Opinion
CV094018422.
12-11-2012
Jonathan ANDREW et al. v. WATERTOWN PLANNING & ZONING COMMISION.
UNPUBLISHED OPINION
V. ROCHE, J.
The plaintiff, Jonathan Andrew, appeals from the decision of the defendant, the Watertown Planning and Zoning Commission (commission), adopting a text amendment to its zoning regulations for a new Route 262 Planned Commercial District (B-PCD262). Andrew claims that the commission's decision was erroneous, both procedurally and substantively. The court disagrees and dismisses his appeal.
FACTS
Over the course of the summer and fall of 2008, the commission held a number of meetings regarding a proposed amendment to zoning regulations of the town of Watertown (town) and entertained comments from the public. Specifically, the commission proposed a text amendment to the regulations creating a commercial " overlay zone in an area that previously had been designated for restricted industrial use (I-R 80 zone). See Watertown Zoning Regs. § 36. The area covered approximately 100 acres and was bounded by Route 262, Echo Lake Road, Frost Bridge Road, Route 8 and the Turkey Brook watercourse. See Watertown Zoning Regs. § 36.2; (Return of Record [ROR], Ex. VI, 1). During the public hearing process, a number of town landowners, including Andrew, intervened. (ROR, V.) Public hearing on the proposal was closed on November 6, 2008. (ROR, III, 6.) On November 10, 2008, the commission approved the text amendment to the town's zoning regulations, creating the new B-PCD262 district designation. (ROR, III, 7.) Notice was published in the newspaper. (ROR, I, 13.)
Thereafter, Andrew and the other intervening petitioners commenced the present matter in the Superior Court. On July 21, 2009, the court, Brunetti, J., dismissed their appeal on the ground that Andrew and the intervening petitioners lacked standing to bring this action. On March 8, 2011, the Appellate Court reversed the court's decision as to Andrew, holding that he was statutorily aggrieved pursuant to General Statutes § 8-8(a)(1). See Douglas v. Planning & Zoning Commission, 127 Conn.App. 87, 100-01, 13 A.3d 669 (2011). The Appellate Court affirmed the court's decision with regard to the other intervenors, holding that they lacked standing under General Statutes § 22a-19. The matter was remanded for further proceedings and a trial was held before this court on September 21, 2012.
AGGRIEVEMENT
A person appealing a decision of a zoning commission must establish that he is aggrieved by the decision appealed. General Statutes § 8-8. Andrew is the owner of property abutting or within a 100-foot radius of the land involved in the commission's decision. Consistent with our Appellate Court's determination, the court finds Andrew is aggrieved. See Douglas v. Planning & Zoning Commission, supra, 127 Conn.App. at 100-01.
DISCUSSION
Andrew now claims that the commission's adoption of the text amendment creating the B-PCD262 overlay zone was substantively and procedurally improper. Specifically, Andrew claims that the commission erred by (I) failing to follow the amendment procedures outlined in the town's zoning regulations and finding the amendment consistent with the town's comprehensive plan, (II) violating the uniformity requirement of General Statutes § 8-2 in adopting the B-PCD262 district designation and (III) failing to reopen public hearing on the application after changes were made to the draft proposal.
I.
Andrew claims that the commission illegally and arbitrarily adopted the text amendment at issue without following procedures mandated by the Zoning regulations and contravened the town's comprehensive plan, as well as the town's plan of conservation and development (conservation plan). The court disagrees.
When adopting a text amendment to a town's zoning regulations, a commission acts in a legislative capacity. See, e.g, Roncari Industries, Inc. v. Planning & Zoning, 281 Conn. 66, 79, 912 A.2d 1008 (2007). Courts reviewing a challenge to a commission's legislative decision do not retry the facts of the case. " Conclusions reached by the [zoning authority] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency." Konigsberg v. Board of Aldermen of City of New Haven, 283 Conn. 553, 582, 930 A.2d 1 (2007). When acting as a legislative body, a zoning commission is afforded broad discretion and its decision will not be disturbed " unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally ... Within these broad parameters, [t]he test of the [legislative] action of the commission is twofold: (1) The zone change [or change in the regulations] must be in accord with a comprehensive plan ... and (2) it must be reasonably related to the normal police power purposes enumerated in [the city's enabling legislation] ..." (Internal quotation marks omitted.) Id., at 583.
