Opinion
No. CV04 0085121S
June 2, 2005
MEMORANDUM OF DECISION
The plaintiffs, Cranberry Hill, LLC, Primrose Development, LLC, Albina Mcgowan, and Armstrong Development, LLC, appeal from the decision of the Shelton Planning and Zoning Commission (Commission) denying the plaintiffs' application for a Special Development Area (SDA) overlay and a change of zone from R-1 to Planned Development District (PDD) to permit the plaintiffs to construct a 49 single-family cluster development on Armstrong Road in the Town of Shelton. Primrose Development, LLC was dismissed as a plaintiff by agreement of counsel at oral argument on May 16, 2005 as it is no longer involved in this proceeding.
I. Factual Background
On or about September 3, 2003, the plaintiffs applied to the defendant Commission for an SDA designation (Application No. 03-43) and a PDD zoning change; (Application No. 03-44); from its then existing R-1 designation (Appeal, ¶ 3.) The subject property is a 22.94-acre parcel of land located at 62, 66, 70 and 82 Armstrong Road in Shelton, Connecticut (Appeal, ¶ 1.) At all relevant times, said property was owned by Albina Mcgowan; (Plaintiffs' Exhibit 1); Armstrong Development, LLC; (Plaintiffs' Exhibits 2 and 3); and Cranberry Hill, LLC (Plaintiffs' Exhibit 4.) The defendant Commission held a public hearing on the application, which was completed on September 23, 2003 and on March 23, 2004, it denied both of the applications based on the following reasons:
1. The proposal appears to result in an overdevelopment of the site, the extensive intensity of the development and the disturbance it causes may seriously impact the natural environment of the area and the nearby Cranberry Bog.
2. The application does not provide us with a biological evaluation of the property, but it appears from looking at the plans that the proposal would result in considerable disturbance of the natural features of the site, far more than what would occur with less density or with a conventional subdivision.
3. The density requested is more than double what is being considered by the Commission in its DRAFT regulations for non-age-restricted adult housing.
4. The Daybreak Lane and Partridge Lane neighborhood now have only one point of access. Overall circulation and access to this neighborhood may benefit from an extension of Daybreak Lane out to Armstrong Road, as might happen under a standard R-1 single-family subdivision.
(Return of Record No. 26.)
Publication of said denials was made on March 26, 2003. (Return of record No. 26.) The plaintiffs appealed that decision on April 7, 2004. (Marshal's Return.) As grounds for the appeal, the plaintiffs allege that the Commission's denial of the applications was illegal, arbitrary and in abuse of its discretion based on the following reasons:
a) The Plaintiffs' applications complied with all standards set forth in the Shelton Zoning Regulations for the approval of the SDA and PDD zone change;
b) The decision of the Commission is contrary and inconsistent to the Shelton Zoning Regulations;
c) The reason given by the Commission for its decision is not substantially supported by the record;
d) The Commission considered information outside of the record and public hearing in denying the applications;
e) The Commission failed to properly publish notice of the hearing in violation of General Statutes § 8-3(a);
f) The Commission failed to render a decision within the time limits prescribed by General Statutes § 8-7(d).
The defendant, Town of Stratford Inland Wetlands and Watercourses Commission, filed a verified pleading in this matter as an environmental intervenor pursuant to General Statutes § 22a-19. (Appeal, ¶ 11, Return of Record No. 21.)
The plaintiffs filed a supporting brief on December 10, 2004 and the Commission filed a brief in opposition to the appeal on January 20, 2005. The court heard the appeal on May 16, 2005.
II. Jurisdiction and Aggrievement
Aggrievement requires a two-part test. Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980). "First, the party claiming aggrievement must demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must establish that this specific, personal and legal interest has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) Goldfeld v. Planning and Zoning Commission, 3 Conn.App. 172, 175, 486 A.2d 646 (1985).
The court heard testimony from Albina Mcgowan and from Anthony Nizzardo, a duly authorized member of Nizzardo Cranberry Hill, LLC, which is a member of Cranberry Hill, LLC. The court finds, based on the testimony of the witnesses as well as from a review of quitclaim deeds presented at said hearing; (Plaintiffs' Exhibits 2, 3 and 4), that the plaintiff, Cranberry Hill, LLC, owned the property in interest. An owner of property that is the subject of an appeal is aggrieved. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). For the foregoing reasons, the court finds that the plaintiffs were classically aggrieved and have standing to appeal.
