Woodland Cemetery Association v. Zoning Board of Appeals of Stamford

Full title: Woodland Cemetery Association v. Zoning Board of Appeals of the City of…

Court: Superior Court of Connecticut

Date published: May 5, 2016

No. FSTCV146023631S (Conn. Super. Ct. May. 5, 2016)

Opinion

FSTCV146023631S

05-05-2016

Woodland Cemetery Association v. Zoning Board of Appeals of the City of Stamford

EDWARD R. KARAZIN JR., JUDGE TRIAL REFEREE.

UNPUBLISHED OPINION

CORRECTED MEMORANDUM OF DECISION ON APPEAL ^[*]

EDWARD R. KARAZIN JR., JUDGE TRIAL REFEREE.

Before the court is the administrative appeal of the plaintiff, Woodland Cemetery Association, from the decision of the defendant, the Zoning Board of the City of Stamford (zoning board), denying its application for a proposed project to, among other things remove invasive species, install a drainage system, construct rain gardens and a walled screen area, excavate soil, and extend the existing driveway system in the cemetery.

The plaintiff commenced this action on October 10, 2014, and filed an amended appeal on January 20, 2015. The amended appeal alleges that the cemetery was established in 1859, and is comprised of thirty-five acres of land that is adjacent to Stamford Harbor. For a long period of time, soil and rock that were removed from certain parts of the cemetery grounds were deposited into another area labeled " Section F, " which is located approximately 200 feet upland from the shore and above the coastal jurisdiction line. Section F has become overgrown with invasive species, and in order to restore and beautify this area, the plaintiff proposed a project to construct a minor drainage system, plant healthy trees and shrubbery, excavate and regrade more than 100 cubic yards of soil, and extend an existing driveway on the grounds. It is not disputed that this area is a " coastal area, " as defined in General Statutes § 22a-94(b), as it is located within 1, 000 feet of the mean high water mark in coastal waters.

Pursuant to the zoning board's policies, the plaintiff's representatives met with zoning board staff in October and December of 2013, and January of 2014 to review the project. The staff stated that in order for the project to be approved, the plaintiff would need to grant a public access easement across all properties bordering the Stamford Harbor. The plaintiff refused, citing to the fact that the easement would disrupt the solemn ceremonies that occur at the cemetery, but instead wrote the land use bureau chief a letter stating that it would concede to a pedestrian walkway.

Zoning board staff then instructed the plaintiff to file a Coastal Area Management Site Plan Application, although the plaintiff asserted that it was exempt from such a requirement and only needed to obtain a permit for the excavation work. The plaintiff nonetheless submitted an application on or around May 6, 2014. Pursuant to General Statutes § 22a-113p, Stamford Ordinance No. 1021 and the Harbor Management Consistency Review Process, the application was referred to the Stamford Harbor Management Commission (harbor commission).

Evidence was submitted to the harbor commission, including a letter from a Department of Energy and Environmental Protection (DEEP) employee, and despite the fact that the proposed project did not have an effect on the agency, a representative from the Historic Preservation Advisory Commission (HPAC), as well as the city's associate planner disagreed.

The zoning board's memorandum stated that the proposed project would not have an adverse effect on the environment, and should be approved subject to certain conditions, including the public access easement. Public hearings were held on four occasions between July 14, 2014, and September 18, 2014, where additional evidence was presented. Although the plaintiff submitted expert testimony and documentary evidence showing that the project was exempt, and nonetheless would not have a negative environmental impact, the zoning board voted to deny the application on September 22, 2014.

It now appeals this decision on several grounds that will be described in greater detail. A trial was held on the matter on October 6, 2015, in which the plaintiff submitted three full exhibits, and the defendant submitted the relevant Stamford Zoning Regulations (Stamford Zoning Regs.). The plaintiff's vice president and treasurer also testified.

" It is axiomatic that the review of site plan applications is an administrative function of a planning and zoning commission . . . When a commission is functioning in such an administrative capacity, a reviewing court's standard of review of the commission's action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion." (Citation omitted; internal quotation marks omitted.) Gerlt v. Planning & Zoning Commission, 290 Conn. 313, 322, 963 A.2d 31 (2009). " With respect to the commission's factual findings, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the commission] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [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 [commission's] findings, it cannot substitute its judgment for that of the [commission] . . . 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 [commission'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.) Id., 322-23.

" [I]t is well settled that courts are not to substitute their judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . Upon appeal, the [Superior Court] reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons." (Internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, 155 Conn.App. 657, 677, 111 A.3d 473 (2015). " The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." R& R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). " The critical inquiry is whether the board's decision is supported by the evidence contained in the administrative record. 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 [the board] must be upheld by the trial court if they are reasonably supported by the record." (Internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 678. " The [decision] must be sustained if even one of the stated reasons is sufficient to support it." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995).

The plaintiff sets forth various reasons as to why the court should reverse the board's decision. The court will address relevant issues hereinafter.

The plaintiff first argues that the threshold issue that the court must resolve in this appeal is whether the plaintiff's proposed project is exempt from review, and therefore the zoning board should not have made a decision. It asserts that when the General Statutes or local regulations permit a property to be exempt from review, the local zoning authority does not have jurisdiction to review the proposed changes. Ross v. Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-4005886-S (May 15, 2008, Downey, J.), aff'd, 118 Conn.App. 90, 983 A.2d 11 (2009). Under these circumstances, the court would lack subject matter jurisdiction to review the zoning board's decision as the decision is rendered void. Ross v. Zoning Board of Appeals, 118 Conn.App. 90, 983 A.2d 11 (2009).

Pursuant to General Statutes § 22a-105(a), " [a] coastal site plan shall be filed with the municipal zoning commission to aid in determining the conformity of a proposed building, use, structure or shoreline flood and erosion control structure . . . fully or partially within the coastal boundary . . ." General Statutes § 22a-109(b) however provides for exemptions from review, providing: " The zoning commission may by regulation exempt any or all of the following uses from the costal site plan review requirements of this chapter . . . (3) construction of new or modification of existing on-premise structures including fences, walls, pedestrian walks and terraces, underground utility connectors, essential electric, gas, telephone, water and sewer service lines, signs and such other minor structures as will not substantially alter the natural character of coastal resources or restrict access along the public beach . . . and (7) minor changes in use of a building, structure or property except those changes occurring on property adjacent to or abutting coastal waters."

In accordance with this provision, the zoning board has set forth several exemptions. From the outset, the plaintiff has argued that the zoning board lacks jurisdiction to review its site plan application because the proposed activities on the cemetery are exempt under Stamford Zoning Regs. § § 7-T.10.a and 7-T.10.e. (ROR #1.)

" Zoning ordinances are in derogation of the right of private property, and where exemptions appear in favor of the property owner they should be liberally construed in his favor." Goldreyer v. Board of Zoning Appeals, 144 Conn. 641, 646, 136 A.2d 789 (1957). However, while " [t]he legislature . . . has taken a broad view with regard to the residential exemptions" (emphasis added); Bressani v. Planning and Zoning Commission, Superior Court, judicial district of New London, Docket No. 512728 (November 30, 1990, Leuba, J.) ; pursuant to section 22a-109(a), any individual seeking an exemption must still complete an application. See Sams v. Dept. of Environmental Protection, 308 Conn. 359, 409, 63 A.3d 953 (2013) (" the plaintiffs were required to file a coastal site plan with the town, regardless of their subjective belief that [their project] . . . did not adversely impact coastal resources"). Our Supreme Court has stated that " [a] proposed use that does not impact coastal resources is not exempted from coastal site plan review. Rather, the determination of whether an activity impacts a coastal resource is left for the municipality as part of the coastal site plan review process." Id., 408. The proposed construction of a structure within the coastal boundary is therefore not exempt from coastal site plan review even if the municipal zoning authority determines that any coastal resource would not be impacted. Id., 408-09.

In determining whether an exemption applies, General Statutes § 22a-109(h) provides that " the official charged with the enforcement of such regulations" must decide if the use or structure is " exempt from such review under regulations adopted by the zoning commission in accordance with this section." " [I]t is the zoning board that must determine whether the exemption applied in the first instance." Two Yale & Towne, LLC v. Zoning Board of Appeals, Superior Court, judicial district of Hartford, Land Use Litigation Docket, Docket No. LND-CV13-6046438-S, (July 24, 2014, Berger, J.); see also Smith v. Planning and Zoning Board, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-98-0061007-S, (December 8, 1998, Mancini, J.) (" [t]he discretion to determine whether the site plan was exempt from coastal site plan review is granted to the city planner"); Wind v. Planning & Zoning Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-99-0174632-S, (February 14, 2000) (action alleging misinterpretation of exemptions under CMA against board therefore " has the authority to interpret the town's zoning ordinance and decide whether it applies in a given situation." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d.Ed. 2007) § 33.7, pp. 260-61.

