Opinion
No. CV-03-0474921
July 27, 2004
MEMORANDUM OF DECISION
STATEMENT OF APPEAL
The plaintiff, Ciro Associates, LLC, appeals from the decision of the defendant, the planning and zoning commission of the town of North Branford (the commission), denying, in part, its application for a condition modification to its special use permit to extend its operating hours. The commission, acting under the authority granted to it by General Statutes § 8-4a, approved extending operating hours for the interior of the plaintiff's intermediate solid waste processing facility (the facility) from 8 a.m. to 7 a.m. on weekdays, but denied the plaintiff's request to operate its facility on Saturday mornings. The plaintiff brings this appeal pursuant to General Statutes § 8-8.
General States § 8-4a provides in relevant part: "Any town . . . may by ordinance or by vote of its legislative body designate its zoning commission or its planning commission as the planning and zoning commission for such municipality, and such commission shall thereupon have all the powers and duties of both a planning commission and a zoning commission . . ."
BACKGROUND
The plaintiff is the owner of a 6.5-acre parcel of land located on Ciro Road, North Branford Connecticut. The parcel is in an I-2 zone, defined in the town's zoning regulations as an industrial area with approved multiple uses, including residential and related uses. (Return of Record [ROR], Exhibit 59, §§ 21, 23.) The plaintiff operates various enterprises on the site, including a solid waste volume reduction facility under a permit issued by the Connecticut department of environmental protection (DEP). (ROR, Exhibit 6.) This permit allows the facility to operate during the hours of 7 a.m. to 4:30 p.m. on weekdays and from 7 a.m. to noon on Saturdays. (ROR, Exhibit 6.)
On November 21, 2002, the plaintiff requested permission to expand the facility's interior hours of operation. (ROR, Exhibit 2, pp. 1-2.) Because the original special use permit required a public hearing, the commission determined that the plaintiff's application to modify it also required a public hearing. (ROR, Exhibit 2, p. 2.) Accordingly, a general notice of the public hearing was duly published in the New Haven Register. (ROR, Exhibit 5.) In addition, individual notices were sent to all neighboring property owners within 500 feet of the subject property. (ROR, Exhibit 16.) On January 9, 2003, a public hearing was commenced, which was continued for two weeks. (ROR, Exhibit 15.) On January 23, 2003, following all presentations, the public hearing was closed. (ROR, Exhibit 52.) Following deliberation on February 6, 2003, the commission voted to approve extending the facility's interior weekday hours of operation as requested; the commission denied, however, the plaintiff's request to operate the facility on Saturday mornings. (ROR, Exhibit 55.) Legal notice of the commission's decision to grant in part and to deny in part the plaintiff's condition modification to its special use application was published in the New Haven Register on February 11, 2003. (ROR, Exhibit 57.) The plaintiff was notified individually of the commission's decision by letter dated February 13, 2003. (ROR, Exhibit 58.) On February 25, 2003, the plaintiff timely served the North Branford town clerk at her place of business and the commission's acting chairman at his usual place of abode. (Marshal's Return.) The plaintiff filed the appeal on March 5, 2003. On May 1, 2003, the commission filed its answer and the return of record. Thereafter, the parties timely filed briefs. The matter was heard by the court on June 4, 2004.
Although the plaintiff used a standard Connecticut summons form JD-CV-1 and Practice Book § 8-1(b)(4) provides that form JD-CV-1 shall not be used in the context of an administrative appeal, our Supreme Court has held that the improper use of this form does not, in and of itself, defeat jurisdiction. Cardoza v. Zoning Commission, 211 Conn. 78, 84-85, 557 A.2d 545 (1989); see also Chestnut Realty, Inc. v. Commission on Human Rights Opportunities, 201 Conn. 350, 356, 514 A.2d 749 (1986).
JURISDICTION
"Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed." (Internal quotation marks omitted.) Charles Holdings, Ltd. v. Planning Zoning Board of Appeals, 208 Conn. 476, 479, 544 A.2d 633 (1988). "Pursuant to General Statutes § 8-8(b) . . . any person `aggrieved' by a decision of a municipal planning or zoning commission may appeal to the Superior Court." Brookridge District Assn. v. Planning Zoning Commission, 259 Conn. 607, 612, 793 A.2d 215 (2002).
