Opinion
No. CV 10 5014864S
February 4, 2011
MEMORANDUM OF DECISION
The plaintiff, Jaclyn Farnham, appeals from a January 20, 2010 final decision of the Rocky Hill planning and zoning commission (the commission), granting applications of the town of Rocky Hill (the town) for site plan and special permit approval, to construct a regional police training facility.
Farnham, without objection, tendered a deed indicating that her premises abuts the property at issue in this appeal. She is joined as a plaintiff by other abutters who have also furnished deeds. Therefore, Farnham and the co-plaintiffs are aggrieved. See General Statutes § 8-8(a)(1). The court uses the term "plaintiff" to include all those that are plaintiffs in this appeal.
The record shows as follows. The site plan and special permit applications were filed on October 28, 2009 by Town Manager Barbara Gilbert on behalf of the town. The building of 13,700 square feet was to be located at 155 West Street. (Return of Record, ROR, Item #1). The site of the construction had been deeded to the town by the state of Connecticut Department of Public Works, conditioned on its use for, among other things, educational or municipal purposes. (ROR, Item #16).
The open space commission, subsequent to the submission of the applications, gave its approval to the project. (ROR, Item #6). Town agencies — including the police, fire, health, and building departments — also gave approval. (ROR, Items ## 7, 8, 9, 11, 13, 14).
The commission noticed, on November 13, 2009, a public hearing for December 2, 2009 (ROR, Item #57). A public hearing was held on December 2, 2009, continued to December 16, 2009, and concluded on January 20, 2010. During the public hearing, an engineering study was introduced (ROR, Item #18), as was an ecological study (ROR, Item #19), an expansion study (ROR, Item #20), and drainage studies (ROR, Items ##21, 22).
The town manager, Gilbert, testified that the building would appear from the street as a large cape or ranch. There would be parking in the rear of the premises; landscaping would be undertaken; and no firearms training would occur on the premises. The neighborhood had residential uses, but also consisted of state buildings and operating facilities. (ROR, Item #82, pp. 1-2). A policeman demonstrated "simunitions" that would occur inside the premises, involving a "paint ball" type of gun. ( Id., p. 3).
A document prepared by the abutting neighbors summarized the objections to the facility raised by the abutters, including the plaintiff, at the public hearing.
Traffic study is needed. There is a steep incline upon entering, putting our veterans walking on the sidewalk in danger. Coming out of Forest Park at night, when someone is on the sidewalk, all you can see is their head!!
Safety-Accidental discharge, dogs getting loose, targeted events. All it takes is one person with a grudge against the police to hear about, and target police at this training facility, when most of them will not have live ammunition in their guns. Although most officers are the good guys, not all of them are. Last month at least 3 officers were arrested in our state, and one of them killed 2 teenagers.
Dogs — Absolutely not, not even inside. If they're inside, will they have a litter box inside? Inside means outside with the dogs.
Noise — dogs barking, car doors closing, car alarms, generator noise, lighting noise (buzzing), garbage collection.
Hours of operation? What are the hours of all this activity? Will it become nights and weekends too?
Lighting — attracting bugs, what hours are they on and off? Headlights from cars leaving the facility shining into Forest Park Apts.
Outdoor Activity — Need air tight legal language that prevents any and all activity outdoors in the future.
Quality of Life — Right now the neighborhood enjoys the scenic vista and passive recreation this park gives us. Please do not give away our park!!
Liability — need to know who is responsible for future accidents, Town or CROG? Who is accepting liability for the lawsuits that will result?
Independent soil testing is requested to be paid by the Town for 95 West Street and Westage Condos so we have a measure, in case the water does end up flooding our properties in the future. An independent appraiser requested to be paid for by the town to provide a professional opinion as to property value losses (not the town assessor)." (ROR, Item #49).
At the conclusion of the public hearing on January 20, 2010, Commissioner Goldberg made the following motion:
The motion is I move to approve the Special Permit/Site Plan Application, Barbara Gilbert, Town of Rocky Hill, proposing a 13,700 square foot regional police training facility and associated site improvements for property located at 155 West Street in a R-20 Residential Zoning District, ID-26-1-5-1 . . . (last revised plans as of January 11, 2010) which was received in the Planning and Zoning office 1-12-2010. The Conditions attached to this motion are:
Training at the site is restricted to the hours of 7AM — 6PM.
