Opinion
KNLCV176031567S
07-01-2019
SAVIN GASOLINE PROPERTIES, LLC et al. v. CITY COUNCIL OF the CITY OF NORWICH et al.
UNPUBLISHED OPINION
OPINION
Cosgrove, JTR
On September 18, 2017 the defendant, the City Council of the City of Norwich (hereinafter City) amended section 6.3 of the Norwich Zoning Regulations, which section is entitled "Motor Vehicle Sales and Repair." The substance of the amendment was twofold; first it eliminated the need for a public hearing on an application for a "Certificate of Approval" under section 6.3.2 and second, it eliminated language in 6.3.1 of the regulations which required that there be a 1, 000-foot separation between any "new gasoline filling stations" and any lot used or proposed to be used as a gasoline filling station.
"In 1925 the city of Norwich first received the authority to zone. Special Laws of Connecticut 125, No. 494. The power to zone was then exercised separately by the City of Norwich and by the Town of Norwich, the former exercising its powers through its Court of Common Council and the latter through its Board of Selectmen. By Special Acts of Connecticut 1951, No. 573, "An Act Concerning a Consolidated Government for the City and Town of Norwich and a Proposed Charter Therefore," the city and town of Norwich were consolidated under the name of the city of Norwich and a new charter for the city of Norwich was legislatively approved then adopted by the electors of Norwich. Since January 1, 1952 the zoning authority in the city of Norwich rests with the city council pursuant to this Special Act and the charter which became effective on January 1, 1952. Charter, chapter XV (Secs. 6, 7 and 13.)" Brief of City of Norwich, p. 1.
Each of the three plaintiffs own gasoline filling stations in a General Commercial (GC) Zone within the City of Norwich. The plaintiff, Savin Gasoline Properties, LLC (hereinafter "plaintiff") is the owner of a gasoline filling station, convenience store and car wash located at 489 New London Turnpike in Norwich, Connecticut. The Savin Gasoline Properties II, LLC is the owner of a gasoline station and convenience store operated at 162 West Town Street in Norwich, Connecticut. The substitute plaintiff, Petroleum Marketing Investment Group, LLC (PMIG) owns real property located at 565 West Main Street, Norwich, Connecticut and operates a gasoline station and convenience store at that site. Each of these properties is located in a GC Zoning District under the Norwich Zoning Regulations. Gasoline stations and convenience stores are uses permitted by special permit in the GC zone. This appeal challenges the elimination of the 1, 000-foot spacing requirement between existing and proposed gasoline filling stations as an improper exercise of the City’s zoning power.
The defendant Cumberland Farms, Inc. (hereinafter "Cumberland"), owns property at the intersection of New London Turnpike and West Main Street in Norwich, Connecticut. The property is located in the GC zone. Cumberland filed the application requesting the amendment of the zoning regulations. It plans to improve its property with a gasoline filling station and convenience store as would be allowed under the zoning regulations as amended. The property currently is within 1, 000 feet of a lot currently used as a gasoline filling station.
The first issue that the court must deal with is the issue of aggrievement of the plaintiffs. The plaintiffs allege they are aggrieved classically and statutorily. They allege that they each own and operate a gasoline/convenience store on real property located in a GC zone. They allege that the amendment of the language of Section 6.3 of the zoning regulations will vastly increase the number of potential sites for gasoline/convenience stores in the GC zone and therefore will increase the traffic turning movements and compromise traffic safety. This compromise of traffic safety will injuriously effect their respective businesses. They further allege aggrievement because their property rights will be injured in that access to their properties will become "more difficult, dangerous and cumbersome." They further allege their use, enjoyment and value of their properties was "impaired, depreciated and diminished by the action of the City approving this amendment of the zoning regulations."
At the hearing on March 13, 2019, the plaintiffs offered evidence of their aggrievement. Mr. John MacNeil is the Director of Facilities Management for Alden Associates which is the manager of the Savin plaintiffs’ properties. A deed was introduced showing that Savin Gasoline Properties, LLC acquired the 568 West Main Street property on September 1, 2000. A deed was introduced showing that Savin Gasoline Properties II, LLC acquired the West Town Street property on June 25, 2004. Mr. MacNeil, although not a real estate appraiser, did not claim a diminution of value of either parcel. He did express concern about "increased turning movements" would be caused by the allowance of additional gasoline stations within 1, 000 feet of their respective properties. He identified that there were other preexisting nonconforming uses- gasoline stations- within 1, 000 feet of the West Town Street property.