III. Timeliness and Service of Process
General Statutes § 8-8(b) provides that "[a]n appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within 15 days from the date that notice of the decision was published as required by the general statutes." Subsection (f)(1) further provides that service "[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." Notice of the board's decision was published on March 26, 2004 in the Connecticut Post, a newspaper of general circulation (Return of Record No. 25.) This action was commenced on April 2, 2004 by service of process upon the chairman of the Planning and Zoning Commission and the City Clerk of Shelton. (Marshal's Return.) Service was also timely made upon the environmental intervenor, the Stratford Inland Wetlands and Watercourses Commission. (Marshal's Return.) As such, the court finds that the plaintiffs commenced this appeal in a timely fashion upon the proper parties.
IV. Legal Arguments
The plaintiffs present three legal arguments as follows:
(a) The Commission failed to render a decision within the time limit prescribed by General Statutes § 8-7d and therefore, this appeal must be sustained;
(b) Members of the Commission illegally discussed the issues of the applications off the record after the close of the public hearing and submitted written opinions at the March 23, 2004 special meeting when they were not present and that alternates illegally relied on said opinions in rendering their decisions;
(c) The Commission's reasons for denying the application are unreasonable, illegal and arbitrary and not grounded on the record.
As a threshold issue, the court must determine whether these applications were applications for zoning changes or simply for a site plan approval. When a zoning authority enacts or changes a zoning regulation or zone classification, it acts in a legislative capacity and its action is simply reviewed to determine if the action is "reasonably supported by the record." Protect Hamden/North Haven From Excessive Pollution Traffic, Inc. v. Planning and Zoning Commission, 220 Conn. 527, 543-44, 600 A.2d 757 (1991). If any of the reasons, stated by the Commission for its action, is reasonably supported by the record and is pertinent to any one of the purposes of zoning set forth in General Statutes § 8-2, then the appeal must be dismissed. Burnham v. Planning and Zoning Commission, 189 Conn. 261, 267, 455 A.2d 339 (1983).
The significance of whether these applications are deemed to be site plan applications or zoning change applications is most significant. It is undisputed that the public hearing was completed on September 23, 2003 and that a decision was not rendered until March 23, 2004, 182 days later. Although the plaintiffs consented to one 65-day continuance; (Return of Record No. 12); this would only take us 130 days out and the decision was rendered 52 days thereafter.
General Statutes § 8-3(g) provides that "[a]pproval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in § 8-7d." General Statutes § 8-7d(b) provides that "[w]henever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for any building, use or structure, a decision on an application for approval of such site plan shall be rendered within 65 days after receipt of such site plan . . ." There is no such 65-day requirement for the ruling on applications for zone changes.
As the court observed in Thomaston Savings Bank v. Waterbury, 2000 Ct.Sup. 2633, CV99 0151649 (Leheny, J.), this is so because "where the board is engaging in an administrative function and need only determine whether the applicant has met the specific standards set forth in the regulations, the imposition of automatic approval upon the board's failure to act within the statutorily determined time is reasonable and rational. Where the board is acting in its legislative capacity and lawfully exercising its broad discretion, however, an automatic approval of an application for newly proposed legislation, merely because of the passage of time, would constitute an unwarranted diminution of the board's ability to function as a legislative body." Id. at 2639.
The court in SSM Associates Ltd. Partnership v. Plan and Zoning Commission, 211 Conn. 331, 559 A.2d 196 (1989), addressed this very issue. In that case, the trial court rendered judgment for the plaintiffs finding that the plaintiffs had filed an application for the approval of a site plan. Citing Carr v. Woolwich, 7 Conn.App. 684, cert. denied, 201 Conn. 804 (1986), the court held that the commission's failure to act on the plaintiffs' site plan triggered the 65-day deadline and compelled automatic approval pursuant to General Statutes §§ 8-3(g) and 8-7d(b). The facts in the SSM Associates Ltd. Partnership v. Plan and Zoning Commission case and the instant case are distinguishable. In that matter, the plaintiffs filed with the commission an application for the approval of the construction of an office building on the subject property, a permitted use in that "designated research district" but it simply required a special permit from the commission. No zoning change was sought or required. In the instant case, the plaintiffs were requesting a change in the zoning of the subject property from R-1 to a Planned Development District with a Special Development Area overlay. The court finds a number of facts to support its finding that the plaintiffs' application is to be construed as a zoning change application rather than a simple site plan:
1. Plaintiffs' Application for Planned Development District dated September 3, 2003 referred to the "Area of Zone Change" as 22.94 acres. (Return of Record No. 2.);
2. Plaintiffs' Application for Special Development Area filed September 9, 2003 refers to "Area of Zone Change" as 22.94 acres. (Return of Record No. 3.);
3. The appeal itself states "[o]n or about September 3, 2003, the plaintiffs applied to the defendant, Shelton Planning and Zoning Commission (the Commission) for an SDA designation and a PDD zone change with regard to the property." (Appeal, ¶ 3.)