Second item: No firearms training will be authorized.
Three: All training activity will be self-contained within the structure.
Fourth: The project will be designed to look like a large cape cod or ranch-style single-family home.
Fifth: Staff comments dated January 13, 2010 be resolved with the agreement of town staff.
Sixth: That the Wetlands Commission actions be attached to the Conditions of the approval of or decision of this Commission.
Commissioner Goldberg then set forth his analysis of the criteria for approval set forth in zoning regulation § 8.3.7:
A. Suitable Location
The Project location is a suitable location for the following reasons:
1. The use is allowed by zoning regulations as a Special Permit.
2. The site is located on a State Highway classified as a "Principal Arterial" in the Town Plan of Conservation Development.
3. The site is located 1.4 miles directly from exit 23 of I-91.
B. Harmony with Existing Development of the Neighborhood/Suitable Size/Location/Intensity
1. Within 50' of The Project site there exists 5 State-owned and operated facilities, 2 multi-family housing developments (totaling 262 units) and 7 single-family homes. This area clearly represents a transitional zone from office commercial located at the I-91 interchange 1.4 miles west of The Project site, to the single family neighborhood located just east of The Project site.
2. The Project area neighborhood consists of a cluster of public facilities. The Project is consistent with the existing uses located in the neighborhood.
3. List of activities to be conducted on-site consists of the following:
1. Assorted Classroom style of education.
2. Driving simulator (classroom based on simulator machines).
3. Practical scenario type exercises to include utilizing "Simunition" equipment within the facility.
* Training will be restricted to the hours of 7 AM-6 PM.
* NO FIREARMS TRAINING WILL BE AUTHORIZED.
All training activity will be self-contained within the structure. The facility will provide classroom instructions, virtual driving instructions and situational training utilizing Simunition firearms training. As such, there will be no live firearm discharged on site; thereby eliminating any threat to the public health, safety welfare and noise nuisance. Based upon the above bulleted proposed activities, the level of activity to occur on site could be classified as moderate and most likely less intense than activities occurring at the neighboring State facilities and multi-family residential developments.
C. Appropriate Improvements
* The project will be designed to look like a cape or ranch-style single family home. Window design will be divided lights (mullions). Siding will consist of concrete composite clapboard that simulates the appearance of true wood clapboard much better than vinyl, anchored by a simulated stone base.
* DRAB approved the building and site design at their November 2009 meeting.
3. Parking will be provided at the rear of the building and will be landscaped.
4. Landscaping along the eastern property will be substantial to provide additional screening for the abutting houses along the property line.
5. Additional trees will be provided along the front of the building to further screen the residential style building from the street and abutting sidewalk.
6. The building elevation of the project is approximately 8 feet below the elevation of West Street. As such, due to the setback away from West Street, the high quality of building design and substantial landscaping, the visual impact along West Street will be less than the existing single family homes currently located along West Street and most certainly [less] than the existing State facilities.
7. All exterior lighting will be 90-degree full cut-off, thereby eliminating off-site illumination.
8. Proposed signage will consist of one 20 sq. ft. wood composite wall sign with raised lettering in compliance with Zoning Regulations, there's no attached.
D. Suitable Transportation Conditions
1. The site is located on a State Highway classified as a "Principal Arterial" in the Town's Plan of Conservation Development.
2. Sightline distances at the driveway apron are approximately 500 feet in both directions.
3. The centerline of the proposed driveway will be offset approximately 100 feet west of the centerline of the west drive for the Forest Park development. Additionally, the proposed driveway apron elevation for The Project will be at elevation 143. The elevation west most apartment building in Forest Park is at elevation of 152-53. The offset of the proposed driveway from the Forest Park driveway, supplemented by the 9 foot by 10 foot elevation difference between the proposed driveway and the existing apartment building, mitigates any negative impact by light emanating from headlights by vehicles exiting and entering The Project site.
4. Parking will be provided at the rear of the building and will be landscaped in compliance with Section 6.3.7 of the Zoning regulations.
5. A single driveway requiring a single CTDOT encroachment permit will provide access to the rear of the building to the parking lot.
6. The existing tree and scrub buffer along the east property line, separating the single-family residence for The Project site, will be supplemented with additional landscape buffering.
