Opinion
CV166067913S
05-19-2017
Barbara Slowikowska et al. v. Cromwell Planning and Zoning Commission et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Andrew W. Roraback, J.
I
Facts
After hearing all of the arguments, reading all of the briefs and reviewing all of the exhibits contained in the record of this case, the court identifies the following facts of record which are relevant to the disposition of this appeal. The plaintiffs, Barbara Slowikowska, Lauren Kilpatrick, Richard Petrovits and Deborah Doll, bring this administrative appeal against the defendants, the Cromwell Planning and Zoning Commission (the commission), Country Squire Site, LLC (Country Squire), and Belfonti Companies, LLC (Belfonti). The plaintiffs are neighbors to an 8.75-acre parcel of land in Cromwell which was the subject of a zone change. The application for this zone change was submitted to the commission on December 7, 2015. (Return of Record [ROR], Item 20.) The land in question is owned by the defendant Country Squire, and the application was jointly made by Country Squire and Belfonti, a developer which proposes to build apartment buildings on the subject site. (ROR Item 1.) The zone change in question changed the land from a Residential R-25 zone to a Planned Residential District zone (PRD).
At the initiation of this action, there were several other plaintiffs, Halina Fraszka, Michael Freeman, Lisa Hunter and Janet Oblen, all of whom withdrew as parties during the pendency of this appeal.
After reviewing the application and all of the information furnished to it during the public hearing process, the commission on March 1, 2016, approved the zone change by a supermajority vote of seven to two. (ROR Item 12.) This appeal followed.
The instant action was commenced on March 23, 2016. On June 29, 2016, the commission filed the return of record. Supplemental returns of record were also filed on July 21, 2016, and August, 30 2016, respectively. The plaintiffs filed their brief on August 5, 2016. The defendants filed their joint brief on September 2, 2016, and the plaintiffs filed their reply brief on September 20, 2016. The appeal was initially heard on October 17, 2016. At the request of the court additional briefing was provided by both parties on October 31, 2016, regarding an unclear provision in the zoning regulations. Argument was heard again on December 21, 2016. Lastly, again at the request of the court, further briefing was provided by both parties on January 20, 2017, regarding the necessity for and the content of any impact statement required under the regulations. Argument on this issue was offered to the court on January 23, 2017.
In preparing for the initial argument, the court conducted a thorough review of the relevant provisions of the Cromwell zoning regulations which were returned as part of the record of this action. (See ROR Item 52.) In so doing, the court noted that in a table incorporated, into Section 4.7.D of the regulations pertaining to PRD zones, the Multi-Family " Max. Building Density" is indicated to be " 20 units per buildable area."
II
The site which is the subject of this appeal is 8.75 acres in size. Belfonti proposes to build on this site a 160-unit housing complex comprised of several two and three-story apartment buildings together with associated parking and ancillary amenities. (ROR Item 21.) Incident to the construction of this project, Belfonti will be required to spend considerable sums to clean up and environmentally remediate a property which has long been contaminated. The site has also been the location of frequent vandalism, including unauthorized fires. (ROR Item 6.)
In addition, Belfonti proposes to construct for the benefit of the town and an adjacent residential development a roadway providing another means of access to that neighboring development. Belfonti also proposes to install a new water line which will furnish more secure water service to that neighboring development. These improvements will be constructed at Belfonti's expense on property adjacent to the subject site which is owned by the town. Belfonti also proposes to improve and add sidewalks to Country Squire Drive which is currently inadequate to serve existing needs. (ROR Items 15, 18.) In addition, construction of the proposed new development would result in the generation of significant additional property tax revenue for the Town of Cromwell. (ROR Item 32.)
Public hearings on the application were held on January 19, 2016, February 2, 2016, February 6, 2016 and March 1, 2016. (ROR Items 6, 8, 9 and 10.) A site visit was conducted on January 31, 2016. (ROR Item 7.) At the public hearing, many current residents of housing developments adjoining the subject site spoke in opposition to the proposed zone change. Among those expressing opposition were residents of neighboring condominium developments whose densities range from eight to twelve units per acre. (ROR Items 36, 37 and 38.) The proposed development under scrutiny in this case would have a density of nineteen units per acre. (ROR Item 45.)
The objections stated at the public hearing included concerns regarding traffic, roadway safety, noise, decreasing property values and effects on wildlife that currently inhabit the subject site. There were also concerns expressed that the apartments proposed might ultimately house low income families and bring greater crime to the community. (ROR Item 10.)
