Opinion
No. CV 04 0085423 S
July 13, 2005
STATEMENT OF THE CASE
The plaintiffs, Josephine Gaida and Jack Gaida, appeal from a decision by the planning and zoning commission of the city of Shelton (commission) to amend a zoning map to change the zoning scheme of the plaintiffs' property from R-1/IA-2 to R-1.
The plaintiff's own real property located at 405 Long Hill Avenue in Shelton. (Plaintiffs' Exhibit 2; Return of Record [ROR], Exhibit H.) On February 13, 2003, the Shelton zoning enforcement officer served the plaintiffs with an order to cease and desist "any removal, filling, or grading of rock or dirt at 405 Long Hill Avenue" and to "remove all commercial related equipment" because "the entire property is located in a R-1 [z]one." (Plaintiffs' brief filed October 25, 2004, Exhibit 2.) A review of the record reveals that only a relatively small portion of the plaintiffs' property was located in a R-1 residential zone and the majority of the property was located in a IA-2 light industrial zone. (ROR, Exhibit H.)
The commission scheduled a public hearing to be held on January 27, 2004, to consider, inter alia, " Planning and Zoning Commission Initiated Zoning Regulations and Building Zone Map Amendments." (ROR, Exhibit A.) These proposed amendments would change the portion of the plaintiffs' property that was formerly in a IA-2 zone to an R-1 zone. (ROR, Exhibit H.) The commission published notice of the public heating on January 15, 2004 and on January 22, 2004. (ROR, Exhibit L.) The meeting was cancelled due to inclement weather; (ROR, Exhibit N.); and rescheduled to February 5, 2004. (ROR, Exhibit A.) The commission published notice of the rescheduled hearing on January 29, 2004 and February 3, 2004. (ROR, Exhibit M.) The public hearing was held on February 5, 2004 and continued to February 10, 2004. (ROR, Exhibits A, B, C, I and J.) On April 13, 2004, the commission adopted a resolution which, inter alia, adopted the proposed zone changes affecting the plaintiffs' property. (ROR, Exhibit CT Page 11046-aj F.) Notice of the commission's decision was published on April 22, 2004. (ROR, Exhibit Q.)
The plaintiffs appealed from the commission's decision to the Superior Court and the appeal was heard by the court on February 7, 2005. Pursuant to an order of the court, the parties submitted supplemental briefs by March 18, 2005
DISCUSSION I Jurisdiction
General Statutes § 8-8 governs an appeal from the decision of a planning and zoning commission to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
II Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." (Internal quotation marks omitted.) Stauton v. Planning Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004) "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 and Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
General Statutes § 8-8(a)(1) provides, in relevant part, that an "`aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." An owner of the subject property is aggrieved and may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 703.
In the present appeal, the plaintiffs allege that they are aggrieved CT Page 11046-ak because they are the owners of real property affected by the commission's decision. At trial, the plaintiffs submitted into evidence a certified copy of a warranty deed evincing their ownership of the subject property. (Plaintiffs' Exhibit 2.) Based on this evidence, the court finds that the plaintiffs are aggrieved for the purposes of bringing this appeal.
III Service of Process
General Statutes § 8-8(b) provides in relevant part that "any person aggrieved by any decision of a [planning and zoning commission] . . . may take an appeal to the [S]uperior [C]ourt for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the [G]eneral [S]tatutes."
General Statutes § 8-8(f) provides in relevant part, "(2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57 . . ." General Statutes § 52-57 provides in relevant part: "(b) Process in civil actions against the following-described classes of defendants' shall be served as follows . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
On May 6, 2004, as indicated by the marshal's return, the plaintiffs served the city/town clerk of Shelton and the clerk of the commission. This service was within the fifteen days of the April 22, 2004 publication of notice as required by § 8-8(b). Although the plaintiffs did not serve two copies of the documents on the town clerk as required by § 52-57(b)(5), both the town clerk and the commission received notice of the action because they were each served separately. As this appeal was commenced by service of process within fifteen days from the date of publication, the court finds that it is timely and that service was made upon the proper parties.
