Opinion
No. CV 00 0376992 S
September 10, 2003
MEMORANDUM OF DECISION
STATEMENT OF THE CASE
The plaintiff, Antonio Ferreira, d/b/a Lordship Auto Service, LLC, appeals from the decision of the defendant, the Stratford zoning board of appeals, denying his application for location approval of a used car dealership at 345 Stratford Road in Stratford. (Return of Record [ROR], Item 4.)
The property at issue is presently being used by Ferreira as a service station. (Supplemental ROR, Item 13, p. 4.) The property is located in a retail commercial (CA) district in Stratford. (Supplemental ROR, Item 13, p. 2.) On May 18, 2000, the plaintiff submitted a petition to the zoning board for approval of a used car dealership at this location. A car dealership and a gas station are permitted uses in a CA district. Stratford Zoning Regulations § 7.1. (ROR, Item 1.)
The board held a public hearing on July 6, 2000. (Supplemental ROR, Items 13, 14.) During the hearing, the board heard testimony by and letters from residents who live in a residential neighborhood surrounding the subject premises. (Supplemental ROR, Item 13.) Immediately following the public hearing, the board held its administrative session.
(Supplemental ROR, Item 14.) During the administrative session, the board voted 5-0 to deny Ferreira's application. (Supplemental ROR, Item 14.) Ferreira now appeals from the board's decision. According to the minutes of the board's meeting, "[t]he Board discussed this matter and agreed that this use is not consistent with the surrounding residential neighborhood. After further discussion, the board felt that they would not be in favor of his petition." (Supplemental ROR, Item 14.)
JURISDICTION CT Page 10693
Ferreira sought location approval from the board for a used car dealership pursuant to General Statutes § 14-54 et seq. (ROR, Item 1.) Therefore, Ferreira's fight of appeal is governed by General Statutes § 14-57, which provides: "Any person aggrieved by the performance of any act provided for in this subpart (D) by such local authority may take an appeal therefrom to the superior court for the judicial district within which such town or city is situated, or in accordance with the provisions of section 4-183. Any such appeal shall be privileged." General Statutes § 14-57.
General Statutes § 14-54 provides:
Any person who desires to obtain a license for dealing in or repairing motor vehicles shall first obtain and present to the commissioner a certificate of approval of the location for which such license is desired from the selectmen or town manager of the town, the mayor of the city or the warden of the borough, wherein the business is located or is proposed to be located, except in any city or town having a zoning commission and a board of appeals, in which case such certificate shall be obtained from the board of appeals. In addition thereto, such certificate shall be approved by the chief of police where there is an organized police force or, where there is none, by the commander of the state police barracks situated nearest to such proposed location. The provisions of this section shall not apply to (1) a transfer of ownership to a spouse, child, brother, sister or parent of a licensee, (2) a transfer of ownership to or from a corporation in which a spouse, child, brother, sister or parent of a licensee has a controlling interest or (3) a change in ownership involving the withdrawal of one or more partners from a partnership.
According to General Statutes § 4-183 (c), Ferreira had forty-five days from the date the board mailed its decision to him to file an appeal. The board mailed Ferreira a letter informing him of its decision on July 12, 2000. (ROR, Item 4.) Ferreira timely commenced his appeal on August 25, 2000, by serving the citation and appeal on Alice Zawadski, assistant town clerk for the town of Stratford, as well on the chairman of the Stratford zoning board of appeals. Therefore, the court has jurisdiction to consider the merits of this appeal.
General Statutes § 4-183 (c) states: "Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford and file the appeal with the clerk of the superior court for the judicial district of New Britain or for the judicial district wherein the person appealing resides or, if that person is not a resident of this state, with the clerk of the court for the judicial district of New Britain. Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal. Service of the appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a state marshal or other officer, or (2) personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions. If service of the appeal is made by mail, service shall be effective upon deposit of the appeal in the mail."
The court notes that although the plaintiff's citation does not specifically name the town clerk, the record reflects that the process was served on the town clerk and on the chairman of the zoning board of appeals pursuant to General Statutes § 4-183 (c)(2). See generally, Tolly v. Department of Human Resources, 225 Conn. 13, 19-21, 28-29, 621 A.2d 719 (1993) ("The conclusion that the subject matter jurisdiction of the court is implicated only if there is a total failure to serve the agency within the statutory forty-five day period, and not if there is merely a defect in the document timely served on the agency, is also consistent with our established jurisprudence regarding subject matter jurisdiction").
Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). "Aggrievement is an issue of fact . . . and credibility is for the trier of the facts." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001). An owner of property that is the subject of an application is aggrieved for the purpose of bringing an appeal and may prove aggrievement by testimony at the time of trial. See Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). A plaintiff may also prove aggrievement "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Coporation v. Planning Zoning Commission, supra, 703.
Ferreira owns the real property located at 345 Stratford Road in Stratford. (Supplemental ROR, Item 13, p. 4.) On the premises, he also owns and operates Lordship Auto Service, LLC, a gasoline station and automotive repair shop. (Supplemental ROR, Item 13, p. 4.) Ferreira asserts that he is aggrieved because as the owner of the property, the board's decision to deny his application deprives him of the requested use of the premises. (Appeal ¶ 4.) Accordingly, the court finds him to be aggrieved.
SCOPE OF REVIEW
"When considering the plaintiff's application for approval of a certificate of location for [his used car dealership], the zoning board of appeals acted as a special agent of the state." Id., 504. For this reason, "[w]hen receiving, hearing and eventually deciding whether to grant the application, the zoning board of appeals does not act pursuant to either the municipal zoning ordinance or the zoning statutes." Id.
Consequently, the court reviews the board's decision in accordance with General Statutes § 4-183 (j) because "the trial court's scope of review of the zoning board of appeals' decision is governed by the Uniform Administrative Procedure Act, General Statutes 4-183 (j)(5)." Vicino v. Zoning Board of Appeals, 28 Conn. App. 500, 505, 611 A.2d 444 (1992). "General Statutes 4-183 (j)(5) mandates that the trial court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. An administrative agency can find that substantial evidence exists if the administrative record affords a substantial basis of fact for which the fact in issue can be reasonably inferred . . . Substantial evidence exists when the evidence is sufficient for a trial court to deny a directed verdict if the trial had been brought before a jury to decide a question of fact." (Internal quotation marks omitted.) Id., 505. See also New Haven College, Inc. v. Zoning Board of Appeals, 154 Conn. 540, 542-44, 227 A.2d 427 (1967).
DISCUSSION
The zoning board's consideration of Ferreira's application is governed by General Statute § 14-55. In his appeal, Ferreira asserts that in denying his application, the board abused its discretion in applying § 14-55, and thereby, acted illegally and arbitrarily. He argues that the board failed to base its decision on any of the statutory criteria of § 14-55 and failed to state the reasons for its decision as required by this statute.
General Statutes § 14-55 provides:
In any town, city or borough the local authorities referred to in section 14-54 shall, upon receipt of an application for a certificate of approval referred to in said section, assign the same for hearing within sixty-five days of the receipt of such application. Notice of the time and place of such hearing shall be published in a newspaper having a general circulation in such town, city or borough at least twice, at intervals of not less than two days, the first not more than fifteen, nor less than ten days, and the last not less than two days before the date of such hearing and sent by certified mail to the applicant not less than fifteen days before the date of such hearing. All decisions on such certificate of approval shall be rendered within sixty-five days of such hearing. The applicant may consent to one or more extensions of any period specified in this section, provided the total extension of any such period shall not be for longer than the original period as specified in this section. The reasons for granting or denying such application shall be stated by the board or official. Notice of the decision shall be published in a newspaper having a general circulation in such town, city or borough and sent by certified mail to the applicant within fifteen days after such decision has been rendered. Such applicant shall pay a fee of ten dollars, together with the costs of publication and expenses of such hearing, to the treasurer of such town, city or borough. No such certificate shall be issued until the application has been approved and such location has been found suitable for the business intended, with due consideration to its location in reference to schools, churches, theaters, traffic conditions, width of highway and effect on public travel.
Addressing the plaintiffs second argument first, General Statutes § 14-55 does provide that "[t]he reasons for granting or denying such application shall be stated by the board . . ." After thoroughly reviewing the record, the court has determined that the brief statement which serves as the minutes from the board's meeting on July 6, 2000, provides the only documentation of any deliberative process which the board may have undertaken concerning Ferreira's application: "[t]he Board discussed this matter and agreed that this use is not consistent with the surrounding residential neighborhood. After further discussion, the Board felt that they would not be in favor of his petition." (Supplemental ROR, Item 14.) These two sentences in the minutes provide no insight into the reasons why the board, collectively, voted to deny his application. Therefore, this statement does not constitute a "formal, official, collective statement" of the board's decision. See Harris v. Zoning Commission, 259 Conn. 402, 420-22, 788 A.2d 1239 (2002). As stated in Harris v. Zoning Commission, supra, "[the minutes do not] reveal that the [board] members individually stated consistent reasons behind their votes, either prior or subsequent to the vote, from which we could infer a collective reason. Indeed, the minutes reveal that no member stated reasons for his or her individual vote." Id., 422. Consequently, Ferreira is correct in asserting that the minutes of the administrative session during which the board considered his application are "completely devoid of any discussion of any relevant statutory criteria." (Brief in Support of Appeal, p. 5.)