7. The State ROW width at The Project location is 100 feet. As such, there are no issues with the right of way width.
8. West Street has been designated a CTDOT (as indicated on their webpage) as an emergency detour route in the event I-91 becomes impassible. CTDOT maps certify the designated northbound route east, down West Street, then north on Main Street to the Silas Deane Highway. As such, it appears that West Street is designed to carry significantly higher volumes of traffic than currently exists and what will result from The Project.
F. Adequate Public Facilities
1. Public water and sewer will be provided by the MDC.
2. Emergency services will have unobstructed access to the site and the structure.
FG. Environmental Protection Conservation/Preservation/Protection of Natural, Scenic, Historic and Cultural Resources
1. The project is has (sic) been approved by the Open Space Conservation Commission. The CT River Coastal Conservation District has reviewed the project and their recommendations will be incorporated in the project design as directed by the Open Space Conservation Commission.
2. There are no State and Federal listed species or significant natural communities on The Project site according to CT DEP's Natural Diversity Data Base.
3. The Project Site is not located in a flood hazard zone as indicated on the most recently up-dated FEMA flood maps.
4. Bio-retention basins utilizing indigenous plant species wetland vegetation will be installed to manage storm water run-off.
H.I. Long Term Viability/Sustained Maintenance
1. The project will be the first regional training facility of its kind in the Capitol Region. By providing police training services on a regional basis, all police agencies in the region will have access to the same type of training in a centralized facility. The population served by the project will be approximately 652,000 to 724,000 residents (based on a regional population of 900,000 to 1,000,000 @ a participation rate of 72.4%).
2. The construction of the project is being provided by a State OPM grant under the Regional Performance Incentive Program.
3. The project is a regional cooperation project providing services on a regional basis. As such, adequate and sustained maintenance will be funded through the Capital Region Chiefs of Police Association via a municipal fee and binding contract all participating municipalities (currently 25 municipalities, representing almost 75% of the region). All Capitol Region communities will be eligible to participate.
J.K. Plan of Conservation Development
* The 2001 POCD identifies the project site as a potential new school site. While not a school, a municipal regional police training facility is a "community facility" and as such, is clearly in compliance with the "Future Use Plan" of the Town of Rocky Hill 2001 POCD.
* The Project is in compliance with the State Plan of Conservation and Development in that the proposed location of all site improvements will be located within the "Neighborhood Conservation Area." No activity will occur within the "Preservation Area" which is conterminous with the Hog Brook flood plain.
While The Project will not add to the Town-owned Open Space inventory, it will, at the same time not negatively impact on the existing Town-owned Open Space. The current Town-owned Open Space is 453.6 acres, or 7.1%. This figure does not include easements or land located in the meadows." (ROR. Item #84, pp. 30-34).
The motion was passed by a 4-1 vote. The discussion of the motion also shows that the reasons given by Commissioner Goldberg to adopt his motion were not entirely accepted by one other commissioner voting in favor. The solution was to allow those in favor to vote for the motion alone and Commissioner Goldberg's reasons were given as his grounds for favoring the motion. (ROR, Item #84, p. 37).
Commissioner Dillon stated that the overall reasons given by the town had convinced him to vote in favor, but there were 8 or 9 points in the list of reasons set forth by Commissioner Goldberg that he did not concur on. (ROR, Item #84, pp. 36-37).
Since, as discussed below, the court must search the record for the basis of the commission's actions, these reasons stand as the basic grounds upon which the commission acted.
The standard for review of the appeal by this court has been stated as follows: "It is axiomatic that a [planning and zoning] commission, in passing on [applications as here], acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations . . . It is equally axiomatic that the trial court, in reviewing the action of a . . . commission regarding [an] application, may not substitute its judgment on the facts for that of the . . . commission . . . The evidence, however, to support any [reason stated by the commission for its action] must be substantial . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts . . . The trial court can sustain the [plaintiffs'] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal." (Citation omitted.) Azzarito v. Planning Zoning Commission, 79 Conn.App. 614, 617-18, 830 A.2d 827, cert. denied, 266 Conn. 924, 835 A.2d 471 (2003). "The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 540, 525 A.2d 940 (1987).
"When a commission states its reasons in support of its decision on the record, the court goes no further, but if the commission has not articulated its reasons, the court must search the entire record to find a basis for the [commission's] decision." (Internal quotation marks omitted.) Azzarito v. Planning Zoning Commission, supra, 79 Conn.App. 618. In the present appeal, the commission itself did not formally state its reasons for granting the town's applications on the record, although Commissioner Goldberg gave a detailed statement of his reasons.
