Silver Eagle Dev. v. Durham Planning

Full title: SILVER EAGLE DEVELOPMENT TRUST, LLC v. DURHAM PLANNING AND ZONING COMM

Court: Connecticut Superior Court Judicial District of Middlesex at Middletown

Date published: Jun 12, 2009

2009 Ct. Sup. 9999 (Conn. Super. Ct. 2009)

Opinion

No. CV 08 4008446

June 12, 2009

MEMORANDUM OF DECISION

MARK H. TAYLOR, JUDGE.

I. BACKGROUND

The plaintiff, Silver Eagle Development Trust, LLC (Silver Eagle), originally filed this appeal from the Durham planning and zoning commission (commission) on March 11, 2008 and now proceeds with its amended appeal filed on August 19, 2008. This matter was heard by the court on March 2, 2009. The court dismisses the appeal.

By way of background, the court will recite the undisputed history of this case and the commission's decision to deny Silver Eagle's application for a special exception to develop a grocery store on commercially zoned property. On August 4, 2007, Silver Eagle filed the application with the commission, which is the agency empowered under General Statutes §§ 8-2 and 8-3c to review and decide special exception applications. The site of the property subject to the application and this appeal is located within the C-1 commercial zone and contains approximately 11.23 acres located on Main Street in Durham (the property). Silver Eagle has been the owner of the property, which has frontage at the intersection of two state highways, Connecticut Routes 17 and 147, ¹ and at which there is a traffic control signal, since January 2006. The purchase price of the property in 2006 was $1,200,000, and the record supports the plaintiff's assertion that it is the largest undeveloped commercial lot in Durham.

1 Connecticut Route 17 is Main Street in Durham, and Connecticut Route 147 is Middlefield Road.

Silver Eagle's application proposed the construction of three buildings for retail use on the property, with a total floor area of 51,545 square feet and well within the 123,000 square foot maximum permitted for this 11.23-acre lot. One of the three buildings proposed is to be 39,945 square feet, and each of the other two buildings proposed are 5800 square feet. Silver Eagle's intended use of the property is for a grocery store.

A. Regulations CT Page 10000

Section 06.01(30) of the Durham zoning regulations permits retail stores and shops in a commercial zone; however, all uses in such a zone are subject to the approval of a special exception. Section 06.01.01 of the regulations provides as follows: "All uses established in the Commercial District shall be subject to the issuance of a Special Exception by the Planning and Zoning Commission in accordance with this Section and Section 13.05 of these Regulations."

Section 13.05.04 of the zoning regulations is entitled "General Standards" and provides, in part, as follows: "The commission shall approve an application to permit establishment of a use for which a Special Exception is required if it shall find that the proposed use and the proposed buildings and structures will conform to the following standards in addition to such special standards for particular uses as may be imposed: (1) The location, type, character and size of the use and of any building or other structures in connection therewith shall be in harmony with and conform to the appropriate and orderly development of the Town and the neighborhood and will not hinder or discourage the appropriate development and use of adjacent lots or impair the value thereof; . . . (3) The streets serving the proposed use are adequate to carry prospective traffic, that provision is made for entering and leaving the property in such a manner that no undue traffic hazard or congestion will be created; . . . [and] (8) The special exception use shall not constitute a hazard to public health and safety either on or off the subject property." Although the parties do not disagree that these general standards are required by the special exception regulations, they fundamentally disagree over the scope of the provisions that are applicable to this appeal.

At the time the application was filed, § 6.02 of the regulations allowed a maximum total building coverage of 25 percent of the property and allowed a maximum size of any single structure of 40,000 square feet. The proposed buildings for the site met these regulatory requirements as well as all other uniform regulations applicable to a development project within a commercial zone.

The specific regulation limiting the size of a single building to 40,000 square feet was enacted in October 2003. The commission subsequently enacted an amendment to this regulation on September 19, 2007 to reduce the maximum size of a single structure within commercial districts from 40,000 square feet to 30,000 square feet. This amendment was adopted approximately six weeks after Silver Eagle's application was initially filed on August 4, 2007 and approximately two weeks after its application was subsequently amended on September 1, 2007.

B. The Public Hearing and Commission Meeting

The commission soon thereafter held public hearings on the plaintiff's special exception application over the course of several months, on the following dates: October 17, 2007, November 7, 2007, December 19, 2007, January 2, 2008 and January 23, 2008, when the hearings closed. On the last of these dates, the public hearing was held at the local regional high school to accommodate the significant public interest in the application, and the record reflects that those members of the public in attendance were largely opposed to the proposal. (Exhibit 19, p. 8.)

At a commission meeting held on February 20, 2008, a motion to approve the application unanimously failed by a vote of 0-8. The motion was framed as a motion to approve so that, in the event of an approval, conditions could be imposed on the applicant. The motion considered for approval of the project by the commission, which garnered no votes in favor of its adoption, did not include a formal and collective statement of the reason for approval or denial of the application.² Instead, individual commissioners stated their reasons for opposition on the record.

2 General Statutes § 8-3c provides in relevant part: "Whenever a commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision."

According to the minutes of the commission meeting, members were advised by the chairperson of the commission that, upon advice of counsel, they "could speak as individual members of the Commission on this application and make any statements desired but that these remarks would not necessarily represent the Commission's stance as a whole. [The chairperson] was also apprised by counsel that whether the Commission opted to vote the application `up or down,' Commission members did not have to provide [a] rationale either way." (Exhibit 21, p. 3.)

At the commission meeting, six commissioners spoke in opposition to the application. Five of the six who spoke in opposition cited what the court interprets as traffic and traffic safety concerns. Two cited public safety, one of whom specifically cited his concern over the potential for an increase in criminal activity. One generally referred to the plan of conservation and development (plan of development), as well as the preamble to the plan of development and the regulations, in addition to his concerns over traffic and safety. One other commissioner believed that the application did not represent orderly growth, which the court interprets as the orderly development of the town.³ Therefore, the court finds there are three reasons stated on the record that relate to general standards for special exceptions, as reflected in the regulations at § 13.05.04 and recited above and discussed further infra.

