated that the project will generate relatively low volumes, not adversely impact traffic operations on the surrounding roadway network and that accident experience on the roadway network is satisfactory.
On the other hand, the PZ heard testimony from neighboring landowners and town citizens regarding the extent of the flood elevation near the Connecticut River, the nature of traffic congestion on Glastonbury Avenue, the extent of endangered river species, and the impact of the town plan of development on the proposed project. The PZ received the report of the final decision of the Inland Wetlands Commission, which also denied the application. (ROR, No. 109, page 4.)
In addition, pursuant to General Statutes § 25-102cc, the premises involved in this appeal lie in a conservation zone subject to the review of the Connecticut River Assembly (CRA). If a project receives a negative comment from CRA, then the PZ must approve the applications by a two-thirds vote. § 25-102ff(d). The PZ received a negative comment from CRA on four grounds: (1) The proposed development will significantly impact the view from the Connecticut River; (2) The mass and coverage of the proposed buildings and the overall scope and size of the project is incompatible with the surrounding area; (3) The proposal poses potential pollution risks during construction and maintenance; and (4) The proposal will significantly alter the natural topography of the land as a result of the fill required. (ROR, Nos. 43, 109, page 4.)
The public hearing concluded at the meeting of May 24, 2006. The PZ commissioners then stated their positions. Commissioner DiNardi stated that he was concerned about the size of the buildings and was not sure the road could handle the additional traffic. He was worried about the railroad that goes through the property and the amount of fill being brought onto the site. He concluded that he did not feel the project to be harmonious to the area. Commissioner DiLorenzo was concerned that the application did not meet the bare minimum of site plan requirements. He agreed that the project was not harmonious with the surrounding area. He thought that the discussion of this application should be continued beyond that hearing date.
Commissioner Colandrea agreed with Commissioner DiLorenzo. He was concerned about the pier on the site, wondering how a foundation will be put down. He was worried about the traffic generated from the project. He was not satisfied with the landscape plan. He felt that there were too many unanswered questions. Commissioner Goldberg wanted time to review the staff report further and preferred that the decision be deferred to the next meeting.
At that point a motion was made by Commissioner DiNardi to deny the application for special permit and site plan. Two other commissioners joined with Commissioner DiNardi in voting in favor of the motion, while two commissioners voted against. Therefore the motion to deny the applications carried.
In the discussion on the motion, Commissioner DiNardi stated again that the project would not be harmonious to the area; he thought the buildings were too large, and the roadways too narrow. Commissioner Lindenberger felt the project did not fit into the scope of the neighborhood. He also considered the opinions of the Wetlands Commission and the Connecticut River Assembly. Commissioner Colandrea thought the project is too intense for the area, that the traffic generated cannot be supported, and that he would like to see a smaller project proposed. (ROR, No. 109, page 5.)
The plaintiff timely appealed the denial of its applications on June 5, 2006. The plaintiff has submitted an affidavit to the court indicating that it is the owner of the real property affected by the denial of the application. The PZ does not contest these facts. Based on the uncontested affidavit, the court finds that the plaintiff is statutorily aggrieved. General Statutes § 8-8(a).
This finding of aggrievement also applies to the two other appeals discussed in this memorandum of decision.
"In an appeal from the decision of a zoning board, [the court] . . . review[s] the record to determine whether there is factual support for the board's decision, not for the contentions of the applicant." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791 (1994).
"When a commission states its reasons in support of its decision on the record, the court goes no further, but if the commission has not articulated its reasons, the court must search the entire record to find a basis for the [commission's] decision." (Internal quotation marks omitted.) Azzarito v. Planning Zoning Commission, 79 Conn.App. 614, 618 (2003). In the present appeal, the PZ did not formally state its reasons for denying the applications on the record.
The court must turn to the record created by the commission to resolve the issues raised by the plaintiff in this appeal. "The rule of law and applicable standard of review are as follows. When ruling upon an application for special [permit], a planning and zoning board acts in an administrative capacity . . . Generally, 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. The . . . trial court [must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal . . ." (Internal quotation marks omitted.) Smith Bros. Woodland Management, LLC v. Planning Zoning Commission, 88 Conn.App. 79, 84 (2005). When a planning commission reviews a site plan application, the commission also acts in an administrative capacity. Konigsberg v. Board of Aldermen, 283 Conn. 553, 594 (2007).