Supporters of the proposal offered comments at the public hearing which focused on the need for additional rental housing in Cromwell, the benefits of environmental remediation of the subject site and the additional tax revenue which the town would receive if the project were to come to fruition. They also spoke favorably regarding the roadway and water infrastructure improvements which would accompany the development. (ROR Item 10.)
Prior to the zone change which is now being challenged, the property in question had been located in an R-25 zone. The R-25 zone is a residential zone whose purpose according to § 2.2 of the Cromwell Zoning Regulations (regulations) is " to cover those areas of Cromwell where development has occurred and should continue to occur at less intense densities and where water and sewer might not be available."
The zone change in dispute involves a change for the subject site from the R-25 zone to a PRD zone. According to § 4.7.A of the Cromwell Zoning Regulations the PRD zone is " a floating zone for residential uses. Its purpose is to provide for the development of residentially-zoned property in Cromwell in a manner consistent with the general vicinity, allowing single family, duplex or multi-family residential units in areas where that type of housing already exists."
The PRD zone was created by a vote of the Cromwell Planning and Zoning Commission on August 16, 2015. The commission approved this new zone after considering an application to amend the zoning regulations which had been filed by Attorney Diane Whitney. (ROR Items 20, 21.) This application was presented without reference to any particular parcel of land or proposed development. No appeal was taken from the commission's decision to approve this floating zone.
The plaintiffs make several claims as to why they believe the commission acted unlawfully in changing the zone of the subject property to PRD. Specifically they claim: (1) that the zone change is inconsistent with the Plan of Conservation and Development (POCD); (2) the zone change fails to conform to § 8.9.E.5 of the Cromwell Zoning Regulations, because the change in zone does not " aid in protecting the public health, safety, welfare and property values" of the area; (3) the commission violated § 4.7.A of the zoning regulations as the re-zoned area would not be in harmony with other parcels in the general vicinity of the lot; (4) the approval of the commission was improper due to the ownership interest of one board member in the subject parcel; (5)the zoning regulations were not followed by the commission, as no zoning impact statement was ever submitted by the applicants as required under § 9.4.B. of the Cromwell Zoning Regulations; (6) the zone change application was improperly signed by Patrick Precourt in his individual capacity rather than in his capacity as a member of Country Squire; (7) nearby property owners were not properly mailed notice of the subject application; (8) the public hearing sign required under 8-10.H of the Cromwell Zoning Regulations was not revised each time the hearing was continued to another date as required by the regulation; (9) the commission's action in approving the application was unlawful as it was in derogation of a land use public opinion survey accompanying the POCD; (10) the approval of the change constitutes illegal spot zoning. The defendants deny each of these claims, arguing that the zoning decision was consistent with the law, zoning regulations and public policy.
III
Discussion
General Statutes § 8-8(b) provides in relevant part: " [A]ny 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 . . ." General Statutes 8(a)(1) defines " aggrieved person" as " a person aggrieved by a decision of the board" and " includes any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
Evidence on the question of aggrievement was presented to the court on October 17, 2016, the day on which argument was initially heard on this appeal. After that evidence was presented, the defendants stipulated that the facts that had been offered provided a basis upon which the court could conclude that the plaintiffs were statutorily aggrieved. The court therefore makes that determination and finds that the plaintiffs have standing to bring this appeal.
In making their decision to support the motion to approve the zone change which allowed for the PRD zone to be landed on the subject site, several commission members offered reasons for their actions. Among the reasons stated were that the change was in compliance with the zoning regulations, that " the positives outweighed the negatives, " that the change would have " significant benefits to the health, safety and welfare of the residents of Cromwell, " that it would " clean up the mess up on top of the hill" and that it would " bring more good than bad to the town." (See ROR Item 51, pages 108-12).
" 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 . . . applies where the agency has rendered a formal, official collective statement of reasons for its action . . . We have also stated, however, that the failure of the zoning agency to give such reasons requires the court to search the entire record to find a basis for the commission's decision." (Citations omitted; internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic and Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991).
The plaintiffs' initial three arguments challenging the decision of the zoning commission are: (1) that the zone change was unlawful because it was inconsistent with the POCD, (2) that the commission failed to follow § 8.9.E5 of the zoning regulations, and (3) the commission failed to follow § 4.7A of the zoning regulations. Given that these claims are intertwined, they will be considered collectively.