Aggrievement
"It is well settled that [p]leading and proof of aggrievement are prerequisites to a 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.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002).
In the present matter, the plaintiff alleges aggrievement by virtue of its ownership of the underlying property and its status as permittee of the facility. The owner of the property that is the subject of an application is aggrieved. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). The plaintiff has successfully alleged and proven aggrievement.
Timeliness and Service of Process
"It is well established that within the context of administrative appeals, defects in service of process deny the court subject matter jurisdiction over the appeal." Gadbois v. Planning Commission, 257 Conn. 604, 607, 778 A.2d 896 (2001). General Statutes § 8-8(b) provides in relevant part that an "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) further provides that "[s]ervice of legal process for an appeal . . . shall be directed to a proper officer and shall be made 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."
The record contains an affidavit of publication attesting that notice of the commission's decision was published in the New Haven Register on February 11, 2003. (ROR, Exhibit 57.) On February 25, 2003, this appeal was commenced by service of process on Lisa Valenti, North Branford's town clerk, and Matthew Mullen, acting chairman of the commission. Accordingly, the appeal was commenced in a timely manner upon the proper parties.
SCOPE OF REVIEW
"The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "The burden of proof is on the plaintiff to demonstrate that the [board] acted improperly." Spero v. Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). "[T]he scope of review requires the appealing aggrieved party to marshal the evidence in the record, and to establish that the decision was not reasonably supported by the record . . ." (Internal quotation marks omitted.) JPI Partners, LLC v. Planning Zoning Board, 259 Conn. 675, 688, 791 A.2d 552 (2002).
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the [board's] decision . . . Rather, 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 principle 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." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 420. This principle does not, however, apply to any utterances by individual members of the commission of their personal reasons, either prior or subsequent to voting. See Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 544-46, 600 A.2d 757 (1991). "[I]n a traditional zoning appeal, if a zoning agency has failed to give such reasons, the court is obligated to search the entire record to find a basis for the [agency's] decision." (Internal quotation marks omitted.) JPI Partners, LLC v. Planning and Zoning Board, supra, 259 Conn. 688-89. "In searching the record, the trial court may rely on any reason culled from the record which demonstrates a real or reasonable relationship with the general welfare of the community in concluding that the board's decision should be upheld." Stankiewicz v. Zoning Board of Appeals, 15 Conn.App. 729, 733, 546 A.2d 919 (1988), aff'd, 211 Conn. 76, 556 A.2d 1024 (1989).
In the present case, the zoning commission did not state any reasons for its decision in either its legal notice in the New Haven Register, or in its February 13, 2003 notification letter to the plaintiff's counsel. Furthermore, the transcript from the February 6, 2003 meeting, at which the commission voted on the special permit, also does not reveal an attempt by the commission to articulate its reasons in a collective statement. Neither party disputes that because the commission failed to enumerate its reasons in a formal collective statement, the court is obligated to search the entire record to find a basis for the commission's decision.
DISCUSSION
The plaintiff appeals on the basis that the commission acted illegally, arbitrarily and in abuse of its discretion in denying the portion of the plaintiff's request to operate its facility on Saturday mornings. In addition to the favorable testimony of neighboring property owners during the public hearings, the plaintiff points to the numerous documents it submitted in support of its modification application as evidence of its continuous compliance with all applicable zoning regulations. The plaintiff argues that inasmuch as the additional Saturday hours of operation conform with the authorized hours designated in its operating permit granted by the DEP, the commission's decision to deny Saturday hours was an abuse of its discretion.
The commission counters that it is not required to modify the plaintiff's special use permit to include Saturday hours of operation to conform to those set forth in the DEP permit. It contends that although the DEP is the statutory authority responsible for issuing solid waste volume reduction facility permits, including terms and conditions, such facilities are not exempt from local zoning regulations. The commission also contends that its statutory police power, coupled with § 42.3 of the town's zoning regulations, provides the requisite authority under which it properly formed its decision to deny Saturday operating hours based on the evidence presented at the hearings.