In the cover letter to its site plan application, the plaintiff asserts that the " project is exempted from the requirements of Section 7.T-Coastal Area Management Regulations, and specifically under subsections a and e of section 7-14.10 of the Stamford Zoning Regulations. Thus, it is also exempted from the requirements of the State Coastal Area Management Act, C.G.S. section 22a-92 et seq. . . . The purpose of the project is to regrade and restore approximately a four-acre portion of the site above the coastal jurisdictional line, which will conserve or preserve soil as well as healthy and indigenous vegetation and will further the natural habitat for wildlife. The project also includes the construction of new and/or the modification of existing on-premise fences, walls, walkways and certain minor structures, such as an extension to existing asphalt roads, that will not substantially alter the natural character of coastal resources . . . nor restrict access along a public beach." (ROR #2.) The cover letter and the actual site plan application continues to state that, although exempt from review, the project only serves to beautify the land, remove invasive species, and restore the ecosystem. (ROR ##2, 3.)

As stated in the site plan application, the plaintiff's bottom line is that: " The project includes the restoration and beautification of four of the 35 acres that comprise Woodland Cemetery, and construction, modification and/or installation of walkways, fences, walls and minor structures, none of which will alter coastal resources as defined by the CAM Act and all of which will take place inland from the coastal jurisdiction line." (ROR #3.)

The relevant regulations in this action, Stamford Zoning Regs. § § 7-T.10.a and 7-T.10.e, provide that the following is exempt from Coastal Area Management regulations:

a. Activities conducted for the specific purpose of conserving or preserving soil, vegetation, water, fish, shellfish, wildlife and other coastal land and water resources.

e. Construction of new or modification of existing on-premise fences, walls, pedestrian walks and terraces, underground utility connections, essential electric, gas, telephone, water and sewer service lines, signs and such other minor structures as will not substantially alter the natural character of coastal resources as defined in C.G.S. Section 22a-93(7) ¹ or restrict access along a public beach. ²

1 General Statutes § 22a-93(7) provides: " 'Coastal resources' means the coastal waters of the state, their natural resources, related marine and wildlife habitat and adjacent shorelands, both developed and undeveloped, that together form an integrated terrestrial and estuarine ecosystem; coastal resources include the following: (A) 'Coastal bluffs and escarpments' means naturally eroding shorelands marked by dynamic escarpments or sea cliffs which have slope angles that constitute an intricate adjustment between erosion, substrate, drainage and degree of plant cover; (B) 'rocky shorefronts' means shorefront composed of bedrock, boulders and cobbles that are highly erosion-resistant and are an insignificant source of sediments for other coastal landforms; (C) 'beaches and dunes' means beach systems including barrier beach spits and tombolos, barrier beaches, pocket beaches, land contact beaches and related dunes and sandflats; (D) 'intertidal flats' means very gently sloping or flat areas located between high and low tides composed of muddy, silty and fine sandy sediments and generally devoid of vegetation; (E) 'tidal wetlands' means 'wetland' as defined by section 22a-29; (F) 'freshwater wetlands and watercourses' means 'wetlands' and 'watercourses' as defined by section 22a-38; (G) 'estuarine embayments' means a protected coastal body of water with an open connection to the sea in which saline sea water is measurably diluted by fresh water including tidal rivers, bays, lagoons and coves; (H) 'coastal hazard areas' means those land areas inundated during coastal storm events or subject to erosion induced by such events, including flood hazard areas as defined and determined by the National Flood Insurance Act, as amended (USC 42 Section 4101, P.L. 93-234) and all erosion hazard areas as determined by the commissioner; (I) 'developed shorefront' means those harbor areas which have been highly engineered and developed resulting in the functional impairment or substantial alteration of their natural physiographic features or systems; (J) 'island' means land surrounded on all sides by water; (K) 'nearshore waters' means the area comprised of those waters and their substrates lying between mean high water and a depth approximated by the ten meter contour; (L) 'offshore waters' means the area comprised of those waters and their substrates lying seaward of a depth approximated by the ten meter contour; (M) 'shorelands' means those land areas within the coastal boundary exclusive of coastal hazard areas, which are not subject to dynamic coastal processes and which are comprised of typical upland features such as bedrock hills, till hills and drumlins; (N) 'shellfish concentration areas' means actual, potential or historic areas in coastal waters, in which one or more species of shellfish aggregate . . ."

2 The language of Stamford Zoning Regs. § 7-T.10.a corresponds to General Statutes § 109(b)(5), and the language of Stamford Zoning Regs. § 7-T.10.e corresponds to General Statutes § 109(b)(5).

Throughout the application process, the plaintiff submitted evidence that the proposed project only served to conserve and preserve soil, vegetation, and other coastal resources, and therefore the exemption under Stamford Zoning Regs. § 7-T.10.a applied. (ROR ##12, 38, 54; pp. 22-34, 40-46.) Specifically, the plaintiff submitted a " Stormwater Summary Report, " prepared by an engineering firm that specializes in land surveying and planning. (ROR #12.) The report contains nearly one hundred pages, including detailed graphs and charts outlining the proposed drainage system, and ultimately concluding that it complies with the CMA, and only has a positive environmental impact. At the public hearing on July 14, 2014, experts reiterated that the project will only serve to preserve soil, vegetation, improve water quality, and enhance beautification on the site. (ROR #54.)

Before the plaintiff submitted the site plan, and insisted that the project was exempt from review, it should first be noted that the plaintiff cut down trees and shrubbery, and began excavation work without a permit. (ROR #33.) Other agencies and individuals submitted evidence, or at least reasons, as to why this cutting was problematic. The chairman of the harbor commission wrote: " The Harbor Management Commission is concerned that recent work to remove vegetation along the shoreline at the Woodland Cemetery adversely affects Stamford Harbor. Photographs provided to the HMC by the Connecticut Department of Energy and Environmental Protection appear to show a substantial land-clearing project extending to the water's edge along the harbor's east branch." (ROR #4.) A landowner on the South End of Stamford expressed his " outrage" resulting from the cutting of trees on the waterfront, mentioning that while he had previously seen a variety of wildlife in the area, the bulldozing likely had an adverse effect. (ROR #5.)

The parties have a substantial dispute about whether this work was considered unauthorized. The plaintiff argues that the land use chief conceded that it was unnecessary for the plaintiff to obtain a permit unless they were " clear cutting" all trees in the area. (ROR #55, p. 50.) Because, however, the plaintiff did not clear all trees in the area, as is the definition of " clear cutting" under case law and General Statutes § 25-201(3), ³ but preserved the healthy trees, a permit was not required. It does acknowledge that the Office of Long Island Sound Programs (OSLIP) issued a citation when " there was one incident where one of the contractors inadvertently used heavy machinery in an unpermitted area" beyond the coastal jurisdiction line. (ROR #11, p. 3.)

3 General Statutes § 25-201(3) provides: " 'Clear cutting' means removal of all standing woody vegetation greater than one inch diameter at breast height within a designated river corridor . . ." (Emphasis added.)

Regardless of whether the activity that led to this violation estopped the plaintiff from claiming an exemption, and regardless of whether cutting trees in general was permitted, the plaintiff's activities triggered nearby property owners to request a hearing, and hired an expert, Stephen Danzer, to investigate the impact of these activities. (ROR ##16, 29.) Danzer's report, dated July 7, 2014, explains that " most of the proposed work appears to be within the shoreland resources. However, under the existing conditions (due to the unauthorized land clearing and removal of vegetation), there are impacts that currently affect the other coastal resources as well." (ROR #29, p. 2.) The report continues: " Under existing conditions, the site of the proposed activities has already been greatly disturbed due to recent land clearing activities, " and that the " most recent intensive land clearing" performed by the plaintiff " exacerbated" what was already an " unstable situation." (ROR #29, p. 3.)

This report was soon followed by a July 9, 2014 interoffice memorandum authored by associate planner David Killeen. (ROR #28.) Killeen writes: " The application . . . states that this project is exempt from the requirements of the CAM Act pursuant to Stamford Zoning Regulations, Sections 7-4.10.a and 7-4.10.e. The application appears to provide no further explanation as to why the applicant believes they are exempt from the CAM Act, and the application contradicts all previous applications (CSPR 320, CSPR 353, CSPR 401, CSPR 440, and CSPR 576).⁴ (ROR #28, p. 3.) The memo continues: " Since the applicant states they are exempt from the CAM Act and has not identified all applicable Coastal Resources onsite, it is difficult to fully assess the degree to which this proposal fully complies with CAM policies. The applicant is required to avoid or minimize activities that potentially impact conservation resources, ensure the absence of drainage impact, utilize effective erosion controls, implement effective pollution controls and implement measures to enhance the values/functions of the East Branch corridor, promote public access, and improve the overall aesthetics of the neighborhood." (ROR #28, p. 3.)