4. The Shelton Planning and Zoning Commission Notice of Public Hearing describes the application "to amend the zoning regulations and building zone map by changing from Residence R-1 District to a Planned Development District (PDD)" and "to amend the building zone map by establishing a Special Design Area (SDA) overlay zone on property located at . . ." (Return of Record No. 7.)
5. At the public hearing of September 23, 2003, Attorney Raymond Rizzio, on behalf of the plaintiffs, began his presentation by stating "[w]e're here before you tonight representing Cranberry Hill, LLC for an overlay zone on Armstrong Road as well as a PDD zone change to establish a cluster residential development . . ." (Transcript, p. 6.)
A site plan is a physical plan showing the layout and design of the site of a proposed use and indicating all the information required by the regulations for that use. SSM Associates Ltd. Partnership v. Plan and Zoning Commission, 15 Conn.App. 561, 566, 545 A.2d 602 (1988), aff'd, 211 Conn. 331, 559 A.2d 196 (1989).
Clearly, the facts in the SSM Associates Ltd. Partnership case and those in the instant case are different. The court finds that the applications at issue herein are in the nature of zoning change applications and, as a result, the 65-day automatic approval provision does not apply.
The second argument of the plaintiffs is that members of the Commission illegally discussed issues of the applications off the record and submitted written opinions to those in attendance at the March 23, 2004 special meeting and that said alternates relied on those opinions in rendering their decisions in lieu of familiarizing themselves with the testimony and evidence presented at the public hearing. The plaintiffs concede that a Commission member in an administrative hearing need not be present at the public hearing as a condition precedent for that member to vote on the application. The plaintiffs argue, without basis, that since two of the alternates who had not been present at the hearing were seated and permitted to vote, they must have been uninformed and unacquainted with the evidence and arguments which had been presented at the public hearing. There is simply no evidence before the court to make such a finding. While the plaintiffs argue that the alternates did not familiarize themselves with the testimony and evidence that had been presented at the public hearing, there is nothing in the record to support that conclusion and the court declines to adopt that reasoning. The burden of proof to demonstrate that the Board acted improperly is upon the plaintiff. Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991).
The final argument of the plaintiffs is that the Commission denied the applications for reasons that are unreasonable, illegal, arbitrary and not grounded on the record.
It is well held that the scope of judicial review of a decision of a local zoning commission regarding zoning regulations is narrow. "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 witnesses and the determination of the issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached." (Internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning and Zoning Commission, 220 Conn. supra, 542, 543. "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." (Internal quotation marks omitted.) Id., 543. "Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion." Malafronte v. Planning and Zoning Board, 155 Conn. 205, 210, 230 A.2d 606 (1967).