On the point of the commission's discretion, our Supreme Court has recently observed: "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 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." Vine v. Zoning Board of Appeals, 281 Conn. 553 (2007).
The first reason given by board members was that the project was not harmonious to the area or district. This reason was drawn from town zoning regulation § 9.32 on special permits; here a special permit was required for elderly housing. Section 9.32 requires that the PZ consider as one factor whether "the proposed use shall be of such location, size and character that, in general, it will be in harmony with the appropriate and orderly development of the district in which it is proposed to be situated . . ."
The plaintiff also argues that the PZ erred in enforcing regulation § 9.32 with regard to depreciation of property values and detriment to development of adjacent properties. The reasons given by the commission members at the May 24, 2006, meeting for denying the applications did not include these provisions of the regulation. (ROR No. 109, page 5.) The reason given was only general harmony, the first portion of the regulation. Therefore the court will not address evidence of property values or development of adjacent properties.
The court agrees with the plaintiff that a determination of "harmony" required the PZ to consider "an appropriate combination of various elements in a whole." (Plaintiff's Brief, page 12.) On the other hand, the court does not agree with the plaintiff that the PZ should make a determination of "harmony" merely by looking to the permitted uses in the zone. In the context of a special permit, the PZ had the authority under regulation § 9.32 to consider more generally the health, safety and welfare of the town's citizenry. See Irwin v. Planning Zoning Commission, 244 Conn. 619, 627 (1998): "We concluded that general considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit;" A. Auidi Sons, LLC v. Planning Zoning Commission, 267 Conn. 192, 207-8 (2004) (approving regulation that allowed PZ to consider harmony with surrounding properties).
Applying the precedent correctly, there is substantial evidence to support the reason given of lack of harmony to the district. The evidence, as indicated above, consisted of the unfavorable reports of the Inland Wetlands Commission as well as the Connecticut River Assembly. Especially important is the CRA's finding (ROR, No. 43) that the project was incompatible with the surrounding area. The public testimony also served to inform the PZ members. Their presentations included indication that FEMA had noted the relatively high risk for flooding of a portion of the premises. In addition, according to the public testimony, the project was in conflict with the Natural Resource Conservation Map found in the town plan of conservation and development.
Two commissioners based their negative conclusion on the ground that the scope of the project was too large and out of character for the neighborhood. The plaintiff argues that this reason was not legally permitted and, in any event, not supported by the record. On the contrary, as part of deciding whether the use of the property is "harmonious," the PZ must consider under § 9.32, the location, size and character of the project. Considerations of "intensity" by a PZ are appropriate, if based on a regulation and supported by the record. Smith-Groh, Inc. v. Planning and Zoning Commission, 78 Conn.App. 216, 233 (2003), citing Felsman v. Zoning Commission, 31 Conn.App. 674, 676-80 (1993).
The record also supports the conclusion that the project would over-burden the neighborhood. The CRA report gave as one of its reasons that the project was an inappropriate fit for the area. (ROR, No. 43.) The exhibits submitted by those living in the neighborhood demonstrated that the building of apartments would set back an ongoing effort to build single-family homes (ROR, No. 18.) The elevation would restrict views of the river. (ROR, Nos. 36, 45.) The testimony showed that the four-story buildings were too massive and incompatible in the neighborhood. (ROR, No. 56, pages 4-6.)
The plaintiff argues that the pertinent evidence to be considered by the PZ relates to zoning regulation § 7.27, permitting elderly housing and defining the "building load." For example, the proposal calls for 80 units and, through calculations, the regulation would permit a maximum of 134.4 units to be built. This approach, as with what is "harmonious" in general, is too narrow. A. Auidi Sons, LLC, supra at 208.
The third reason given by one of the commissioners was traffic issues. The special permit regulation § 9.32 requires the applicant to meet the requirements of the site plan regulation. Regulation § 9.4 sets forth criteria for site plan approval, including that the adjacent and feeder streets may meet traffic volumes. While the plaintiff contends that its materials demonstrated that there were not traffic problems with the proposed development (ROR, No. 1), there was substantial evidence in the record to reach the opposite conclusion. The record indicates that the town fire department noted that the proposal presented problems of ingress and egress to the buildings. (ROR, No. 9.) A report by the police department stated that the proposal raised questions concerning additional burdens for the Glastonbury Avenue/Old Main Street/Church Street/Route 99 area. (ROR, No. 10.) A study undertaken by a neighborhood group was provided to the PZ which highlighted the traffic problems that the proposal would cause. (ROR, No. 53.) There was also testimony regarding traffic congestion and narrow streets from the neighbors at the public hearings. (ROR, No. 56, pages 15-18.)