The plaintiffs first argue that the commission did not uphold its responsibilities under both § 4.7.C1 of the zoning regulations and General Statutes § 8-3a each of which require that the zone change conform to and be consistent with the POCD. Specifically, the plaintiffs point to the following provisions of the POCD as being inconsistent with the subject parcel being rezoned as a PRD:
1. Goal 5--" Supply an infrastructure that balances growth with preservation."
2. Objective 10--" To promote a development pattern that permits the efficient delivery of public services in a cost effective manner."
3. Policy 37--" Permit development only where adequate roadways, utilities and/or other public service infrastructure is available."
4. Policy 38--" Discourage intensive development from areas where such development is not consistent with local land use policy."
5. Policy 40--" Encourage new development to make fair share contributions, commensurate with project impacts, to ensure that reductions in quality of services, public facilities or programs do not occur."
6. Goal 8--" Recognize the potential impacts of increasing residential growth within Cromwell and manage growth accordingly."
7. Objective 14--" To ensure that new housing is appropriate in type, location and density to minimize environmental and aesthetic impacts and maintain community character."
8. Policy 52--" Ensure that new housing is located in areas that can be supported by roads and infrastructure while protecting the natural environment."
In response, the defendants point to other components of the POCD which they contend are advanced by this zone change:
1. Overview and Purpose--" Cromwell has also experienced a rise in its number of senior citizens; concerned residents have cited a responsibility to address the increasing needs of this growing population."
2. Policy 28--" Encourage developers to make necessary road improvements that will accommodate projected increases in traffic . . ."
3. Objective 15--" To promote housing choice and meet the needs of potential residents from all socio-economic levels."
The plaintiffs next maintain that the evidence in the record is not sufficient to uphold the commission's necessary determination under § 8.9.E5 of the Cromwell Zoning Regulations that the change in zone " aid in protecting the public health, safety, welfare or property values."
Plaintiffs lastly contend that the court must find that the commission also acted unlawfully because it violated the precept found in § 4.7.A of the Cromwell Zoning Regulations that the PRD would " allow for a variety of housing types historically found in Cromwell but not currently allowed under present regulations" and the stated goal in § 4.7.C1 of the regulations that the PRD " is to allow for flexibility in housing choices in a manner consistent with and in harmony with the general vicinity of the lot." The proposal contemplates the construction of multi-unit apartment-housing which would be rented rather than owned by their occupants. Given the current absence of large scale rental apartment complexes in Cromwell, the plaintiffs contend the commission was prohibited from approving the change to a PRD for the subject parcel.
" [W]hen acting in its legislative capacity to enact or amend its regulations, a local zoning authority must . . . be free to modify its regulations whenever time, experience and responsible planning for contemporary or future conditions reasonably indicate the need for a change . . . The discretion of a legislative body, because of its constituted role as a formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function . . . A less strict rule would require the court to exercise a legislative judgment . . . This broad legislative discretion applicable to approval of a zone change . . . will not be disturbed on appeal unless the zoning authority has acted illegally or arbitrarily and has thus abused the discretion vested in it." (Citations omitted; internal quotation marks omitted.) Homart Development Co. v. Planning and Zoning Commission, 26 Conn.App. 212, 216-17, 600 A.2d 13 (1991).
In the present case, against the backdrop of the facts contained in the record upon which the commission relied in approving the subject zone change application, the court cannot conclude that the commission abused its broad legislative discretion in an illegal or arbitrary way. These claims must therefore fail.
The plaintiffs' fourth challenge to the propriety of the commission's action in approving the zone change is that because one of the commission members has an ownership interest in the subject parcel, the other members of the commission were unlawfully predetermined and predisposed to approve the application.
A finding of improper predetermination may be sustained when there is " substantial factual evidence that . . . [an] application . . . [is] not afforded a fair and reasonable hearing by the commission." Marmah, Inc. v. Greenwich, 176 Conn. 116, 118, 405 A.2d 63 (1978).
In this case, the commission member with the ownership interest recused himself from participating in the consideration of the subject application. The plaintiffs presented no evidence in support of their assertion of impropriety beyond the fact of the ownership interest. They also neglected to identify any case law which would support the contention that the court is obligated to invalidate an approval on the sole basis of a commission member having an ownership interest in the property at issue. The record in this case does not contain sufficient evidence to reject the commission's decision on the basis of predetermination, and this claim therefore is not a basis upon which to invalidate the commission's approval.