3 Each of the commission members who commented against a motion for approval stated, as reflected in the minutes of the commission meeting held on February 20, 2008, as follows: commissioner Ericksen, who offered the motion to approve, indicated that "[t]he biggest problem . . . was the traffic along Route 17 and Route 147 in terms of access and egress from the site . . . Absent . . . input [from the state traffic commission], with the existing traffic problems, the proposed development would exacerbate the overall traffic situation." (Emphasis added.) (Exhibit 21, p. ___.)
Alternate commissioner Cathy Devaux stated that she "was very concerned about traffic and congestion." (Emphasis added.) (Exhibit 21, p. ___.) In her further comments, she expounded upon these concerns and described "Middlefield Road as a disaster citing the school bus traffic, commuter traffic and then all truck traffic from the project emptying onto Route 147." (Exhibit 21, p. ___.)
Commissioner Ralph Chase stated that `the preamble of the Plan of Conservation and Development as well as the zoning regulations — and the mission of the commission to maintain public safety and good traffic patterns as well as a general overall atmosphere of the community . . ." (Emphasis added.) (Exhibit 21, p. ___.) He added that he is not against development, and believes that it has to take place in keeping with the public safety and general atmosphere of the community as well as conform to the regulations and Plan of Conservation and Development." (Emphasis added.) (Exhibit 21, p. ___.)
Commissioner Jim Kowolenko stated that he "supported the sentiments expressed by other commission members. His belief was that the stop-gap measures proposed to address traffic concerns will not adequately correct the situation." (Emphasis added.) (Exhibit 21, p. ___.)
Commissioner George Eames stated that "the zoning regulations stress orderly growth — something he believes the proposed application does not provide. While he acknowledged that a project will be developed at some point, it could provide more orderly growth than what the applicant is proposing now." (Emphasis added.) (Exhibit 21, p. ___.)
Alternate commissioner Mike Geremia stated "that his first concern was with public safety, in particular where the town does not have a police force. He added that commercial activity does tend to breed crime, as most people know. Looking at some of the numbers presented at the January 23 hearing with regard to crime in adjacent towns, the numbers for Roberts in North Madison, averaging one call a week, might not seem ridiculous, but it's still a concern. He added that he does not believe the parcel could accommodate a project of this size, especially from the standpoint of the surrounding road infrastructure. He also stated that he had spent time in the past few weeks driving the surrounding roads at various times of the day. He does not believe the existing roads were designed to handle the kind of traffic that would come through." (Emphasis added.) (Exhibit 21, pp. 3-5.)
Commissioner Tom Russell and alternate commissioner Laudano stated no reasons on the record for their votes in opposition to the application.

C. Orderly Development

Section 13.05.04 of the zoning regulations requires the approval of an application for a special exception if it finds that, inter alia, the following requirement is met: "(1) [t]he location, type, character and size of the use and of any building or other structures in connection therewith shall be in harmony with and conform to the appropriate and orderly development of the Town and the neighborhood and will not hinder or discourage the appropriate development and use of adjacent lots or impair the value thereof . . ."

The defendant claims there is substantial evidence in the record to support the conclusion that Silver Eagle's application does not conform to this standard. In particular, it claims that the Silver Eagle development is massive when compared to the other retail uses of land in the immediate area of the intersection of Route 17 with Route 147 and another nearby intersection at Haddam Quarter Road.

At the public hearing on the application, residents identified several general concerns about the nature of the development and its inconsistency with the rural character of the town with its mix of small and diverse businesses. Other concerns were raised over the impact of the development, characterized by one resident as destructive to the fabric of rural life in Durham, such as that of high outdoor lighting and the nearby historic district. Although only one commission member made reference to the failure of the proposal to meet this general standard, the court finds it was specifically raised at the public hearings and that it was a significant concern voiced by numerous members of the public as a reason to oppose the application.

D. Traffic

Traffic concerns were the predominant reason stated by commission members and members of the public at the public hearings for their opposition to the application. Although all of the uses allowed in this commercial zone require the approval of a special exception and would also have to use the adjacent highway system, Silver Eagle generally claims that many of these other uses are more intense and add more traffic to the road system than its proposed use of the property.

Section 13.05.04 of the zoning regulations requires the approval of an application for a special exception if it finds, inter alia, that "(3) [t]he streets serving the proposed use are adequate to carry prospective traffic, that provision is made for entering and leaving the property in such a manner that no undue traffic hazard or congestion will be created . . ."

Experts for Silver Eagle and the commission substantially agreed with the following conclusions: Absent highway improvements, the traffic generated by the development project at the adjacent intersection of Routes 17 and 147 would substantially increase to a level of service (LOS) that would be considered unacceptable. However, Silver Eagle made specific proposals to improve the roads at the nearby intersections. Based upon these proposed improvements, the projected LOS of "F" at the intersection of Routes 17 and 147 would be improved from a currently marginal LOS of "E" to a more acceptable LOS of "C." Similarly, at the nearby intersection of Route 17 and Haddam Quarter Road, the projected LOS of "D" would be improved to a more acceptable LOS of "B."

The evidence also indicated that although traffic at the intersection of Routes 17 and 68, just over one-half mile from the property, would be detrimentally affected by the approval of the application, the traffic level could be improved from a projected LOS of "F" to between "D" and "C" with changes in signalization and other unspecified improvements. However, the commission's traffic expert reported that, absent improvements, Route 17 at Route 68 will operate at LOS F, Route 17 at Middlefield Road will operate at LOS F, and, with the proposed improvements, only the intersection of Route 17 at Route 68 would operate at an LOS that is typically considered unacceptable. This intersection would operate at LOS F. (Exhibit 58, p. 3.)

Although the plan of development specifically recommends improvements to this intersection, the town had previously considered and declined to implement those improvements. Members of the public and the commission nonetheless opposed any changes to this intersection, and the evidence suggests that opposition to improvements to this intersection was due to its location near the center of town and the historic district.

One of the problems discussed at the public hearings and at the commission meeting was that the roads adjacent to the project are state roads over which the town has no jurisdiction. Because the state traffic commission has jurisdiction over these highways, one commissioner considered the commission to be in what he described as a "catch 22." (Exhibit 21, p. 3.)

E. Public Safety

Section 13.05.04 of the zoning regulations requires approval of an application for a special exception if it finds, inter alia, that "(8) [t]he special exception use shall not constitute a hazard to public health and safety either on or off the subject property." In its brief, the defendant has not addressed the issue of public safety, apart from traffic concerns. The court therefore considers this issue abandoned.

F. Plan of Development

The defendant further claims that the Silver Eagle development plan is inconsistent with the plan of development, citing in its brief the following provisions of the vision statement: "It is the overriding desire that this Plan maintain and enhance those aspects of Durham's rural character that contribute to its high quality of life." "The overall theme running through the goals and objectives detailed in each section of the plan reflects a community desire to maintain Durham's small town character." "Maintaining the historical character of Main Street and retaining the rural nature of country roads appear to be uppermost in the minds of Durham residents." "Also considered as a part of `Main Street' is the intersection of Route 79 at its intersection with Route 17 south to South End Avenue. Included within this area are two commercial nodes at the north and south ends and between them the Durham Historic District which defines the character of rural historic Durham." "The Goals and Objectives of the Plan with respect to `Main Street issues' are: to create sensitive and appropriate commercial transition zones at both ends of historic Main Street that serve as gateways from the rural countryside into and out of the Main Street Historic District." (See Defendant's Brief pp. 10-11; also see Exhibit 103, pp. I-ix.)

G. The Appeal

In its appeal, Silver Eagle claims that when the commission reviews an application for a special exception, it acts in an administrative capacity. Silver Eagle more particularly claims in its appeal that the "Commission acted illegally, arbitrarily and in abuse of its discretion in that: (a) its decision was not supported by substantial evidence in the administrative record; (b) the application met all the specific standards in the zoning regulations for the proposed use of the property and the criteria for special exceptions; (c) the only collective reason for denying the application was traffic conditions at and adjacent to the property, and the only expert evidence on that subject confirmed that with the proposed improvements the level of service on the adjacent roads would be improved to a level of service C or D which was an acceptable level of service under the standards for measuring traffic congestion . . ."

CT Page 10005

II. AGGRIEVEMENT

General Statute § 8-8(b) provides, in pertinent part, that "any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located . . ." Section 8-8(a)(1) defines an aggrieved person in relevant part as including both "a person aggrieved by a decision of a board" and "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."

"[P]leading and proof of aggrievement are prerequisites to a trial 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.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. A plaintiff may prove aggrievement by testimony at the time of trial. See Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).