General Statutes § 22a-208a provides in relevant part: "(a) The commissioner of environmental protection may issue, deny, modify, renew, suspend, revoke or transfer a permit . . . for the construction, alteration and operation of solid waste facilities, in accordance with the provisions of this chapter . . ."
Section 42.3 of North Branford's zoning regulations provides in relevant part: "Any SPECIAL USE may be approved subject to appropriate conditions and safeguards necessary to conserve the public health, safety, convenience, welfare and property values."
Prior to searching the record and addressing the plaintiff's claim, the court must first review relevant legal principles, as well as the applicable zoning regulations. "The terms `special exception' and `special permit' hold the same legal import and can be used interchangeably." Anastasi v. Zoning Commission, 163 Conn. 187, 190, 302 A.2d 258 (1972). "A special permit allows a property owner to use his property in a manner expressly permitted by the zoning regulations." (Internal quotation marks omitted.) Housatonic Terminal Corp. v. Planning Zoning Board, 168 Conn. 304, 307, 362 A.2d 1375 (1975). The proposed use, however, "must satisfy . . . standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values [as required by § 8-2]." (Internal quotation marks omitted.) A. Audi Sons, LLC v. Planning Zoning Commission, 267 Conn. 192, 203, 837 A.2d 748 (2004).
Our Supreme Court has held "that general considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit." Irwin v. Planning Zoning Commission, 244 Conn. 619, 627, 711 A.2d 675 (1998). "Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process . . . If the special permit process were purely ministerial there would be no need to mandate a public hearing." (Emphasis in original; internal quotation marks omitted.) Id. "Thus, in accordance with § 8-2(a), an applicant's `obtaining' of a special exception pursuant to a zoning regulation is subject to a zoning commission's consideration of these general factors." A. Audi Sons, LLC v. Planning Zoning Commission, supra, 267 Conn. 206. In addition, "before the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood." (Internal quotation marks omitted.) Irwin v. Planning Zoning Commission, supra, 627. Finally, the "decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). "[T]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." (Internal quotation marks omitted.) Children's School, Inc. v. Zoning Board of Appeals, 66 Conn.App. 615, 627, 785 A.2d 607, cert denied, 259 Conn. 903, 789 A.2d 990 (2001).
Special permits are governed by Article IV of the town's zoning regulations. (ROR, Exhibit 59.) Section 42.5.8 of the regulations contains standards for granting special permits concerning intermediate processing facilities. Id. It does not include, however, a standard addressing such a facility's hours of operation. "Zoning regulations, as they are in derogation of common law property rights, cannot be construed to include or exclude by implication what is not clearly within their express terms." Planning Zoning Commission v. Gilbert, 208 Conn. 696, 705, 546 A.2d 823 (1988). Because no standard exists regarding hours of operation, the committee's decision must be analyzed in light of any potential effect the additional Saturday hours may have on the public's health, safety, convenience or property values pursuant to General Statutes § 8-2 and § 42.3 of the town's regulations.
The record reveals that James Otis, an engineer hired by the plaintiff, appeared at the January 9, 2003 public hearing in support of the special permit modification and testified as to the procedures that the plaintiff maintains and the measures it has taken in order to comply with the town's noise ordinance and the DEP's air quality monitoring requirements. (ROR, Exhibit 14, Transcript, pp. 4-6.) One of the measures that Otis stressed was the addition of a twelve-foot noise wall barrier constructed pursuant to the standard specified in § 42.5.8 of the regulations. (ROR, Exhibit 14, Transcript, p. 7.) In addition, several industrial neighbors either testified in favor or submitted a letter in support of the facility's extended operating hours and indicated that they had no complaints regarding the plaintiff's facility. (ROR, Exhibit 14, Transcript, pp. 8-10.) At the continuation of the hearing, January 23, 2003, the plaintiff presented a copy of a report by the town's zoning enforcement officer indicating that the facility's noise level was within an acceptable limit. (ROR, Exhibit 52, Transcript, p. 37.)