IV SCOPE OF REVIEW CT Page 11046-al
"The proper, limited scope of judicial review of a decision of a local zoning commission when it acts in a legislative capacity by amending zoning regulations is well established. [T]he commission, acting in a legislative capacity, [has] broad authority to adopt . . . amendments . . . 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 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 . . . Acting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function . . . 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." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 415-16, 788 A.2d 1239 (2002).
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, The court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Id., 420.
V Whether the Notice of the Rescheduled Public Hearing was Adequate
The plaintiffs allege in their complaint that the published notice of the public hearing was inadequate in that it did not properly and lawfully identify the specific location and size of the zone change parcel. In their trial memorandum, the plaintiffs do not address this particular issue, but instead argue that the notice of the rescheduled public hearing did not conform to the requirements of General Statutes § 8-7d(a). They note that the January 27, 2004 hearing was rescheduled to take place on February 5, 2004, for which notices were published on CT Page 11046-am January 29, 2004 and February 3, 2004. (ROR, Exhibit M.)
General Statutes § 8-7d(a) provides in relevant part: "In all matters wherein a formal petition, application, request or appeal must be submitted to a zoning commission . . . Notice of the hearing shall be published in a newspaper having a general circulation in such municipality where the land that is the subject of the hearing is located at least twice, at intervals of not less than two days, the first not more than fifteen days or less than ten days and the last not less than two days before the date set for the hearing."
The commission contends that the notice complied with the requirements of General Statutes § 8-3. It maintains that it complied with the notice requirements by publishing notice of the January 27, 2004 hearing on January 15 and 22, 2004. (ROR, Exhibit L.) The commission further argues that § 8-3 does not require the rescheduling or continuation of a public hearing to be published in a newspaper. It argues that although it was not required to do so by statute, the commission did in fact publish notice of the rescheduled hearing held on February 5, 2004, on January 29, 2004 and February 3, 2004. (ROR, Exhibit M.)
"Neither the Connecticut Supreme Court nor the Appellate Court have specifically addressed whether the notice provisions of [General Statutes] § 8-7 apply to a continuation of a public hearing. Section 8-7 is silent as to whether notice is required for a continuation of a public hearing. A number of Superior Court decisions have addressed this issue. In Carlson v. Fire District Committee, Superior Court, judicial district of Waterbury, Docket No. CV 99 0154545 (February 5, 2002, Moraghan, J.T.R.) ( 31 Conn. L. Rptr. 355), the court held that § 8-3c(b), which contains a similar publication notice provision, does not require additional publication notice for a continuation of a public hearing. In Raczkowski v. Naugatuck Planning Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. CV 96 60132696 (August 5, 1997, Fineberg, J.), rev'd on other grounds, 53 Conn.App. 636, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999), the court concluded that the notice provisions of § 8-7 do not require additional publication notice for a continuation of a public hearing. In Eiden v. Montville Planning Zoning Commission, Superior Court, judicial district of New London at Norwich, Docket No. 114946 (July 15, 1999, Graziani, J.), the court interpreted the notice provisions of § 8-3(a), which also utilizes similar statutory language, to require publication notice for the first public hearing only." Vine v. North Branford Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV 03 0476863, n. 11 (July 6, 2004, Jones, J.).
"General Statutes [§]8-7d(a) refers to all zoning matters which involve a formal petition, application, request or appeal in which a hearing is required. There are, however, two exceptions carved out of the broad provisions of this section . . . The second exception derives from General Statutes 8-7d(d). That subsection provides: `(d) The provisions of subsection (a) of this section [8-7d] shall not apply to any action initiated by any zoning or planning and zoning commission regarding adoption or change of any zoning regulation or boundary . . .' This exception recognizes that, where a zoning agency is considering adoption of or change in a zoning regulation or boundary, it is acting in its legislative capacity and should not therefore, be restricted by The mandatory time limits of General Statutes 8-7d(a). This exception is in turn limited, however, to the situation in which the proposal for legislative adoption or change is initiated by . . . [the] zoning or plan or zoning and planning commission . . ." (Internal quotation marks omitted.) Carr v. Woolwich, 7 Conn.App. 684, 697-98, 510 A.2d 1358 (1986), cert. denied, 201 Conn. 804, 513 A.2d 698 (1986), overruled on other grounds, Leo Fedus Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 623 A.2d 1007 (1993). The Superior Court has held that § 8-7d(d) applies where the zoning commission initiated an amendment to a zoning regulation or boundary. Waste Management of Connecticut, Inc. v. New Milford Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV90 0051974 (February 25, 1992, Susco, J.) ( 6 Conn. L. Rptr. 60). "A zoning commission may change zone boundaries or zoning regulations on its own initiative, when it sees the need for a change, or it may make a change when an application is filed with the commission for a zone change. In either case, the commission is performing a legislative function, and has broad discretion as to whether or not to change the zoning of property or to amend the zoning regulations." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1999) § 3.6, pp. 29-30.