"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 665, 899 A.2d 26 (2006).

In the present case, the plaintiff has pleaded and proven facts establishing classical aggrievement. In his complaint, he alleges that "as the owner of the subject property and the applicant for the special exception [he] is aggrieved by the Commission's decision." (Amended Complaint, ¶ 15.) Although aggrievement is not a fact in dispute in this matter, sufficient proof was nonetheless offered at trial to show that the plaintiff owns the subject property and, therefore, the court finds that the plaintiff has met its burden of proving that it is aggrieved because it has shown that, as the owner of the property and the applicant before the commission, it has a specific, personal and legal interest in the subject matter of the decision, which was specially and injuriously affected when the commission denied its application.

III. DISCUSSION A. Standard of Review for Special Exceptions

"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which . . . [c]onclusions reached by [a zoning] 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 [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." (Citation omitted; internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 426-27, 941 A.2d 868 (2008).

General Statutes § 8-2(a) provides, in relevant part, that zoning "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 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. Such regulations shall be designed to lessen congestion in the streets . . . to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land . . . and to facilitate the adequate provision for transportation . . . 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 . . ." (Emphasis added.)

"The terms special permit and special exception have the same legal import and can be used interchangeably . . . 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." (Internal quotation marks omitted.) Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 73 Conn.App. 442, 459, 807 A.2d 1089, cert. denied, 262 Conn. 928, 814 A.2d 379 (2002).

Our Supreme Court has recently reiterated the applicable standard of review for an appeal from the denial of a special exception or special permit application. "We previously have observed that [a] special exception allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . Nevertheless, special exceptions, although expressly permitted by local regulations, must satisfy [certain conditions and] standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values [as required by General Statutes § 8-2] . . . Moreover, we have noted that the nature of special exceptions 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 . . . We also have recognized that, if not properly planned for, [such uses] might undermine the residential character of the neighborhood . . . Thus, we have explained that the goal of an application for a special exception is to seek 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 . . . Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 426-27, 941 A.2d 868 (2008).

Although a zoning commission acts in an administrative capacity in considering special exceptions, and not within its broader legislative authority, it is essentially a discretionary process. "We previously have recognized that the special permit process is, in fact, discretionary. In Whisper Wind Development Corp. v. Planning Zoning Commission, 229 Conn. 176, 177, 640 A.2d 100 (1994), 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. Also, we have stated that before the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood . . . 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." (Citation omitted; emphasis in original; internal quotation marks omitted.) Irwin v. Planning Zoning Commission, 244 Conn. 619, 626-28, 711 A.2d 675 (1998).

"It is well settled that in granting a special permit, an applicant must satisf[y] all conditions imposed by the regulations . . . Furthermore, [o]n more than one occasion, our Supreme Court has held that standards set forth in the zoning regulations for the grant of a special permit may be general in nature." (Citation omitted; emphasis in original; internal quotation marks omitted.) Whisper Wind Development Corp. v. Planning Zoning Commission, 32 Conn.App. 515, 521-22, 630 A.2d 108 (1993), aff'd, 229 Conn. 176, 640 A.2d 100 (1994).

Notwithstanding the broad language in Irwin and Whisper Wind, Silver Eagle's counsel in this appeal admonishes us in his treatise that "courts should be particularly reluctant to uphold [the] denial of special permits based on reasons supported only by general regulations since the special permit process is itself an end run around the uniformity concept. Without a strict construction, the agency can in effect arbitrarily deny any application based on broad statements and claims that it is contrary to the public interest or detrimental to the area. Arbitrary action is easily disguised under such superficial terms." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 33:4, p. 250.

There is, nonetheless, a recognized "trend toward investing zoning commissions with greater discretion in determining whether [a] proposal meets the standards contained in the regulations." (Internal quotation marks omitted.) Torrington v. Zoning Commission, 261 Conn. 759, 769-70, 806 A.2d 1020 (2002). In furthering the ability of a zoning commission to exercise greater discretion, a plan of conservation and development may also be used as an aid in interpreting the standards contained in zoning regulations. The use of a plan of development as an interpretive tool is consistent with the language of General Statutes § 8-2(a), which requires that zoning 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."

In Smith v. Zoning Board of Appeals, 227 Conn. 71, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S.Ct. 1190, 127 L.Ed.2d 540 (1994), the Supreme Court explained, in the context of an appeal from the denial of a subdivision application, that a plan of development may not form an independent basis for a denial of a special permit because "the overall objectives contained in the town plan must be implemented by the enactment of specific regulations, the plan itself can operate only as an interpretive tool." Id., 88. However, "[t]he zoning agency reviewing a special permit has greater authority to consider whether the proposed use is consistent with the plan of development than with a subdivision, which cannot be denied for noncompliance with the plan of development. The application can be denied due to noncompliance with the special permit regulations where they refer to the plan of development, not because the application is inconsistent with the plan of development." (Emphasis in original.) R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 33.4, p. 249-50, citing Irwin v. Planning Zoning Commission, supra, 244 Conn. 630-31.

While the Smith case was on appeal during the early 1990s, specific language changes to General Statutes § 8-2(a) were enacted requiring zoning regulations to be made in accordance with and to be considered in light of plans of conservation and development.⁴ After these changes were enacted, the court in Irwin approvingly reiterated the limited use of a plan of conservation and development as the basis for zoning decisions. The court in that case explained: "Moreover, the plaintiff's application was denied due to noncompliance with the special exception regulations, which refer to the plan of development, not because it did not comply with the plan of development. Indeed, the plan of development was used only as an aid for interpreting the standards in the regulations." Id., 634.

4 Public Act No. 92-50 of the 1992 Public Acts provides: "[Such regulations shall be made in accordance with a comprehensive plan and] IN ADOPTING SUCH REGULATIONS THE COMMISSION SHALL CONSIDER THE PLAN OF DEVELOPMENT PREPARED UNDER SECTION 8-23 . . ." One year later, Public Act No. 93-385 of the 1993 Public Acts further amended this specific provision of the statute to provide: "SUCH REGULATIONS SHALL BE MADE IN ACCORDANCE WITH A COMPREHENSIVE PLAN AND IN adopting such regulations the commission shall consider the plan of development prepared under section 8-23."

In the case before the court, the regulatory requirements for special exceptions do not include compliance with the plan of development, and its use is therefore limited as an interpretive aid in informing the commission's decision in this case. Accordingly, the plan of development may not form an independent basis for the commission's denial of Silver Eagle's application for a special exception.

B. Scope of Review

The primary procedural dispute between the parties in the present case involves the scope of the reasons to be considered by the court for the commission's denial of Silver Eagle's application. This issue arises in the context of the failure of the commission to state a formal reason on the record for the denial of the special exception, contrary to the directive of General Statutes § 8-3c(b), which specifically provides: "Whenever a commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision."⁵

5 In discussing a requirement analogous to that of § 8-3c, the Supreme Court explained that "[w]hile . . . a failure to comply with § 8-3 hinders appellate review of the board's action . . . the provision is directory only, so that failure to comply with it does not render the board's action void." (Citation omitted.) Morningside Ass'n. v. Planning Zoning Board, 162 Conn. 154, 156, 292 A.2d 893 (1972).