Were the court to conclude otherwise, such a determination would essentially preclude land use boards in every community from ever considering applications which would or could affect property in which one of their members has an ownership interest.
The plaintiffs' fifth contention is that this appeal should be sustained because the commission did not follow its own regulations when it failed to require the applicants to submit an Impact Statement consistent with what is set forth in § 9.4 of the Cromwell Zoning Regulations. That provision states in pertinent part as follows: " When required by these regulations, the impact statement is intended to be a structured narrative prepared by the applicants that addresses the specific items requested below." Section 9.4.A enumerates what must be contained in an Impact Statement accompanying each Special Permit application, and § 9.4.B prescribes what each Impact Statement must contain when an application for a Zoning Map Amendment is being considered.
Section 4.7.C1 of the Cromwell Zoning Regulations provides that " [t]he commission shall establish the PRD consistent with the requirements in § 8.9." Section 8.9 of the Cromwell Zoning Regulations is titled " Zoning Map Amendment Application Procedures (Commission), " and § 8.9.A1 dictates that " [a] zoning map amendment shall be submitted for any proposal to alter the zoning designation of any parcel(s) of land or part thereof." Section 8.9.A3 of the regulations requires the submission of a Master Plan at the time of application for a Zoning Map Amendment seeking to establish a PRD. Section 8.9.J1 provides that " [w]hen a Master Plan is required, the Commission shall act upon the application in accordance with the procedures for a Zoning Map Amendment." Section 9.4.B sets forth the requirement that Impact Statements be submitted in connection with Zoning Map Amendments and further delineates the information that must be contained in such statements. As such, the plaintiff contends, the regulations dictate that the applicants in this case ought to have submitted in connection with their zone change application an Impact Statement containing all of the information required by § 9.4.B.
In rejecting this allegation of the plaintiffs, the defendants wrote in their joint brief dated September 2, 2016 that " The application was complete; an impact statement and economic analysis were both submitted with the application." The defendants cited to ROR Items 21, 45 and 48, in support of this argument.
The court requested additional argument and briefing on the issue of whether a § 9.4.B Impact Statement was a necessary component of the application whose approval has given rise to this appeal. The plaintiffs take the position that such a statement is expressly required by the zoning regulations and may only be excused through compliance with the waiver provision set forth in § 9.4.B7. The defendants contend that no § 9.4.B Impact Statement was required in connection with establishing a PRD zone because the regulations only require an impact statement to be submitted at the time a special permit is sought.
Section 9.4.B7 provides in relevant part: " If requested, the Commission may waive any of the Impact Statement Requirements provided a written waiver request has been submitted at the time the application is filed with the Commission."
Section 4.7.E of the Cromwell Zoning Regulations provides " [a]fter the Master Plan [for a proposed PRD] is approved, an application for a Special Permit and Site Plan must be submitted" which " will contain the details of the development and will be accompanied by an impact analysis report that will document the potential impacts of the proposed developments on residential neighborhoods, public utilities, municipal resources, land development patterns, the economy, fiscal resources of the town, and socioeconomic characteristics of the population." The regulations are silent on the question of whether this " impact analysis" is intended to supplant or to supplement the " Impact Statement" required by § 9.4.A for a Special Permit. The § 9.4.A " Impact Statement" must contain additional and different information from that which is set forth in the § 4.7.E " impact analysis." The defendants further take the position that the § 4.7.E " impact analysis" also operates to excuse an applicant seeking the establishment of a PRD zone from submitting a § 9.4.B Impact Statement, even though the § 9.4.B Impact Statement requires even more and different information than either the 9.4.A Impact Statement or the 4.7.E " impact analysis."
" 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.) Fedus v. Zoning & Planning Commission, 112 Conn.App. 844, 849-50, 964 A.2d 549, cert. denied, 292 Conn. 904, 973 A.2d 104 (2009).
" A commission is not at liberty to ignore its existing regulations and to treat them as invalid." Samperi v. Planning and Zoning Commission, 40 Conn.App. 840, 848, 674 A.2d 432 (1996). " Construction of zoning regulations is a regular function of the courts. The full panoply of principles of statutory construction are available to aid in the construction of local ordinances." (Citations omitted.) East Lyme v. Waddington, 4 Conn.App. 252, 259 n.2, 493 A.2d 903, cert. denied 197 Conn. 811, 499 A.2d 61 (1985) " When presented with a question of statutory construction, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Citations omitted; internal quotation marks omitted.) Desrosiers v. Diageo North America, Inc., 314 Conn. 773, 782, 105 A.3d 103 (2014).