The plaintiff then called Steve Salveggio on behalf of the substitute plaintiff PMIG. PMIG acquired the 565 West Main Street property from Hendel’s 565 West Main Street, LLC in 2018. The witness is the Director of Operations for PMIG. He testified the property was located in the GC zone and his company operates a gasoline station and convenience store on the site. He has traffic safety concerns because of the amendment of the zoning regulations. He does not claim a diminution of the value to the parcel. There is another gas station located within 1, 000 feet of the property so that it was a nonconforming use and now, because of the amendment, has become a conforming use.
At the aggrievement hearing, the plaintiffs also offered the testimony of David Spear, a registered engineer, and the owner of DLS Traffic Engineering, LLC. He expressed his expert opinion that the amendment to the zoning regulations will adversely impact access management and increase traffic conflict areas. The defendants offered the testimony of Maureen Cheblek, a traffic consulting engineer who reached a contrary conclusion as to the traffic impacts of the zoning regulation amendment.
I
"It is well settled that [p]leading and proof of aggrievement are prerequisites to a court’s jurisdiction over the subject matter of an administrative appeal ... It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239. "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). "Two broad yet distinct categories of aggrievement exist, classical and statutory." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 486, 815 A.2d 1188 (2003).
A
Classical Aggrievement
With regard to classical aggrievement, "[t]he fundamental test by which the status of aggrievement ... is determined encompasses a well-settled twofold determination. First, 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 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 decision." (Internal quotation marks omitted.) Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991).
The plaintiffs have failed to prove facts satisfying the elements of classical aggrievement. Although they have established that they own property located within the zoning district that is affected by the City’s decision to eliminate the 1, 000-foot separation distance between gasoline filling stations in the commercial zones, they have presented only speculative concerns regarding the potential adverse impacts that could arise if additional properties located within 1, 000 feet from the plaintiffs’ properties are developed as gasoline filling stations. "Although the adverse effect on the plaintiffs’ legally protected interest need not be certain to establish aggrievement, it nevertheless is well settled that ... speculative concern ... even if true [does] not rise to the level of aggrievement. Allegations and proof of mere generalizations and fears are not enough to establish aggrievement." (Internal quotation marks omitted.) Mayer v. Historic District Commission, 325 Conn. 765, 785, 160 A.3d 333 (2017); see also Wallingford v. Zoning Board of Appeals, 146 Conn.App. 567, 577, 79 A.3d 115 (plaintiff’s aggrievement claim based on mere proposal, which had not been approved, was speculative and did not support finding of classical aggrievement), cert. denied, 310 Conn. 964, 83 A.3d 346 (2013). Because the plaintiffs have failed to show more than speculative concerns regarding the potential impacts of the amendment on their property interests, which may arise from future zoning application approvals and not as a direct result of the decision that is the subject of this appeal, they have not met their evidentiary burden of showing that they are classically aggrieved. Accordingly, the court must consider whether the plaintiffs have satisfied the elements of statutory aggrievement pursuant to Connecticut General Statutes (CGS) § 8-8.
B.
Statutory Aggrievement
Statutory aggrievement stems from an analysis of the language of CGS § 8-8. It provides "(a) As used in this section:(1) ‘Aggrieved person’ means a person aggrieved by a decision of a board and 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."
The cases of Lucas v. Zoning Commission, 130 Conn.App. 587 (2011) and Cole v. Planning & Zoning Commission, 30 Conn.App. 511 (1993) establish that a party is statutorily aggrieved when they are an owner of property within a zone affected by a zoning amendment. Here the plaintiffs each own property within the GC zone in which gasoline filling stations are allowed by special permit.
The defendants argue that mere ownership of property within the affected zone is not sufficient. They argue that in addition to ownership of property that the plaintiffs must demonstrate an adverse or injurious impact of the application of the amended regulation of their property. The defendants note that two of the plaintiffs own property that are within 1, 000 feet of an existing gasoline filling station. The operation of the amendment will eliminate at least one element of nonconformity of their properties. The plaintiffs have not offered any testimony as to a negative impact on the value of their properties. The plaintiffs each testified as to their concern that permitting gasoline filling stations to be located within 1, 000 feet of each other would potentially create traffic concerns. The defendants assert that the traffic claims are speculative at best and thus not sufficient to support aggrievement.
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Wucik v. Planning & Zoning Commission, 113 Conn.App. 502, 506 (2009). Wucik involved an application for a special exception permit. The plaintiffs made an allegation that they are "statutorily or classically aggrieved by the decision of the Commission but alleged no further facts. Although the trial court heard testimony from the plaintiffs, it decided that since a factual basis for jurisdiction had not been plead that it did not have jurisdiction to hear the appeal. The Appellate Court affirmed. It did not reach the issue of whether injury was required to establish statutory aggrievement.