However, the board is also correct that its failure to provide a reason for its decision, even in the face of the mandate of General Statutes § 14-55, does not automatically require a decision in the plaintiff's favor. "If a board has . . . failed to state its reasoning, reviewing courts must themselves search the record of the land use proceedings to determine the sufficiency of the evidence to support the decision of the board . . . The same rule applies to administrative appeals under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq." (Citations omitted.) Mohican Valley Concrete Corp. v. Zoning Board of Appeals, 75 Conn. App. 45, 51, 815 A.2d 145 (2003).
In further response to this position advanced by the board, the court notes that when an agency fails to articulate a reason for its decision, the court's own review of the record is still governed by the rule that the agency's decision will be sustained only when there is substantial evidence to support the agency's decision, and not if there is any conceivable basis in the record to support its actions. See General Statute § 4-183 (j)(5) (the trial court shall affirm an agency's decision unless the agency's findings are "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record"); accord, Mohican Valley Concrete Corp. v. Zoning Board of Appeals, supra, 75 Conn. App. 60.
When an agency fails to explain its decision, the court's task in evaluating the propriety of its actions is hampered particularly because it is the agency, not the court, which is charged with the authority and discretion to evaluate the evidence and determine whether the statutory criteria have been met. When there is conflicting evidence in the record, the court may be unable to simply assume that the agency relied on that evidence supporting its decision when the agency itself has not expressed any such reliance. When there are both permissible and impermissible factors in the record on which the agency could have relied, it may be impossible for the court to determine whether the agency's decision is appropriately based if it provides no explanation. Meaningful judicial review is frustrated, and any presumption that the agency acted properly may become an irrebuttable presumption, if the agency can refrain from explaining its decision, and then on appeal, rely on anything in the record as a basis to uphold its actions. Thus, as the rule was first articulated by the Supreme Court some decades ago, "Where . . . the commission assigns no reason for its action, the court is left to surmise and conjecture as to what the reasons may be, unless the record discloses a reasonable basis for the action taken." Zieky v. Town Plan Zoning Commission, 151 C. 265, 268, 196 A.2d 758 (1963) (emphasis added). A linchpin of our adjudicatory process, both judicial and administrative, is respect for the process itself and this respect is partially derived from an adequate explanation of the controversy's disposition. Thus, the importance of an agency explaining the reasons for its decisions has been repeatedly and emphatically emphasized. See Ward v. Zoning Board of Appeals, 153 Conn. 141, 144, 215 A.2d 104 (1965) ("We have many times declared that it is desirable for the board to state its reasons for granting a variance.")
In this particular case, General Statutes § 14-55 mandates that the board determine whether the property is suitable for the proposed use "with due consideration to its location in reference to schools, churches, theaters, traffic conditions, width of highway and effect on public travel." The plaintiff contends that while some of the residents from the surrounding neighborhood testified at the hearing about the impact of the proposal on traffic flow and the character of the neighborhood, none of the residents offered evidence beyond their own, generalized opinions to support a denial of the application based upon the relevant statutory criteria. (Brief in Support of Appeal, p. 5.) Moreover, he states that while the property's proximity to schools and/or churches is relevant, it is an insufficient reason for denial without a showing of its impact on safety. Ferreira also argues that the board inappropriately considered the proximity of the property to a densely populated area as a factor. (Brief in Support of Appeal, pp. 5-6.) Therefore, Ferreira maintains that his appeal should be sustained because the court must find that there was neither support for the board's denial in the record, nor an appropriate basis for its denial based upon the required statutory criteria.
The board, conversely, maintains that it acted within its administrative discretion in denying Ferreira's application. The board insists that its decision is reasonable and supported by substantial evidence in the hearing record as a whole and that it properly relied on the statutory criteria of § 14-55 when considering Ferreira' s application. (Board's Brief, pp. 2, 4-12.) The board relies on the letters and testimony of residents in the area who objected to the application because of increased traffic flow, the proximity of the site to a school zone, and the site being out of character with the neighborhood.