4 The plaintiff had filed five previous coastal site plan applications regarding the same area of the cemetery, Section F. (ROR #51, pp. 1-2.) In each of these previous applications, the plaintiff agreed that CAM applied. (ROR #51, p. 2.) In his memo, Killeen is consequently questioning why the plaintiff is claiming that the project in this area is exempt from review, when it had not in any of its previous applications.

Most importantly, Killeen cites to the Summary Stormwater Report. Page two of the report states: " The proposed plan is to re-grade section 'F' for future grave sites and provide access driveways around the section and relocate the soil and material stockpile area which is necessary for the overall operation and maintenance of the cemetery." (ROR #12, p. 2.) Killeen writes that " [t]hese activities do not meet the specific purposes that qualify for this exemption." (ROR #28, p. 4.)

As mentioned, it is within the discretion of Norman Cole, the Land Use Bureau Chief, to determine whether an exemption applies, and the court will not reverse this decision as long as it is reasonably supported by the record. Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 678. Cole recognized that " the Zoning Board has heard conflicting presentations on whether the proposed activities are exempt or not . . ." (ROR #53.) The final decision shows that he found the activities not to be exempt under section 7-T.10.a, and the court finds sufficient evidence to support this conclusion. A landscape engineer explained that clearing trees and shrubs might create an adverse effect; a staff member and corporation counsel explained that the plaintiff has not provided ample evidence to support this exemption that had never been claimed before; and the plaintiff's expert report itself states that the purpose of the project is not " for the specific purpose of conserving or preserving soil, vegetation, water, fish, shellfish, wildlife and other coastal land and water resources, " as the plaintiffs have asserted, but rather to regrade the land for future gravesites. The plaintiff has therefore failed to meet its burden of proving that the exemption applies.

Killen writes: " While construction or reconstruction of fences, walls and pedestrian walks and terraces are included within the proposed plans, there are additional components that do not fall within this category, including the construction of over 1, 500 linear feet of new asphalt driveway, which is more than a quarter mile of new driveways and approximately 18, 000 square feet of new impervious surface (over 40% of an acre), which does alter the natural character of this property and prevents the applicant from claiming eligibility under this exemption." (ROR #12, p. 4.) In a July 11, 2014 memorandum, Jim Minor, Special Corporation Counsel for the city of Stamford, reiterates Killen's conclusion in a memo to Norman Cole, and stresses that: " There is no question that a CAM permit is required." (ROR #30, p. 4.) On September 19, 2014, Minor adds that " even if the applicant were not constructing new driveways and 18, 000 square feet of impervious surface, the amount of work already done [from clearing trees] and to be done requires protection of coastal resources. (ROR #51, p. 3.)

The plaintiff cites to various cases where courts decided that the construction or modification of a structure in a coastal area was exempt from CMA review. E.g., Sea Boys, LLC v. Madison, Superior Court, judicial district of Waterbury, Docket No. CV-08-4029653-S, (November 20, 2009, Scarpellino, J.) (dismissing plaintiff's appeal that replacement wall was a nonexempt " flood and erosion control structure"); Smith v. Planning & Zoning Board, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-98-0061007-S, (December 8, 1998, Mancini, J.) (site plan to construct medical building exempt). In Smith, the town of Milford had a regulation identical to Stamford Zoning Regs. § 7-T.10.e, and exempted a developer from site plan review when converting a vacant restaurant into a medical building.

The plaintiff additionally cites to case law to support its positions that driveways may be exempt structures. For example, in Landmark Development Group, LLC v. Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV-06-4016813-S, (October 31, 2011, Frazzini, J.), the court stated that " [s]ince the coastal management act and town regulations exempt driveways from review under the coastal management act, it is obvious that the act contemplates some level of vehicular access to and traffic in a coastal management area to be consistent with the goals of the act." It also cites to an Appellate Court decision pertaining to a restrictive covenant in which the court states that a concrete driveway may be considered a " structure." 5011 Community Organization v. Harris, 16 Conn.App. 537, 547, 548 A.2d 9 (1988). Finally, it asserts that pursuant to Stamford Zoning Regs. § 3.97a " structure" is " [a]nything constructed on the ground or erected which requires location on the ground or attached to something having a location on the ground." (ROR #38.4, p. 3.)

Again, ultimately, " it was up to the zoning board to determine whether the [driveway, drainage system, and other structures] would not substantially alter the natural character of the coastal resources under § 7.T.10.e." (Internal quotation marks omitted.) Two Yale & Towne, LLC v. Zoning Board of Appeals, supra, Superior Court, Docket No. LND-CV-13-6046438-S. To begin, despite the plaintiff's attempt to parallel the decision in Smith to the present case, the facts are readily distinguishable. In Smith, " [t]he city planner determined that [property owner's] proposal would simply be a re-use of a site that was previously used as a restaurant and already fully developed, and was thus exempt from coastal site plan review." Here, however, the area in question had not been exempt before. Moreover, the plaintiff's project not only involves the construction of 1, 710 linear feet of new asphalt, but as John Pugliesi, a professional engineer representing the plaintiff, stated, three rain gardens, and a driveway system that is designed for water to run through pipes into the drain garden. (ROR #54, pp. 21-26.) Furthermore, despite the plaintiff's argument that this additional driveway only constitutes a 2.2 percent increase in the asphalt already in the cemetery, this does not mean that the construction is considered minor. (ROR #2, 3, 38.4; p. 3.); but see Landmark Development Group v. Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV-05-4002278-S, (February 2, 2008, Prescott, J.) (" given the critical public policies outlined by the CMA, it is inconceivable that the legislature would have intended that affordable housing projects be exempt from coastal site plan review, particularly since such affordable housing projects typically propose high-density development with the attendant environmental risks that such development entails"); Malpeso v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield, Docket No. CV-13-6039328-S, (July 24, 2014, Hartmere, J.T.R.) (substantial evidence in the record to find that the structure was a retaining wall, rather than an exempt erosion-control structure).

Concerning the plaintiff's contention that the board cannot refuse the exemption solely on the basis that the structure is a driveway, the record shows that the zoning board did not refuse to grant an exemption under Section 7.T.10.e because the structure involved was a driveway, but even so, an OSLIP environmental analyst Kristal Kallenberg states that " [g]iven the way the driveways are represented . . . we will refer to them as proposed roads." (ROR #33.) Kallenberg continues: " There are also numerous site improvements for storm water management including some Low Impact Development (LID) measures such as rain gardens and swales as well as conventional hard structures such as catch basins, rip rap outlets and stone overflow weirs." Finally, she informs the zoning board, if it was not already so informed, that drawings submitted subsequent to the initial site plan contain reference to gravesites in Section F, and additional information about the potential " number, size, location, depth and orientation of new burial plots" should be provided.⁵

5 The plaintiff asserts that the zoning board improperly relied upon Kallenger's recommendations as well as the Danzer report and the harbor commission's concerns. The board, however, " is entitled to technical and professional assistance regarding matters beyond its expertise." Spero v. Zoning Board of Appeals, 217 Conn. 435, 444, 586 A.2d 590 (1991); see also Vom Saal v. Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV-91-279021-S, (December 30, 1991, McGrath, J.) . Moreover, considering members of the public could be heard on the issue, there is no merit to this argument.

Beyond this, it was not clear that, as the regulation states, the construction of the structure would not " substantially alter the natural character of coastal resources as defined in C.G.S. Section 22a-93(7) . . ." Like Kallenger, Attorney Minor states that it is necessary to know more about the plans to construct new grave sites, because this will assist in answering the question of whether the " characteristics" of the land will change. (ROR #30.) Beyond this, the Danzer report stated that over seven coastal resources pursuant to Section 22a-93(7) might be affected by the project. (ROR #29; p. 7.) He further outlines the degrading visual quality, which is deemed an adverse effect under General Statutes § 22a-93(15)(F).⁶ A staff member concluded that the construction and grading of almost half of an acre would affect coastal resources, and further recommended that because some of the slopes in the area have a twenty-five percent grade, " [c]are should be taken to prevent excessive runoff and sedimentation, " and the plan should be reviewed in order to prevent adverse effects of coastal resources. (ROR #12; pp. 4-6.) There is more evidence in the record from the reports, interoffice memoranda, and the public hearing to support the zoning board's decision. This includes Norman Cole's explanation to the plaintiff that the " construction of over 1, 500 linear feet of new asphalt driveway, which is more than a quarter mile of new driveway and approximately 18, 000 square feet of new impervious surface . . . does alter the natural character of this property and prevents the applicant from claiming eligibility under this exemption." (ROR #53.) Given the many sources that the zoning board had at its disposal in reaching its decision, the plaintiff has therefore failed to prove that the zoning board acted arbitrarily, illegally, or capriciously when failing to apply this exemption. Accordingly, the zoning board had subject matter jurisdiction to review the site plan.