The conclusion of the plaintiff's expert, Bubaris Traffic Associates, supported by data it gathered, is that the development will produce only a small increase in traffic volumes.
The plaintiff contends that the PZ was not free to disregard the scientific evidence it produced in favor of the community observations. The cases support the actions of the PZ, however, because it was not dealing with "technically sophisticated and complex" data, but "street safety" and "traffic congestion." In addition, there were materials in the record beyond the mere personal opinions of the commissioners. See Brookfield Plaza LTD v. Zoning Commission, 21 Conn.App. 489, 494 (1990); United Jewish Center v. Brookfield, 78 Conn.App. 49, 57 (2003).
Finally, the plaintiff argues that the PZ, in utilizing the reports of the wetlands commission and the CRA, introduced criteria into their evaluation process not allowed by the PZ regulations. On the other hand, zoning regulation § 9.47 requires the PZ to consult the report of the wetlands commission and any other agency deemed appropriate. See also Arway v. Bloom, 29 Conn.App. 469 (1993). The PZ appropriately considered these reports in deciding that the proposal was not harmonious to the area.
The court therefore finds that the issues raised by the plaintiff from the denial of its applications are without merit and this appeal is dismissed.
The second appeal is from the decision of the wetlands commission. The plaintiff applied to the wetlands commission for a Class C Permit to conduct a regulated activity associated with the construction of the condominiums project. The wetlands commission, pursuant to General Statutes § 22a-42a(f) and the town wetlands regulations §§ 1.5ff, 1.5qq, conducted an "upland" review of this application.
The topography in the upland review area is generally level until it reaches the upper bank along the Connecticut River where it drops sharply to the edge of the water. Within the upland review area, the proposal first involved the demolition and removal of factory buildings, related outbuildings, the water tower, the underground storage tanks, all the paved areas surrounding them, and the remediation of the contaminated soils. The four residential buildings were then to be constructed, a pathway for the general public along the top of the river bank, and an open space area in the northerly portion of the property. Return of Record (ROR), No. 81.
Public hearings were conducted by the wetlands commission on March 10, 2006, April 12, 2006, and May 10, 2006. The plaintiff's consulting engineer confirmed that no construction would take place within the Channel Encroachment Line, the 100-Year Flood line or in the designated wetlands areas and that any disturbance was limited to the upland review area. He testified that this was consistent with the National Flood Insurance Program, Floodway Flood Boundary and Floodway Map, the Map of Flood Channel lines, the official Inland Wetlands and Watercourses Map, the Map of Connecticut 100-Year Flood Elevation. According to the engineer, most filling associated with the project would not take place in the area of the upland review. A storm water basin would contain runoff. (ROR, No. 34, summary.)
The plaintiff also submitted an erosion and sedimentation control plan (ROR, No. 76), and agreed not to commence any activity until the environmental remediation was substantially completed. A staff consultant for the town informed the commission that the drainage plan met the standards of the town. (ROR, No. 4, page 22.) A report of Connecticut Ecosystems concluded that the cleanup of the site represented an environmental project benefit. This report also concluded that the project would not impact protected species. (ROR, No. 75.) The plaintiff's engineer indicated that the flood line was elevation 27', the basement flood elevation was 28', and the elevation of the first floor of residential occupancy was 38'. He also stated that the impervious coverage would be reduced by the project from 43.2% prior to development to 31.5% following development. (ROR, No. 34.) The plaintiff also relied upon the report of Wendy Goodfriend, a natural resources specialist, Connecticut River Coastal Conservation District, Inc. stating that the cleanup would provide an environmental benefit if care were taken to ensure protection of natural resources. (ROR, No. 72.)
On the other hand, the wetlands commission received evidence from the community that the four proposed buildings in the upland review area were 47 and 70 feet from the Connecticut River, between 25 and 45 feet from wetlands and 5 to 30 feet from the 100-year flood plain. (ROR, No. 65.) Commenting on this evidence, Commissioner Williams stated that "I am concerned about how far that [the project] does intrude into [the 100'] buffer . . . [T]he buildings themselves at some points are within tens of feet of the bank of the Connecticut River . . ." (ROR, No. 4, page 24.) Commissioner Kelly spoke of having "great concerns about the disturbance of this project, the disturbance it will create within the 100' upland review area. I think this disturbance will be detrimental to the . . . affected wetlands and watercourses. I also believe this activity will adversely affect the riparian zone of the affected watercourses by providing a very limited greenbelt or trail and increasing the amount of development." (ROR, No. 4, page 24.)
