Opinion
CV176083816S
06-17-2019
FIFTH SOMERSET ASSOCIATES LIMITED PARTNERSHIP v. GLASTONBURY TOWN PLAN AND ZONING COMMISSION et al.
UNPUBLISHED OPINION
OPINION
Henry S. Cohn, J.T.R.
Fifth Somerset Associates Limited Partnership ("Fifth Somerset" or "plaintiff"), an abutter, appeals from an October 3, 2017 final decision of the defendant Glastonbury Plan & Zoning Commission ("the commission"). This decision approved the application of 26 Cedar Street Associates, LLC ("Cedar Street" or "applicant") and A & F Main Street Associates, LLC ("A & F") to develop the rear portion of a property at 2855 Main Street, Glastonbury.
Based on a deed tendered without objection by the plaintiff, the court concludes that the plaintiff has standing pursuant to General Statutes § 8-8(a)(1). The plaintiff’s property abuts the subject property and is thus within the 100’ requirement.
In this appeal, the plaintiff contends (1) the commission erred in the approval, as the activity sought was not permitted in the zone where the property lies, and (2) the premises in question lacked an appropriate drainage plan.
The parties have agreed that, at this time, the court should rule solely on the issue of usage. This opinion finds for the defendants on this issue. In light of this ruling, the court orders at the conclusion of the opinion, further briefing to resolve the second issue.
The record shows as follows:
In April 2017, Cedar Street and A & F filed for a special permit with design review application with the defendant commission to develop a portion of a 6.6-acre property at 2855 Main Street, Glastonbury as an Edge Fitness facility. The portion of the property to be utilized for the applicant now has other variety of users, including a gasoline/convenience store, a restaurant, office buildings (including a building owned by the plaintiff Fifth Somerset) and single-family residential development. The application included a 38, 000-square-foot building with associated parking, drainage, and landscaping improvements.
The plaintiff, as an abutting landowner, argued that the property is located in a planned business development (PBD) zone in which an "athletic club" is allowed by special permit, but not a property classified as "health, fitness, and recreational uses indoor."
At a public hearing held on September 5, 2017, the attorney for Fifth Somerset, the owner of the building at 80 Glastonbury Boulevard, contended that the application should fail due to the inappropriateness of the use. (Return of Record, ROR, item 60, p. 8.) The attorney pointed out that the application characterized the use as an "athletic club," permitted in the zone. However, while the zoning regulations allow "health, fitness, and recreational uses indoor" in certain zones, per an amendment of January 30, 1995, such use was not permitted in a PBD zone. (Id.)
Since the town zoning regulations did not define either term, the attorney argued that the approval of a Healthtrax facility in 1995, after a text change in 1994, was relevant. (Id., p. 10.) In the text change proceeding, a commissioner "noted that most of these buildings tend to be industrial in character because of their size needs ..." (Id., p. 11.) According to the Fifth Somerset attorney: "But you know, they [Healthtrax] did, at least, go through the right process: they went and got a text change and they went and got their approval with the proper use category." (Id.)
Also, argued the attorney, Anytime Fitness received a permit in the zone in question, with the commission using the terms "athletic club" and "fitness facility" interchangeably. (Id.) The attorney concluded: "But my position is that this should be an issue that comes before this board, this commission ... If the applicant wants to use this as a health and fitness center, that’s how it should be characterized; it should not be characterized as an athletic club." (Id., p. 13.) The application should be denied until the issue was considered by the commission.
Later in the hearing, the attorney bolstered her argument by referencing the definition of "athletic club" and "health and fitness" use as found in the manual of the Institute of Transportation Engineers (ITE). ( Id., pp. 44-45.) An athletic club, according to this definition, emphasized team sports, while a health club typically provides "exercise classes, weightlifting, fitness and gymnastic equipment, locker room, and small restaurants or snack bars. This land use may also include ancillary facilities, such as swimming pools, whirlpools, saunas, tennis, racquetball and handball courts, and limited retail." (Id.)
Then there ensues a long discussion by the commissioners (ROR, item 60, pp. 115-31) on the issue. It may be summarized as follows:
1. Healthtrax had to add parking spaces to obtain its approval. It was a "wellness center." It was not all athletic club only. "It had health, it had fitness, it had curative diseases." (Id., p. 116.) Athletic clubs have less need for parking spaces.
2. Neither "athletic club" nor "health and fitness" are defined in the zoning regulations.
3. There had been an athletic club already in the zone.
4. The Anytime Fitness approval did not consider this issue of use on the zone.
5. The town attorney should give an opinion on this issue.
Return of Record, Item 63, Exhibits 10 and 11 show the text amendment and approval of the Healthtrax Center.
The commission met again on October 3, 2017, to consider the town attorney’s report. Afterward that night the public hearing was closed, the commission deliberated and reached its decision. (ROR, item 89.)
The town attorney’s opinion on this issue may be summarized as follows:
1. The attorney had reviewed some, but not all, of the history of the use in that zone.
2. The terms "athletic club" and "health, fitness and recreational use" are interchangeable.
3. Nothing prohibits the commission from concluding that the application is for an athletic club, and therefore, the commission may grant the application.
4. Historically, both team sports and individual fitness have been approved as athletic clubs.
5. While athletic clubs are allowed in some zones and not others, "the difference ... may simply be that they are allowed in different zones."
6. Of course, the commission may clarify the definition by a future amendment. (ROR, item #83.)
The chairman noted that based on the town attorney’s opinion, the commission had the discretion to approve the application. (Id., p. 4.)
Another commissioner noted that the terms were interchangeable. The commissioner noted that the applicant had asked for parking as required for a health, fitness club, not an athletic club. (Id., p. 5.)