6 Section 22a-93(15)(F) provides that " '[a]dverse impacts on coastal resources' include . . . degrading visual quality through significant alteration of the natural features of vistas and view points . . ." Although the observation might be more appropriate for the first exemption, it is nonetheless applicable to the proposed construction of the structures.

The plaintiff next argues that its application was complete, and the zoning board acted arbitrarily and capriciously to the extent that it relies on a lapse of time to support its denial. To begin, while the defendant asserts that it had no obligation to inform the zoning board of the future use of Section F, as mentioned, the Summary Stormwater Report stated that the proposed plan was in fact to regrade the subject area for future gravesites. (ROR #12; p. 2.)

The record shows that the zoning board had inquired about the number of graves that would be constructed in this area, whether they would be above ground or below ground and the depth of the new plots. (ROR #51; pp. 3-4.) These gravesites were not shown in the plan, and were subsequently added, evidently leaving the zoning board to inquire further about this new addition to the site plan. At the public hearing, the plaintiff did not answer these questions directly nor incorporate the specific details into the plan, but conceded that the plots would not be exempt from coastal site plan review. (ROR #55; pp. 58-64.) The zoning board informed the plaintiff on various occasions that these details would need to be provided in order for the site plan to be considered complete. (ROR #51, #46; p. 3.)

Moreover, the plaintiff argues that it did not need to disclose any information about the proposed burial plots because it was an existing nonconforming use, and pursuant to General Statutes § 19a-310, the zoning board is precluded from making a decision regarding " crypts, columbaria or mausoleum for public use, wholly or partially above the surface . . ." However, while " General Statues § 19a-310 explicitly delegates to local planning and zoning commissions the authority to regulate burial sites in cemeteries containing less than five acres which are not located on premises owned by a religious society or corporation, and that since General Statutes § 19a-295 et seq. does not explicitly prohibit the authority of local planning and zoning commissions to regulate and permit the creation of private burial sites, the statute [does] not preempt the Commission's authority in the present case to interpret and apply . . . Zoning Regulations where such regulations reasonably are deemed to be applicable to local burial procedures." 300 PRW Associates v. Planning & Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV-91-0288554-S (September 21, 1992, Cocco, J.) . As the record indicates that the plaintiff is a private and nonreligious association, the zoning board had authority to regulate Section F.

Then, previously, " § 22a-109(e) [imposed] a mandatory sixty-five-day time limit on the local zoning board's review of a coastal site plan. Any application not expressly denied or modified within the statutory period is deemed approved by operation of law." Shapero v. Zoning Board, 192 Conn. 367, 472 A.2d 345 (1984). As the law currently states, however, " the review of any coastal site plan pursuant to this chapter shall not be deemed complete and valid unless the board or commission having jurisdiction over such plan has rendered a final decision thereon. If such board or commission fails to render a decision within the time period provided by the general statutes . . . the coastal site plan shall be deemed rejected." General Statutes § 22a-105(f). The zoning board did not abuse its discretion by relying upon this statute in rejecting an incomplete application.

As to whether the plaintiff's site plan complied with the CMA, amongst the many goals of the CMA, the first is " [t]o ensure that the development, preservation, or use of the land . . . of the coastal area proceeds in a manner consistent with the rights of the private property owners and the capability of the land and water resources to support development, preservation or use without significantly disrupting either the natural or environment or sound economic growth . . ." General Statutes § 22a-92(a)(1). " The CMA expresses a strong preference for enhancing economic development and activities that are dependent upon proximity to the water and/or shorelands that are immediately adjacent to marine and tidal waters, while prohibiting or minimizing activities that are not marine dependent, particularly those that will adversely impact these fragile natural resources." Landmark Development Group v. Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV-05-4002278-S, (February 2, 2008, Prescott, J.) . Beyond the fact that the application was incomplete and the plaintiff did not attempt to offer the board the information it sought, as stated when outlining whether the site plan was exempt, there was evidence and a report from an expert landscape engineer indicating that the site plan, namely the excavation work and removal of trees, would have an adverse impact on coastal resources. (ROR #4, #29.)

The plaintiff's primary argument, however, is that the zoning board sought a public access easement for its own benefit, thereby hindering private land rights. It is true that " [a]n agency cannot deny a site plan for subjective reasons that have no relationship to zoning regulations." Smith-Groh, Inc. v. Planning & Zoning Commission, 78 Conn.App. 216, 226, 826 A.2d 249 (2003). As the zoning board and DEEP states, however, the site plan would have complied with the CMA if a public access easement was granted, considering that the proposed use is water dependent. (ROR #28; p. 4; #33.)

General Statutes § 22a-93(a)(3) provides that one goal and policy of the CMA is " [t]o give high priority and preference to uses and facilities which are dependent upon proximity to the water or shorelands immediately adjacent to marine and tidal waters." Then, General Statutes § § 22a-106(e) and 22a-92(6) confer the zoning board with the authority to condition its approval of a coastal site plan application as long as the condition would mitigate the adverse impacts the proposed activity would have on future water-dependent development activities and as long as such condition is constitutionally sound.

42 U.S.C.A. § 2000cc(a)(1), part of the Religious Land Use and Institutionalized Persons Act (RLUIPA), provides: " No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest." ⁷ " Thus, to invoke the protection of § (a) of RLUIPA, [the plaintiff] bears the burden of first demonstrating that the denial of its application substantially burdens its religious exercise . . . If the plaintiff makes such a showing, then the burden shifts to the local government to demonstrate that the challenged imposition or implementation of the land use regulation is in furtherance of a compelling governmental interest" and " is the least restrictive means of furthering that compelling governmental interest." (Citations omitted; internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut v. Planning & Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV-03-0350572-S (November 18, 2005, Franklin, J.) [40 Conn. L. Rptr. 410, ], aff'd 285 Conn. 381, 389, 941 A.2d 868 (2008).

7 Although not addressed by the appellants, General Statutes § 52-571b(b), part of Connecticut's Religious Freedom Act (RFA), similarly provides: " The state or any political subdivision of the state may burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest." The distinction between the state and federal provisions is that " [w]hile the RLUIPA requires a 'substantial burden' on religious exercise, RFA merely requires a 'burden' on religious exercise." Cambodian Buddhist Society of Connecticut v. Planning & Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV-03-0350572-S (November 18, 2005, Franklin, J.) , aff'd 285 Conn. 381, 389, 941 A.2d 868 (2008).

With regard to this first prong, although the term " substantial burden" is not explicitly defined in RLUIPA, " the Supreme Court stated that for a governmental regulation to substantially burden religious activity, it must have a tendency to coerce individuals into acting contrary to their religious beliefs . . . Thus, for a burden on religion to be substantial, the government regulation must compel action or inaction with respect to a sincerely-held belief; mere inconvenience to the religious institution or adherent to the requirement is insufficient . . . Courts in [the Second] Circuit have concluded that the regulations must have a 'chilling effect' on the exercise of religion to substantially burden religious exercise." (Citations omitted; internal quotation marks omitted.) Id.

Moreover, " a zoning regulation that is applicable without discrimination to all property owners in a jurisdiction and is intended to protect the public health and safety does not constitute an 'individualized assessment' under existing first amendment jurisprudence . . . Thus, the government [is] authorized to treat applicants differently on the basis of the motivation for their conduct, and to treat religiously motivated conduct less favorably . . . [A] joint statement issued by the sponsors of the bill that ultimately became RLUIPA specifically provides that '[t]his [a]ct does not provide religious institutions with immunity from land use regulation, nor does it relieve religious institutions from applying for variances, special permits or exceptions, hardship approval, or other relief provision in land use regulations, where available without discrimination or unfair delay.' " (Citations omitted; emphasis in original.) Cambodian Buddhist Society of Connecticut v. Planning & Zoning Commission, 285 Conn. 381, 418-19, 941 A.2d 868 (2008). Our Supreme Court has therefore [concluded] that the [RLUIPA] provision applies only when the government has the discretion to apply a land use regulation in a manner that discriminates against religious institutions in general or against a particular religion or denomination." Id., 419. In other words, as long as the zoning board did not apply the regulations in a discriminatory manner, but rather considers the religious institution's application neutrally, it has not violated RLUIPA. Id., 421; see also First Church of Christ, Scientist v. Historic District Commission, 46 Conn.Supp. 90, 100, 738 A.2d 224 (1998) (explaining that the state can regulate religious sites and the first amendment does not serve as a means to avoid all legal obligations).