Also of great concern was the run-off from the fill brought to the site during construction. A report of the Connecticut River Watershed Council on December 8, 2005, noted the dangers of stormwater runoff picking up oil, sand from roads, pesticide from lawns and fields, and other waste, thereafter running into the river impairing water quality. (ROR, No. 62.) Wendy Goodfriend, as noted above, a specialist with the Connecticut River Coastal Conservation District, concluded that an impact of the project may include "sedimentation due to uncontrolled soil erosion during site development and the degradation of downstream receiving areas by nonpoint source pollutants such as road deicing materials, fertilizers, pesticides, and heat." (ROR, No. 72.) The Connecticut River Assembly staff report noted that the plaintiff should consider an upgrade of its sedimentation and erosion plans. (ROR, supp. No. 56.) The Connecticut River Assembly issued an unfavorable comment on the project in part because "[t]he proposal poses potential pollution risks during construction and maintenance." (ROR, No. 30.)
Both Commissioner Williams and Commissioner Doran commented on this issue. Williams stated: "I am concerned about the amount of fill needed for grading of this application and intrusion in the 100' buffer." (ROR, No. 4, page 24.) Commissioner Doran spoke extensively about the runoff problem: "As I look at the fill that's being brought onto the site I'm concerned about our jurisdiction as I thank [the plaintiff's attorney] for highlighting that and also the potential for siltation, runoff and inability to control it. I think that this site is very fragile, vulnerable and more than just a standard best practices would have to be input to satisfy me that we can avoid an environmental catastrophe during or after construction. And I do want to thank you for pointing out Ms. Goodfriend's remarks and I'll note that she highlights that the impacts that the proposal was brought forth can be minimized . . . can be minimized through careful erosion prevention sediment control and storm water management. It's conditional and it's implied that it could be done. I think that there's room for significant additional protections before I would favor any actions being done . . . I just don't want to gamble that what is being proposed be done without extraordinary protections in place." (ROR, No. 4, page 25.)
At the conclusion of the public hearing on May 10, 2006, the wetlands commission voted unanimously to deny the plaintiff's application for a permit. On May 11, 2006, the commission, through the town director of engineering, set forth its reasons for the denial. According to the letter, the commission had considered the criteria of § 8.4 of the town wetlands regulations (identical to General Statutes § 22a-41(a)) and concluded that: (1) The proposal would have an adverse effect on associated watercourses and wetlands; (2) The applicant did not provide reasonable, prudent and feasible alternatives that would minimize impacts to the river and its wetlands; (3) The commission expressed concern with potential siltation and pollution to the river if development proceeds; (4) The agency expressed concerns with the proposed disturbance and encroachment within the 100-foot upland review area and the such effect on wetlands and watercourses; and, (5) The commission expressed concern about disturbance in the one hundred foot upland review area resulting in a limited green belt and an increased amount of development. In addition the commission proposed as an alternative to the site development that the plaintiff decrease the size of the project, thereby reducing the environmental impact on watercourses and wetlands. The commission suggested that the proposed buildings be pulled back from the upland review area to decrease development and possible pollution. (ROR, No. 5.) The plaintiff has appealed from this denial of the permit.
The standard of review by this court of a decision of a wetlands commission was stated clearly in the case of Samperi v. Inland Wetlands Agency, 226 Conn. 579 (1993). A recent case to rely upon Samperi, Lord Family of Windsor, LLC v. Inland Wetlands Watercourse Commission, 103 Conn.App. 354, 359-60 (2007) summarized the standard as follows: "In an appeal from a decision of an inland wetlands commission, a trial court must search the record of the hearings before that commission to determine if there is an adequate basis for its decision . . . Even if the agency's reasons for denying an application are merely speculative, the reviewing court must search the record for reasons to support the agency's decision . . . and, upon finding such, uphold that decision regardless of the language used by the agency in stating its reasons for the denial . . . The reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial; the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." (Citations, quotation marks, and brackets omitted.)
