Opinion
No. CV03 401 28 64
March 17, 2006
MEMORANDUM OF DECISION
I. STATEMENT OF APPEAL
At the outset the court notes that Balikci v. Planning Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0193833 ( Balikci I) and Balikci v. Planning Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0195058 ( Balikci II) were consolidated on March 31, 2004, and transferred to the judicial district of Fairfield on November 3, 2005. Balikci I was assigned the Docket No. CV 03 4012864 and Balikci II was assigned the Docket No. CV 03 4012862. This opinion addresses both causes of action.
A. BALIKCI I
In Balikci I, the plaintiffs, various property owners in the town of Greenwich (town) and the Concerned Homeowners of Greenwich (CHG), appeal the adoption by the defendant, the Greenwich Planning and Zoning Commission (PZC), of an amendment to the town of Greenwich building and zoning regulations (regulations) concerning the Floor Area Ratio (FAR) within residential zones. The plaintiffs also seek a declaratory judgment declaring the FAR amendment unconstitutional.
B. BALIKCI II
In Balikci II, the plaintiffs seek, pursuant to General Statutes § 8-8(r), a declaration voiding the PZC's adoption of certain amendments revising and adding to various definitions, including attic and basements, sections on bulk, FAR, and other sections of the regulations. (Attic and Basement Amendments.) CT Page 5350
II. BACKGROUND
A. BALIKCI IOn September 20, 2002, the staff of the PZC submitted a proposal to amend the regulations regarding the FAR standards in the town's residential zones. (Return of Record [ROR], Item 2.) Public hearings were held and exhibits were received on November 19, 2002 (ROR, Items 36 and 37); and December 10, 2002. (ROR, Items 55 and 57.) The PZC approved the majority of the amendment's provisions on January 7, 2003 (ROR, Item 61); and legal notice was published on January 14, 2003. (ROR, Item 63.) The amendment reduced the maximum FAR in all residential zones with a preexisting FAR and created a FAR in the two residential zones that did not have a preexisting FAR. (ROR, Item 62.) The amendment also applied these new FAR standards to each residential zone's corresponding conservation zone and added a twenty-five percent increase for detached housing in the conservation zones that did not have a preexisting FAR and a fifteen percent increase in conservation zones that did have a preexisting FAR. (ROR, Item 62.)
Each appeal contains its own return of record. ROR refers to the record in CV 03 4012864, and ROR II, as used infra, refers to the record in CV 03 4012862.
On January 29, 2003, the plaintiffs appealed the decision of the PZC to the Superior Court, judicial district of Stamford-Norwalk, and also requested a declaratory judgment regarding the constitutionality of the amendment. (Appeal.) As previously indicated, this matter was consolidated with another case commenced by the plaintiffs relating to FAR standards, and both matters were transferred to the judicial district of Fairfield on November 3, 2005. This court conducted the trial on January 12, 2006, and February 28, 2006.
B. BALIKCI II
On December 11, 2001, the PZC conducted a public hearing on proposed amendments seeking to change the definitions of attic, basement, building height, crawl space, finished grade, gross floor area, and story and method of calculating story. (Return of Record II [ROR II], Item 2, 3.) Subsequent public hearings were held on January 29, 2002 (ROR II, Items 4, 5); and March 19, 2002. (ROR II, Items 7, 8.) On April 16, 2002, the PZC adopted the proposed attic and basement amendments with revisions. (ROR II, Item 11.) The attic and basement amendments were published on April 29, 2002, with an effective date of April 30, 2002. (ROR II, Item 12.)
The plaintiff commenced this action by service of process on April 29, 2003. (Appeal.) As previously stated this matter was consolidated with CV 03 4012864 and both matters were transferred to the judicial district of Fairfield on November 3, 2005. This court conducted the trial on January 12, 2006, and February 28, 2006.
III. JURISDICTION
General Statutes § 8-8 governs an appeal from the decision of a planning and zoning commission to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
A. Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest . . .
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Lewis v. Planning Zoning Commission, 275 Conn. 383, 391, 880 A.2d 865 (2005). "A statute need not specifically provide that certain persons come within its protection in order to establish aggrievement as long as that protection may be implied fairly." (Internal quotation marks omitted.) Eder Brothers, Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 370, 880 A.2d 138 (2005). A party is considered statutorily aggrieved by proving ownership of land within a zone affected by a change to the zoning regulations. Lewis v. Planning Zoning Commission, 62 Conn.App. 284, 297, 771 A.2d 167 (2001); Cole v. Planning Zoning Gommission, 30 Conn.App. 511, 515, 620 A.2d 1324 (1993); see also Bespuda v. Planning Zoning Commission, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 04 0084881 (May 25, 2005, Upson, J.); Fedus v. Planning Zoning Commission, Superior Court, judicial district of New London, Docket No. 124066 (May 16, 2003, Purtill, J.T.R.); Macare v. Planning Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV 02 0468931 (March 10, 2003, Radcliffe, J.); ( Pompea v. Zoning Commission, Superior Court, judicial district of Danbury, Docket No. 320392 (May 10, 1996, Moraghan, J.).