The commission in this instance, was entertaining an application to " land" a PRD " floating zone." The PRD " floating zone" had been created by the commission fewer than four months before the application was submitted. The record contains no evidence that either the applicants or the commission gave any consideration to the question of whether the § 9.4.B Impact Statement or a waiver of the same was required by the regulations. The text of § 4.7, which created the PRD zone, makes no reference to how, if at all, it might harmonize with the requirements of § 9.4 which the record reveals were in place before the PRD zone was created.
Requiring applicants seeking to amend the zoning map to create a PRD zone to submit the Impact Statement required by § 9.4.B at the time of their initial application can reasonably be viewed as being incongruous with the scheme governing the creation of such zones. Nevertheless, insisting on strict compliance with the plain and unambiguous requirements of § 9.4.8 is neither absurd nor unworkable. Should the commission wish to amend its regulations to refine what information it requires for zoning map amendments involving floating zones or to alter the times frames for the submission of certain information in connection with these applications, it is unquestionably competent and empowered to do so. " [T]he task of changing the law lies with the legislature and not with the judiciary . . . [I]t is not the business of the court to attempt to twist the interpretation of the law to conform to the ideas of the judges as to what the law ought to be . . . The judicial function should not invade the province of the legislature." (Internal quotation marks omitted.) Director of Health Affairs Policy Planning v. Freedom of Information Commission, 293 Conn. 164, 182, 977 A.2d 148 (2009). In the present case, the court concludes that the zoning regulations required that a 9.4.B " Impact Statement" be filed in connection with the requested change to the zoning regulations.
The defendants' arguments to the contrary are not persuasive. They cite to the preamble of § 9.4 of the Cromwell Zoning Regulations which states that " when required by these regulations, the impact statement is intended to be a structured narrative prepared by the applicant that addresses these specific items requested below." In light of this language, the defendants argue that an " Impact Statement" is only required if and when it is otherwise expressly required by other provisions of the Regulations. This argument is belied by the fact that nowhere in either § 8.7 governing Special Permits or in § 8.9 governing Zoning Map Amendments is there any reference to § 9.4. The more cogent reading of the " when required by these regulations" language of § 9.4 is thus that said language refers to what follows i.e. that these Impact Statements are specifically required for both Special Permit and Zoning Map Amendment applications.
The defendants also argue that " a full and fair reading of the Regulations as a whole establishes that 9.4.B only applies at the special permit stage of development and only when the special permit includes a zoning map amendment." Adopting this interpretation leads to two illogical conclusions. First, this reading of § 9.4B would relieve any applicant for a zone change, no matter how potentially consequential, from the obligation to submit the detailed impact statement required unless the applicant was also seeking a special permit. Similarly, in cases where applicants might seek an amendment to land one of Cromwell's four floating zones, no impact statement would ever be required for landing Active Adult, Institutional Development or Mixed Use zones, unless the originally approved application is later modified.
With respect to PRD zones, the defendants position leads to an equally unworkable result, namely that both a 9.4.A and a 9.4.B Impact Statement, would need to be submitted at the time the applicant filed for approval of its Special Permit and Site Plan as required by § 4.7.E1. Under the requirements of the current zoning regulations, any application to amend the zoning map to land a PRD zone was required to contain the Impact Statement set forth in § 9.4.B. The application under review did not contain such an Impact Statement, and the approval was therefore illegal. Consequently, plaintiffs' appeal is sustained on this basis.
The plaintiffs' sixth basis for arguing that the appeal should be sustained is that the application for the zone change was signed by Patrick Precourt in his individual capacity rather than in his capacity as a member of the Country Squire Site, LLC. This claim is unpersuasive. No evidence has been adduced to suggest that the identities of any of the parties to this proceeding were ever obfuscated or concealed from the zoning commission or that the commission acted other than with full knowledge of who the applicants were.