The record was sufficient here to meet the substantial evidence test. The wetlands commission took into account that the activity in the upland review area would directly impact the wetlands. Portions of the proposed buildings were in the 100' buffer and would compromise the wetlands and the river that were within feet nearby. In addition the run-off of the fill would enter the upland area and then proceed to the river. The commission noted that while efforts had been made to improve drainage, these steps were not thorough enough to protect the wetlands and watercourses from siltation.
The plaintiff also incorrectly argues that the commission ignored its expert evidence, and further claims that its expert evidence was unique to the record. The record shows to the contrary that the commission made use of information from the Connecticut River Assembly, the Connecticut River Watershed Council, and the Connecticut River Coastal Watershed District. As was the case in Samperi, the commission had expert opinion on both sides of the issue and chose, in its discretion, to conclude that the plaintiff's proposal would adversely affect wetlands.
Citing Queach Corporation v. Inland Wetlands Commission, 258 Conn. 178, 199 (2001), which holds that the purpose of the upland review is to determine solely whether harm to wetlands will result, the plaintiff contends that the record does not support finding such an impact. As indicated above, however, the wetlands commission had substantial evidence of a relationship between activity in the 100' buffer and the wetlands themselves.
The plaintiff also alleges that the wetlands commission lacked focus in making its decision. The claim is that the neighbors that testified raised issues more appropriate for the PZ to consider, such as using the premises for parkland instead of private development. The plaintiff also criticizes the commission for relying on the Connecticut River Assembly's report, which is alleged to contain irrelevant issues to wetlands. As the record demonstrates, as quoted above, the commissioners were able to distill proper wetlands factors from the various points made by the neighbors and the River Assembly. As Samperi at 598 states: "As long as a search of the entire record reveals the basis for the agency's decision and supports reasonable inferences that the agency adhered to factors enumerated in § 22a-41(a), then the argument that the agency failed to apply the proper statutory criteria must be rejected."
The wetlands regulations §§ 8.1.b and 8.2.f permitted the commission to accept testimony from the community and the report of the CRA.
The final argument of the plaintiffs on this appeal is that the wetlands commission failed to present feasible and prudent alternatives to the proposed activity. The record shows that the commission suggested the alternatives that the size of the buildings be reduced and that they be "pulled back" from the upland review area to reduce the potential for harm to the wetlands. (ROR, No. 5.) The plaintiff declined to suggest an alternative to the proposed development, (ROR, No. 4, page 10), because its position is that any use of the site will cause harm in removal of the outmoded structures on the premises.
Under the Inland Wetlands and Watercourses Act, § 22a-41(b)(2), where a permit is denied, as here, on the ground that there are other alternatives, the wetlands commission "shall propose on the record in writing the types of alternatives which the applicant may investigate provided this subdivision shall not be construed to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity." Here the commission stated alternatives in writing. This exhausts the commission's obligation; the court must review whether the plaintiff met its burden to show alternatives. Zocco Builders, LLC v. Tolland Inland Wetlands Commission, Superior Court, judicial district of Tolland, Docket No. CV 05 4003572 (May 16, 2007, Harleston, J.); Palmiero-Kucej v. Inland Wetlands Commission, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV03 0400272 (October 12, 2005, Owens, J.). The record indicates that the plaintiff did not fully discuss feasible and prudent alternatives in its presentation to the commission and therefore cannot complain about the alternatives suggested by the commission.
It is not an alternative to suggest that all development will endanger wetlands and watercourses.
The court, having reviewed the claims of the parties on the second appeal, dismisses that appeal for the reasons stated.
The third appeal is from the adoption by the PZ of new zoning regulations, specifically a Waterfront District (§ 4.1.5), effective February 1, 2006. The process of adopting these new regulations commenced in 2003. One suggestion considered by the PZ in 2005 was to create a Waterfront District that would encompass the plaintiff's property. During the course of the development of the regulations, areas to the south of the plaintiff's property were also added to the proposed Waterfront District. The plaintiff objected to the proposed regulation at PZ public hearings of December 12, 2005, and January 4, 2006.
These regulations were adopted subsequent to the applications filed by the plaintiff with town PZ and the wetlands commission. The prior regulations applied to these applications.