In Cole v. Planning and Zoning Commission, 30 Conn.App. 511 (1993), the court considered an appeal from an amendment of the zoning regulations. The plaintiffs alleged they owned property within 100 feet of a property that could be developed as a specially permitted sawmill under the amended regulations. The trial court dismissed the appeal for lack of jurisdiction. The Appellate Court reversed, referenced statutory aggrievement pursuant to Section 8-8(a)(1) and stated "(w)hether the plaintiffs own property within the affected zone or within 100 feet of the affected zone is not significant for purposes of establishing statutory aggrievement. In both instances there is statutory aggrievement." At 515. Lewis v. Planning & Zoning Commission, 62 Conn.App. 511 (1993), directly addresses the concerns raised by the defendants. "First, the question of whether there has been an immediate impact pertains to the issue of whether a party has sufficiently established an injury, which constitutes an element of classical aggrievement, not statutory aggrievement ... A statutorily aggrieved person need not have sustained any injury." At 594.
The court finds that the plaintiffs have each plead and proven that they are statutorily aggrieved. The plaintiffs own property within a zone where gasoline filling stations are permitted by special permit. The requirements for the issuance of such a permit are effected by the amendment of the zoning regulation.
II
Scope of Review
The present case is an appeal from a decision of the City acting in its capacity as a zoning commission. "When the [Norwich City] [C]ouncil exercises its zoning powers, it acts, in effect if not in name, as a zoning commission." O’Meara v. Norwich, 167 Conn. 579, 583, 356 A.2d 906 (1975). "[A] local zoning authority, in enacting or amending its regulations, acts in a legislative rather than an administrative capacity." (Emphasis in original.) Parks v. Planning & Zoning Commission, 178 Conn. 657, 660, 425 A.2d 100 (1979). "In traditional zoning appeals, the scope of judicial review depends on whether the zoning commission has acted in its legislative or administrative capacity. 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 ... Acting in such legislative capacity, the local [zoning] 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." (Internal quotation marks omitted.) Cottle v. Planning & Zoning Commission, 100 Conn.App. 291, 293-94, 917 A.2d 1030 (2007). "The 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 which create the problem and shape the solution." (Internal quotation marks omitted.) First Hartford Realty Corp. v. Plan & Zoning Commission, 165 Conn. 533, 540, 338 A.2d 490 (1973). "A legislative body is not necessarily bound by the rule which prohibits administrative boards, such as a zoning board of appeals, from reversing earlier decisions without a change in circumstances." Malafronte v. Planning & Zoning Board, 155 Conn. 205, 209, 230 A.2d 606 (1967).
"[T]he commission, acting in a legislative capacity, [has] broad authority to adopt the amendments ... In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached ... This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally ... Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment ... The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission. Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion ... Within these broad parameters, RN test of the action of the commission is twofold: (1) The zone change must be in accord with a comprehensive plan; General Statutes § 8-2; ... and (2) it must be reasonably related to the normal police power purposes enumerated in § 8-2 ... (Citations omitted; internal quotation marks omitted.) Protect Hamden/North Haven From Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 542-44, 600 A.2d 757 (1991).
"Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations ... The zone change must be sustained if even one of the stated reasons is sufficient to support it ... The principle that a court should confine its review to the reasons given by a zoning agency does not apply to any utterances, however incomplete, by the members of the agency subsequent to their vote. It applies where the agency has rendered a formal, official, collective statement of reasons for its action." (Citation omitted; internal quotation marks omitted.) Id., 544. Thus, "where a zoning commission has formally stated the reasons for its decision the court should not go behind that official collective statement of the commission. It should not attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission’s final collective decision." DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970). "The commission’s failure to state on the record the reasons for its actions, in disregard of General Statutes § 8-3, renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission’s decision ..." Parks v. Planning & Zoning Commission, supra, 178 Conn. 661-62. Individual reasons "given by certain members of the commission [do] not amount to a formal, collective, official statement of the commission"; Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. 545; and "are not available to show the reason for, or the ground of, the [agency’s] decision." Welch v. Zoning Board of Appeals, 158 Conn. 208, 214, 257 A.2d 795 (1969).
III
Discussion
A.
Notice
The first argument raised by the plaintiffs is that the City failed to provide a legally sufficient notice for the public hearing on the proposed amendment to the zoning regulations.