42 U.S.C.A. § 2000cc(b)(1) provides: " No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." Section 2000cc(b)(2) then states: " No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination." The purpose of RLUIPA is therefore to prevent discrimination " against [religious institutions] based on their religious affiliation." Freedom Baptist Church v. Township of Middletown, 204 F.Supp.2d 857, 870 (E.D.Pa. 2002). Because the plaintiff's property is not associated with any particular religion, it is unclear how the zoning board is discriminating against it based on religion denomination or otherwise.

Beyond this, the plaintiff has failed to show how the zoning board's actions will have a " chilling effect" or otherwise discourage the exercise of religious practices. While it speculates that if the zoning board has an easement over the land, ceremonies may be disrupted, the plaintiff offers no proof to substantiate it. There is no evidence of the potential impact of the easement, which, as the board explains, is for environmental purposes, and nonetheless, there is no easement in place.⁸ The plaintiff has not briefed the second prong regarding the least restrictive means. Even so, it is unnecessary to reach this analysis absent proof of a substantial burden.⁹

8 Despite another one of the plaintiff's arguments, a takings claim " is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue . . ." (Internal quotation marks omitted.) New England Estates, LLC v. Branford, 294 Conn. 817, 831, 988 A.2d 229 (2010). The zoning board has only maintained the status quo, and the plaintiff has the burden of proving that the board will not consider a reasonable alternative for the proposed project in order for the taking claim to be justiciable. Palmiero-Kucej v. Inland Wetlands Commission, Superior Court, judicial district of Fairfield, Docket No. CV-03-0400272-S, (October 12, 2005, Owens, J.T.R.) .

9 Although in the zoning context of a zoning appeal rather than a RLUIPA claim, in response to a plaintiff's argument " that the [town zoning] commission must investigate whether there are feasible alternatives available, " one court responded that this obligation does not extend to zoning boards and " further noted that there is no statute or case law supporting plaintiff's position." Vom Saal v. Zoning Commission, supra, Superior Court, Docket No. CV-91-279021-S.

The trial court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board's] findings . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . Where the board states its reasons on the record we go no further." (Internal quotation marks omitted.) Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 532, 772 A.2d 624 (2001). " 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 [decision] must be sustained if even one of the stated reasons is sufficient to support it." (Internal quotation marks omitted.) Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 571, 785 A.2d 601 (2001). The court sets forth in the appendix to this decision the following: (1) the Decision of the Zoning Board dated September 26, 2014, Appendix A, (2) Attorney Minor's memo dated September 19, 2014, Appendix B, (3) staff report dated July 9, 2014, Appendix C and (4) Norman Cole's memo dated September 15, 2014, Appendix D.

In addition to all the other evidence in this case, they relied on these reports 1-4.

This court finds that substantive evidence has been presented to the board to support the board's findings.

All the facts stated herein or relied on by the court in making its decision are " found" by the court.

Accordingly, the decision of the board is upheld and the plaintiff's appeal is dismissed.

SO ORDERED.

APPENDIX A [Not reproduced]

APPENDIX B

Memo

From: Jim Minor, Special Corporation Counsel, City of Stamford

To: Norm Cole, Land Use Bureau Chief

Thomas R. Mills, Chairman and Zoning Board Members

Re: CSPR-957 Woodland Cemetery Legal Issues

Date: September 19, 2014

This memo supplements my previous memo dated 7/11/14 on Application CSPR-957, filed by the Woodland Cemetery Association to " Restore" a 4-acre portion of the Woodland Cemetery so that the Cemetery can accommodate new grave sites. This 35-acre property at 54-66 Woodland Place has been in use for over 100 years, and is running out of space. The area which is to be restored is the four acres including 1, 470 feet along the East Branch of the Stamford Harbor. It is within the CAM Boundary line. The property is non-conforming since a cemetery is not allowed in an M-G zone.

Not discussed in my earlier memo are letters from the Harbor Commission (6.24.14), [fn1] from CT DEEP (7.14.14), and the Staff memo from Norm Cole dated 9.15.14.

As stated in my 7.11.14 memo, there is no question that a CAM permit is required . There is no question that the application is not " exempt" since the unpermitted activity (clear cutting of trees and bulldozing dirt) which occurred before the application was filed alone destroys any claim of exemption, and the activities proposed exceed any claim of exemption.

For the reasons set forth below, I believe the Zoning Board should deny CSPR-957.

1. CSPR 957 Contradicts the Five Previous Coastal Site Plan Applications Filed by Woodland Cemetery

As noted in the memo from Law Student intern Thomas O'Neill, dated 7.11.14, attached to my memo of the same date, the five past Coastal Site Plan applications filed by Woodland cemetery sought to expand into the same area of the cemetery in this application and all agreed that CAM applied and that a public access easement should be granted. CSPR 353 in 1992 proposed a public walkway; CSPR 401 in 1995 proposed a public access path; an amended CSPR 401 filed in 1996 proposed a modified public access easement; CSPR 596 was filed to build a mausoleum of 3720 square feet and proposed a public access easement. (O'Neill memo p. 5.) The mausoleum was built but no public access easement was filed on the land records as required by the Zoning Board approval on 10.21.01.

In CSPR 401 is a " Coastal Area Management Report" by Keith Simpson Associates dated February 1995 which at p. 26 stated " public access to the waterfront will be provided, expanding an existing system of public waterfront access that presently exists on properties north of the site . . . one of the objectives stated in the South End Neighborhood Plan (Stamford Master Plan Addendum), a " Harbor Promenade, on public access easements where necessary on the East and West Branches of the harbor around the perimeter of the South End" . . . providing public access to approximately 1, 350 linear feet of waterfront."

2. The Applicant Is in Violation of Two Conditions that a Public Access Easement Plan and Standard Easement Be Filed on the Land Records as a Condition of Approval to Build the Mausoleum

The last application, filed and approved in 2001, for a mausoleum (CSPR 576) offered a public access easement, with final details to be determined. See page 5 of the O'Neill memo, quoting the applicant's attorney, Gordon Patterson, that " The Cemetery Association is prepared to deliver an easement document giving the City the right to construct the physical walkway, with the understanding that the final location needs DEP consent."

This offer resulted in the 10.22.01 approval by the Zoning Board of CSPR 576 application to build a mausoleum at its 10.22.01 meeting subject to: (2) " Submission of revised layout plan for the public easement showing a minimum ten-foot wide connection to existing public access easements at the northerly and southerly boundaries, and (3) Execution of a standard public access easement."

The mausoleum was built in 2004, and is 3, 720 square feet in size, with associated sidewalks and drainage improvements, and is not a water dependent use on a waterfront parcel. (9.14.01 Letter from David Emerson on CSPR 576 as noted in the O'Neill memo, p. 5.) The mausoleum was inspected and licensed by the State of Connecticut under Sec. 19a-311 and 19a-312, C.G.S., on 1.22.04 for 564 crypts and 624 niches. (Certificate to Use 1.22.04 filed with the Stamford Town Clerk.)

No public access plan or easement was given to the Zoning Board or recorded on the land records.

3. The Applicant's Claim that the Work to Be Done Is " Exempt" from CAM Is Incorrect

The 7.9.14 staff report by David Killeen notes that " construction of over 1, 500 linear feet of new asphalt driveway, which is more than a quarter mile of new driveways and approximately 18, 000 square feet of new Impervious surface (over 40% of an acre) . . . does alter the natural character of this property and prevents the applicant from claiming eligibility under this exemption." (Emphasis added; p. 4, DK report.)

Also, the CT DEEP report dated 7.14.14 mentions the field Stop Work order, dated April 11, 2014, because heavy machinery crossed into the Coastal Jurisdiction line while clearing trees from the shoreline. This notice of violation requires a silt fence to be maintained. So even if the applicant were not constructing new driveways and 18, 000 square feet of impervious surface, the amount of work already done and to be done requires protection of coastal resources.

As noted in my previous memo, the Zoning Board has to certify that the requirements of soil and erosion control permit have been met since more than 10, 000 square feet of property has been or will be affected.

4. This Current Application Is Incomplete Since it Mentions No Specific Plan for Expansion Such as the Number of Graves and Whether They Will Be Below-Ground or Above-Ground

Woodland cemetery's attorney, Steve Finn, met with EPB and Zoning staff in December 2013 claiming that " beautification work" would be done to on Woodland cemetery's four acres near the shoreline, and presented a plan by Richard Bergmann dated 12.9.13 depicting " proposed new driveways and burial grounds" that would accommodated 2, 050 new burial sites (1, 750 graves and 300 crypts) on 3.18 acres." (Finn letter 1/8/14, p. 1 and 4.30.14 John Harness letter, p. 2, and the O'Neill memo 7.11.14, at p. 8.)