Section 42.5.8 provides in relevant part: "(5) Adjacent to each property line of such intermediate processing facility there shall be provided a greenbelt having a minimum width of 20 feet, planted with trees and shrubs of appropriate species, at least 50% of which shall be evergreens and have a minimum height of five (5) feet and shall be planted no more than 10 feet from one another measured from the center of the tree. Suitable existing trees and shrubs may be preserved and/or supplemented by new plantings to form the required greenbelt."
At the continuation hearing, several of the residential neighbors spoke, however, in opposition to the plaintiff's modification request based on anticipated increases in noise, dust and traffic and corresponding decreases in enjoyment of their respective properties. (ROR, Exhibit 52, Transcript, pp. 7-10, 14, 16, 18-19.) In addition, a neighbor submitted photographs depicting dust generated by the facility and its effect on surrounding residential property, as well as photographs of the barrier wall. (ROR, Exhibits 44-46.)
The issue of invoking a zoning commission's police power under General Statutes § 8-2 to limit operating hours has been addressed by our courts on appeal. In Shulman v. Zoning Board of Appeals, 154 Conn. 426, 226 A.2d 380 (1967), our Supreme Court assumed that a zoning board could condition the approval of a special permit by restricting the permittee's operating hours. In that case, the Supreme Court observed that the trial court did "not err in failing to conclude that the [zoning] board acted illegally in granting the application without imposing conditions on the [swimming] club's hours of operation." Id., 430. In another case, the Superior Court, in reliance on General Statutes § 8-2, upheld a zoning commission's conditional approval of an application for a special exception where one of the conditions imposed regulated operating hours. National Fairways Golf Partners Ltd. Partnership v. Town Planning Zoning, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 96 0334124 (August 22, 2001, Brennan, J.). The court there held that the record supported the zoning commission's imposition of conditions on the application "to address concerns relative to public health, safety and welfare as voiced by the Resident Plaintiffs." Id.
Furthermore, as previously stated, it is within the commission's discretion to determine the credibility of the witnesses. Thus, in accordance with General Statutes § 8-2 and § 42.3 of the town's regulations, the commission could have properly considered the testimonial evidence concerning the facility's effect on public health, safety and property values in denying the plaintiff's request to operate on Saturday mornings. The fact that the plaintiff produced documentary evidence that periodic site inspections performed by qualified authorities revealed that the facility has consistently met acceptable guidelines for air quality; (ROR, Exhibit 19); fire safety; (ROR, Exhibit 21); traffic impact; (ROR, Exhibit 24); and noise; (ROR, Exhibit 35); and has no known or suspected code violations; (ROR, Exhibit 34); does not compel the commission to grant the plaintiff's application to operate on Saturday mornings to coincide with the hours as outlined in the DEP permit.
A review of the record indicates that the commission's determination is reasonably supported by the record. The minutes of the February 6, 2003 meeting reveal that after considerable deliberation, the commission voted to deny extending the plaintiff's hours of operation to include Saturday mornings in light of the surrounding residential use based on the substantial evidentiary testimony. (ROR, Exhibit 54, p. 2.) Of primary concern to the commission members was the additional noise to which the residential neighbors would be subjected if the facility extended its operations to include Saturday mornings. (ROR, Exhibit 55, p. 3.) Although the commission considered that the application was limited to operations inside the facility, the members opposed to the Saturday hours voiced concern about the additional vehicular volume accessing the site and the resulting impact on the residential neighbors. (ROR, Exhibit 55, p. 7.)
Accordingly, the plaintiff has not met its burden of showing that the commission acted illegally, arbitrarily, or in abuse of its discretion when it denied the plaintiff's modification to its special permit seeking to operate the facility on Saturday mornings. Because the commission properly considered the effect of additional Saturday hours of operation on the general welfare of the community in its deliberations, the plaintiff's appeal is dismissed.
Rodriguez, J.