Statutes § 8-8(a)(1) provides in relevant part that: "In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
The court notes that in Stauton v. Planning Zoning Commission, 271 Conn. 152, 162-63, 856 A.2d 400 (2004), our Supreme Court discussed the Appellate Court's holding in Lewis, but did not decide specifically whether an individual is statutorily aggrieved by ownership of property in a zone subject to a zoning amendment. Id., 163 n. 9. This court, therefore, remains bound by the decision of the Appellate Court.
The homeowner plaintiffs have pleaded both statutory and classical aggrievement and the CHG has pleaded classical aggrievement. During trial, homeowners Rebecca Balikci, Peter Lauridsen, Christine Edwards, and Alan Small each testified that they owned property within a zone affected by the FAR amendments and the attic and basement amendments passed by the PZC. They also testified to the authenticity of the deed to their property, which was already admitted as an exhibit as a certified public document. "[W]here the issue of title or ownership is directly involved, the proper way to prove title is by the production of the original documents or certified copies from the record." Quarry Knoll II v. Planning and Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001). Accordingly the plaintiffs have met the first requirement of classical aggrievement. See Campformio v. Planning and Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0170237 (April 19, 2002, D'Andrea, J.T.R.) ( 32 Conn. L. Rptr. 55). In furtherance of proving the second requirement of classical aggrievement each plaintiff testified that the value of their property has been decreased by the restriction created by the amendments. The court, therefore, finds that the PZC's decision has specially and injuriously affected the plaintiffs' specific interest. See Id. Accordingly, plaintiffs Balikci, Lauridsen, Edwards and Small are classically aggrieved, therefore, the court need not decide whether they were also statutorily aggrieved. See Harris v. Zoning Commission, 259 Conn. 402, 418 n. 15, 788 A.2d 1239 (2002); Campformio v. Planning and Zoning Commission, supra, 32 Conn. L. Rptr. 57.
Having determined which property owners are aggrieved, the court must next determine whether the CHG has standing as an association to bring an action on behalf of its members. An association has standing if it demonstrates that: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." (Internal quotation marks omitted.) Connecticut State Medical Society v. Oxford Health Plans (CT), Inc., 272 Conn. 469, 472 n. 4, 863 A.2d 645 (2005). "If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured." Gay Lesbian Law Students Ass'n. v. Board of Trustees, 236 Conn. 453, 464, 673 A.2d 484 (1996).
Plaintiffs Balikci, Lauridsen, Edwards, and Small all testified that they are members of the CHG, and the court has determined that they are classically aggrieved. Each plaintiff also testified that the CHG was organized for the sole purpose of protecting the homeowners affected by the amendments proposed by the PZC. Finally, the court can provide the requested relief of voiding the commission's approval without the participation of individual CHG members. Accordingly, the CHG is classically aggrieved.
The Supreme Court has explicitly endorsed the use of representative standing in zoning cases. See Timber Trails Corp v. Planning and Zoning Commission, 222 Conn. 380, 394-95, 610 A.2d 620 (1992).
B. Timeliness and Service of Process
1. BALIKCI I
General Statutes § 8-8(b) provides in relevant part: "[A]ny person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." Subsection (f)(1) further provides, in relevant part, that "[f]or any appeal taken before October 1, 2004, process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."
On January 14, 2003, legal notice of the Commission's adoption of the FAR amendments was published in the Greenwich Times. (ROR, Item 63.) This appeal commenced on January 29, 2003, pursuant to § 8-8(f)(1) by service of process on the Town Clerk and the Chairperson of the PZC. (Appeal, Service of Process.) Accordingly, the appeal was commenced in a timely fashion.
2. BALIKCI II
While the plaintiffs' complaint contains three counts, they have decided only to pursue the third count, which alleges violation of the notice provisions of §§ 8-3b, 8-3h, and 8-3(a). Since each statute addresses notice, these claims must be pursued pursuant to § 8-8(r). Section 8-8(r) provides: "In any case in which a board fails to comply with a requirement of a general or special law, ordinance or regulation governing the content, giving, mailing, publishing, filing or recording of any notice either of a hearing or of an action taken by the board, any appeal or action by an aggrieved person to set aside the decision or action taken by the board on the grounds of such noncompliance shall be taken not more than one year after that date of that decision or action."