The court is not persuaded by Andrew's argument that the commission's action was procedurally improper. Andrew specifically argues that § 81 of the zoning regulations of the town of Watertown requires the commission to provide an environmental impact statement when amending its regulations. Moreover, Andrew notes that the Watertown plan of conservation and development provides that an economic development study should precede any rezoning of the subject industrial area.
Section 81.1 of the zoning regulations of the town of Watertown provides: " Authority: The Commission, either on its own initiative or by petition of others, may amend these Regulations or the Zoning Map, in accordance with the General Statutes." (Emphasis added.) (ROR, VII, p. 206.)
Section 81.2 provides: " Petition for Amendment: Any owner of property within the Town may petition the Commission for an amendment to the text of these Regulations or the Zoning Map. Three copies of such petition shall be submitted to the Commission prior to a Commission meeting and shall include or be accompanied by the following information, as appropriate ..." (Emphasis added.)
Section 81.2.5, requiring an environmental impact statement, is a subsection of § 81.2 and its operation is only triggered when an owner of property within the town petitions the commission for an amendment. The town, in contrast, when acting on its own initiative, need only act in accordance with the General Statutes, as provided in § 81.1 of the regulations. The General Statutes do not specifically require a commission to provide an environmental impact statement when it seeks to amend its own regulations.
Additionally § 81.2.6 of the zoning regulations of the town of Watertown provides: " The Commission may waive any or all of the requirements of Section 81.2.5 by a two-thirds vote of the entire Commission."
With regard to Andrew's argument that the commission was required to provide an economic development study, the court is not persuaded. Recommendations in a plan of conservation and development are merely advisory. See Dutko v. Planning & Zoning Board, 110 Conn.App. 228, 242, 954 A.2d 866, 876 (2008)
Viewing the town's plan of conservation and development in its entirety, the court finds that the amendment was consistent with and, in fact, substantially effectuated the town's development plan.
The town's plan of conservation and development provides, in relevant part:
To the extent Andrew argues that the commission improperly failed to consider public opposition to the proposal and disregarded statements of town attorneys and regional planners, the court disagrees. The commission has discretion to accept or disregard such statements. See Raczkowski v. Zoning Commission, 53 Conn.App. 636, 642-43, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999) (" [t]he credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission]").
In sum, the court finds that the commission's adoption of the text amendment was consistent with the town's comprehensive plan and reasonably related to its normal police powers. Specifically, the court determines that by adopting the B-PCD263 overlay zone the commission sought to improve the town's tax revenue position, and thus the general welfare of the community, through the promotion of commercial and retail development in response to depressed industrial development in the underlying I-R 80 zone. This conclusion is supported by the record of the commission's deliberations, as well as the text amendment's statement of purpose, which notes that the amendment is intended to " [p]rovide for a high quality commercial development near Route 8 along a portion of Route 262 ... within a Planned Commercial District overlay zone to be adopted in accordance with a Zoning Map petition on the existing I-R 80 Zoning District. The primary objectives of the District are to expand retail, office, and other compatible use options within the Town of Watertown ... and to increase the diversity of the town's tax base." (ROR, VII, 36.)
II.
Andrew next claims that the B-PCD262 district designation violates the uniformity requirement of General Statutes § 8-2. Andrew contends that the B-PCD262 operates neither as a floating zone nor an overlay zone. Rather, Andrew contends, the newly enacted district designation " results in a mere amendment to the [r]egulations that violates the uniformity requirement for zoning regulations." Specifically, Andrew argues that the text amendment " provides the B-PCD262 option to some, but not all, of the existing land located in the IR-80 zoning district without any specific rationale to the designated boundary ... and without any obligation to avail oneself of it." The opt-in nature of the amendment " upends the statutory requirement of uniformity within districts" and " exceeds the ‘ flexibility’ doctrine that otherwise legitimizes planned development districts ..." Andrew contends that " [t]he B-PCD262 zone is merely a district designation that is being made available to a few property owners. It fails to promote the public welfare in a reasonable manner." General Statutes § 8-2(a) authorizes the zoning commission to " regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land" provided that " [a]ll such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district ..." As the Appellate Court's earlier decision in this matter notes, " [t]he text amendment creates a new zoning district, " in a distinct geographic area. Douglas v. Planning & Zoning Commission, supra, 127 Conn.App. at 95-96.