Silver Eagle urges the court to limit its review to the issue of traffic congestion, as it was the only issue relevant to the regulations to which a majority of the membership of the commission voiced their opposition in ruling upon the application. The commission, instead, urges the court to review the entire record for any lawful reason to support its decision. In particular, it urges the court not only to consider traffic congestion, but also to consider § 13.05.04(1) of the zoning regulations, generally requiring a finding of harmonious, appropriate and orderly development.⁶ Upon a review of the minutes of the commission meeting held on February 20, 2008, the court notes that one member voiced concern over this additional general standard in his opposition to the special exception, which was denied unanimously. The commission claims in its appeal that there is substantial evidence in the record to support the conclusion that Silver Eagle's application does not conform to either of these standards.

6 For the approval of an application for a special exception, section 13.05.04(1) of the zoning regulations requires a finding that "(1) [t]he location, type, character and size of the use and of any building or other structures in connection therewith shall be in harmony with and conform to the appropriate and orderly development of the Town and the neighborhood and will not hinder or discourage the appropriate development and use of adjacent lots or impair the value thereof . . ."

A review of the applicable law is essential to the court's decision under the facts and procedural history of this case. "Where the board states its reasons on the record we look no further." (Internal quotation marks omitted.) Smith Bros. Woodland Management, LLC v. Planning Zoning Commission, 88 Conn.App. 79, 85, 868 A.2d 749 (2005). "Where a zoning [commission] 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 [board's action] must be sustained if even one of the stated reasons is sufficient to support it . . . [This] principle . . . applies where the [commission] has rendered a formal, official, collective statement of reasons for its action . . . Thus, where 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 upon 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.) Durkin Village Plainville, LLC v. Zoning Board of Appeals, 107 Conn.App. 861, 868, 946 A.2d 916 (2008). Ordinarily, an 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, supra, 285 Conn. 427.

"In situations in which the zoning commission does state the reasons for its action, the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations. [O]n factual questions . . . a reviewing court cannot substitute its judgment for that of the agency. 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." Irwin v. Planning Zoning Commission, supra, 244 Conn. 629; See Gibbons v. Historic District Commission, 285 Conn. 755, 770, 941 A.2d 917, 927 (2008).

The exception to this rule is where the commission fails to formally and collectively state its reasons on the record. "[O]ur case law clearly requires the trial court, in appeals from planning and zoning authorities, to search the record to determine the basis for decisions made by those authorities. In Parks v. Planning Zoning Commission, 178 Conn. 657, 661-62, 425 A.2d 100 (1979), we said that [t]he [planning and zoning] commission's failure to state on the record the reasons for its actions . . . renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission's decision . . . We further stated that [i]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld . . . Id., at 662-63, 425 A.2d 100. We have enunciated this duty of a trial court with respect to appeals from zoning boards in a long line of cases." (Emphasis in original; internal quotation marks omitted.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 670, 894 A.2d 285 (2006).

The question presented in the present case is whether the rule or exception applies in instances where a collective reason for the denial of an application may be gleaned from the comments of a majority of the commission members on the record. Under some circumstances, the Appellate Court has held that mere statements made by commission members meet the commission's requirement to "state upon its records the reason for its decision" of General Statutes § 8-3c(b), based upon the particular facts of the case. In RYA Corp. v. Planning Zoning Commission, 87 Conn.App. 658, 867 A.2d 97 (2005), all members of the Enfield zoning commission stated the same reason for their unanimous vote against a subdivision. Under the facts of the case, the court held this to be "a formal, official and collective statement of their reason . . ." Id., 676. Having met the requirements of the collective reason on the record rule, the court concluded that the trial court was not obligated to search the record for alternate grounds to sustain the commission's decision.⁷

7 "[T]he appellants maintain that, having decided that the commission's decision was unsustainable on the ground on which it was rendered, the court had an affirmative obligation to search the commission record for alternate grounds that would support the denial of the plaintiffs' application. The appellants concede that, as a general proposition, [w]hen a commission states its reasons in support of its decision on the record, the court goes no further . . . They rely, instead, on cases that have held that a commission's statement of its reasons is dispositive only if the commission has rendered a formal, official, collective statement of reasons for its action . . . It does not apply to mere utterances of individual members of the agency . . .
"The question before us is, therefore, whether this case falls within the rule or within the exception. The commission maintains that, in this case, the record does not contain a formal, official, collective statement of reasons. We disagree. On January 18, 2001, the commission met for the sole purpose of reaching a decision on the plaintiffs' application. Each commissioner formally voted on a motion by Commissioner James Howard, as amended by Commissioner Nicles Lefakis, to approve the plaintiffs' application with twenty-three conditions. In doing so, each commissioner voted against this motion because of `the safety factor.' It would be absurd to hold that the fact that each commissioner independently stated the reason for his or her vote meant that the commission members did not act collectively. Keeping in mind the informality with which zoning commission members normally conduct their proceedings . . . we are persuaded that the record in this case shows that the commissioners made a formal, official and collective statement about the commission's reason for denying the subdivision application." (Citations omitted; internal quotation marks omitted.) RYA Corp. v. Planning Zoning Commission, supra, 87 Conn.App. 674-76.

In A. Aiudi Sons v. Planning Zoning Commission, 72 Conn.App. 502, 806 A.2d 77 (2002), aff'd, 262 Conn. 192, 837 A.2d 748 (2003), three members of the commission voted in favor of an application for a special exception with only one vote in opposition; however, the application failed because it did not receive the support of the majority of the six board members present. Id., 504. The Appellate Court concluded that the trial court erred in finding that the commission did not state a reason for its denial and searching the record for a sufficient reason to uphold the commission's decision. Although the court acknowledged the rule that individual comments by commission members do not constitute a formal, collective statement of the reasons for a decision, it nonetheless held that the "general proposition is inapplicable here, where the stated views are those of the sole individual responsible for the denial of the application." Id., 513.

In the present case, Silver Eagle's application was unanimously denied. Three relevant provisions of the regulation's general standards for the adoption of special exceptions were identified by members of the commission on the record. Although the predominant view of those who voiced their rationale in opposition to the application related to traffic, there was no debate, opposition or disavowal of any other reason cited by other members, based upon the minutes of the commission meeting held on February 20, 2008. In the absence of a division of opinion or debate over particular reasons of record, logic might lead the court to conclude that the unanimous vote of the commissioners collectively and formally ratified the three different reasons stated by individual members on the record. However, the court finds that the law does not support this conclusion.

Although the facts of the present case are appealingly similar to those of the RYA Corp. and A. Aiudi Sons cases, they are distinguishable from those cases in that, although the vote was unanimous in this case, there was no singular reason for their unanimous decision, as was the case in RYA Corp. Because the decision of the commission in A. Aiudi Sons turned on the vote of a single commission member, the reason recorded was treated as the singular reason for the denial by the Appellate Court. In both of those cases, the reasons stated by the individual members were stated by every member of the commission whose vote determined the outcome of the application.