There is no reference in CSPR 957 as to what is going to be built in the " regraded and restored" four acres.

The CT DEEP in its 7.14.14 letter, p. 2, states that the purpose of the application is " to extend grave sites into formerly unused portions of the cemetery. However, there is no direct reference to this in the site plan . . . additional information about the number, size, location, depth and orientation of new burial plots is required " to make this application sufficient for thorough review " (emphasis added).

This is consistent with state statute that requires that the Zoning Board conduct a CAM review, and that the applicant describe the entire project .

Sec. 22a-105. Coastal site plan reviews. (a) Coastal municipalities shall undertake coastal site plan reviews in accordance with the requirements of this chapter.

. . . (c) In addition to the requirements specified by municipal regulation, a coastal site plan shall include a plan showing the location and spatial relationship of coastal resources on and continuous to the site; a description of the entire project with appropriate plans, indicating project location, design, timing, and methods of construction; an assessment of the capability of the resources to accommodate the proposed use; an assessment of the suitability of the project for the proposed site; an evaluation of the potential beneficial and adverse impacts of the project and a description of proposed methods to mitigate adverse effects on coastal resources .

Because there is no description of the entire project, it is difficult for the Zoning Board to meet its obligations under CAM.

5. If an Approval Were Appealed the Claim Could Be Made that the Application is Automatically Rejected Since More Than 130 Days Have Elapsed Since It Was Filed

Normally a site plan must be decided within 65 days of receipt, or it is deemed " automatically approved." Extensions can be granted by the applicant; but the total time, with extensions, is 130 days.

This application was filed on May 6, 2014. There has been no decision. If the Zoning Board decides this on Monday, September 22, 2014, then the number of days is 139 days, which exceeds the time to decide even with extensions of time. Therefore, if this were a simple site plan application, then the applicant could claim that the site plan was " automatically approved."

Because it is a coastal site plan, another statute requires that the coastal site plan is automatically rejected, if the time period of Sec. 8-7d is exceeded.

Sec. 22a-105(f), C.G.S., provides . . . " the review of any coastal site plan pursuant to this chapter shall not be deemed complete and valid unless the board or commission having jurisdiction over such plan has rendered a final decision thereon. If such board or commission fails to render such a decision within the time period provided by the general statutes or any special act for such decision, the coastal site plan shall be deemed rejected ." (Emphasis added.)

In Borreski v. Zoning Commission, 2006 WL 574179, 40 Conn. L. Rptr. 755, the owner of neighboring land appealed from a decision of a town zoning commission approving a semi-permanent events tent proposed by marina, since it was not an accessory use to marina, and the court agreed; the court also upheld the appeal from the Zoning Commission's approval since the marina's application for coastal site plan approval was deemed denied.

In that case, the Zoning Commission did not exceed the time limits to decide. But the Zoning Commission did not specifically find that the application met the requirement of CAM, and since there was no such specific finding, the court found that the application was never decided, and therefore was deemed rejected.

" However, in reviewing the seven-page transcript of the zoning commission's deliberations concerning Island Coves applications, the court finds no decision by the commission on the coastal site plan review. Consequently. the court finds that the commission never rendered a final decision and therefore the coastal site plan must be deemed to be rejected. General Statutes § 22a-105(f) . . . The appeal is sustained because the events tent is not an accessory use to the marina. The site plan is deemed rejected because the commission never determined coastal area management act compliance ."

In Sams. v. Department of Environmental Protection, 308 Conn. 359, 63 A.3d 953 (2013), the Supreme Court upheld an order by DEP to remove a sea wall along the Connecticut River built without a permit. The court stated that a separate denial of the Coastal Area Management plan, without prejudice, by the town was a denial. " Although the decision of the zoning commission was rendered " without prejudice, " the court considers this to be a final judgment for purposes of this appeal in light of the statutory provision deeming such applications rejected if not timely decided."

Therefore, if the Zoning Board were to approve the application, and an appeal contested the approval, this claim of automatic rejection could be made.

Although the applicant may complain that this is unfair, the applicant caused delay by

doing substantial unpermitted work (" Woodland removed some 800 trees . . . over an area 1, 600 feet long and 200 feet wide, " Harness letter, 4.20.14, p. 2), prior to the filing of the application in May; this unpermitted work caused a Stop Work order dated 4.11.14 from DEEP because the site was " littered with tree stumps and debris that extended right to the water's edge . . .";

by filing an application that contradicted five previous applications with the Claim that CAM does not apply;

by filing an incorrect application, since it claims exemption from CAM;

by filing an incomplete application, since it did not detail what the purpose of the expansion of the cemetery would be in terms of numbers, types and locations of burial sites;

and by offering a " voluntary public access easement" that has so many conditions that it is Illusory. If the Zoning Board accepted this proposed easement, it would set a bad precedent and undermine the whole purpose of public access to the waterfront.

For instance, the applicant's " voluntary easement" gives it the power to move the location of the easement, to lock the access gates every night, to close down access to the easement on a temporary or permanent basis if the cemetery determined that the public was " abusing" the easement, by an arbitration agreement that would be expensive if small disputes had to be arbitrated, and requires the City to pay for a portion of the costs of the easement, up to $25,000, for the access gates.

It is difficult to negotiate the terms of an easement when the applicant states that " it would be an illegal use of power and violate state and federal law to require a walkway . . . (Finn letter 9.5.14, p. 1); and, that if a " voluntary easement" is granted then Woodland cemetery wants to be relieved of any further . . . attempts to extort an easement . . . in the future." (Finn letter 9.5.14, last page.)

If the applicant were to withdraw the application, and file a new one that was complete and addressed the concerns of the Zoning Board, then the possibility of a fatal defect that could be raised on appeal would be avoided.

For these reasons, the Zoning Board should deny the application, if the application is not withdrawn.

[fn1] The Harbor Management Commission letter dated June 24, 2014 approved a motion to find the Applicant's work of clearing vegetation not consistent with CAM and that the application is not consistent with the policies of the Harbor Management Plan concerning public access to and along the shoreline (p. 1) and in the comments section that the project plans as submitted do not accurately reflect existing conditions on the site following the already-completed and unpermitted work and the Applicant's proposal does not include specific plans for pedestrian and public access to and along the East Branch (p. 2).

APPENDIX C

MEMO TO: Norman Cole, Land Use Bureau Chief, Zoning Board, Stamford

FROM: David Killeen, Associate Planner

SUBJECT: 54-66 Woodland Place Woodland Cemetery Association

CSPR-957

DATE: July 9, 2014

REFERENCES

Plans

" Plot Plan, Sheet 1 of 3, " " Existing Conditions Plan, Sheet 2 of 3, " and " Existing Conditions Plan, Sheet 3 of 3, " Prepared for the Woodland Cemetery Association by Edward J. Frattaroli, Inc., dated March 1, 2014.

" Title Sheet, T-1, " " Site & Grading Plan 1, SC-1, " Site & Grading Plan 2, SC-2, " " Soil Erosion & Sediment Control Plan 1, SC-3, " " Soil Erosion & Sediment Control Plan 2, SC-4, " " Construction Details, SC-5, " Prepared for the Woodland Cemetery Association by Edward J. Frattaroli, Inc., dated April 22, 2014.

" Woodland Cemetery Plan P-1" and " Woodland Cemetery Plan P-2, " prepared by Richard Bergmann Landscape Architect, dated April 7, 2014.

Correspondence/Reports

Past Coastal Site Plan Review Applications for the subject property (CSPR 320, CSPR 353, CSPR 401, CSPR 440, and CSPR 576).

Correspondence from Richard Bergmann, Architect to Rick Talamelli, Environmental Planner, dated April 14, 2014 concerning the boulder perimeter and berm.

Correspondence from Rick Talamelli, Environmental Planner to Richard Bergmann, Architect concerning need to obtain Coastal Site Plan Review approval, dated April 15, 2014.

Correspondence from Raymond Redniss, Chairman, Stamford Harbor Management Commission to Tom Mills, Chair, Zoning Board, dated April 29, 2014 concerning removal of vegetation along the shoreline at the Woodland Cemetery.

Coastal Site Plan Review Application #957, filed on May 6, 2014.

Correspondence from Stephen Finn, Esquire, to Raymond Redniss, Chairman, Stamford Harbor Management Commission, dated May 12, 2014 concerning the removal of vegetation along the shoreline at the Woodland Cemetery.

Correspondence from multiple parties, May 20, 2014 to May 27, 2014 requesting a public hearing on the Coastal Site Plan Review Application for the Woodland Cemetery (CSPR 957).