At the hearing on July 6, 2000, Ferreira testified before the board in support of his application. He stated: "We now desire to operate a used car dealership in conjunction with our gas station. Many of our customers have asked if we could sell their cars for them at our station." (Supplemental ROR, Item 13, p. 4.) Ferreira described his proposed business as one that would sell a limited number of cars to the public and that he was seeking to store between six and ten cars on the property. (Supplemental ROR, Item 13, p. 5.) He also informed the board that he was interested in placing some propane fuel on the west side of the property, which is the side facing the street. (Supplemental ROR, Item 13, p. 5.)
According to the minutes: "One person spoke in favor of this petition. Several persons spoke in opposition, stating the history of this property and concerns with the character of the neighborhood being changed and discussed the safety issues involved with this location being in the middle of a residential neighborhood and the overcrowded condition of the property." (Supplemental ROR, Item 14. p. 12.) During the public hearing, the board's staff also read into the record the letters of residents opposed to the petition. (Supplemental ROR, Item 13, pp. 2-4.) These residents were primarily concerned about the impact of the proposed used car dealership on the increasingly residential character of their neighborhood and the danger that the increased traffic that might be produced would pose to their children. (ROR, Items 5-8.)
The record reflects that a few residents personally testified at the hearing in opposition to Ferreira's proposal. For example, the president of the Lordship Improvement Association spoke at length regarding his fear that Ferreira's dealership would negatively impact the character of the neighborhood. (Supplemental ROR, Item 13, pp. 7-12.) The basis of his concern was that the cars sold there would not be "spanking fresh, shiny Mercedes, Acuras, Buicks, and so forth. Whoever puts something on that lot and he wishes to sell it, it may be a clunker, a junker . . ." (Supplemental ROR, Item 13, pp. 9-10.) Another resident, Tom Cotter, was concerned about the impact of the proposed dealership on parking and on traffic in the surrounding neighborhood generated by customers and test drives due to the close proximity of the premises to the Lordship School. (Supplemental ROR, Item 13, pp. 10-12.) Other residents testified with respect to their fears that Ferreira would operate his dealership in a manner similar to the one which had been previously operated on his lot. (Supplemental ROR, Item 13, pp. 13-14.) According to this testimony, the previous owner purportedly maintained more cars on the lot than allowed under his permit and arranged for deliveries and removals of cars from the property at unreasonable hours, i.e., at 3:00 a.m. (Supplemental ROR, Item 13, pp. 13-14.)
In summary, the record only contains the testimony of a few residents who opposed the application, a single resident who supported the application, and the brief testimony of the petitioner. Although not required, the parties could have offered evidence to substantiate their positions and concerns, such as testimony by expert witnesses, traffic impact studies, or analyses of similar establishments in the local area. See, e.g., Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 73 Conn. App. 442, 468, 807 A.2d 1089, cert. denied, 262 Conn. 928, 814 A.2d 379 (2002).
At the hearing on the application, there were concerns voiced about traffic, schools near the site, and the potential danger to children. However, these statements by the residents in opposition to Ferreira's proposal primarily consisted of generalized fears and speculation. There was certainly no concrete or definitive evidence that plaintiff's intended use of the property would harm the surrounding neighborhood. The property's existing use is a gas station. Are these concerns any more applicable to the proposed use as compared to the existing use? There is nothing in the board's decision and no substantial or reliable evidence in the record specifically addressing this question. And if the concerns are that any existing problems will be increased or exacerbated by the proposed use, they also appear to be based more on speculation and surmise, than on reliable evidence or information. Opposition to an application under § 14-54 based on mere conjecture, intuition or personal interest has been found to be insufficient to provide substantial evidence for a board's decision. See Vicino v. Zoning Board of Appeals, supra, 28 Conn. App. 506, n. 6; Mohican Valley Concrete Corp. v. Zoning Board Of Appeals Of the Town of Fairfield, supra, 75 Conn. App. 64.
Beyond what appears to be surmise and conjecture, there is no evidence presented in the record that the proposed use would actually create significantly more traffic than the site's existing use. Similarly, there is no clear or substantial evidence in the record that there will be any actual increased traffic over and above the existing use that, in turn, will increase danger to school children. And as explained by the Appellate Court: "A site's mere proximity to a school is insufficient to support a denial of an application for a certificate of approval. Rather, 14-55 requires some evidence on which a zoning board of appeals reasonably may conclude that the proximity to a school impacts adversely on the site's suitability for the proposed use." Vicino v. Zoning Board Of Appeals, supra, 28 Conn. App. 508.