The City published notice of the public hearing on September 17, 2017 at which it would consider an amendment of the zoning regulations. D.E. 104. The notice identified the section of the ordinance to be modified (Section 6.3) and contained the text of the ordinance with the actual changes indicated by redlining or striking the language that was proposed to be deleted from the Regulations. It identified language in Sections 6.3.1 and 6.3.1.1 that would be eliminated by the amendment by striking through the language to be eliminated. It identified that the existing Section 6.3.2 would be eliminated in its entirety and that the remaining subsections of 6.3 would be renumbered accordingly.
The plaintiffs properly note that a zoning commission, or in this case the City, must provide public notice of a proposal to amend the zoning regulations. Such notice must provide sufficient information in a timely manner to alert members of the public of the proposed change and allow them time to participate in the required public hearing.
Notice "is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing ..." Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 110 (1971) (internal citations omitted).
The plaintiffs challenge the notice in this case as misleading because it did not contain an "explanatory text, in laymen’s terms." They posit that "red-lining" is "unintelligible to the broad spectrum of the interested populous." The case cited by the plaintiffs, Peters v. Environmental Protection Board, 25 Conn.App. 164, 169 (1991), rejected the notice provided because it failed to identify the specific property address of the 120-bed nursing home that was the subject of the application. Most of the cases dealing with the adequacy of notice involve a failure to identify the subject property in a clear manner.
CGS § 8-3 states: "Such zoning commission shall provide for the manner in which regulations ... shall be established or changed. No such regulation ... shall become effective until after a public hearing in relation thereto ... Such hearing shall be held in accordance with the provisions of section 8-7d. A copy of such proposed regulation or boundary shall be filed in the office of the town, city or borough clerk ... for at least ten days before such hearing, and may be published in full in such paper ." (Italics added.) CGS § 8-7d establishes the timing for publication in "a newspaper having a general circulation in such municipality" but does not statutorily address the nature of the notice required.
The statutory language of 8-3 explicitly sanctions the publication of the actual proposed zoning amendment language as adequate notice. In Passero v. Zoning Commission, 155 Conn. 511 (1967), the court held that notice that identified the section number of the zoning regulation to be deleted was adequate where the notice also identified that copies of the amendments were available for inspection in the Office of the City Clerk. "The statute (Section 8-3) permits, but does not require, the regulations themselves to be set forth in the notice." Passero at p. 515.
Here notice was given of the intent to consider amending a particular section of the zoning regulations and the specific language to be added or deleted was identified. Adequate notice was provided.
B.
Consistency with the Plan of Development
The second challenge to the City’s amendment of its zoning regulations is the claim of the plaintiffs that the proposed amendment is inconsistent with the Norwich Plan of Conservation and Development. The plaintiffs argue that the City had recently, in 2015, conducted a comprehensive revision of its zoning regulations and that there was no change in circumstances that would justify the proposed change. The plaintiffs further argue that the amendment was designed to enable the development of a specific parcel rather than to bring consistency between the Plan and the Regulations.
As previously noted, courts have identified that zoning commissions possess significant discretion and latitude in amending the zoning regulations. They act in a legislative capacity rather than in an administrative capacity. The breadth of factors that may be considered in making of amending zoning regulations is set out in CGS § 8-2. "(a) ... All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission ..., subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values ... Such regulations shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. 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 statutory limitation on the discretion to adopt or amend regulations requires that the regulation be consistent with the Comprehensive Plan. "Such regulations shall be made in accordance with a comprehensive plan and in adopting such regulations the commission shall consider the Plan of Conservation and Development prepared under section 8-23." CGS § 8.2.
The plaintiff asserts that the record before the City demonstrates that the proposed amendment is inconsistent with the Norwich Plan of Conservation and Development in several separate arguments. First, there is no demonstrated need to amend the zoning regulations. There are multiple sites throughout the city where new gasoline filling stations can be sited without an amendment of the regulations and there is no evidence that the city is underserved with regard to gasoline filling stations. Second, this amendment is directed to the development of a particular parcel of property rather than a comprehensive examination of how this amendment would impact multiple neighborhoods in the community. Further, the plaintiffs allege that the entire zoning ordinance was reviewed in October 2015 and that there was no change in circumstances between 2015 and 2017 that would justify the elimination of the spacing requirement for gasoline filling stations. Finally, the plaintiffs assert that this amendment was to benefit one parcel of land owned by the defendant Cumberland and thus could not be in accordance with the comprehensive plan.
An extensive record has been filed. Cumberland filed its proposed amendment of section 6.3 of the zoning ordinance by letter dated July 27, 2017. The application was received by the City at its August 7, 2017 meeting. Notice of the proposed amendment was given to the Commission on City Plan, adjacent municipalities, the Department of Energy and Environmental Protection and the Southeastern Council of Governments. Legal Notices of the September 18, 2017 public hearing were published.
