Opinion
No. CV 04 0129403
June 9, 2005
MEMORANDUM OF DECISION
This is an appeal from a decision made by the defendant commission on March 11, 2004. The main question presented is whether the commission properly waived the requirement of the pertinent regulations that a landowner submit a site plan and receive a special permit before undertaking an expansion of his commercial facility. A secondary issue is whether the commission should have held a public hearing before determining that a waiver was appropriate.
The record discloses that Peter Bargmann is the owner of a property on Military Highway in Ledyard, which at all times relevant hereto has been the site of a farm operated as a retail commercial nursery. On February 13, 2004, he applied to the commission seeking a waiver of a provision of the town's regulations that he submit a site plan and obtain a special permit to allow him to construct six new greenhouses and a small shed on the site. A sketch attached to his application indicates that each of the new greenhouses would be 26 feet in width, and 96 feet in length, thus having a total square footage of well over one-third of an acre. The commission granted his application for reasons that do not appear in the record. No public hearing was held on the application.
The plaintiff in this matter is Peter Gardner, who alleged in his complaint that he is the owner of premises abutting the Bargmann property. In their respective answers, both Mr. Bargmann and the defendant commission admitted the truth of this allegation. The court finds, therefore, that plaintiff is an aggrieved person as defined by § 8-8(a)(1), CGS. His appeal has been timely filed.
The court performs a limited function in deciding an appeal from a zoning commission's action. When ruling upon an application for a special permit, a zoning commission acts in an administrative capacity rather than in a legislative or quasi-judicial capacity. Irwin v. Planning Zoning Commission, 244 Conn. 619, 627 (1998). Acting in this administrative capacity, the commission's function is to determine whether the applicant's proposed use is expressly permitted under the zoning regulations and whether the standards set forth in the regulations have been satisfied. A.P.W. Holding Corporation v. Planning Zoning Board, 167 Conn. 182 (1974). The zoning regulations, and not the commission, determine what uses may be allowed as special exceptions. The terms "special permit" and "special exception" have the same meaning and can be used interchangeably. Summ v. Zoning Commission, 150 Conn. 79 (1962). The function of the commission is to determine whether or not a proposed use falls within one of the special exceptions expressly permitted by the regulations. WATR, Inc. v. Zoning Board of Appeals, 158 Conn. 196 (1969). In applying the law to the facts of a particular case, the commission is endowed with liberal discretion, and its action is subject to review by a court only to determine whether it was unreasonable, arbitrary or illegal. Schwartz v. Planning and Zoning Commission, 208 Conn. 146, 152 (1988).
On factual questions, a reviewing court cannot substitute its judgment for that of the municipal agency. Timber Trails Corp. v. Planning and Zoning Commission, 222 Conn. 380 (1992). However, the question of whether a particular statute or regulation applies to a given set of facts is a question of statutory interpretation, and the interpretation of provisions contained in a municipal zoning ordinance is a question of law for the court. Coppola v. Zoning Board of Appeals, 23 Conn.App. 636 (1990). The court is not bound by the legal interpretation of an ordinance by the municipal authority. Schwartz v. Planning and Zoning Corporation, supra, 152-53; Balf Company v. Planning and Zoning Commission, 79 Conn.App. 626 (2003). Zoning regulations cannot be construed to include or to exclude by implication what is not clearly within their express terms. Planning and Zoning Commission v. Gilbert, 208 Conn. 696 (1988). A trial court is charged with determining whether the commission has correctly interpreted its regulations and has applied them with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn. 113 (1962); Baron v. Planning and Zoning Commission, 22 Conn.App. 255 (1990).
The site in question is located in the Gales Ferry Design District, which is defined within and regulated by §§ 4.8 through 4.17 of the Ledyard Zoning Regulations. § 4.16 mandates that all new development, expansion, construction or alteration of existing development within that district requires a special permit, and each application for a special permit must, pursuant to § 4.16.4, be accompanied by a site plan prepared according to a Class A-2 standard of accuracy. That subsection enumerates a number of criteria which the site plan must disclose.
