Opinion
No. FST CV 02 0188384
May 11, 2006
MEMORANDUM OF DECISION
This is an administrative or record appeal from a decision of the defendant, the Zoning Board of the city of Stamford (Zoning Board), dated May 17, 2004, and rendered after a remand from this court. The defendant agency granted revised and modified applications by Starwood Buckingham, LLC (Starwood) for a special exception and for site and architectural plans approvals to construct residential town houses and apartments with I-95 units, including an "affordable housing" component, on 77 Havemeyer Land, a street on the border of the town of Greenwich and the city of Stamford. The subject site, however, is located entirely in Stamford and contains approximately 19.8 acres in the C-D Designed Commercial District zone. This zone permits residential dwellings, subject, however, to obtaining special exception and site plan approvals. On the site at the present time is a vacant commercial office building containing 117,562 square feet and with 180 parking spaces, which formerly served as corporate headquarters for several large corporations.
The Stamford Zoning Regulations also require that the zoning board refer the applications to the Planning Board. That board approved the applications in a unanimous vote on the basis that the proposal was consistent with the Stamford Master Plan of limiting office development to the central business district.
It should also be mentioned at this point that the primary basis upon which zoning authority is founded in Stamford is a special act as embodied within the Charter of the city of Stamford, rather than the state enabling legislation contained in Chapter 124 of the General Statutes. The Stamford Charter was enacted pursuant to a Special Act of the General Assembly in 1953, 26 Spec. Laws 1228, No. 619. Sheridan v. Planning Board, 159 Conn. 1, 4, 266 A.2d 396 (1969).
By way of background, on February 11, 2002, the defendant agency granted the original applications for a special exception and site and architectural plan approval by a vote of three to one. The Zoning Board noted in its decision that, according to the Planning Board, the project was consistent with the Town Plan of Development; that the plans had been reviewed and approved by the City Planner, the engineering bureau, the Fire Marshal and the Transportation Planner; and that the proposed use conformed with the various requirements of the zone in which the property is located and the requirements as to site plans.
In its original approval of the proposed residential application, the Zoning Board had imposed a number of conditions as authorized by General Statutes § 8-2(a), including #2, which required that the applicant/defendant Starwood install a new traffic signal at the intersection of Palmer Hill Road and Havemeyer Lane, or contribute $95,000 to said project. Condition #3 referred to the obligation of Starwood to conduct a study of peak traffic after the project is 75% occupied in accordance with the direction of the city's Director of Operations. Condition #4 obliged Starwood to contribute $5,000 to "traffic calming" improvements for streets in the town of Greenwich "affected by current `cut-through' traffic concerns." Condition #5 involved installing equipment necessary to "coordinate the existing traffic signals at the nearby intersection of Palmer Hill Road, Westover Road and Stillwater Road," or pay $25,000 to the city for the same purpose, subject to review by the city's Director of Operations. Another condition was that Starwood was "encouraged" to change the two access driveways on Havemeyer Lane to one two-way driveway, subject to approval by the staff of the zoning board, the Traffic Engineer and also the Director of Operations. Condition # 13 required that Starwood submit a "parking management plan" for residents and visitors to be approved by the Land Use Staff. Another condition was #19(a), which provided that 24 units in the southwest portion of the subject premises were to be redesigned "to create more variety," subject to approval of the zoning board staff.
The plaintiffs in this and the companion case, Westover Park, LLC v. Zoning Board, appealed to the Appellate Court on the theory that the conditions imposed by the defendant gave too much authority to various municipal agencies. Further background relating to this appeal is set forth in Westover Park, Inc. v. Zoning Board of Stamford, 91 Conn.App. 125, 881 A.2d 412 (2005), which dismissed the appeal on the ground that this court's order of December 18, 2003, remanding the matter to the defendant agency, was not a final judgment for purposes of an appeal.
On January 20, 2006, the plaintiffs in the Westover Park, Inc. appeal, CV 02 0188593, withdrew their case in accordance with General Statutes § 8-8(n). This present case, however, involving the town of Greenwich was not withdrawn.
After the matter was remanded to the defendant Zoning Board, it held a public hearing on May 17, 2004. At this hearing, the plaintiff municipality argued, among other things, that a roundabout, not a traffic signal, was needed at the intersection of Havemeyer Lane and Palmer Hill Road; that there should be only one entrance to the site, not two, from Havemeyer Lane and that the entrance it should be located opposite North Ridge Lane; that the revised plans did not address the necessity of improved sight lines and traffic calming measures; and that all traffic from the site should exit on Palmer Hill Road, not Havemeyer Lane.
On May 17, 2004, the defendant board unanimously approved the revised plans of Starwood. In its approval of the revised application, the agency directed Starwood to install a traffic signal at the intersection of Havemeyer Place and Palmer Hill Road; to perform a study of peak traffic generated by the project after 75% occupancy had been achieved, which was described as a standard procedure; the condition regarding "traffic calming" measures for adjacent streets in Greenwich was deleted because such measures were no longer considered necessary and also because the plaintiff had not made any specific suggestions in this regard; dual access, two driveways, from Havemeyer Lane was reaffirmed on the basis that consolidation into one driveway would cause "cut-through" traffic and would be dangerous in the event the one access was shut down for some reason; the condition about coordinating traffic signals with the central traffic system had already been accomplished; a parking management plan had been submitted; and a revised plan for 24 units in the southern part of the proposal had been redesigned and resubmitted. Thus, the Zoning Board after hearing testimony and reports from, among others, the city's Principal Planner, Assistant Engineer, Traffic Engineer and the traffic consultant, Adler Consulting, determined that all of the board's original conditions had either been complied with by Starwood or, in the case of traffic calming and one accessway from Havemeyer Lane, were contraindicated.