" Stormwater Summary Report, Prepared for Woodland Cemetery Association, 66 Woodland Place, Stamford, Connecticut, Prepared by John E. Pugliesi, P.E., dated May 28, 2014.

Correspondence from the City of Stamford Historic Preservation Advisory Commission commenting favorably on the proposed work of the Woodland Cemetery Association as enhancing the integrity of the historic landscape and the character defining features of the Woodland Cemetery, dated June 17, 2014.

PROPOSAL

The applicant proposes to restore a 4 acre portion of the Woodland Cemetery inland from the coastal jurisdiction line, including the construction/modification/installation of walkways, fences, walls and three new rain gardens, landscaping and drainage improvements, and the construction of extended asphalt driveways to serve the restored area. The application states that this project is intended to beautify the property and preserve soil as well as indigenous vegetation and habitats. Within a couple years, the Association expects to use the restored area to accommodate new grave sites since previously developed areas have become filled to capacity.

SITE CHARACTERISTICS/COASTAL RESOURCES

The Woodland Cemetery property is an historic cemetery that consists of more than 35 acres and has operated since c. 1860 along the shore of the East Branch of the Stamford Harbor, in the City's South End. There are several buildings on the property including the main office and administration building, a maintenance facility, a caretaker building and the newest addition, a mausoleum constructed around 2000. The cemetery has been divided into different sections, which are separated by an asphalt driveway that allows access to the different gravesites throughout the cemetery. Over the years, the City has granted approval for the construction of the 3, 700 square foot mausoleum as well as the Administration Building/Chapel and several requests to stabilize 1, 470 ft. of the site's waterfront with revetment.

The current application requests approval to improve the area south of the southernmost driveway, which has been utilized as a fill site for the excess soil from digging individual graves, composting leaves, and rock storage. The application states that the topography " is mostly stock pile with some shrubs and scrub trees." There is a tidal wetland along the southern property line, and the CT DEEP jurisdiction line is located at 5.5 NAVD.

The application submitted by the Cemetery Association identifies " General Resource " as the only Coastal Resource that will be impacted. The application fails to identify other Coastal Resources that are located on or near the property and which have been cited in past Coastal Site Plan Review applications for this property. Additional Coastal Resources potentially impacted by the development could include " Bluffs and Escarpments, " " Intertidal Flats, " " Coastal Flood Hazard Areas, " " Coastal Erosion Hazard Areas, " " Coastal Waters, " and " Tidal Wetlands ." Additionally, the maps submitted with this application do not show the limits of the base flood, from Flood Insurance Rate Maps (applicant must use the maps that were published by FEMA, dated July 8, 2013.)

The application further identifies " General Development " as the only Coastal Policy affected by the proposed development. Meanwhile, past applications have provided a particular focus to the coastal characteristics of the property and the fact that the cemetery use is not a water dependent use. Under CAM policies, waterfront properties that are not used for water dependent purposes may provide public access improvements to meet water dependency requirements. Most of the recent approvals for development activities on this property have required enhancement of public access as a condition of approval for the multiple applications which have resulted in an expansion of the existing use on this property.

A Cemetery is not a water dependent use; however the application claims that the issue of water dependency is not applicable to this application. The application further states that this project is exempt from the requirements of the CAM Act pursuant to Stamford Zoning Regulations, Sections 7-14.10.a and 7-14.10.e. The application appears to provide no further explanation as to why the applicant believes they are exempt from the CAM Act, and the application contradicts all previous applications (CSPR 320, CSPR 353, CSPR 401, CSPR 440, and CSPR 576).

ISSUES

Since the applicant states they are exempt from the CAM Act and has not identified all applicable Coastal Resources onsite, it is difficult to fully assess the degree to which this proposal fully complies with CAM policies. The applicant is required to avoid or minimize activities that potentially impact conservation resources, ensure the absence of drainage impact, utilize effective erosion controls, implement effective pollution controls, and implement measures to enhance the values/functions of the East Branch corridor, promote public access, and improve the overall aesthetics of the neighborhood. A summary of pertinent measures that should be applied to the project to ensure consistency with coastal policies are outlined as follows.

Exemption from CAM

The applicant cites Sections 7-14.10.a and 7-14.10.e as exemptions for their application. Below is the current language for these sections:

a. Activities conducted for the specific purpose of conserving or preserving soil, vegetation, water, fish, shellfish, wildlife and other coastal land and water resources .

The proposed activities are described in the applicant's " Stormwater Summary Report" as follows: " The proposed plan is to re-grade Section " F" for future grave sites and provide access driveways around the section and relocate the soil and material stockpile area which is necessary for the overall operation and maintenance of the cemetery." These activities do not meet the specific purposes that qualify for this exemption.

e. Construction of new or modification of existing on-premise fences, walls; pedestrian walks and terraces, underground utility connections; essential electric, gas, telephone, water and sewer service lines, signs and such other minor structures as will not substantially alter the natural character of coastal resources as defined in C.G.S. Section 22a-93(7) or restrict access along a public beach .

While construction or reconstruction of fences, walls and pedestrian walks and terraces are included within the proposed plans, there are additional components of this application that do not fall within this exemption category, including the construction of over 1, 500 linear feet of new asphalt driveway, which is more than a quarter mile of new driveways and approximately 18, 000 square feet of new impervious surface (over 40% of an acre), which does alter the natural character of this property and prevents the applicant from claiming eligibility under this exemption.

Water Dependency

Since the Cemetery is not a water-dependent use, the provision of public access remains to be the only method by which the proposed activity can be approved under this Coastal Site Plan Review. Public access has been consistently included in the past conditions of approval for development of this property. To date, public access has not been provided.

While not mentioned as a resource consideration in the current application, past Coastal Site Plan Review applications for this property have specifically proposed public access as the method by which the applicant was to address water dependency:

" As defined in Section 22a-93(16) of the C.G.S., the proposed project is a water dependent use, as it provides general public access to marine or tidal waters and continues an existing waterfront public access system. The project should not produce any adverse impacts on future water dependent development opportunities because the present use of the remainder of the site as a cemetery precludes other types of water dependent development ." Excerpt, Coastal Area Management Report, Woodland Cemetery, prepared by Keith E. Simpson Associates, September 1992 and February 1995 (CSPR #353 and #401) .

Drainage Considerations

The development plan proposes to pitch the new asphalt driveways slightly (1 to 2%) into a swale that will collect runoff from the drives and direct it into three rain gardens designed to filter the water before it crosses over the property and into the waters below.

Erosion/Pollution Control

A temporary and permanent erosion control plan has been provided by the applicant (Sheet SC-3 and SC-A). Provisions include silt fence or hay bales along the perimeter of proposed restoration activity, " hay bale" catch basins.

Resource Protection/Access/Enhancement

Care should be taken to prevent excessive runoff and sedimentation into the adjacent tidal wetlands and intertidal flats. Some of the restored slopes appear to be as steep as 25% or more in some sections of the property along the shore, located within twenty (20) feet of the mapped tidal wetlands.

RECOMMENDATIONS

It is not anticipated that the development of this site will adversely impact coastal resources, affect adjoining properties or expose residents and property to additional flood threats. Accordingly, the Board may find that the project is consistent with the provisions of Coastal Area Management and may APPROVE CSPR 957 subject to the following conditions.

1) Work shall comply with the submitted plans and correspondence listed above.

2) All drainage improvements are subject to final review and approval of the Engineering Department prior to the start of any site activity.

3) The Site Plan shall be revised to demonstrate that any land disturbance and all structures, other than landscaping and grading incidental to drainage structures, shall be maintained at a minimum setback of at least 25 feet from the tidal wetlands and that all such activities shall be located outside of the known flood hazard areas, in order to preserve the stability of the coastline and filter runoff before it enters Long Island Sound. This setback area shall be clearly shown on the Site Plan, and it shall be maintained as a natural, vegetated buffer requiring no mowing or other ongoing maintenance actions.

4) The Landscaping Plans need to be modified to include the location, number, type and root type of the native, coastal plants proposed, and emphasizing plants tolerant of the coastal environment. To address concerns expressed by the City's Harbor Management Commission and the general public, the Landscaping Plans need to provide adequate evergreen screening of the facilities in conjunction with the buffer area described under Condition #3 and the Plans need to be revised to reflect existing conditions and existing trees, subsequent to the extensive removal of trees and shrubs. The revised Landscaping Plans are subject to the review and approval of the EPB and Land Use Bureau staff. All approved landscaping and mitigative measures shall be conducted under the supervision of a qualified landscaping professional with written certifications submitted to EPB Staff prior to the receipt of a signature authorizing the issuance of certificate of occupancy/completion.