A third commissioner noted that both terms were similar. However, there was another existing club across the street, giving a basis to approve the application. (Id., p. 6.)
As stated above, the application for a special permit was approved on this basis on October 3, 2017. The planning director so informed the applicant on October 12, 2017. (ROR, item 92.)
The commission also approved the drainage plan set forth in the application and in doing so rejected the plaintiff’s claim.
This opinion addresses solely the first issue raised on appeal, the use issue. This is not a case where the terms "athletic club," or "health and fitness center" are defined in the commission’s regulations. See, e.g., New Life Worship Center v. Town of Smithfield Zoning Board, No. 09-0924 (Rhode Island Superior Court, July 7, 2010) (special permit required under definition of "Health and Fitness Center" that included not only exercise equipment, but also massage rooms and limited retail shopping); Palos Community Hosp. v. Planning Board, 765 N.E.2d 1187 (Ill.App. 2002) (health and fitness center does not meet definition of healthcare "facility").
The question here is whether the commission properly approved the application as an athletic club and not a health, fitness facility in the absence of definitions in its regulation.
The case of Jordan Properties, LLC v. Old Saybrook Zoning Comm’n, Superior Court, judicial district of New Britain, Docket No. 010508 891 (2003) arose under § 8-30g, affordable housing, and its interpretation of "industrial use" is not relevant to the use in the zone. As the town attorney stated, the reason for excluding the health and fitness use from a PBD zone may have been done without the deliberation required for a zoning exclusion.
The standard of review is as follows: "... It is the board’s responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts ... Upon an appeal from the board, the court must focus on the decision of the board and the record before it ... In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] ... The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached ... If the 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 [board’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. Where, as here, the board does not state formally the reasons for its decision, ‘the trial court must search the record for a basis for the board’s decision.’ When applying the specific regulations of a town, [g]enerally, 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 applied to a given situation and the manner in which it does apply. The [Superior Court must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts ... A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it ... Although the position of the municipal land use agency is entitled to some deference ... the interpretation of provisions [of a municipal zoning regulation] is nevertheless a question of law for the court ... The court is not bound by the legal interpretation of the [regulation] by the [board]." (Citations omitted; internal quotation marks omitted.) Watson v. Zoning Board of Appeals, 189 Conn.App. 367, 382-83 (2019).
See also, Field Point Park Association v. Planning & Zoning Commission, 103 Conn.App. 446, 437 (2007): "Mindful that in interpreting regulations, we must reconcile their provisions and make them operative so far as possible ... we have adopted a construction that renders the regulation effective, consistent and workable and have rejected the reading proposed by the applicant and the board that, we conclude, would lead to inconsistent, unreasonable or bizarre results." (Citations omitted, internal quotation marks omitted.)
In general, in considering regulations "common sense must be used and courts must assume that a reasonable and rational result was intended." Germain v. Town of Manchester, 135 Conn.App. 202, 209 (2012).
Here the commission relied on the following for its approval, as seen in the quotations above from the record:
1. The terms "athletic club" and "health and fitness" have some similarities in that both offer exercise, sports and games. But the health and fitness center also concerns as itself with "vitality" or curative recovery of health.
2. Both Attorneys Sherwood and Branse in the legislative history note that the industrial zone is appropriate for health and fitness, as such building takes a large area, especially for parking.
3. The All-Time Fitness Center approval in the zone was made without considering the difference between athletic club and health and fitness. A commissioner knew of another center that had operated in this zone.
4. The town attorney and commission staff did not find a difficulty with concluding that the applicant Edge was an athletic club.
5. The ITE definition was not binding on the commission.
6. There was perhaps a need to clarify the zoning regulations by adding definitions, but that did not require denial of this application.
The cases allow the court to give deference to the commission. While the ultimate decision, as a matter of law, is for this court, there is no need in this instance to override the commission’s approval.
The second issue raised by Fifth Somerset is that the commission erred in its approval as the applicant did not have an adequate drainage plan. The claim on appeal is that Fifth Somerset has a "closed, private system, installed and maintained by private property owners, and that there is no express easement in favor of the subject property to utilize this 15" pipe and the associated private drainage system." Plaintiff’s brief at 5. This argument was made to the commission during the public hearing and litigation was threatened. A partner for the plaintiff testified that the project could never be constructed without his pipe and he would never give approval of its use. (ROR, item 60, p. 70.)
The commission at its October 3, 2017 meeting relied on another town attorney opinion, ROR, item #84, to approve the application. The opinion stated that litigation between Fifth Somerset and the application did not disallow the right of the commission to approve the application.
Fifth Somerset recently brought suit, now pending in this court, for a declaratory judgment regarding the use by the applicant of the drainage system. HHD-CV-186086751. The complaint seeks preliminary relief, but the plaintiff has not moved for this relief at this time.
The court asks the parties to submit briefs on the following:
The court has expressed a concern about this litigation at a prior hearing.
Should the commission, instead of approving the application in its entirety and unconditionally, have given only a conditional approval to the drainage plan. See, Lurie v. Planning Commission, 160 Conn. 295, 307 (1971); Faubel v. Zoning Commission, 154 Conn. 202, 211 (1966) (commission’s decision failed to impose a necessary condition for public safety); R. Fuller, Land Use Law & Practice, § 22:16. "Conditions attached to an application, on the other hand, can cover matters other than approvals by other officials and will usually be upheld if they are within the scope of the agency’s statutory authority and are an attempt to implement its existing regulations for a specific project on which the agency acts in an administrative capacity."
Briefs are due on July 15, 2019.
SO ORDERED.