The nature of the objections appear to be premised not so much against the proposed use, but on concerns that the site's existing use is not in character with the residential area. For example, concerns were expressed that if the application were granted, the property would be misused as it was by a previous owner, the property would be used in violation of applicable permits, or cars would be test driven at excessive, illegal speeds. Courts have found similar factors as providing insufficient reasons basis for zoning boards' denial of land use applications. See, e.g., Oakbridge/Rogers Avenue Realty, LLC v. Planning Zoning Board, supra, 78 Conn. App. 242, 249 (the potential for future zoning law violations is a zoning enforcement issue and not an appropriate factor on which to base denial of a special permit application); Kowalkowski v. City of Danbury Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. 3245 70 (Apr. 25, 1997, Moraghan, J.) (inappropriate for a zoning board to refuse to issue a permit because of the manner in which the business had been conduced in the past).
Because there is no explanation for the zoning board's decision, the court cannot determine whether it based its decision on any of these grounds that courts have found to be deficient. Specifically, the board states that the denial is necessitated because the proposed use "is not consistent with the surrounding residential neighborhood." The board's statement of its decision does not explain why the proposed use is inconsistent with the surrounding neighborhood, especially when the site is located in a retail commercial district where such use is permitted. In addition, as previously stated, the site's existing use is a gas station in a predominantly residential area. Is the application being denied because the site's existing use is "inconsistent with the surrounding residential neighborhood?"
Furthermore, and even more importantly, the precise question to be addressed under General Statutes § 14-55 is not whether the proposed use is "consistent" with the surrounding neighborhood, but whether the location itself is "suitable for the business intended." The board does not explain how the perceived, inconsistent relationship between the proposed use and the "surrounding residential neighborhood" makes the proposed use "unsuitable for the business intended." Indeed, a board's denial of an application under § 14-55 has been rejected when the decision was premised on the site's proximity to a "densely populated residential area." Vicino v. Zoning Board of Appeals, supra, 28 Conn. App. 507.
In short, on the existing record as a whole, the court cannot reasonably conclude that the board's denial of Ferreira' s application is supported by reliable, probative and substantial evidence or that the board properly considered and relied on the suitability criteria set forth in General Statutes § 14-55. The cases relied on by the zoning board are therefore distinguishable because in those cases, as compared to the present case, the courts were able to find substantial evidence in the record to support the agency's decision. See, e.g., Mohican Valley Concrete Corp. v. Zoning Board Of Appeals Of the Town of Fairfield, supra, 75 Conn. App. 45; Ferreira v. Zoning Board of Appeals of Shelton, 48 Conn. App. 599, 712 A.2d 423 (1998).
Nevertheless, the court is still reluctant to sustain the appeal and order the granting of Ferreira's application, because on this record, particularly without an explanation of the board's decision, the court cannot confidently determine what is required by the evidence. See General Statutes, § 4-182 (k) ("If a particular agency action is required by law, the court, on sustaining the appeal, may render a judgment that modifies the agency decision, orders the particular agency action . . .") To reiterate, the zoning board, not this court, is charged with the statutory authority to weigh and evaluate the evidence of the record in order to determine whether the application satisfies the statutory criteria and should be granted. As previously stated, General Statutes § 14-55 provides that a certificate of approval cannot be issued until the "location has been found suitable for the business intended, with due consideration to it location in reference to schools, churches, theaters, traffic conditions, width of highways mid effect on public travel." In this court's view, the statutory mandate can only be accomplished by a remand of this matter to the board for further review of the application and for an articulation of the reasons for its decision.
CONCLUSION
Therefore, for the foregoing reasons, the court finds that substantial rights of the plaintiff have been prejudiced by the zoning board's decision, and therefore, the plaintiff's appeal is hereby sustained. Pursuant to General Statutes § 4-182 (j), the case is remanded to the zoning board, and the zoning board is ordered to review the application and the record further, and after such review, to explain the reasons of its final decision denying or granting the application in a manner consistent with this decision and General Statutes § 14-55.
As part of this remand order, the court is not ordering the zoning board to hold further evidentiary proceedings. The court leaves that determination to the discretion of the zoning board.
So ordered this 13th day of September 2003.
STEVENS, J.