In the present case, the court is bound by the general rule that "when a commission gives no reason for its decision, the trial court must search the entire record to find a basis for the commission's decision." Gibbons v. Historic District Commission, supra, 285 Conn. 770. In Protect Hamden/North Haven from Excessive Traffic Pollution, Inc.'s, Planning Zoning Commission, 220 Conn. 527, 545 n. 15, 600 A.2d 757 (1991), the record did not reveal the reasons that some of the members of the board favored the zone change, and the minutes disclose that the board as a collective body gave no reason for its action, despite the provisions of General Statutes § 8-3c to the contrary. Of the three commissioners who voted for the proposal, one stated that the amendments conformed to the town plan and that the commission was supposed to limit itself to the amendments; the second stated that he thought the application was "viable;" and the third did not state his reasons.

These comments failed to express a singular, uniform reason, and the court in Protect Hamden/North Haven did "not regard the statement of reasons by the majority of the commission as the kind of formal, official, collective statement of its position contemplated by the rule stated in those cases. Nor is it appropriate for a reviewing court to attempt to glean such a formal, collective statement from the minutes of the discussion by commission members prior to the commission's vote. Thus, we regard this case as governed by the well settled principle of judicial review of zoning decisions that where the commission has failed to state its reasons, the court is obligated to search the record for a basis for its action." Id.

A search of the record for alternate reasons supporting a commission's decision when a formal, collective statement is made is disfavored in zoning appeals because it "invades the factfinding mission of the agency by allowing the court to cull out reasons that the agency may not have found to be credible or proven." Gibbons v. Historic District Commission, supra, 285 Conn. 771. In Gibbons, which overturned Stankiewicz v. Zoning Board of Appeals, 211 Conn. 76, 77-78, 556 A.2d 1024 (1989), the concern expressed by the court was that "[i]n Stankiewicz, the inadequate reason was one that the trial court found to be unsupported by the evidence in the record . . . Nevertheless, the trial court continued to search the record and concluded that there was evidence to support another reason for the zoning board's granting of the variances at issue. Gibbons v. Historic District Commission, supra, 285 Conn. 770.⁸

8 In 1989, the Supreme Court affirmed, in a per curiam opinion, a decision of the Appellate Court that held that a reviewing court should search the record, not only when a zoning commission states no reason for its decision but also when a commission provides inadequate reasons. See Stankiewicz v. Zoning Board of Appeals, 15 Conn.App. 729, 546 A.2d 919 (1988), aff'd, 211 Conn. 76, 77-78, 556 A.2d 1024 (1989). In Stankiewicz, the inadequate reason was one that the trial court found to be unsupported by the evidence in the record. See Stankiewicz v. Zoning Board of Appeals, supra, 15 Conn.App. 731-32. Nevertheless, the trial court continued to search the record and concluded that there was evidence to support another reason for the zoning board's granting of the variances at issue. See id., 731.

Silver Eagle urges this court to find, based on the reasoning set forth in RYA Corp and A. Aiudi Sons, in which collective statements of the commissions' reasons were gleaned from the individual comments of commissioners, that this court is similarly limited to considering only whether the statements made by a plurality of commission members voting with the majority are supported by substantial evidence in the record and that, as in Gibbons, the court may not search beyond those specific reasons even if those reasons are determined to be inadequate. As discussed above, the present case is distinguishable from RYA Corp. and A. Aiudi Sons because the reasons stated by the various commission members voting to deny the application were not uniform.

Moreover, a finding that the record contains a formal, collective statement of the commission's reasons would be inconsistent with Supreme Court precedent explaining that "[a] review of the line of cases addressing the distinction between utterances of individual members of an agency and a formal, official, collective statement of reasons for [an agency's] action reveals that cases in which we have held that the agency rendered a formal, official, collective statement involve circumstances wherein the agency couples its communication of its ultimate decision with express reasons behind that decision." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420-21, 788 A.2d 1239 (2002); see also Moon v. Zoning Board of Appeals, 291 Conn. 16, 25, 966 A.2d 722 (2009) ("[i]n this case, the individual members of the board discussed reasons for denying the plaintiffs a variance, but the board did not state a collective, official reason for its action"). Accordingly, the court finds that the record does not contain a formal, collective statement of the commission's reasons for its decision and that, therefore, the court "must search the entire record to find a basis for the commission's decision . . . [I]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld." Graff v. Zoning Board of Appeals, supra, 277 Conn. 670.

Ironically, this rule may also motivate a zoning commission to abdicate its fact finding role in order to broaden the scope of review of any subsequent appeal, especially under circumstances where there is no unanimity of reason or opinion among the various commissioners voting on the application. In this context, abdication of a commission's fact finding role is significantly distinct from the court's usurpation of a lawful municipal prerogative. Nonetheless, to reach beyond the holdings of our Supreme Court would result in a significant shift in the roles of the state judiciary and municipal zoning authorities, upon which the commission may rely in this case. Therefore, the court is required to "search the entire record to find a [substantial] basis for the commission's decision." Graff v. Zoning Board of Appeals, supra, 277 Conn. 670.

C. Review of the Record CT Page 10015

Upon a review of the record and in reviewing the briefs of the parties, the court concludes there are two relevant reasons for the denial of Silver Eagle's application. The court will therefore limit its review of the record to determine if there is substantial evidence of traffic congestion and whether the record contains substantial evidence demonstrating that the project is not in harmony with and does not conform to the appropriate and orderly development of the town and the neighborhood.

1. Traffic

Substantial evidence in the record shows that any traffic congestion caused by the Silver Eagle project at the intersections of Routes 17 and 147 and the nearby intersection of Haddam Quarter Road would be appropriately addressed by improvements proposed at those intersections. However, it is substantially less clear whether any traffic congestion caused by the project at the intersection of Routes 17 and 68, a little more than one-half mile toward the historic district of Durham, would be appropriately addressed by the proposed improvements. The court will begin its consideration with two important issues in evaluating the record concerning traffic at these intersections. The first is that the roads identified are state roads, over which the town has no jurisdiction. The second is whether the more distant intersection of Routes 17 and 68 should be considered by the court as relevant to the question of the approval of Silver Eagle's application.

a. State Roads

The court will begin with the question of municipal development decisions affecting state roads and highways. General Statutes § 14-311 provides the state traffic commission (STC) with clear authority to preclude the development of land that would substantially affect traffic on state highways and interfere with public safety.⁹ This authority, however, does not prevent the proper exercise of local zoning authority over an application for a special permit. Although the STC may overrule a local decision to authorize the development of a parcel of land affecting a state highway, it does not preclude municipal consideration of an application pursuant to its own regulatory authority.¹⁰

9 General Statutes § 14-311 provides in relevant part: "(a) No person, firm, corporation, state agency, or municipal agency or combination thereof shall build, expand, establish or operate any open air theater, shopping center or other development generating large volumes of traffic, having an exit or entrance on, or abutting or adjoining, any state highway or substantially affecting state highway traffic within this state until such person or agency has procured from the State Traffic Commission a certificate that the operation thereof will not imperil the safety of the public . . ."