See plaintiffs' brief, p. 2 n. 1.
The plaintiffs have argued that their appeal was commenced timely on April 29, 2003, which is less than one year after April 30, 2002, the effective date of the attic and basement amendments. The plaintiffs contend that the use of the words "decision" and "action" in the statute suggests more than simply the date of enactment since the use of two nouns constitutes separate events. It suggests, according to the plaintiffs, the ability of an aggrieved party to bring an action outside the normal appeal period. The PZC contends that when read with the appeal requirements of 8-8(b) it is clear that the date of notification nor the effective date are not the proper dates to measure the one-year time limit of § 8-8(r). They further argue that the legislative history of Public Acts 2001, No. 01-110 indicates that the date of notification is not intended to be the day when the one-year time limit commences.
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language does actually apply . . . In seeking to determine that meaning . . . § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398 (2006).
At issue is the meaning of the phrase "decision or action" in § 8-8(r) as used at the end of the statute. Section 8-8(b)'s reference to § 8-8(r) is informative as to the meaning of the phrase "decision or action." Section 8-8(b) provides in relevant part: "Except as provided in subsections (c), (d) and (r) . . . any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." (Emphasis added.) Accordingly, unlike subsections (c), (d) and (r), the statute of limitations begins to run on the day of publication under subsection (b).
The determination of the meaning of the phrase "decision or action," is also aided by its use in the statute. The phrase is used earlier in the statute, and the prior use provides guidance to the court. The relevant part of § 8-8(r) states "any appeal or action by an aggrieved person to set aside the decision or action taken by the board on the grounds of such noncompliance shall be taken not more than one year after the date of that decision or action." (Emphasis added.) In this section the phrase "decision or action" as coupled with the phrase "taken by the board" is used to describe what can be done by the board alone, namely the power to decide or act in zoning or planning matters. At the end of that sentence, the phrase "decision or action" is coupled with the subordinating conjunction "that" to denote that the one-year statute of limitations commences on the date of the "decision or action taken by the board" mentioned earlier in the sentence. While the board may set the effective date of their decision or action, that decision or action is not taken by them on the effective date unless the decision or action is effective on passage. Such is not the case in the present situation. The PZC's decision on the attic and basement amendments took place on April 16, 2002 (ROR II, Item 11); and the plaintiffs commenced this action on April 29, 2003. "[A] failure to file a zoning appeal within the statutory time period deprives the trial court of jurisdiction over the appeal." (Internal quotation marks omitted.) Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992). Accordingly, the plaintiffs' cause of action is time barred pursuant to § 8-8(r). The remaining portion of the opinion, therefore, is devoted solely to CV 03 4012864.
IV. SCOPE OF REVIEW
"The proper, limited scope of judicial review of a decision of a local zoning commission when it acts in a legislative capacity by amending zoning regulations is well established. [T]he commission, acting in a legislative capacity, [has] broad authority to adopt . . . amendments . . . In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witness and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would [reach] the same conclusion but whether the record before the agency supports the decision reached . . . Acting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function . . . This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally . . .
"Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment . . . The responsibility for meeting these demands, rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission. Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion . . . [T]he test of the action of the commission is twofold: (1) The zone change must be in accord with a comprehensive plan . . . and, (2) it must be reasonably related to the normal police power purposes enumerated in § 8-2 . . ." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 415-17.
V. DISCUSSION
The plaintiffs have pleaded that the adoption of the FAR amendment was illegal, unconstitutional, arbitrary, unreasonable and in violation of General Statutes § 8-1 et seq. (Appeal, Count One ¶ 30.) In support of this claim the plaintiffs argue that: (1) the submission of the amendment to the PZC by the PZC staff was illegal pursuant to General Statutes § 8-3; (2) section 6-205 of the regulations as amended violates the uniformity requirements of § 8-2; (3) the record lacks substantial evidence to support the PZC's decision; (4) the new FAR is not rationally related to the police power; (5) the PZC relied on erroneous data to calculate the new FAR for each zoning district; (6) the passage of the amendment created more nonconforming lots; and (7) the regulations as amended are unreasonable, arbitrary, void for vagueness and in violation of both the federal and state constitution.