At the public hearing on September 18, 2017, the City received information from multiple sources related to the proposed amendment of Section 6.3. The applicant Cumberland’s presentation included information regarding a potential development of a site it owned. It noted that its application for a special permit could not even be filed under the existing regulations because of the location of a preexisting gasoline station. It noted the passage of the amendment only allowed them to apply for a special permit. During the Special Permit process there would be abundant opportunities to address concerns about traffic, noise and other neighborhood issues. The defendant also received testimony from a traffic consultant to the effect that the removal of the 1, 000-foot separation requirement would not have a significant negative impact for traffic safety reasons. The opponents, including the plaintiffs in this appeal, opposed the zoning amendment and offered testimony concerning their concerns regarding traffic, noise, congestion. The plaintiff further offered testimony of a traffic engineer that contradicted the conclusions of the applicant’s expert.
The Commission on the City Plan reviewed the proposed zoning amendment and determined, "It is consistent with the Plan of Conservation and Development because it promotes opportunities for economic development and facilitates desired growth including adaptive re-use of buildings and sites." ROR DE 104, p. 69. The Norwich Community Development Corporation, the Southeastern Connecticut Council of Governments and the Department of Energy and Environmental Protection also supported or noted no objections to the proposed amendment of the zoning regulations.
The court cannot substitute its judgment for that of the defendant City based upon this record. There is no requirement for there to be a change in circumstances before the City can consider and amend its zoning regulations. While it is obvious that the defendant Cumberland is interested in developing a particular parcel, the proposed amendment is applicable to the all properties within the General Commercial Districts. This is not the equivalent to spot zoning. The City received conflicting testimony about the wisdom of this amendment, the concerns about development, and the impact or non-impact on traffic issues that would be created by the zoning amendment.
In its wisdom, the City approved this regulation change. Traffic concerns, generalized development concerns, reuse and conservation of property values all are legitimate and reasonable police power purposes for the City to consider in whether or not to amend its regulations. They are within the ambit of CGS § 8-2. The Commission on the City Plan determined that the proposed amendment was consistent with the City Plan. Whether the court agrees or not with the City’s evaluation of the merit or lack of merit of the evidence, there is ample evidence within the record to support that the proposed amendment is consistent with the City Plan.
The final argument raised by the plaintiff in their reply brief is that the decision-making process of the City failed to comply with Connecticut law as there was no generally adopted statement of reasons in support of the passage of the amendment to the zoning ordinance. The Record contains a transcript of the deliberations of the City Council Members articulating their reasons for their vote in favor of, or in opposition to, the proposed amendment. Council member Nash noted his experience as a police officer and offered that the effect of the passage of the amendment might improve traffic safety and noted that the amendment merely allowed an application to be filed. Council member Nystrom noted that the amendment was a city-wide amendment as opposed to a focus on one parcel. He referenced the need for development in the city which comment could be construed as concern for the general welfare of the city or the conservation on value of buildings and encouraging the most appropriate use of land within the city. Mayor Hinchey supported the ordinance change because "it is consistent with the Plan of Conservation and Development particularly that it promotes economic development, reduces blight, and increases the tax base and does not, in my mind, increase any public safety issues." Council member Philbrick opposed the amendment, expressing concerns about the breadth of the amendment, spot zoning for Cumberland, increased economic competition for gasoline stations. Council members Martin and Braddock voted in favor of the amendment, without stating their reasons on the record. Council member Gould opposed the amendment without a statement of reasons.
In reviewing this record, the council members supporting the passage of this amendment expressed concern about traffic safety, economic development and the general welfare of the community. They had before them favorable reports from the Commission on the City Plan and their own knowledge of the needs of the City. There were sufficient reasons within the filed record to support the amendment to the ordinance so that applications for Special Permits could be filed. There was an awareness that the amendment of the ordinance did not approve any particular development but rather removed, in their opinion, an unnecessary roadblock to an application.
CONCLUSION
The court cannot find that the plaintiff has met its burden of proof with regard to this appeal. The amendment of the zoning regulations was legislative action. There is no requirement that there be a change of circumstances before a body acting as a zoning commission can amend its regulations. The City had before it conflicting evidence that it was entitled to exercise its independent judgment in evaluating the same. It had before it a report from the Commission on the City Plan that supported the zoning amendment. The analysis of the traffic impacts, an obvious concern of zoning, is a multi-factorial concern.
While the deliberations of the City, acting as a zoning commission, were not extensive, there were sufficient testimony and exhibits in the record that support their judgment that an amendment of the zoning regulations was appropriate.