In Leo Fedus Sons Construction Co. v. Zoning Board of Appeals, supra, 225 Conn. 432, the court's decision addressed General Statutes § 8-7d(a) and the automatic approval doctrine. The court in that case explicitly overruled Carr v. Woolwich, supra, 7 Conn.App. 684, "to the extent that [ Carr is] inconsistent with" Leo Fedus Sons Construction Co. The portion of Carr that addresses § 8-7d(d) has not been overruled because the court in Leo Fedus Sons Construction Co. did not discuss that section of the General Statutes.
In the present appeal, the commission acted upon its own initiative to CT Page 11046-an amend the zoning boundaries at issue; it did not act upon a formal petition, application or request by a third party. (ROR, Exhibits A; B; and C, pp. 2-3.) Consequently, because § 8-7d(d) explicitly exempts the commission from the requirements of § 8-7d(a) in the context of a self-initiated action "regarding adoption or change of any zoning regulation or boundary," including the notice requirements set forth therein, the commission's action was not invalid for failure to adhere to those requirements.
VI Whether the Zone Change is Consistent With the Comprehensive Plan Or Represents Spot Zoning
The plaintiffs argue that the commission's approval of the proposed zone changes and amendments was illegal, arbitrary and in abuse of the discretion vested in the commission in that the zone change and amendments were not consistent with the comprehensive plan, contrary to the mandates of General Statutes §§ 8-2 and 8-3a.
General Statutes § 8-2 provides in relevant part that municipal zoning "regulations shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements . . ."
The commission argues that in changing the zoning, the commission acts as a legislative body and has the authority to amend its regulations as it deems necessary. The commission further argues that acting within its authority, it found that the amendment to the zoning map was consistent with the master plan of development for the city and that the change was consistent with the neighborhood and the current use of the properties.
The commission also argues that its zoning regulations prohibit the use of residential land to access an industrial parcel of land. (ROR, Exhibit C, p. 20.) Because the court, as discussed above, dismisses the appeal on other grounds, the court need not address this argument.
In order for a zone change to be valid it must pass a two-part test: "(1) The zone change must be in accord with a comprehensive plan . . . and (2) it must be reasonably related to the normal police power purposes enumerated in § 8-2 . . ." (Citations omitted; internal quotation marks omitted.) First Hartford Realty Corporation v. Planning Zoning Commission, 165 Conn. 533, 541, 338 A.2d 490 (1973). "A comprehensive plan has been defined as a general plan to control and direct the use and development of property in a municipality or a large part thereof by dividing it into districts according to the present and potential use of the properties . . . The requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interests of the entire community." (Citation omitted; internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 218, 779 A.2d 750 (2001). "The basic purpose of requiring conformance to a comprehensive plan is to prevent the arbitrary, unreasonable and discriminatory exercise of the zoning power." Summ v. Zoning Commission, 150 Conn. 79, 88, 186 A.2d 160 (1962). "In the absence CT Page 11046-ao of a formally adopted comprehensive plan, a town's comprehensive plan is to be found in the scheme of the zoning regulations themselves." (Internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic and Pollution Inc. v. Planning Zoning Commission, 220 Conn. 527, 551, 600 A.2d 757 (1991).
The plaintiffs did not specifically brief the issue of whether the zone change is reasonably related to the police powers set forth in General Statutes § 8-2. Accordingly, the court has not addressed this issue and deems it waived. Commissioner of Social Services v. Smith, supra, 265 Conn. 723, 732 n. 11.