Although Andrew does not expressly invoke the term " spot zoning, " his argument that the B-PCD262 improperly benefits individual land owners and fails to promote the public welfare tracks the language used in our Supreme Court's test for whether a commission's action violates the prohibition against spot zoning. See, e.g., Konigsberg v. Board of Aldermen, supra, 283 Conn. at 592-93 (" [t]he ultimate test is whether, upon the facts and circumstances before the zoning authority, the extension is, primarily, an orderly development of an existing district which serves a public need in a reasonable way or whether it is an attempt to accommodate an individual property owner " [emphasis added]).
" [T]he statutory language contained in § 8-2 only requires intradistrict uniformity, and not uniformity among all districts in a given town ..." (Emphasis in original.) Pleasant Valley Neighborhood Ass'n v. Planning & Zoning Commission, 15 Conn.App. 110, 114, 543 A.2d 296, 299 (1988); see also R. Fuller, 9 Connecticut Practice Series: Land Use Law & Practice (3d Ed.2007) §§ 4:5, 22:16. Andrew does not argue that landowners falling within the bounds of the B-PCD262 district are treated in an inconsistent manner. That is, Andrew's argument does not concern improper intradistrict treatment within the distinct geographic area of the B-PCD262 district. Accordingly, the court finds Andrew's uniformity argument unavailing. See Campion v. Board of Aldermen, 278 Conn. 500, 523-24, 899 A.2d 542 (2006) (planned development district, like floating zone, does not violate uniformity requirement).
" When formulating zoning regulations, including the establishment of particular zones and the designation thereof, a local zoning authority is acting in its legislative capacity." Coastal Suburban Builders, Inc. v. Planning & Zoning Commission, 2 Conn.App. 489, 492, 479 A.2d 1239 (1984). " [Our appellate courts] have said on many occasions that courts cannot substitute their judgment for the wide and liberal discretion vested in local zoning authorities when they have acted within their prescribed legislative powers. Courts must not disturb the decision of a zoning commission unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally." (Internal quotation marks omitted.) Pleasant Valley Neighborhood Ass'n v. Planning and Zoning Commission, supra, 15 Conn.App. at 113. The validity of the commission's legislative action should be considered against the backdrop of the particular circumstances of each case. Jablon v. Town Planning & Zoning Commission, 157 Conn. 434, 439, 254 A.2d 914 (1969). " One of the circumstances with which the commission, acting in its legislative capacity, should properly concern itself is the encouragement of the most appropriate uses of the land in the area having regard to its type, location and the nature of the use being made of the surrounding land. The requirements imposed by General Statutes § 8-2 do not deprive the commission of all discretion, nor do they militate against a change in a general zoning classification so long as the change approved is reasonable and serves the interest of the general community." Spada v. Planning & Zoning Com., 159 Conn. 192, 197, 268 A.2d 376 (1970). The court finds that the commission did not exceed its legislative powers when it adopted the text amendment creating the B-PCD262 zoning designation. On balance, the text amendment approved by the commission is rationally related to and benefits the general welfare of the community.
III.
Finally, Andrew argues, without citation to authority, that the commission improperly enacted the text amendment after making material changes to the amendment proposal. Andrew contends that " [g]iven all of the public interest in the proposed [a]mendment and the magnitude of the changes that were made between the [p]ublic [h]earing on October 29 and November 6, 2008, it is mystifying why the [c]ommission did not promulgate the revision publicly and take additional testimony." [P's Br., 31.].
" Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court." (Citation omitted, internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). The court declines to review Andrew's inadequately briefed claim.