The PZC argues that section 8-3(c) and section 6-22 of the regulations allow for the PZC staff to submit proposals. They argue further that the FAR standards meet the uniformity requirements of section 8-2 and that the plaintiffs reliance on the contrary testimony of a plaintiff is not persuasive. The PZC contends that the FAR changes are consistent with the conservation and development plan and is a lawful and rational exercise of police power. Since the changes are consistent with the conservation and development plan and are a rational exercise of police power, the PZC argues that the amendment cannot be considered to be based solely upon aesthetic concerns. Regarding the plaintiffs' attack of the underlying data supporting the new FAR standards and the creation of nonconforming lots, the PZC argues that their preparation and review of numerous tables addressing each issue indicates that they exercised great care in making their decision. Finally, the PZC argues that the court must make every presumption in favor of the validity of the zoning action unless it is unreasonable beyond a reasonable doubt; see Eden v. Town Planning Zoning Commission, 139 Conn. 59, 62, 89 A.2d 746 (1952); and further that zoning has long been held to a constitutional exercise of police power. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).
A. Whether the Submission to the PZC Meets the Requirements of General Statutes § 8-3
The plaintiffs argue that § 6-22 of the regulations is illustrative of the "form proscribed by the commission" pursuant to § 8-3(c). (Plaintiffs Brief, pp. 9-10.) The plaintiffs argue that the requirements of § 8-3(c) of the General Statutes and § 6-22 of the regulations were not met since the amendment proposal was submitted by the staff and not the PZC. According to the plaintiffs the record is devoid of any reference stating that the amendment was proposed by the PZC or any other entity cited in the regulation. The PZC argues that § 8-3(c) "requires no particular form of petition to amend the zoning regulations, but only that the request be `in writing and in a form prescribed by the commission.'" (Defendants Brief, p. 6.) Therefore, according to the PZC, since the proposal of the PZC staff was prepared and submitted at the request of the commission, the proposal constitutes a "form prescribed by the commission" pursuant to § 8-3(c). Further, assuming that the plaintiffs' interpretation was correct, the PZC argues that § 6-22 of the regulations was satisfied because the staff proposal was acted upon and referred to a public hearing by the PZC on its own motion.
General Statutes § 8-3(c) provides in relevant part that: "All petitions requesting a change in the regulations or the boundaries of zoning districts shall be submitted in writing and in a form prescribed by the commission and shall be considered at a public hearing within the time permitted under section 8-7d." Section 6-22 of the regulations provides that: "The Planning and Zoning Commission on its own motion, or on petition of the Board of Appeals, or on petition of one (1) or more property owners may amend the zoning text or the Zoning Map in accordance with the provisions of Title 8 of the General Statutes of 1958."
Section 1-2z of the General Statutes requires courts to follow the plain meaning rule when interpreting statutes. Section 1-2z states that: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." Regarding regulations, "[t]he interpretation of a regulation is a question of law . . . A zoning regulation is legislative in nature, and its interpretation involves the principles of statutory interpretation." (Citation omitted; internal quotation marks omitted.) Smith-Groh, Inc. v. Planning Zoning Commission, 78 Conn.App. 216, 232, 826 A.2d 249 (2003). If necessary, where a term is not defined "it is appropriate to look to the common understanding of the term as expressed in a dictionary." (Internal quotation marks omitted.) First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 292, 869 A.2d 1193 (2005).
Section 6-22 of the regulations, based on its language, is concerned with who may submit a proposed change to the zoning regulations. It may be done by petition or motion. The regulation states that the board of appeals or one or more property owners are the only parties with the ability to petition the commission for an amendment to the zoning text or map. Under the regulation and pursuant to General Statutes § 8-3(c) a proper petition by the zoning board of appeals or a property owner would trigger a public hearing. Specifically, the plain language of § 8-3(c) requires that "all petitions" in proper form "shall be considered at a public hearing."
When the zoning regulations are silent on the matter, any person may petition the local zoning authority to amend the text of a regulation that apply throughout the municipality. See Ghent v. Zoning Commission, 220 Conn. 584, 590-91, 600 A.2d 1010 (1991). In this case, however, § 6-22 of the regulations only allows the zoning board of appeals and property owners to file a petition with the PZC.
The PZC is the only entity allowed under the regulation to propose a change on its own motion. It is also clear that the PZC, pursuant to § 8-3(a), has the power to provide for the manner in which the regulations may be changed. Section 8-3(c), on the other hand, simply establishes that the petition be in writing and in a proper form as prescribed by the commission. It also requires a public hearing on the petition. A petition is an application to a higher authority requesting a right or benefit. Under the regulation the PZC does not have to file a petition. Since the PZC is the higher authority, it would be illogical for them to file a petition with themselves. Accordingly, it would be improper to apply § 8-3(c) to the action of the PZC pursuant to § 6-22. Section 6-22 of the regulations, as permitted pursuant to § 8-3(a), requires the PZC to make a motion in order to begin the amendment process. Where the proposal is derived from before it is acted upon by the commission is not addressed in the regulations nor in the General Statutes. In the present case it is clear, however, based on the regulation that the proposal by the staff could not have proceeded to a public hearing without the PZC's approval. Accordingly, the PZC acted within the scope of § 6-22 of the regulations regardless of the authorship of the proposal when it voted to send the proposal to a public hearing.