Thus this claim of error is irrelevant: That the town requested certain outdoor activities at the premises, but the conditions as passed by the commission differ by forbidding all outdoor activities. The plaintiff cannot raise arguments that go beyond the actual statement of reasons given by the commission in its final decision in the record.
"The rule of law and applicable standard of review [under these circumstances] are as follows. When ruling upon an application for [a] special [permit], a planning and zoning board acts in an administrative capacity . . . Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular Section of the zoning regulations applies to a given situation and the manner in which it does apply. The . . . trial court [must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) Smith Bros. Woodland Management, LLC v. Planning Zoning Commission, 88 Conn.App. 79, 84, 868 A.2d 749 (2005). When a commission reviews a site plan application, the commission also acts in an administrative capacity. See Konigsberg v. Board of Aldermen, 283 Conn. 553, 594, 930 A.2d 1 (2007). With regard to the claims of the plaintiff relating to such matters as notice, deed restrictions or the meaning of town zoning regulations, the court does not defer to the commission, but decides such issues as a matter of law. See, e.g., Martland v. Zoning Commission of Woodbury, 114 Conn.App. 655, 971 A.2d 53 (2009).
On the point of the commission's discretion, our Supreme Court has observed. "The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." Vine v. Zoning Board of Appeals, 281 Conn. 553, 560, 916 A.2d 5 (2007).
The plaintiff first argues that the notice of the public hearing as required by General Statutes § 8-3(a) and town zoning regulations § 8.1.6 was defective. The notice, stating that the public hearing was to take place at town hall on December 2, 2009, was published in the Hartford Courant on November 19, 2009 and November 25, 2009. The notice further stated: 2. "Special Permit/Site Plan Application, Barbara Gilbert, Town of Rocky Hill, proposing a 13,700 square foot regional police training facility and associated site improvements for property located at 155 West Street in a R-20 Residential Zoning District, ID. #26-1-5-1. At this hearing all interested persons may be heard and written communications will be received. Texts and /or maps of these applications are on file in the Planning Department, Town Hall, and/or the Town Clerk's Office, Rocky Hill, Connecticut." (ROR, Item #58).
The plaintiff claims that a survey conducted by two abutters shows that people did not receive notice. The town was obliged to give notice by relying on the "latest records of the Town Tax Assessor to determine the owner of each property." Zoning regulation § 8.1.7.A.1. The list of abutters that received notice appears in the record at Item #24 and a print-out of abutters appears at Item #25. The plaintiff has not produced evidence that this list as used by the town was out of compliance with the zoning regulation.
Our appellate courts have held that the purpose of notice is to apprise the public sufficiently of the activity planned at the premises, that interested citizens might prepare for the public hearing. "[N]otice of a hearing is not required to contain an accurate forecast of the precise action sought which will be taken on the subject matter referred to in the notice . . . Anyone interested in the precise action sought could have consulted a plot plan showing all the details of the proposed changes which the defendants had filed . . . in the office of the zoning board." Cassidy v. Zoning Commission, 116 Conn.App. 542, 551, 976 A.2d 29 (2009), quoting Shrobar v. Jensen, 158 Conn. 202, 207-08, 257 A.2d 806 (1969).
Here, the plaintiff claims that the notice was defective because, although the location is given at 155 West Street in the public notice, there were other addresses given for the facility in letters and documents sent by and to the town attorney. (ROR, Items ##51, 55). The record shows, however, that the public would have known from the notice in the newspaper or by consulting the town planner's office that the premises in question was at 155 West Street. Most documents in the record, filed prior to the hearing, are headed "155 West Street," as are the maps in the record. (See, e.g., Item #89). Further, this is not a situation as in Cassidy, supra, 116 Conn.App. 554, where additional research would be required to discover the exact site in question. See also Buddington Park Condominium Association v. Planning and Zoning Commission, 125 Conn.App. 724, 733, n. 4, 9 A.3d 426 (2010) (notice defective, as it referred to department other than planning and zoning). The town also distributed a document at the December 2, 2009 public hearing showing that the address of the "project" was 155 West Street. (ROR, Item #3).