10 This proposition was generally addressed in the Superior Court case of Compounce Associates Ltd. Partnership v. Planning Zoning Commission, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 89 043603 (June 28, 1991) [4 Conn. L. Rptr. 262], which the court finds instructive in this case, in which the court, Holzberg, J., reasoned as follows: "Defendant refers this court to the cases of P.X. Restaurant et al. v. Town of Windsor et al., 189 Conn. 153 (1983) and Helicopter Associates, Inc. v. City of Stamford, 201 Conn. 700 (1986), for the proposition that local zoning agencies may exercise coordinate jurisdiction with state regulatory agencies over the same subject matter. While as a general proposition defendant is correct, the cases relied on by the defendant are distinguishable from the present case in that those cases involved the zoning board exercising jurisdiction over matters of purely local concern which do not implicate state interests. For example, in Helicopter Associates v. City of Stamford, supra, the plaintiff, who received a permit to establish a heliport by the state aeronautic agency, was denied permission to locate it in a particular area of Stamford. In rejecting the plaintiff's preemption claim, the court noted that the legislature did not evidence an intent to usurp local zoning prerogatives as to the placement of heliports. Likewise, in P.X. Restaurant v. Town of Windsor, supra, although the plaintiff was awarded a liquor license by the State Liquor Commission, the zoning board was empowered, despite plaintiff's preemption claim, to deny occupancy to the bar because of health and safety reasons which were appropriately the concern of the local commission."

Silver Eagle correctly points out that the STC has overriding authority over certain uses of state highways. See Manchester Sand Gravel Co. v. South Windsor, 203 Conn. 267, 277, 524 A.2d 621 (1987) (the legislature has, by statute, reserved to the STC the ultimate authority to regulate through truck traffic). However, it has cited no authority suggesting that the STC's jurisdiction over state highways preempts and supplants a zoning commission's authority to independently deny an application, based upon its own lawful consideration of the proposed development of land adjacent to a state highway. Therefore, the commission may deny an application for a special permit if properly based upon its own regulations concerning traffic congestion and other lawful considerations. Had it been approved by the commission subject to road improvements, for example, the STC would have the authority to subsequently determine whether the project should be approved or denied, based upon its own statutory or regulatory criteria.

b. Off-Site Traffic

There is conflicting evidence in the record concerning the impact of traffic congestion generated by the proposed grocery store, located over one-half mile away from the intersection of Routes 17 and 68. Therefore, the court must first address whether this remote intersection is a valid consideration in the commission's denial of Silver Eagle's application.

The question of whether a zoning commission properly considered off-site traffic conditions depends upon the nature of the zoning application. For uses permitted as of right, the commission "may consider off-site traffic considerations `only for the limited purpose of reviewing the internal traffic circulation on the site and determining whether the location of the proposed [roads and driveways] would minimize any negative impact of additional traffic to the existing traffic . . .'" Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, supra, 285 Conn. 431, quoting Pansy Road, LLC v. Town Plan Zoning Commission, 283 Conn. 369, 380, 926 A.2d 1029 (2007). "In contrast, when a use is not allowed as of right, but only by special exception, the zoning commission `is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood.'" Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, supra, 285 Conn. 431, quoting Barberino Realty Development Corp. v. Planning Zoning Commission, 222 Conn. 607, 613, 610 A.2d 1205 (1992).

One of the theoretical difficulties in this case involves the hybrid nature of the C-1 zone in Durham. The record shows that the general regulatory requirements for commercial districts in Durham, set forth in § 06 of the regulations, have been satisfied by the Silver Eagle application, suggesting that it should be granted; however, the town of Durham has combined the commercial zoning requirements of its regulatory scheme with the requirements of a special exception, set forth in § 13.05 of the regulations, thereby making all uses within the zone subject to the special exception permitting process, precluding any as of right uses in that district.

c. The Standard Articulated in Cambodian Buddhist Society

"Courts in other jurisdictions have concluded that, in order to deny a special permit because of traffic, the project must cause traffic congestion and have a greater impact on the area than other permitted uses for the property not requiring a special permit . . . The strict application of this principle, however, would effectively exclude many specially permitted uses from residential zones in which they are expressly allowed. Churches and schools, by their nature, generate different traffic patterns and more intense traffic than residences. Accordingly, we conclude that, if a special permitted use would have a significantly greater impact on traffic congestion in the area than a use permitted as of right, the additional congestion may provide a basis for denying the permit . . . Moreover, the significance of the impact should not be measured merely by the number of additional vehicles but by the effect that the increase in vehicles will have on the existing use of the roads. An increase of 100 vehicles per hour may have a negligible impact at one time or location and a ruinous impact at another time or location. In making this determination, the commission may rely on statements of neighborhood residents about the nature of the existing roads in the area and the existing volume of traffic, and its own knowledge of these conditions." (Citations omitted; emphasis in original; internal question marks omitted.) Id., 433-34.

This standard, requiring a finding that a special permitted use would have a significantly greater impact on traffic congestion in the area than a use permitted as of right, does not apply easily to the present case, due to the hybrid nature of the C-1 zone in Durham. The proposed use in this case cannot be compared with as of right uses in the zoning district because this zone does not allow any uses as of right; § 06.01.01 of the regulations requires all uses in the C-1 zone to obtain a special exception pursuant to § 13.05 of the regulations. Furthermore, the context of the court's discussion in Cambodian Buddhist Society of Connecticut, Inc., is that of the typical application for a special exception; namely, where a use permitted only by special exception in a particular zone, such as a church or a school, may be compared to as of right uses in that zone, such as a single-family home. As the commercial district at issue in the present case allows no uses as of right, such a comparison is not possible. The court will nonetheless consider whether the impact of Silver Eagle's proposed use would result in a significantly greater impact on traffic congestion in the area, compared with other existing commercial uses, without the further and inapplicable comparative analysis with uses as of right, as none exist in this zone.

d. Expert and Lay Testimony of Traffic Congestion

Silver Eagle urges the court not to rely upon lay testimony in the record because it has not specifically been cited by the commission in the record, thereby depriving Silver Eagle of a fair opportunity for rebuttal. This concern is unfounded. In its brief, Silver Eagle has responded to the testimony concerning traffic congestion, so it cannot successfully argue that it has been deprived of an opportunity to respond. Furthermore and as discussed above, when the commission fails to include a formal, collective statement of its reasons in the record, the "trial court must search the entire record to find a basis for the commission's decision . . . [I]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld." (Emphasis in original; internal quotation marks omitted.) Graff v. Zoning Board of Appeals, supra, 277 Conn. 670.

If the court were to disregard evidence of lay testimony in the record merely because the commission did not state that it relied on such evidence in ruling on the application, this court would inappropriately narrow the scope of its review. As the Supreme Court reiterated in Cambodian Buddhist Society of Connecticut, Inc., the commission may consider lay testimony "of neighborhood residents about the nature of the existing roads in the area and the existing volume of traffic, and its own knowledge of these conditions." Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, supra, 285 Conn. 434; see contra Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn.App. 53, 69, 549 A.2d 1076 (1988) (conclusions by laypersons as to the effect from the granting of this special use permit, without supporting evidence or facts, is insufficient to support the denial of the special use permit). Similarly, the court, on appeal, may consider whether such evidence would support the commission's decision. In the present case, however, the court limits its use of lay testimony to the existing roads and existing traffic conditions at the relevant intersections, contrasted with projections of traffic conditions under proposed or hypothetical circumstances which, in the court's view, require the testimony of experts.