General Statutes § 8-3(a) provides in relevant part that: "Such zoning commission shall provide for the manner in which regulations under section 8-2 or 8-2j and the boundaries of zoning districts shall be respectively established or changed. No such regulation or boundary shall become effective or be established or changed until after a public hearing in relation thereto . . ."
The American Heritage Dictionary of the English Language, New College Edition (1981) p. 981.
B. Whether the PZC's Decision to Adopt the Amendments Is Supported by the Record
The plaintiffs offer multiple arguments in support of their motion that the record does not support the passage of the FAR amendment. First, they argue that PZC never described the "streetscape character" they believed needed protection. Second, they contend that the preservation of aesthetic character is an improper exercise of the protection of the community's public health, safety, and general welfare. Third, they argue that the PZC failed to explain how or why the amendments would reduce or mitigate environmental impacts. Finally, they argue that the PZC relied on insufficient and erroneous data to calculate and pass the FAR. In response the PZC argues that the plan of conservation and development specifically states that the town should limit FAR standards in order to preserve residential neighborhoods, and further that the public health, safety and welfare is served because the amendment is designed to promote health and the general welfare, to provide adequate light and air, and to prevent the overcrowding of land. Any effect on aesthetics, they argue, are ancillary to their power to regulate to preserve the public health, safety and welfare. Finally they argue that the PZC relied on multiple tables of data in determining the new FAR standards.
The plaintiffs also argue in a separate section that the amendments are not, based on the record, rationally related either to the protection of the community's public health, safety, and general welfare, or to any of the PZC's defined powers under § 8-2. This argument is similar to the plaintiffs' second argument relating to whether it is lawful to regulate aesthetics. Accordingly, the court will address these arguments together in part V, B.
"Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment . . . The responsibility for meeting these demands, rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission. Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion . . . [T]he test of the action of the commission is twofold: (1) The zone change must be in accord with a comprehensive plan . . . and, (2) it must be reasonably related to the normal police power purposes enumerated in § 8-2 . . ." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 417. "A comprehensive plan has been defined as a general plan to control and direct the use and development of property in a municipality or a large part thereof by dividing it into districts according to the present and potential use of the properties . . . The requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interests of the entire community." (Citation omitted; internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 218, 779 A.2d 750 (2001). Accordingly, the court will look to the town plan of conservation and development (town plan) and General Statutes § 8-2.
Section one of the town plan is entitled "Principles and Goals," and consists of two subsections: section 1.1 entitled "Principles," and; section 1.2 entitled "Goals." (ROR, Item 73, p. 3.) Section 1.1 states in relevant part that: "Development should be compatible with and preserve existing land use patterns, which are one of the Town's major assets; land uses should preserve a sense of community around historic centers, schools, and other institutions . . . [and]; [t]he Town Plan of Conservation and Development, reflecting the basic objectives of Greenwich citizens, is the basis for the zoning map, the building zone regulations, subdivision regulations, and planning and implementation by all Town departments." (ROR, Item 73, p. 3.) Section 1.2 states in relevant part that the goals of the plan are the: "Preservation of the Town's predominantly residential character and its neighborhoods and provision for a variety of housing to meet the needs, desires, and resources of the Town's diverse population . . . [and]; [p]reservation of the natural landscape to protect resources, enhance aesthetics, and provide recreational opportunities. (ROR, Item 73, p. 3.) Section three of the plan is entitled "Housing," and its stated "action priority" is to "[c]ontrol [the] size of single family houses, increase and protect affordable entry level housing, and encourage, attractive senior housing." (ROR, Item 73, p. 9.)
General Statutes § 8-2 provides in relevant part: "[S]uch regulations shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality . . . Zoning regulations may be made with reasonable consideration for the protection of historic factors and shall be made with reasonable consideration for the protection of existing and potential public surface and ground drinking water supplies."
In order to sustain the validity of the regulations the court must determine that the legislative action of the PZC complies with the previously stated relevant directives of the town plan and § 8-2. See Harris v. Zoning Commission, supra, 259 Conn. 417. It is necessary, therefore, to examine the PZC reasons for passing the regulations. See id., 420. "The principle, [however], that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action . . . It does not apply to mere utterances of individual members of the agency.