At oral argument, the plaintiff contended that the newspaper notice of the decision of the commission (ROR, Items ##63, 73) was incomplete because it only stated "approved with conditions," and did not list the specific conditions that accompanied the approval. There is nothing in the statutes or commission regulations that requires the notice of the final decision to set forth each condition. The only statute on the notice of the final decision merely provides that the appeal period runs from "the date that the notice of decision was published." See § 8-8(b). In any case, when there is no formal decision issued by the commission, it is the final decision, as stated in the transcript of the meeting considering the motion to approve, that governs.
It would be a different situation if the notice of the decision had been so incomplete that the public would not know that the commission had approved the town's application. Then, a claim would exist that the public was not properly informed of its right to appeal under § 8-8. Here the notice clearly stated that on motion the commission approved the town's applications.
Finally on the issue of notice, the plaintiff contends as to the abutting landowners that these persons did not receive notice by certified mail. She also claims that no sign relating to the pending applications was placed at the premises. General Statutes § 8-7d(a) provides that commission regulations must state that the applicant must send notice to abutting landowners and that proof of this mailing be by use of a "certificate of mailing." The commission regulations include a required notice to the abutters in § 8.1.7. See § 8.1.7.B.1.a: "Notices from the applicant to the abutting property owners shall be sent via Certified U.S. Mail. The applicant shall obtain proof of mailing in the form of stamped U.S. Postal Certificates of Mailing."
The record shows that the town mailed notice to the abutters and retained a certificate of mailing. (ROR, Item #24). There is no indication of the notice being mailed certified, however. But the certified mail requirement of the regulation conflicts with the statute, which only requires a certificate of mailing. Therefore the certificate of mailing as employed here was sufficient. Thoma v. Planning and Zoning Commission, 31 Conn.App. 643, 647, 626 A.2d 809 (1993), aff'd, 229 Conn. 325, 640 A.2d 1006 (1994) (a regulation that conflicts with the statutory provision is void). Moreover, § 8-7d(a) makes a sign optional; none is required by the commission regulations.
The plaintiff's next argument is that the premises is in a residential zone, with a permitted use being "community and municipal buildings for non-profit organizations." Zoning regulation § 3.2.3.c. The plaintiff claims that the Capitol Region Chiefs of Police Association has not received an official designation as a "non-profit organization." The court holds that the phrase "non-profit organization" must be construed in its "ordinary contemporary, common meaning." In re Rodriguez, 319 B.R. 894, 897 (Bankruptcy M.D. Fla. 2005); see also General Statutes § 1-2z. Webster's Dictionary defines "nonprofit" as an entity "not conducted or maintained for the purposes of making a profit." The record is sufficient to demonstrate that the Chiefs of Police Association meets this test, as it is an organization formed to address the regional needs of town police forces. (ROR, Item #3, Item #83, pp. 12, 16-17). There is no further requirement in the commission's zoning regulations that such a "non-profit organization" be recognized by any official state or federal entity.
The plaintiff argues next that zoning regulation § 8.3.4.A was not followed by the town. This regulation requires that the applicant for a special permit provide to the commission "at least 21 days prior to a regular meeting" certain documentation: 1) a detailed description of the existing and proposed used of the premises, 2) a description of how the criteria set forth in zoning regulation § 8.3.7 are addressed, 3) necessary approvals of agencies having jurisdiction over the project, and 4) a list of all abutting property owners to receive notice. This regulation, as are all zoning regulations, is subject to the rule that they "must be interpreted so as to reconcile their provisions and make them [all] operative so far as possible . . . When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results." Newman v. Planning Zoning Commission, 293 Conn. 209, 217, 976 A.2d 698 (2009), quoting Graff v. Zoning Board of Appeals, 277 Conn. 645, 657, 894 A.2d 285 (2006); Richardson v. Zoning Commission, 107 Conn.App. 36, 48, 944 A.2d 360 (2008) (zoning regulations must be interpreted "in accordance with the principle that a reasonable and rational result was intended.")
At least twenty-one days before the December 2, 2009 public hearing, the town had submitted its applications, police and building department statements, a feasibility study, a drainage report and several maps of the site. (ROR, Items ##1, 2, 9, 11, 14, 16, 19, 20, 22, 86-91). The town distributed at the December 2 hearing a worksheet (ROR, Item #3) setting forth the details of the project. A continued hearing on the applications was scheduled for December 16, 2009, where further information was provided by the town. Zoning regulation § 8.3.4.B states that the commission may ask the applicant to submit additional information if required to review an application. The court concludes that the materials that the town had filed with the commission at least twenty-one days before the December 2, 2009 hearing met the requirements of the regulation.