Silver Eagle contends that it is under no legal obligation to improve the intersection of Routes 17 and 68, but nonetheless has offered unspecified improvements that its expert opines would improve traffic congestion at this off-site location. Having concluded that the special exception standard is applicable to this case, the court is required to consider the effects of the proposed development on such off-site traffic conditions, such as the intersection of Routes 17 and 68. Although this intersection previously has been identified by state and local authorities as an intersection to be improved due to its marginal level of service, the town has resisted road improvements primarily because of its proximity to the center of town and buildings associated with its historic district. Furthermore, although Silver Eagle originally proposed to improve this intersection at its own expense; (Exhibit 98, p. 21); it withdrew this offer after it became clear that the town had no interest in making changes to the intersection. (Exhibit 100, p. 16, and Exhibit 102, p. 19.) After withdrawing the proposed improvements, Silver Eagle simply proposed signal changes to mitigate traffic congestion, resulting in conflicting projections during the proceedings, but ultimately included their expert's projected deterioration of the intersection to LOS F. (Exhibit 44, p. 1.)

This representation was also combined with the veiled admonition that improvements to the intersection would nonetheless be required by the STC to accommodate the traffic congestion generated by the grocery store.¹¹ (Exhibit 99, p. 48, and Exhibit 100, p. 16-17.) The court notes this is a reasonable interpretation of the record, as reflected by the comments made by one member of the public who, at the final public hearing on January 23, 2008, characterized the representations of Silver Eagle as follows: "Now, the engineer tonight says, oh well, we can mitigate that and they've been very careful about avoiding telling this commission that they'd like to widen 68 or widen 17. The only way they're going to be able to mitigate that is to go to the DOT, after this is approved here, and ask them to widen it." (Exhibit 102, p. 40.)

11 One representative from Silver Eagle, Pat Doherty who spoke at the January 23, 2008 public hearing, reported that he had met with the STC to discuss traffic mitigation plans for the intersection of Routes 17 and 68. After discussing the possibility of lane widening and how poorly received this proposal was, he reiterated Silver Eagle's willingness to "mitigate that level of service degradation but would defer that work to the STC, as well as the town, on exactly what we should do." (Exhibit 102, p. 19.) Although Doherty indicated a willingness to continue working with the town, an STC mitigation plan and its immediate necessity would he militated by the town's approval of the application. Furthermore, as it has been previously indicated, the STC has jurisdiction over the intersection of Route 17 and 68 and any mitigation plan required by the additional traffic congestion caused by the approval of the application. During Silver Eagle's concluding presentation at the January 23, 2008 public hearing, during which numerous members of the public spoke in opposition to the application, John Corona commented on the increasing traffic congestion at the intersection and the inevitable need for costly improvements: "There was a remark earlier that the state is not likely to come to your aid any time soon. I think that's all the more reason for you to take advantage of the opportunity you have now to use someone else's money for that purpose."

Silver Eagle claims that the intersection of Routes 17 and 68 is now on the cusp of LOS F and that it will ultimately fail in the future without the development of the proposed grocery store. The evidence in the record supports this conclusion; however, it is uncertain when this assumed inevitability will occur, although there was the suggestion this would occur in three to five years, assuming an annual increase in traffic volume between 1.5 percent to 2 percent. Silver Eagle further claims that adjustments to the signaling at the intersection will mitigate the traffic congestion under their proposal and that they would comply with any mitigation requirements of the STC should their project be approved by the commission.

There was inconsistent evidence in the record concerning the increased number of trips projected by the experts. Silver Eagle's first traffic assumptions did not include consideration of the specific nature of the retail development proposed by the application. For this reason, the commission's expert required a revision of Silver Eagle's assumptions based upon a grocery store, which substantially increased the number of trips assumed for the purpose of projecting increased traffic congestion. (Exhibit 102, p. 12.)

Earlier evidence in the record suggested a significant increase of 10 percent or more in traffic volume along Route 17, and other evidence suggested a significant increase in queue lengths at the intersection of Routes 17 and 68. These projected increases are unclear from a review of the record, because these earlier projections appear to be based upon lower trip numbers involving the imprecise assumption that the Silver Eagle application involved a retail shopping center, as opposed to a grocery store. The court nonetheless finds that there is substantial evidence in the record to support a finding of a substantially greater projected impact on traffic congestion at this intersection, causally connected to the grocery store. This would have been true, even under earlier projections, based upon lower trip numbers, which showed an increase of between 10 and 15 percent. (Exhibit 100, p. 12.) Although the final percentage increase projected by experts is unclear, based upon a review of the record, it bears reiteration that the new site generated trip numbers, provided in late January 2008, resulted in a projected LOS F, constituting an unacceptable level of service at that intersection.

In his final report dated January 23, 2008, the commission's expert, Bruce Hillson of Traffic Engineering Solutions, stated the following: "One location presently operates at a Level of Service that is typically considered unacceptable (Route 17 at Route 68 operates at Level of Service E during the afternoon peak hour). However, lengthy queues or queues longer than the distance between intersections exist at all three of the signalized intersections that were included in the study . . . With no improvements two locations will operate at Levels of Service which are typically considered unacceptable during the afternoon peak hour for the Build conditions. Route 17 at Route 68 will operate at Level of Service F and Route 17 at Middlefield Road will operate at Level of Service F. Saturday Levels of Service are LOS D or better . . . With the proposed improvements only the intersection of Route 17 at Route 68 would operate at a Level of Service that is typically considered unacceptable. This intersection would operate at Level of Service F." (Exhibit 58, p. 3.) This conclusion is confirmed in a memorandum dated January 22, 2008, in which a representative of Silver Eagle indicated that, based upon the new numbers from their expert, "[the intersection of Route 68 with Route 17 currently operates at a Level of Service E and will further degrade to Level of Service F for the forecasted build conditions]." (Exhibit 44, p. 1.)

e. Comparative Analysis

"When deciding an appeal from a decision of the board, the trial court must determine whether the board has correctly interpreted its regulations and applied them with reasonable discretion to the facts . . . The burden is on the plaintiffs to demonstrate that the board has acted improperly in making its decision . . . A decision of the board will be reversed only when the plaintiff has proven that the decision was unreasonable, arbitrary or illegal . . . A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it. Therefore, as long as honest judgment has been reasonably and fairly exercised at the local level, the trial court must not substitute its judgment for that of the zoning board." (Citations omitted.) New London v. Zoning Board of Appeals, 29 Conn.App. 402, 405, 615 A.2d 1054, cert. granted in part, 224 Conn. 921, 618 A.2d 528 (appeal withdrawn March 18, 1993), cert. denied, 224 Conn. 922, 618 A.2d 528 (1992).

If Silver Eagle's application were approved and the grocery store were built, a number of intersections along Route 17 would be projected to operate at an unacceptable level of service. Of particular concern to the court is the intersection of Route 17 and Route 68 which would operate at LOS F, mitigated only by significant and unidentified improvements to the intersection, which, in turn, are generally and historically abhorrent to Durham.

To resolve these opposing concerns, the court will consider evidence in the record showing whether Silver Eagle's proposed use would result in a significantly greater impact on traffic congestion in the area, compared with other existing commercial uses, as Cambodian Buddhist Society instructs under the circumstances of this case. The record does not reflect, however, that the parties conducted such a comparative analysis between the traffic projected to be generated by the application and other existing commercial enterprises in Durham. The court nonetheless finds there is substantial evidence in the record to support the conclusion that no other commercial enterprise generates traffic congestion within the municipality comparable to the traffic congestion projected by the approval of Silver Eagle's application.