"A review of the line of cases addressing the distinction between utterances of individual members of an agency and a formal, official, collective statement of reasons for [an agency's] action . . . reveals that cases in which we have held that the agency rendered a formal, official, collective statement involve circumstances wherein the agency couples its communication of its ultimate decision with express reasons behind that decision." (Citation omitted; internal quotation marks omitted.) Id., 420-21. Examples of a formal, official, collective statement include publication of such statement in the publication of notice of the decision, an articulation by the PZC at the time of decision, or consistent statements by the PZC members at the time of passage. See id., 421-22. "In the absence of a statement of purpose by the zoning commission for its actions, it [is] the obligation of the trial court . . . to search the entire record to find a basis for the [PZC's] decision." (Internal quotation marks omitted.) Id., 423. Neither the minutes of the meeting when the amendment was passed (ROR, Item 61); nor the publication of legal notice (ROR, Item 63); contain a formal, official, collective statement, therefore, the court must conduct a search of the entire record.
While the transcript of the PZC meeting where the amendments were passed does contain commentary by all members present (ROR, Item 61); the court could not find consistency among all of the members remarks to satisfy the requirement of a formal, official, collective statement.
At the outset it must be noted that "[e]very intendment is to be made in favor of the validity of [an] ordinance and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt." Id., 425. Based upon a detailed search of the record the court finds that the amendments are in keeping with the mandates of the town plan and § 8-2. Before passage of the amendments various members of the commission offered a detailed analysis of the amendments' relation to town plan and § 8-2. (ROR, Item 61, pp. 7-15, 16-20, 24, 28, 29-33, 41-48, 49-52, 55-56, 59-60.) Further the town planner, Diane Fox, in her explanation of the staff proposal, noted in detail that the town plan as well as the town Representative Town Meeting (RTM) indicated the need to reduce home sizes in order to preserve neighborhoods and to protect the environment. (ROR, Item 37, pp. 10-28.) Pursuant to § 8-3b the state department of environmental protection was notified of the proposed amendments; (ROR, Item 3, letter from Diane Fox to John Gaucher CT DEP Office of Long Island Sound Programs); and responded positively noting that the "measures by and large will have a cumulative beneficial impact on several environmental parameters." (ROR, Items 10, 34.) Regarding the data relied upon by the PZC for the new FAR standards, the plaintiffs have argued that the Supreme Court's ruling in Primerica v. Planning Zoning Commission, 211 Conn. 85, 558 A.2d 646 (1989), should be followed because the court in Primerica voided the action of the PZC for failing to provide any "specific reasons" for the occupancy limits set for a business zone. See id., 99-100. The Primerica court found that there was "nothing in the record" to support the proposition of the PZC. See id., 100. With the FAR amendments the PZC prepared over a thousand pages of data in support of their changes. These changes, however, fail to take into account the attic and basement amendments passed in April of 2002. As indicated in the methodology section of the tables, the PZC relied upon the assessor's data from January of 2002 (ROR, Item 64); which could not include the extra square footage that may have been added from the attic and basement amendments. This point was brought to the attention of the board during the public hearing held on November 19, 2002. (ROR, Item 37, pp. 180, 212-13.) The PZC noted, however, that the attic and basement amendments also deducted square footage for some homeowners based on the new definitions (ROR, Item 37, p. 158.); and left some provisions of the prior definition unchanged. (ROR, Item 37, p. 157.) The PZC also recognized that the adoption of the new FAR was more an "art than a science" (ROR, Item 61, p. 25.); and it is clear that the previous FAR standards were used as a baseline for the new ratios since the amendments reduce the FAR by ten percent in the four out of the five zones with a previous FAR. (ROR, Item 9, pp. 1-2.) In the two zones without a prior FAR restriction the PZC based their numbers on the assessors data from January of 2002 to create a number that would be representative of the housing in the zone and minimize the number of nonconformities. (ROR, Items 37, pp. 23-28, p. 37, 61, pp. 24-25.) Unlike the facts in Primerica, the PZC had numerous reasons based on both the town plan and environmental concerns to institute the FAR ratios. The data underlying their decision was not perfect, but their decision was not arbitrary based on their thorough consideration of the existing size of the housing in the residential zones.
The FARs in zones RA-1, R-20, R-12, and R-7 were reduced by ten percent, but the FAR for the R-6 zone was reduced by eight percent. (ROR, Item 9.)