To the suggestion that the proposed regulations affecting the plaintiff constituted spot zoning, the PZ chairman stated: "No, because well, what we've done is we've assembled parcels that have the ability to be developed under the [Waterfront District] regs to bring that entire area into WD, you are actually creating more nonconformance than is already there. So this way, prime areas have been assembled for that zone, so it's actually not spot zoning. We've combined land masses and identified them as WD, so it actually avoids the appearance of spot zoning." ROR, No. 17, page 53.
Commenting on objections to the Waterfront District at the hearing of January 4, 2006, the chairman of the PZ stated: "We've greatly reduced the amount of development that can go on there. Furthermore, we've called out that any development out there plays a significant role in promoting public access to the Connecticut River which is the reason why we created it. Now, going to the Plan of Conservation Development . . . if you look at page seven, it talks about developing river-related open space. Then you move on to page thirty-five, it talks about the fact that . . . almost 80% of the residents want open space, primarily river-related open space . . . But when you go to page forty-eight, it talks about strategies for planning and development. And under the strategies it says the town should consider requiring public access to riverfront development proposals that are along the Connecticut River. And that's what this zone does. It strongly encourages public access in any proposal that comes to this Commission. And that was the goal of the district and that's the goal and the intention of the regulation that we created. The actual build-up environment that will be there will be greatly reduced by this zone that we've created. And public access will be the priority of the zone. And that's the benefit of the town." ROR, No. 21, pages 97-98. The proposed zoning regulations were unanimously adopted after the close of the public meeting on January 4, 2006.
ROR, No. 23.
The plaintiff points out that the Waterfront District regulation, § 4.1.5, allows for uses that are "compatible with and appropriate to Connecticut River proximity and access." According to the plaintiff, "active-adult housing" would be permitted, subject to a special permit, but not elderly housing. The regulation contains other limitations not present under the prior regulations, including the need for more parking spaces and more landscaping. In this appeal the plaintiff contends that in establishing the Waterfront District, the PZ violated the comprehensive plan of the town as well as the town police powers.
In re-zoning, the PZ acted as a legislative body. First Hartford Realty Corp. v. Plan Zoning Commission, 165 Conn. 533, 540 (1973). The recent case of Konigsberg v. Board of Aldermen, 283 Conn. 553, 582-83 (2007) summarizes the standard of review to analyze challenges to legislative decisions of local zoning authorities. "In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the zoning authority must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency . . . [T]he courts allow zoning authorities this discretion in determining the public need and the means of meeting it, because the local authority lives close to the circumstances and conditions [that] create the problem and shape the solution . . . [Acting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function Within these broad parameters, [t]he test of the [legislative] action of the commission is twofold: (1) the zone change must be in accord with a comprehensive plan . . . and, (2) it must be reasonably related to the normal police power purposes enumerated in [the city's enabling legislation] . . . In addition, [the plaintiff bears] the burden of establishing that the [zoning authority] acted improperly." (Citations and quotation marks omitted.)
Turning to the plaintiff's contention that the PZ in creating the Waterfront District was not acting in accord with the town's comprehensive plan, the court notes that Konigsberg states: "The requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interests of the entire community." Id. at 585, quoting First Hartford Realty Corp., supra at 541. The evidence in the record supports the decision by the PZ to create the new district. The PZ had before it the extensive study of the town's needs as set forth in the plan of conservation and development that called for a balance between commercial development of properties adjacent to the Connecticut River and public access to these sites. The agency utilized this study as well as its members' own knowledge of the area in developing the new district.
As indicated above, the PZ did not rely exclusively on the plan of conservation and development, but used the plan as a "interpretive tool" to set its goals. Smith v. Zoning Board of Appeals, 227 Conn. 71, 88 (1993).
The PZ did not exceed its police powers under § 8-2. "It is only where the local zoning authority has acted arbitrarily or illegally and thus abused the discretion vested in it that the courts can grant relief on appeal." (Internal quotation marks omitted.) Lurie v. Planning Zoning Commission, 160 Conn. 295, 312 (1971). Here the record before the PZ sufficiently supports its decision to create the Waterfront District.
Section 8-2 permits the following: "The zoning commission in each city . . . is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures . . . Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality."
The plaintiff did not brief its contention that imposition of the zoning regulations constituted a taking. It conceded at oral argument that the claim of spot zoning could not be made because properties other than its own were included in the Waterfront District. See Konigsberg, supra at 591.
The court concludes that the PZ properly adopted the regulation in question and the appeal is dismissed.
CT Page 16210