The plaintiff's appeal is dismissed.
While the town's industrial base is relatively strong compared to the region, it is not likely to grow significantly enough in the short term to occupy the existing vacant land in the industrial area north of CT Route 262 at U.S. Route 8. The Commission recognizes the development potential of the area due to the size of available land and proximity to U.S. Route 8. Therefore, the Commission has indicated on the Future Land Use Plan (See Chapter 10) that this area may be appropriate as a planned commercial area.
Development of this land will have significant consequences on the future character of the town and quality of life for its residents. It is therefore in the town's best interest to undertake a special economic development study that would guide the pace and pattern of commercial growth. The study would likely have three components: real estate, planning and engineering. These three areas of study would provide valuable information relating to: (1) development strategies (use, size of buildings, access, etc.) that would not undermine existing businesses (2) potential development constraints associated with brownfields and topographical conditions, such as steep slopes and rock outcroppings (3) water and sewer extension improvements and costs (4) available financing resources, and (5) marketing strategies.
While this Plan recognizes the appropriateness of rezoning a portion of the existing industrial area should be considered, any rezoning should be subsequent to the findings of the economic development study and may await an application from a developer. This study may be initiated by the Commission or the study may be initiated by an applicant and done under direction of the Commission.(ROR, IA, 40, pp. 46-47.) In addition, the plan of conservation and development outlines a number of economic development policies, including the following:
This Plan recognizes a potential economic development opportunity in the area of Route 262 near Route 8 bordering Echo Lake Road and Ledge Road. This Plan recommends changing zoning districts at the approximately 100 acres location from I-R80 (restricted industrial) to a " Planned Commercial District" permitting commercial and office uses. The Commission, property owners, or agent of the property owners may propose a zone change. A zone change application should review economic and traffic impacts to assist the Commission with defining the " Planned Commercial District." An economic impact study should analyze the proposed zone assuming it to be fully developed and its effects on (1) Watertown municipal, school, water and sewer services, (2) business sprawl on Route 262 and Echo Lake Road, (3) existing businesses in Watertown, and (4) quality of life and town character. An analysis of the highest and best use of the property is not recommended. A traffic impact study should use the ITE trip generation guide and generally accepted standards for measuring traffic flow. The traffic study need not address remedies for mitigating congestion; however for each congested area in the study there should be a statement of feasibility that after improvements a specific level of traffic service should result. If the Commission is not the applicant the studies should be independently reviewed by consultants selected by the Commission.(ROR, IA, 40, p. 86.)
" Spot zoning is impermissible in this state ... Spot zoning had been defined as the reclassification of a small area of land in such a manner as to disturb the tenor of the surrounding neighborhood ... Two elements must be satisfied before spot zoning can be said to exist. First, the zone change must concern a small area of land. Second, the change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole ... The vice of spot zoning lies in the fact that it singles out for special treatment a lot or a small area in a way that does not further such a [comprehensive] plan ... The obvious purpose of the requirement of uniformity in the regulations is to assure property owners that there shall be no improper discrimination, all owners of the same class and in the same district being treated alike." (Citations omitted; internal quotation marks omitted.) Gaida v. Planning & Zoning Commission, 108 Conn.App. 19, 32-33, 947 A.2d 361, cert. denied, 289 Conn. 922, 958 A.2d 150, cert. denied, 289 Conn. 923, 958 A.2d 151 (2008).
The present amendment complies with the comprehensive plan. Although the new B-PCD262 overlay does not encompass the entire I-R 80 district, the site specific amendment adopted in the present matter concerns an area bounded by obvious geographic features, including roads and waterways. The record of the commission meeting minutes provides that the commission's decision to adopt the text amendment was based primarily on economic considerations, such as the benefit of commercial zoning on the town's tax base, a recognition of lax industrial development, and the proposed site's proximity to major thoroughfares, including highway ramps for Route 8. The court determines, based on the record presented, that the commission's text amendment creating a new district designation that allows for prospective commercial use in a sensibly bounded area of the existing I-R 80 is an orderly, uniform development that reasonably serves a public need.