The plaintiffs also contend that the use of the data prepared by the PZC creates more nonconformities than anticipated, and thus, is inconsistent with the goal of zoning. Accordingly, they argue that this result dictates that the PZC had insufficient data to support the passage of the amendments. The creation of nonconforming lots, however, "implicate[s] [a] debatable [question] properly within the province of the [PZC]." Timber Trails Assoc. v. Planning Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 040351308 (May 20, 2005, Mintz, J.). "It is true that a goal of zoning is the ultimate elimination of nonconforming uses . . . But this goal is not, in every instance, an effective shackle on a zoning commission. If it were . . . zoning, once established, would be forever fixed and immutable." (Citation omitted.) Allin v. Zoning Commission, 150 Conn. 129, 134, 186 A.2d 802 (1962). "A zoning commission . . . has broad discretion in enacting and amending its regulations. The fact that a large percentage of the buildings became nonconforming or more conforming does not in and of itself constitute an abuse of discretion . . . Although one policy of zoning is to reduce nonconformities, reducing harmful side effects of certain land uses and implementing the overall legitimate interests of the town is more important." (Citations omitted; internal quotation marks omitted.) Timber Trails Assoc. v. Planning Zoning Commission, supra, Superior court, Docket No. CV 04 0351308. The PZC has indicated that based on the town plan and in furtherance of protecting the public health and welfare that the amendments are essential to interests of the town.
"[Local zoning authorities have] wide and liberal discretion . . . when they . . . [act] within their prescribed . . . powers . . . to determine what are the needs of [the] town . . . and to legislate in such a manner that those needs will be satisfied . . ." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 427. Accordingly, the court finds that the plaintiffs have failed to prove, based on the record, arbitrary acts on the part of the PZC. Further, the plaintiffs have failed to demonstrate the invalidity of the amendments beyond a reasonable doubt.
C. Whether § 6-205 of the Regulations and the Amendments Violate the Uniformity Requirements of General Statutes § 8-2 and is Arbitrary as Applied
The plaintiffs argue that even if the FAR amendment is rationally related to the goal of the preservation of residential neighborhoods, the amendments still violate the uniformity provisions of § 8-2. Specifically, they argue that the amendment and related zoning regulations are capable of differing interpretations, and simply do not contain sufficient directions or standards to be applied by applicants, their professionals, town staff or the PZC in any given application. They also briefly argue that the regulations as amended are unreasonable and arbitrary under the federal and state constitution because there is no way to avoid an arbitrary application of the FAR standards. The PZC argues that the plaintiffs' arguments are meritless because the plaintiffs have not proven any discrimination in fact and have not proven any discriminatory practice. They argue further that the plaintiffs' position is based on the interpretation of the regulations advanced by Peter Lauridsen, who is one of the plaintiffs, and has no impact on the passage of the amendments.
"Section 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 . . . This court has noted that [a] general rule requiring uniform regulations serves the interests of providing fair notice to applicants and of ensuring their equal treatment." (Internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 428.
The FAR amendment reduces the FAR of all residential and residential conservation zones that had a previous maximum FAR. (ROR, Items 1, 2.) The amendment also applies a maximum FAR to two residential zones and their corresponding conservation zones. (ROR, Items 1, 2.) The crux of the plaintiffs' argument is based on the application of the FAR amendment along with the attic and basement amendments passed in April of 2002. The plaintiff cites to the transcript of the December 10, 2002 public hearing, specifically the exchange between Lauridsen, a plaintiff, and Richard Maitland, a member of the PZC, where Lauridsen attempts to demonstrate that the PZC based on their lack of understanding of their own regulations are unable to apply the new FAR amendments uniformly. (ROR, Item 57, pp. 76-87.) James Maloney, the town's Zoning Enforcement Officer (ZEO), however, prepared two memoranda for the town planner explaining how the basement and attic amendments affect how the FAR is measured. (ROR, Items 17, 20.) Also, the disagreement between Lauridsen and Maitland was not indicative of differing understandings of the regulation, but based upon the example presented by Lauridsen. (ROR, Item 57, pp. 76-87.) Even if the disagreement was based upon a difference of opinion on the regulations, the court when faced with one interpretation of legislative act that renders its enactments valid, and an alternative that renders them invalid, will adopt the one rendering the enactment valid. See DJ Quarry Products, Inc. v. Planning Zoning Commission, 217 Conn. 447, 455, 585 A.2d 1227 (1991).
In Harris, the court held that the amendment in question, even though it had a differing effect on property due to the presence of wetlands, watercourses and slopes greater than 25 percent was not in violation of § 8-2(a) because it would be applied consistently. In the present situation the PZC was provided with memoranda on how the attic and basement amendments would be applied in connection with the FAR. (ROR, Items 17, 20.) There is no dispute on the part of the PZC on how to calculate the FAR in connection with other regulations. (ROR, Item 57, pp. 76-87.) "The thrust of the statutory requirement of uniformity is equal treatment." Harris v. Zoning Commission, 259 Conn. 431. "A regulation must only be reasonably sufficient to identify the criteria to be evaluated in [its] enforcement . . . since it would be impossible to establish one standard which would adequately cover all future cases." (Internal quotation marks omitted.) Id., 433.