"When municipal authorities are acting within the limits of the formal powers conferred upon them and in due form of law, the right of courts to supervise, review or restrain them is necessarily exceedingly limited. In part, this stems from the constitutional separation of the legislative, executive and judicial functions and powers . . . [A]ny broader rule would potentially involve the courts in the review and revision of many, if not all, major controversial decisions of the legislative . . . authorities of a municipality." (Citations omitted.) McAdam v. Sheldon, 153 Conn. 278, 281, 216 A.2d 193 (1965).
In The resolution issued on April 13, 2004, the commission explained its reasons for adopting the zone change at issue, in relevant part, as follows: "the current Building Zone Map . . . contains certain inappropriate zoning boundaries in the Route 8 Corridor, delineated at arbitrary distances from roads and other physical features, done at a time when accurate property line information was not available." (ROR, Exhibit F.) This reason is supported by substantial evidence in the record. At the public hearing on February 5, 2004, Anthony Panico, a consultant for the commission, testified, "I think it's important to understand that zone line got there when the zoning map was created forty-odd years ago when nobody knew where property lines were and it was customary in those cases to set a zone line so many feet back from and parallel to the street. And that's why you have the zone line runs generally parallel to the street and what is it? 150 [feet] back?" "Had they known then where the property lines were, they would have put the zone lines on the property lines. But they didn't know. Now we know. We have good mapping now. They didn't have it back then." (ROR, Exhibit C, p. 21.)
Moreover, at the public hearing held on February 5, 2004, Richard Schultz, the planning and zoning administrator, stated, "[the planning and zoning commissioners] realized that there was a small area of industrial zoned IA-2 in the rear portions of these residential parcels." (ROR, Exhibit C, p. 19.) He explained that "[t]he staff was convinced that was inappropriate and we took this opportunity to redefine the residential boundaries and the industrial boundaries." (ROR, Exhibit C, p. 19.) He further explained that [w]e saw that it was important to address it because it could have a negative impact on established residential neighborhoods." (ROR, Exhibit C, p. 20.) He also stated that CT Page 11046-ap the "zoning regulations prevent [a property owner] from using residential land to get access to industrial." (ROR, Exhibit C, p. 20.)
See Shelton zoning regulations, Section 23.1, Schedule A, No. 62d. which provide: "No land in a Residence District shall be used for vehicular access to a use permitted only in a Commercial, Industrial or Light Industrial Park District." (Defendant's Exhibit A.)
Thus, the record contains substantial evidence to support the commission's position that the zone change would be in accord with the comprehensive plan. The plaintiffs' contention that the commission's decision in this regard was illegal, arbitrary or capricious must therefore fail.
The plaintiffs further argue that the commission has engaged in "spot zoning" by implementing the zone change that only affected their property and three other parcels of land. "Our courts consistently have invalidated zoning decisions that have constituted spot zoning. [S]pot zoning is the reclassification of a small area of land in such a manner as to disturb the tenor of the surrounding neighborhood . . . Two elements must be satisfied before spot zoning can be said to exist. First the zone change must concern a small area of land. Second, the change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole . . . The vice of spot zoning lies in the fact that it singles out for special treatment a lot or a small area in a way that does not further such a [comprehensive] plan . . . Spot zoning is not permitted in Connecticut." (Citations omitted; internal quotation marks omitted.) Campion v. Board of Aldermen, 85 Conn.App. 820, 849 n. 21, 859 A.2d 586 (2004), cert. granted on other grounds, 272 Conn. 920, 867 A.2d 837 (2005). At least one commentator has recognized that "[t]he spot zoning concept has become obsolete because the size of the parcel involved in a zone change is immaterial if the commissions action meets the two part test for a zone change." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1999) § 4.8, p. 60. When "the change of zone is in accordance with the comprehensive plan, the claim that it constitutes spot zoning is without merit." Weigel v. Planning Zoning Commission, 160 Conn. 239, 243, 278 A.2d 766 (1971).
Although the first prong of the spot zoning test is arguably met, substantial evidence in the record supports the commission's decision that the zone change is in accordance with the zoning regulations and comprehensive plan. The plaintiffs' challenge of the commission's decision on the basis that the decision constitutes spot zoning is therefore without merit.
CONCLUSION
Therefore, for the foregoing reasons, the plaintiff's appeal is hereby dismissed. So ordered this 13th day of July 2005. CT Page 11046-aq
STEVENS, J.