The plaintiff next contends that General Statutes § 8-24 required that the commission issue a "report" before voting on the town's application. The plaintiff has erroneously construed this statute. Section 8-24 requires a municipal agency or the legislative body, before approving a project, to submit it to the commission for a report. The commission then votes on the proposal and subsequently transmits a report of its actions to the legislative body. See Trivalent Realty Co. v. Westport, 2 Conn.App. 213, 477 A.2d 140, cert. dismissed, 194 Conn. 807, 482 A.2d 712 (1984); R. Fuller, Land Use Law and Practice § 10:17, p. 326. Here, after the commission voted to approve the applications, a report of its actions was given to the town council. (ROR, Item #103). The commission reported to the town council at the appropriate time and was not required to make a report before the public hearings or deliberations commenced.
While four commissioners voted to approve the applications, one of this number, Commissioner Dillon, stated that he did not agree with "8 or 9" of the reasons for approval set forth by Commissioner Goldberg. (ROR, transcript of January 20, 2010 meeting, Item #84, p. 136). The plaintiff claims that Commissioner Dillon's vote should not count as it is inconsistent with the motion. As indicated by the court at oral argument, the plaintiff has incorrectly stated in her brief that the commission, in approving the site plan and special permit, must find that the applicant has satisfied all of the criteria of zoning regulations §§ 8.2.4.D and 8.3.7. These sections state plainly that the items are factors to assist the commission in making its decision. Therefore, it was not illegal or an abuse of discretion for Commissioner Dillon to disagree with Commissioner Goldberg on the weight to allocate to the factors and still vote in favor of approval.
The plaintiff also raises whether Commissioner Dillon should have been disqualified as he was also a member of the board of education while on the commission. The plaintiff points to no statutory disqualification. Rather, she argues that Commissioner Dillon was disqualified under the terms of the town charter that provides that no member of the council may hold any other elective or appointed town office. This section of the town charter by its terms does not disqualify a member of the board of education from serving on the commission.
The next contention of the plaintiff relates to the deed from the state of Connecticut in April 2000 that conveyed the premises to the town. The deed in fee simple had the following covenant: "The Land herein is conveyed subject to the following covenant; the Grantee and its successors and assigns shall only use the Land for recreational, educational, open space or other municipal public purposes. If the grantee: 1) Does not use the Land for said purposes; 2) Does not retain fee simple ownership of all of the Land; 3) Leases all or any portion of the Land. The Land shall automatically revert to the State of Connecticut and this deed shall automatically become null and void." (ROR, Item #16).
The plaintiff raises several issues over the language of this deed restriction and the commission's approval of the town's applications. First, it is claimed that the relationship between the town and the Police Chiefs Association was one of lessor and lessee, thus violating the covenant. A lease by Black's Law Dictionary is a "contract by which one owning such property grants to another the right to possess, use, and enjoy it for a specified period of time in exchange for periodic payment of a stipulated price, referred to as rent." The record does not establish such a relationship. The town is allowing the Police Chiefs Association to manage the property for a fee to be paid by regional municipalities; no rent is being collected from the Police Chiefs. The public will have access to the parking area and the exterior grounds. (ROR, Item #3). This arrangement is therefore not a "lease."
The second issue under the deed is whether the town will be using the premises for "educational or municipal purposes." The term "educational" relates to "education" which has a dictionary definition of "the action or process of educating or being educated." The term "municipal" means that which relates to "the affairs of a major political unit." The record supports the conclusion that the town is making appropriate use of the premises for educational and municipal purposes as a police training facility. In addition, the grantor of the premises, the Connecticut Department of Public Works, has approved of the town's intended usage. (ROR, Items ##51, 52.)
The plaintiff contends as a final argument that the commission erred in concluding that the town met zoning regulation 8.3.6.C. This regulation required the commission "in its sole discretion" to find that the town satisfied the "factors" or criteria set forth in zoning regulation § 8.3.7. As indicated above, these are "factors" and there is no requirement that all of the factors be satisfied. The court concludes that there is substantial evidence in the record to support the commission's conclusions. The basic findings and conclusions were stated by Commissioner Goldberg in which two other commissioners joined fully and in which Commissioner Dillon joined in part.