The regulations do provide that the commission may allow a waiver of the special permit requirement under certain conditions, and, according to the briefs of the defendants and their representations to the court at oral argument, the commission relied upon this provision as the legal authority for its decision. In pertinent part this rule reads as follows:
4.16.1.2.2 A waiver of the special permit requirement may be granted [as to] minor changes in an existing use or existing structure (minor change is one that will not result in additional dwelling units additional employees, additional clients or customers, additional floor space for sales or services, or additional parking requirements). (sic)
As to the site plan requirement, defendants argue that the commission properly waived that aspect of the special permit process because the language of the regulations, while superficially mandatory, is in fact only precatory.
The record in this matter is extremely sparse. Defendants essentially rely upon the parenthetical definition of "minor change" as controlling, contending that the new construction will not yield any "additional floor space for sales or service . . ." As noted above, however, the new construction when fully built would place more than an additional third of an acre in total under new man-made structures. It appears from the hand-drawn sketch submitted in support of the application that the new construction is approximately equal to, or possibly more extensive than, the total square footage of all existing buildings on the property. § 4.16.1.2.2 speaks to "minor changes in an existing use of existing structure (emphasis added). This case is not concerned with a change in use, so it is the second prong of this provision, if anything, upon which the commission could have predicated its decision. Mr. Bargmann is proposing to erect seven completely new structures. A regulation allowing a waiver of a permit for a "minor change" to an " existing structure" is patently inapplicable to a proposal for the erection of seven new structures. Thus by its terms, the provision allowing the commission to waive the requirement of a special permit was not properly invoked by the commission in its consideration of this application. The commission erred in availing itself of the waiver provision and it abused its discretion by deeming a project of the scope seen here to be only "minor."
This determination is sufficient to resolve this appeal, and the appeal is sustained on the basis that the commission erred in its construction of this particular provision of its own regulations. A special permit should have been required, and the application subjected to the normal standards set forth in the regulations for evaluation of the project on its merits.
In light of the prospect that this matter will return to the commission for further action, the court will also address the questions raised by the absence of a site plan and the failure to hold a public hearing. As to the site plan, defendants have argued here that the commission need not view the language of its regulations requiring such a plan as mandatory. They thus imply that it could again dispense with a plan prepared to the standard required by the regulations in its consideration of any renewed application from Mr. Bargmann. His brief, which was expressly adopted by the commission, makes this point in partial reliance upon the case of Halpin v. South Windsor Planning and Zoning, 1995 WL 27472 (Mottolese, J.) ( 13 Conn. L. Rptr. 403). That case dismissed an appeal wherein opponents of an approved affordable housing application complained that the map submitted in support of the application had omitted certain details required by the local regulations. Defendants claim the holding in that case as authority for the proposition that a site plan need not be considered an essential part of a land use application under regulations such as those which have been adopted in Ledyard. They contend that a commission may deem the site plan requirement to be merely a detail which it may waive notwithstanding regulatory language routinely considered to be mandatory. In doing so, they make a major leap beyond the Halpin holding; this court has certainly found no support in the reported case law for such a proposition.
Another issue which may arise in the event of further proceedings is whether the regulations required the commission to hold a public hearing before reaching its decision. They appear to be silent on this question. The application form, in contrast, does specify that a public hearing is required in the case of applications for a special permit. Given this ambiguity in the local rules, it is useful to note that a higher authority speaks to this issue. The regulations, of course, have been promulgated under the authority of CGS Chapter 124. That statute, at Section 8-3c(b), expressly requires that "[t]he zoning commission . . . shall hold a public hearing on an application or request for a special permit or special exception . . ." Since the proposed expansion has been held to require a special permit, the commission cannot avoid the statutory mandate that it hold a public hearing as part of its process of consideration of the application. It is difficult to envision a convincing claim that the statute's directive is merely precatory. Indeed, the defendants appear to recognize this imperative, as they have only argued thus far that the public hearing was not required in light of the determination that a special permit was not required.
This court's comments pertaining to the site plan and public hearing requirements are made without any intention to criticize the zeal or quality of the advocacy exhibited in this case. The court assumes that counsel made their arguments that these details were appropriately dispensed with in an effort to rescue the commission's actions from deficiencies that probably preceded the engagement of their services. The court further assumes that more conservative advice concerning prospective procedures will be given to the parties here as they are advised concerning the next steps in this process.
Judgment may enter sustaining the appeal.
Boland, J.