The plaintiff town's position regarding the Zoning Board's approval of the revised plans and the imposition of revised conditions is set forth in its brief dated October 8, 2004. The plaintiff contends that it had insufficient time to review the revised applications by Starwood and the defendant refused to continue the matter for that purpose; that there should only be one accessway to Havemeyer Lane, that a roundabout, not a traffic signal, should be installed at the Havemeyer Lane, Palmer Hill Road intersection; and that there should be conditions attached to the traffic study to be submitted later by Starwood.
In this court's original decision of December 18, 2003, it was pointed out that in the C-D Designed Commercial District, residential dwellings are permitted as special exceptions. "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." (Citations omitted; internal quotation marks omitted.) Municipal Funding, LLC v. ZBA, 270 Conn. 447, 453-54, 853 A.2d 511 (2004).
In the original decision of December 18, 2003, it was also pointed out that except for the controversy over the conditions imposed by the defendant agency, the approval of the special exception and site plan applications was reasonable and in order. Moreover, in reviewing the conclusions of a zoning authority, "[c]ourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587, 628 A.2d 1286 (1993).
In terms of the standard of review in administrative appeals, it is well recognized and reiterated in the original decision of this court that: "In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, "conclusions 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." (Internal quotation marks omitted.) . . . lf a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . ." If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citation omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, supra, 270 Conn. 453.
In asking the court to reverse the Zoning Board's revised approval of the conditions it had originally imposed on Starwood, the plaintiff, in effect, is asking the court to evaluate which testimony and reports are more accurate, more credible, more professional. This is well illustrated by the plaintiff's brief which states that the defendant "gave undue weight to the recommendations of Starwood's traffic engineer, Adler Consulting." The evaluation of conflicting evidence and the credibility of witnesses is not the court's function as mentioned previously, which is limited to determining whether there was substantial evidence in the record to justify the defendant Zoning Board's decision.
The Starwood proposal complies with the requirements for a special exception as permitted by the C-D Designed Commercial District. For example, the defendant board had an abundance of documentation regarding traffic, including a report from Adler Consulting and the city's Transportation Planner. Both reports agreed that the proposal would generate less traffic than the existing commercial building if it was in use. Obviously, the defendant board credited that testimony.
Furthermore, the siteplan complies with the Stamford regulations. In terms of site plan review, "[A] site plan may be modified or denied only if it fails to comply with the requirements already set forth in the zoning . . . regulations . . ." RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 468, 778 A.2d 61 (2001), quoting General Statutes § 8-3(g). If the application conforms to the zoning regulations, the [commission] cannot deny the application for subjective reasons that bear no relationship to zoning regulations." (Citations omitted.) Id., 468-69.
The controversy in this case in essence involves differing opinions between the plaintiff and the defendant board as to whether there should be a traffic signal or a roundabout at the intersection of Havemeyer Lane and Palmer Hill Road, and whether there should be one or two accessways from the site out to Havemeyer Lane. It is not the court's function to decide whose views on these subjects are correct from an engineering or any other standpoint. The defendant has the authority under General Statutes § 8-2 to impose conditions on the granting of a special exception. The only issue is whether there is evidence in the record to substantiate the board's determinations on these subjects and there is. Adler Consulting, the traffic consultant for Starwood, submitted a comprehensive and professional report addressing in detail its recommendations regarding traffic signalization and accessways.
Moreover, the plaintiff municipality has certain burdens to overcome in this appeal. First, the subject property is located in Stamford and the officials and agencies of that city all approved the applications by Starwood. Second, the application is in accord with the city's Plan of Development, which recommends the central business district as the proper location for office use and that residential use is desirable for areas outside the business district where the subject premises are located. Third, the people most affected by the proposal were the individual property owners, the neighbors, in the Westover Park, Inc. case and they all withdrew their appeal, leaving the municipality as the only plaintiff challenging the Zoning Board's decision. Fourth, the defendant had before it credible evidence that residential use would have a lesser impact on the environment than an 117,562 square foot office building. (The defendant agency in its original decision approving residential use concluded that the proposal was "an improvement from an environmental perspective, compared to the existing commercial use.") It should also be noted that unlike the situation in many administrative appeals, the applicant or property owner is not complaining that the conditions imposed by the board were too onerous, it is the plaintiff in this case contending that the conditions are not onerous enough.
For the reasons stated above, the plaintiff municipality has not sustained its burden of proving that there is not substantial evidence in the record to support the defendant Zoning Board's approval of the revised applications for special exception and site and architectural plans for this residential proposal. The plaintiff's appeal is therefore dismissed.
So Ordered.