Evidence of traffic congestion generated by other, existing commercial enterprises included Commissioner Foley's statement at the December 19, 2007 public hearing, as follows: "Well, I, our regulations require that the existing road system be able to handle the capacity of, generated by the project . . . [W]e approved Grippo's, that generated traffic. We approved Adams, that generated traffic. We approved Six Main Street, we approved Durham Commons. Well, none of those generated the kind of traffic that we're talking about here. So, you're mixing apples and oranges there." Responding this comment, Corona, representing Silver Eagle, stated: "I don't think you can say that. In the aggregate, they generate more traffic than this proposal." (Exhibit 100, p. 18.) From these comments, it is reasonable to conclude that none of the businesses, individually, compare with the traffic generated by the Silver Eagle proposal. Instead, it appears that it would take the four identified commercial enterprises "in the aggregate" to exceed Silver Eagle's projected volume of traffic.¹²

12 Other testimony in the record supports this conclusion. For example, Corona again spoke to the issue of traffic generated by other commercial enterprises at the final public hearing held on January 23, 2008: "At this moment in time, you have the opportunity to capture money from the developer to make traffic improvements on Main Street. That wasn't true when you allowed Grippo to go, it wasn't true when you allowed the DiNatale building to build. I don't think it was true when you allowed the Carolyn Adams to be built. None of those really reached a critical mass which would allow someone to say to the developer you need to make some improvements along Main Street." Exhibit 102, p. 73-74. Of course, the court recognizes that the "critical mass" referred to by Corona does not directly compare the traffic projected by Silver Eagle's application. Instead, it may more properly refer to the long sequence of building projects that now result in the imminent failure of various intersections on Main Street, including the one at Routes 17 and 68. Nonetheless, there is no indication that the traffic generated by these businesses compares with the Silver Eagle Application.

The court concludes that Silver Eagle has failed to meet its burden of proving that the commission acted in an unreasonable, arbitrary or illegal manner as there is no substantial evidence in the record showing, for example, that the commission has approved other applications generating the same or similar levels of traffic in the past. Had the record shown this to be true, a contrary conclusion may have been reached by the court. See New London v. Zoning Board of Appeals, supra, 29 Conn.App. 405.

Since there is substantial evidence to conclude that the existing LOS at the intersection of Routes 17 and 68 would substantially deteriorate from level "E" to level "F," the court finds that the commission's decision is consistent with the requirements of Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, supra, 285 Conn. 434, as interpreted by this court under the facts of this case. Substantial evidence in the record supports a finding that the proposed special permitted use would have a significantly greater impact on traffic congestion in the area than other commercial uses that have been permitted in the zone. See id.

Substantial evidence in the record also supports the conclusion that Durham has long considered and rejected improvements at the intersection of Routes 17 and 68 under the rationale that it is located at or near the center of Durham and buildings of historic significance in its historic district. (Exhibit 99, pp. 11 and 47.) If Silver Eagle's application were approved, the slow degradation of traffic conditions at the intersection of Routes 17 and 68 and the impending failure of the intersection would be accelerated substantially, necessitating the imminent consideration of long rejected improvements to that intersection. Moreover, Silver Eagle has not specified what improvements to that intersection it would have been willing to undertake.

2. Orderly Development CT Page 10023

Although the zoning board's action must be sustained if even one of the stated reasons is sufficient to support it; Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn.App. 53, 56-57, 549 A.2d 1076 (1988); the court will briefly summarize its conclusions regarding the commission's claim that Silver Eagle's application is inconsistent with the orderly development of the town.

As previously indicated, Durham has combined the commercial zoning requirements of its regulatory scheme with the requirements of a special exception, thereby making all uses within the zone subject to the permitting process, precluding as of right uses. This combination of zoning schemes results in a discretionary process as a result of the incorporation of the general standards applicable to special exceptions. As noted above, "courts should be particularly reluctant to uphold [the] denial of special permits based on reasons supported only by general regulations since the special permit process is itself an end run around the uniformity concept. Without a strict construction the agency can in effect arbitrarily deny any application based on broad statements and claims that it is contrary to the public interest or detrimental to the area. Arbitrary action is easily disguised under such superficial terms." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 33.4, p. 250.

The orderly development argument is based on a general consideration in the regulations requiring approval if the character and size of the use and of any building is in harmony with and conforms to the appropriate and orderly development of the municipality and its neighborhoods. See Durham Zoning Regs., § 13.05.04. A zoning commission may deny a special exception application based on general considerations when such considerations are enumerated in the regulations and the record contains substantial evidence in support of such concerns. See Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 454-55, 853 A.2d 511 (2004) ("[t]he special exception process is discretionary, and the zoning board may base its denial on general considerations such as public health, safety and welfare, which are enumerated in zoning regulations" [internal quotation marks omitted]).

"A local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances . . . A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation . . . A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance . . . The words employed are to be interpreted in their natural and usual meaning . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant . . . The regulations must be construed as a whole and in such a way as to reconcile all their provisions as far as possible. (Citations omitted; internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning Zoning Commission, 46 Conn.App. 566, 571, 700 A.2d 67 (1997).

Looking to the language of the orderly development provision of the regulations, it requires the commission to approve the application if it finds that "[t]he location, type, character and size of the use and of any building or other structures in connection therewith shall be in harmony with and conform to the appropriate and orderly development of the Town and the neighborhood and will not hinder or discourage the appropriate development and use of adjacent lots or impair the value thereof . . ." Durham Zoning Regs., § 13.05.04(1). The court considers this provision to be conjunctive in its construction. See JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 419, 828 A.2d 609 (2003). Accordingly, if any part of this provision is not satisfied, the commission may not approve the application.

The court finds the records contains substantial evidence that approval of the Silver Eagle application would not be in harmony with and conform to the appropriate and orderly development of the town. See Durham Zoning Regulations § 13.05.04(1). Approval of the project would result in imminent, unidentified and generally undesired changes to the intersection of Routes 17 and 68 near the center of Durham and the town's historic district. Accordingly, the appeal is also sustained because substantial evidence in the record would support a finding by the commission that the requirements of § 13.05.04(1) of the regulations were not met.

Although the record does contain evidence supporting a finding by the commission that Silver Eagle's project would not be in harmony with and conform to the appropriate and orderly development of the town, the record does not contain substantial evidence showing that approval of the application will "hinder or discourage the appropriate development and use of adjacent lots or impair the value thereof." Id. Apart from concerns over traffic congestion, the substantial thrust of the testimony and evidence in the record reflects a general resistance to business competition and the transformation of Durham from a rural and agricultural community to a rural and residential community, still dominated by small, locally owned businesses. The testimony also reflects concerns of neighboring residential property owners over noise and light pollution, which may be adequately addressed by the existing regulatory scheme for land use in the municipality.

Although there is no doubt that Silver Eagle's proposal represents a substantial departure from the small businesses located in this rural town, transitioning from a culture that was predominantly rural and agricultural to a residential community, the court cannot conclude that a large grocery store is inconsistent with the harmonious, orderly and appropriate development of Durham.

IV. CONCLUSION

For the foregoing reasons, the appeal is dismissed based upon Silver Eagle's failure to meet the requirements of Durham Zoning Regulations §§ 13.05.04(3) and 13.05.04(1). The court finds there is substantial evidence in the record to support the commission's decision that there will be undue traffic congestion created by the approval of the application, particularly at the intersection of Routes 17 and 68, and that the project would not be in harmony with and conform to the appropriate development of the town.