To justify its determination, the court discusses the points raised by the plaintiff in her brief and the town's response. The first is that the abutters' property values will be affected. The record does not reflect, however, that the plaintiff or other resident supplied any specific evidence relating to property values. Residents stated that they feared a decrease in value and a realtor stated that the project "hurts values." These statements regarding impact on property values are insufficient in light of the substantial evidence in the record as to the zoning classification, the location of the premises on a state highway and the mixed use of the adjacent buildings. (ROR, Item #3).
The next issue is that of traffic. The plaintiff contends that the town was obliged to undertake a traffic study, citing zoning regulation § 8.2.4.D.4. This section does not apply here; the ingress and egress from the building to Route 3 is through a driveway, while the cited regulation applies to subdivision streets. Moreover, the record adequately resolves such issues as sight lines, visibility from the driveway and traffic volume on Route 3. (ROR, Item #83, p. 3). The town police and fire departments have considered safety concerns and responded favorably. (ROR, items ##10, 13).
The next issue raised by the plaintiff is that of the environment. The conservation commission reviewed the wetlands issues and resolved them in favor of the town, but placed numerous conditions on the project. (ROR, Item #6). In addition, there are engineering and environmental studies in the record that show that harm to the environment is unlikely. There are no federally endangered species on the land. (ROR, Items ##11, 18, 19). The use of six acres for the premises, with the remainder of the seventy-five acres as open-space land was considered; the area of the building and parking did not detract from the use of the overall acreage for open-space. (ROR, Item #83, p. 8).
Finally, granting the applications did not conflict with the town's plan of conservation and development. The town manager placed the following information in the record: "Within 500' of the project site there exists 5 State owned and operated facilities, 2 multifamily housing developments totaling 262 units and 7 single-family homes. This area clearly represents a transition zone from office/commercial located at the I-91 Interchange, 1.5 miles west of the project site to the single-family neighborhood located just east of the project site . . .
"[T]he level of activity to occur on this site could be classified as moderate and most likely less intense than the activities occurring at the neighborhood State facilities and multi-family residential dwellings . . .
"The project will be designed to look like a large cape or ranch-style family home . . . All Exterior lighting will be 90-degree full cutoff thereby eliminating off-site illumination . . . This project will be the first regional police training facility of its kind in the Capital Region and in the State. By providing police training and services on a regional basis all police agencies in the region will have access to the same type of training in a centralized facility . . .
"The 2001 Plan of Conservation and Development identifies the project as a potential new site. While not a school, a municipal regional police training facility is a community facility and as such it is clearly in compliance with the future use plans of the Town of Rocky Hill 2001 Plan of Conservation and Development. The Plan of Conservation and Development is a tool for this Commission to develop its Zoning Regulations and to implement them. It is your bible, but your Zoning Regulations also are what you enforce." (ROR, Item #83, pp. 2-6).
The court has reviewed the numerous conditions placed upon the granting of the town's applications by the commission and the conditions also placed by the conservation commission on its permit.
"Training at the site is restricted to the hours of 7 AM-6 PM . . . No firearms training will be authorized . . . All training activity will be self-contained within the structure . . . The project will be designed to look like a large cape cod or ranch-style single-family home." (ROR, Item #84, p. 30).
"That the applicant plant all undisturbed areas along the building and wetlands perimeter with wildlife type plantings . . . That a minimum 15' non-disturbed border around the flagged wetlands be retained . . . That the applicant plants a border of evergreen trees along the easterly boundary of the site . . . All unseeded, unmowed areas to be allowed to return to a natural non-maintained state . . . That the area along the front be maintained as grass . . . That instead of a catch basin in the front yard they replace that with a yard drain . . . That the 3:1 slopes in the front yard be flattened to 4:1 slopes . . . That the roof drainage be directed away from and not into the 100' upland review area." (ROR, Item #6, p. 2); additionally, the court notes that the plaintiff's appeal from the decision of conservation commission (HHB CV 10-5014863) was dismissed by this court for lack of subject matter jurisdiction on May 24, 2010 for failure to serve the appeal within the statutory time period.
The court concludes that the commission's decision is supported by substantial evidence, and that it has not acted unreasonably, illegally or in abuse of discretion in its decision to grant the town's applications. Therefore, the plaintiff's appeal is dismissed.