The plaintiffs' seventh contention is that the appeal should be sustained because TDC Evergeen, LLC and Patricia A. Scully, both property owners within 100 feet of town, owned property which might be improved if the proposed development went forward, were not mailed notice of the subject application. This argument is unavailing. Section 8.10.G of the Cromwell Zoning Regulations, only requires notice to abutters within 100 feet of " of the land which is the subject of the hearing." In this case, the land for which the PRD zone was sought was owned by Country Squire and not by the town. As such, the applicants did not have the obligation to notify either TDC Evergreen, LLC or Ms. Scully.
The plaintiffs' eighth claim is that the commission's action in approving this application is invalid because the applicants neglected to revise the public hearing sign required under § 8.10.H each time the originally noticed public hearing was continued until a later date. Section 8.10.H of the Cromwell Zoning Regulations requires the applicant to post a sign on the subject property indicating, among other things, " the date, time and location of the public hearing" on the application. It also requires the applicant to revise the sign if the date of the public hearing is continued. The clear purpose of the regulation is to notify the public of the date on which the public hearing is to commence. Once commenced, the public is in a position to remain informed with respect to the schedule of any continuation of the public hearings. Adoption of the plaintiffs' interpretation of this regulation would operate to forbid the commission from continuing a hearing for a period shorter than 14 days and would obligate the applicant to furnish an affidavit at each date to which the public hearing was continued. Importantly, throughout the regulation, there are repeated references to " the" public hearing rather than " any" public hearing. The court declines to accept the claim that the applicants' proper posting of the date the public hearing commenced was insufficient to meet the requirements of § 8.10.G.
The plaintiff's ninth claim is that the commission's action in approving the subject application was unlawful because it was in derogation of a land use public opinion survey accompanying the POCD. That survey indicated that 79.10 of the residents of the Town of Cromwell who participated in the survey agree " that stricter land use regulations should be developed and enforced to protect [the] town."
" [W]hether or not the commission was correct, the validity of its action was dependent only upon its being in harmony with the comprehensive plan found in the zoning regulations. Lack of conformity with a view or suggestion expressed in the master plan would not . . . properly form the basis for a finding of invalidity in the commission's action." DeMeo v. Zoning Commission, 148 Conn. 68, 76-77, 167 A.2d 454 (1961). As noted previously, the commission, while acting in its legislative capacity, had wide latitude to take such action as it deemed to be in the best interest of promoting the welfare of the town, and its decision cannot be overturned on the basis of claimed inconsistency with a public opinion survey associated with the POCD. See also Homart Development Co. v. Planning and Zoning Commission, supra, 26 Conn.App. 216-17.
The plaintiffs' final ground in seeking to invalidate the zone change is the allegation that the approval constituted illegal " spot zoning."
" [S]pot zoning is the reclassification of a small area of land in such a manner as to disturb the tenor of the surrounding neighborhood." (Internal quotation marks omitted.) Blaker v. Planning & Zoning Commission, 212 Conn. 471, 483, 562 A.2d 1093 (1989). To constitute spot zoning, " the zone change must concern a small amount of land . . . [and] the change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole." Id.
Here, the parcel of land which is the subject of the application is not so small as to per se be deemed eligible to be invalidated as " spot zoning." Even were it to satisfy the size requirement for " spot zoning, " it is clear that landing a " PRD" zone on this property is not out of harmony with the comprehensive plan for zoning. The zoning regulations make explicit provision for the PRD " floating zone, " and there is no question that the commission could properly have found, as it did, that the new proposed residential use was consistent with other residential uses in the surrounding area. As such, the plaintiffs' claim of " spot zoning" must fail.
Conclusion
In light of the fact that the applicants for the subject zone change did not submit the Impact Statement required by § 9.4.B of the Cromwell Zoning Regulations as discussed more fully above, the plaintiffs' appeal is sustained.
In light of the court's confusion surrounding the interpretation of this provision, the parties were asked to submit additional briefs to assist the court in connection with this issue. The defendants' submission dated October 31, 2016 made it unmistakably clear that the printed regulations contained a typographical error such that the Multi-Family density ought to have read " 20 units per buildable acre." An affidavit of Stuart Popper, Town Planner of the Town of Cromwell since 1987, comprehensively documented that this is the language which the commission approved when it voted on August 18, 2016 to amend the zoning regulations to create the PRD zone. In light of the uncontradicted evidence that this was the language approved by the commission and that the printed language is a misprint, this decision will apply the intended language to the issues raised in this appeal. See State v. Cote 286 Conn. 603, 633 n.19, 945 A.2d 412 (2008).