Section H of the Plaintiffs' brief is based upon their belief that the standards established by the PZC make it impossible for the PZC to properly administer the FAR standards and are thus unconstitutional. The plaintiff only cites to the decision of CT Page 5367 Ghent v. Planning Commission, 219 Conn. 511, 594 A.2d 5 (1991), for the proposition that regulations must be controlled by fixed standards to be applied in all cases of similar nature. It should be noted, however, that Ghent was an appeal from the approval of a subdivision application and not from the legislative action of the commission. See id., 512. The regulation at issue in Ghent stated that "Dead-end streets will be approved by the Commission only when the Commission feels that the extension of the street is impractical." Id., 517. The proposition for which the plaintiffs cite Ghent relates to the use of the word "impractical" in the "regulation." The Ghent court clearly concluded that the word "impractical" was too general to "guide the commission and to enable those affected to know their rights and obligations." Id., 518. Regarding the PZC's amendments, the court has demonstrated that the amendments contain fixed standards
The plaintiffs have failed to demonstrate that FARs as applied would be unfair and arbitrary or violate the uniformity requirements of § 8-2.
VI. DECLARATORY JUDGMENT
General Statutes § 52-29(a) provides: "The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment." The plaintiffs seek a declaratory judgment that the FAR amendment is facially invalid. They argue that the amended regulations on their face do nothing more than improperly regulate aesthetics in the various residential zoning districts and are not rationally related to the public health, safety and welfare of the town. They also contend, based upon the takings jurisprudence of the federal and state Supreme Court, that the amendments are constitutionally suspect and violate the substantive due process provisions of the Fifth and Fourteenth Amendments to the United States Constitution and Article First, § 8 of the Connecticut Constitution. The PZC argues that it is the court's duty to make every presumption in favor of the validity of the zoning action, and further that zoning, as an exercise of police power, does not constitute a taking.
Regarding the plaintiffs' first argument, the court has determined that the amendment is related to the town plan as well as in furtherance of promoting the public health, safety and welfare of the town. See part V, B. "It is well established that the enactment of zoning regulations is the exercise of police power, and so far as they reasonably promote public health, welfare and safety they are constitutional even though their effect is to limit the exercise by private persons of some of their property rights." Poneleit v. Dudas, 141 Conn. 413, 417-18, 106 A.2d 479 (1954).
Pursuant to Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 151, 365 A.2d 387 (1976), the plaintiffs argue that the regulations as amended constitute a "practical confiscation" of the land subject to the regulations. The court stated, specifically, that: "An ordinance which permanently restricts the use of land for any reasonable purpose, however, goes beyond permissible regulation and amounts to practical confiscation." (Internal quotation marks omitted.) Id., 151. This language was cited from Arlene Bay Construction Co. v. Thatcher, 278 N.Y. 222, 232, 15 N.E.2d 587 (1938), and in that case "practical confiscation" involved a zoning regulation that took away all profitable uses of the land. See Id. Chevron Oil does indicate, however, the analysis necessary to determine whether a taking has occurred short of restricting all profitable uses. "Short of regulation which finally restricts the use of property for any reasonable purpose resulting in a practical confiscation, the determination of whether a taking has occurred must be made on the facts of each case with consideration being given not only to the degree of diminution in the value of the land but also to the nature and degree of public harm to be prevented and to the alternatives available to the landowner . . . The financial effect on a particular owner must be balanced against the health, safety and welfare of the community." Chevron Oil Co. v. Zoning Board of Appeals, supra, 170 Conn. 151.
In the present case the PZC reduced the FAR standards between eight or ten percent in areas with a previous FAR, and created FAR standards in areas without previous restrictions based upon the housing stock in those areas. Testimony at trial indicated that the assessors have reduced the values of some of the homes based upon the restrictions. A reduction of value based upon a zoning regulation, however, though relevant is by no means conclusive. See Brecciaroli v. Commissioner, 168 Conn. 349, 355, 362 A.2d 948 (1975). Further, the PZC, as indicated in part V, B has demonstrated that their actions are in accordance with the town plan and in furtherance of the public health, safety and welfare. Accordingly, the plaintiffs' claims are without merit.
VII. CONCLUSION
The court finds that substantial evidence in the record exists to support the PZC's legislative action in Balikci I. The court also finds that the plaintiffs' action in Balikci II is time barred. Accordingly, both appeals are dismissed.