The Commission stated four specific reasons for its unanimous denial of the applications. (Return of Record No. 26.) The first reason was based on the fear of overdevelopment of the site, disturbance it causes and the impact upon the natural environment of the area and of the nearby Cranberry Bog. The plaintiffs argue that "[t]here was no evidence presented that overdevelopment would occur and impact the environment." (Plaintiffs' Brief, p. 9.) The plaintiffs further argue that Shelton Zoning Regulation No. 34.5.2 setting forth the considerations for a Planned Development District do not provide that environmental impact should be considered. In fact, the Commission heard extensive evidence regarding the bog disturbance and pollution. Kevin Kelly, Town Attorney for the Town of Stratford, addressed the Commission on behalf of the Stratford Inland Wetlands and Watercourses Commission at the public hearing of September 23, 2003. (Transcript, p. 33.) He quoted Penelope Sharp, a certified wetland scientist, who stated: "Cranberry Bog is a unique wetland resource, both for the Town of Stratford and the Fairfield County Region. It supports an unusual plant community and has excellent wildlife habitat values as well. Changes in water chemistry could potentially impact the bog, causing a shift in the plant community. Such changes are likely to be subtle, and to occur over a long period of time . . . For this reason, it is highly recommended that no disturbance or alteration of water chemistry for wetland hydrology that might affect the bog and occur upstream of Cranberry Pond." (Transcript, pp. 33, 34.) Attorney Kelly also presented a report from Yale University Professor of Environmental Chemistry, Gaboury Benoit, which concluded that "Cranberry Pond already shows indications of low level contaminations by non-point source pollution and further contamination should be avoided." (Transcript, p. 34.) Dr. Steven Danzer, Environmental Planner bland, Wetlands Agent for the Town of Stratford, who possesses a doctorate in natural resources, also addressed the Commission at the public hearing. Dr. Danzer reported that the Cranberry Bog is a very unique ecosystem and that he fears that the runoff of fertilizers and the erosion of sedimentation during the construction process might get into the watershed. (Transcript, pp. 35-38.) Finally, there was a letter from Gregory J. Watkins-Cowell which was read into the record. (Transcript, pp. 2-5.) Mr. Watkins-Cowell, a Coordinator of the Connecticut Amphibians Monitoring Project and President of the Southern New England Herpetological Association stated that "[t]he development of this site would cause runoff to Roosevelt Forest which would affect the wood frog and spotted salamander habitat." Whether or not one agrees with these opinions is not the question. Clearly, evidence was presented as to the negative impact upon the environment which this project would create and the Commission, in its discretion, chose to embrace that testimony. The court will not substitute its judgment for that of the Commission. Frito-Lay, Inc. v. Planning Zoning Commission, 206 Conn. 554, 572-73, 538 A.2d 1039 (1988).
The Commission's second basis in denying the applications was a conclusion that the project "would result in considerable disturbance of the natural features of the site, far more than what would occur with less density or with a conventional subdivision." The plaintiffs argue that there was no evidence presented as to any biological impact the plans would have. Again, the testimony of Attorney Kelly and Dr. Danzer, as well as the reports of Dr. Benoit and Ms. Penelope Sharp and the letter of Mr. Watkins-Cowell certainly provided a basis upon which the Commission could have reasonably relied as to this issue as well.
The plaintiffs' third argument addresses the Commission's conclusion pertaining to density. Citing no case authority and making no considered argument, the plaintiffs simply conclude, in their brief that said factor "is irrelevant." The failure to brief an issue adequately constitutes abandonment of that issue. Harris v. Corrections Commissioner, 40 Conn.App. 250, 261, 671 A.2d 359 (1996). See, R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2Ed. 1999); § 30.3, p. 86.
The final argument of the plaintiffs relates to the Commission's fourth finding pertaining to traffic circulation and access. Whether one agrees with the findings of the Commission regarding traffic flow and access to the neighborhood is not the issue. The Commission heard ample testimony from residents at the public hearing concerning the fears of additional traffic and congestion and determined that the existing R-1 Single-family Zoning was preferable.
The Shelton Zoning Regulations pertaining to Planned Development Districts are found in Section 34 of those Regulations. Section 34.5.2 of those Regulations enumerates ten specific criteria which may be considered but then contains a "catchall criteria" at section 34.5.2k permitting it to consider "any additional information which the Commission may reasonably require or which the applicant may wish to submit . . ." As such, the Commission was well within its right to consider any and all information presented to it in the application or at the public hearing.
General Statutes § 8-6 empowers a zoning commission with the function of interpreting and applying its zoning regulations. Dimopoulos v. Planning and Zoning Commission, 31 Conn.App. 380, 383, 625 A.2d 236, cert. denied, 226 Conn. 917, 628 A.2d 987 (1993). The appellants have the burden of showing that the Commission acted improperly. The trial court can sustain the appeal only upon a determination that the decision of the Commission was unreasonable, arbitrary or illegal. The court may not substitute its judgment for that of the Zoning Commission as long as honest judgment has been reasonably and fairly exercised. The role of the court is simply to determine whether the record reasonably supports the conclusions reached by the agency. DeBernardinis v. Zoning Commission, 228 Conn. 187, 198, 635 A.2d 1220 (1994).
V. Conclusion
For the foregoing reasons, the appeal is dismissed.
The Court
By Shluger, J. CT Page 9452-a