5) Submission of a performance bond, certified check or other acceptable form of surety to secure the timely and proper performance of sediment and erosion controls, landscaping, public access improvements, and other mitigative measures, drainage, professional supervision, and certifications plus a 15% contingency. A detailed estimate of these costs must be supplied to EPB Staff for approval prior to the submission of the performance surety. The performance surety shall be submitted to EPB Staff prior to the start of any site activity and issuance of a building permit.

6) Applicant shall submit a coastal resource management plan subject to the review of the EPB Staff, which will include mitigation measures to assure long term protection and health of the adjacent tidal wetlands and intertidal flats.

7) Establishment and maintenance of a continuous public access walkway along the shore, subject to final approval of design specifications and signage by the Zoning Board.

8) Submission of a revised layout plan showing a suitable public access easement with a minimum ten foot wide connection to existing public access easements at the northerly and southerly property boundaries.

9) Execution of a standard public access easement granting the public the right to use the walkway from dawn to dusk with necessary public access signage, subject to final approval by Corporation Counsel and the Zoning Board staff.

10) Work areas shall be staked in the field by a Connecticut surveyor prior to the start of any site activity.

11) Temporary erosion control measures shall be installed and approved in writing by EPB Staff prior to the start of any site activity.

12) All disturbed earth surfaces shall be stabilized with topsoil, seed, much, sod, stone or other EPB approved alternative prior to the issuance of certificate of occupancy/completion.

13) All final grading, drainage, stabilization and other engineered elements (including the boulder wall) shall be completed under the supervision of a Connecticut registered professional engineer/surveyor with an improvement location survey (LS) and written certifications (PE) submitted to EPB Staff prior to the receipt of a signature authorizing the issuance of certificate of occupancy/completion.

14) Submission of standard drainage facilities and landscape maintenance agreements prior to the receipt of a signature authorizing the issuance of a certificate of occupancy/completion.

APPENDIX D

TO: ZONING BOARD

FROM: NORMAN F. COLE, LAND USE BUREAU CHIEF

RE: CSPR-957 WOODLAND CEMETERY

DATE: SEPTEMBER 15, 2014

At the request of the Zoning Board, staff has reviewed the public hearing record and outlined two scenarios to aid discussion at tonight's regular meeting for acting on this pending application. James Minor, Assistant Corporation Counsel is not able to attend tonight's meeting but has committed to attend the meeting of September 22, 2014 to answer legal questions.

Background

Woodland Cemetery Association submitted its Coastal Site Plan Review application on May 6, 2014. The Zoning Board opened the public hearing on this application on July 14, 2014 and continued that public hearing to July 21, 2014, July 28, 2014, and September 8, 2014 at which time the public hearing was closed. During this period, the Zoning Board has heard conflicting presentations on whether the proposed activities are exempt or not; whether the CSPR application is complete or not; whether there are coastal resources that would be impacted by the application or not; and whether the use should be subject to public access requirements or not.

Staff has prepared this memo to help the Zoning Board deliberate on this application and move closer to rendering a final decision. This memo seeks to illuminate, in outline form, reasons for approving the application with a specific set of conditions (Approach #1) or denial of the application (Approach #2).

APPROACH #1--APPROVAL WITH CONDITIONS

The Zoning Board recognizes there are deficiencies in the application submitted, but there is potential for meeting the land use policies outlined in the Connecticut Coastal Area Management Act if the applicant is willing to meet certain conditions of approval, which could include.

1. The applicant must submit a revised CSPR application and site plan, addressing incomplete information and deficiencies in identified coastal resources and potential impacts on those resources, and an accurate disclosure of the proposed use of property.

2. Work shall comply with the submitted plans and correspondence included in the record.

3. All drainage improvements subject to approval of the Engineering Department.

4. Land disturbance to be kept a minimum of 25 feet from sensitive coastal resources.

5. Applicant shall apply for any permits that may be required by the CT DEEP to authorize new work on the property and to comply with the conditions of CT Field Notice of Violation #LIS-14-40162-FV.

6. Final Landscaping Plans subject to review of EPB and Zoning Board staff.

7. Submission of a performance bond.

8. Submission of a coastal resource management plan to include measures for long-term protection of sensitive coastal resources.

9. Establishment and maintenance of a continuous public access walkway along the shore, subject to approval of Zoning Board staff.

10. Execution of a standard public access easement granting the public the right to use the property from dawn to dusk with necessary public access signage, subject to final approval by Corporation Counsel and the Zoning Board.

11. . . . and other standard conditions . . .

12. If the application is not amended to request approval of use of Section " F" for interments, then the Applicant will be required to submit an additional CSPR application to authorize burial use. Above-ground burials will require a zoning variance (see CT DEEP letter of July 14, 2014).

APPROACH #2 DENIAL

The Zoning Board determines that the applicant has not submitted a complete and accurate application describing the proposed activities and uses and has not demonstrated that the application is exempt from Coastal Site Plan Review. The proposed activities and uses will have an unacceptable adverse impact on coastal resources and coastal policies.

1. No reason or explanation given why previous applications all agreed that public access was a requirement.

2. Testimony provided by the Applicant's current CAM expert (Matt Popp) is contradicted by the testimony of previous CAM experts representing similar applications for this property (Keith Simpson et al.). The current CAM report is labeled as " educational" only.

3. The Applicant's CAM report (Matt Popp, July 25, 2014) identifies only the Coastal Use Policy of " general development" and fails to identify that this waterfront property is subject to additional Coastal Use Policies including " water dependent uses."

4. The statement by the Applicant's CAM expert (Popp) that the proposed activities are exempt from CAM, is contradicted by his description of the project and discussion of impacts and by statements made by the project engineer and landscape architect.

5. The applicant claims they are exempt from CAM; however, staff reports by the Stamford Land Use Bureau (July 9, 2014) and CT DEEP (July 14, 2014) disagree and conclude that the activities are subject to CAM and CSPR.

6. Applicant is already in violation of conditions included in the Zoning Board approval of CSPR 576 for construction of a mausoleum, dated October 22, 2001, which required the submission of a revised layout plan for a public access easement and the execution of a standard public access easement.

7. Applicant has, on record, refused to recognize the expansion of the current non-water-dependent use as requiring public access, which is refuted by CT DEEP in their July 14, 2014 correspondence, the Zoning Board Staff Report, and previous CSPR applications submitted by the applicant.

8. Applicant has refused to execute a standard public access easement and has offered a voluntary public access easement that includes so many restrictions that it compromises the purposes of establishing such an easement.

9. The applicant has failed to disclose information necessary to evaluate the impact of the project on coastal resources and coastal policies--the purpose of the work and the applicant's plan to expand into the project area to create new grave sites (e.g., additional information to include the number, size, location, depth and orientation of new burial plots.)

10. The CT DEEP letter of July 14, 2014, among other statements, concludes: " . . . if [plan] modification cannot achieve consistency [with the CCMA], the project should be denied."

FOR PUBLICATION: THE ADVOCATE--ONE INSERTION--FRI., SEPT. 26, 2014

Charge to: Stephen Finn, Esq., Wofsey, Rosen, Kweskin & Kuriansky, LLP

600 Summer Street

Stamford, CT 06901

(203) 327-2300 Ext. 278

Legal NoticeZoning Board--City of Stamford

CSPR--957--WOODLAND CEMETERY ASSOCIATION, 54 Woodland Place--Notice is hereby given that the Zoning Board the City of Stamford, CT at its regular meeting held on Monday, September 22, 2014, UNANIMOUSLY DENIED the above captioned application for Coastal Site Plan Review submitted by the Woodland Cemetery Association, to clear, re-grade and re-landscape approximately 4 acres of property along the East Branch of the Harbor to prepare the area to be used for future grave sites, including the installation of asphalt roads, fences, drainage structures and construction of a bermed work. Said site is further described as follows.

ALL THAT CERTAIN piece or parcel of land situated in the City of Stamford, County of Fairfield and State of Connecticut together with the buildings and improvements thereon, more particularly shown and designated as 'Parcel B other land of Woodland Cemetery Association 35+- Acres' on a certain map entitled 'Subdivision of Property of Woodland Cemetery Association of which Parcel A is to be conveyed to Pitney Bowes, Inc. as Adjoining Owner Stamford, CT' prepared by Parsons, Bromfield and Redniss dated March 22, 1980 which map was filed in the Stamford Town Clerk's Office on October 22, 1980 as Map No. 10598."

Map 133, Block 25, Lot B

ATTEST: THOMAS MILLS

CHAIRMAN, ZONING BOARD

STAMFORD, CT

Dated and posted at the City of Stamford, Connecticut, this 26th day, 2014.

^[*]Editor's Note: The only alteration to the original Memorandum of Decision appears to be in the caption, correcting the name of Defendant to " Zoning Board of Appeals of the City of Stamford" instead of " Town of Greenwich Zoning Board of Appeals."