Opinion
No. CV 08-4035546-S
March 12, 2009
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiff, Gibraltar Transcontinental Assurance Co., Ltd., appeals from the decision of the defendant, the town plan and zoning commission of the town of Farmington, which denied the plaintiff's application for a special permit and site plan approval for the construction of an office building on South Road in Farmington.
II FACTUAL BACKGROUND
On or about August 9, 2007, the plaintiff, Gibraltar Transcontinental Assurance Company, Ltd., filed an application for special permit and site plan approval with the defendant, the town plan and zoning commission of the town of Farmington, for the construction of an office building on South Road in Farmington. (Return of Record [ROR], Item 1.) A public hearing was held on September 24, 2007; (ROR, Items 4, 6 and 20); which continued on November 26, 2007. (ROR, Item 21.) On January 22, 2008, the commission unanimously voted to deny the application. (ROR, Item 22.) The plaintiff appealed this decision to the Superior Court, and the appeal was tried to this court on November 20, 2008.
III JURISDICTION
General Statutes § 8-8(b) governs appeals from decisions of planning and zoning commissions 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).
A Aggrievement
"It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial Court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved . . . Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399-400, 920 A.2d 1000 (2007). A plaintiff 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, 256 Conn. 674, 703, 780 A.2d 1 (2001).
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest . . .
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Pond View, LLC v. Planning Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008). The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8-8(a)(1), which provides in relevant part: "In the case of a decision by a . . . planning and zoning commission . . . `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."
In the complaint, the plaintiff alleges that it "is aggrieved by the decision of the Commission in that it is the owner of the Property affected by [its] decision." (Complaint and Appeal, ¶ 8.) At trial, the plaintiff presented a certified copy of a warranty deed demonstrating that the plaintiff is the owner of the subject property. (Plaintiff's Exhibit 1.) From this undisputed evidence, the court finds that the plaintiff is classically aggrieved by the commission's decision because, as the owner of the subject property, the plaintiff has demonstrated that it has a specific, personal and legal interest in the subject matter of the commission's decision. Further, as the applicant whose application to develop that property has been denied, the plaintiff has demonstrated that the commission's decision has specially and injuriously affected that specific personal or legal interest.
B Timeliness and Service of Process
Pursuant to General Statutes § 8-8(b), an "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 general statutes . . ."
General Statutes § 8-8(f) provides in relevant part: "Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows . . . (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(b) provides that "[p]rocess 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 . . ."
The defendant published notice of its decision on January 31, 2008. (Complaint, ¶ 6; Answer, ¶ 6, ROR, Item 18.) The plaintiff commenced this action by service of two copies of process on the Farmington town clerk on February 4, 2008. (Marshal's Return.) Accordingly, the court finds that the appeal is timely and that service of process was proper.
IV SCOPE OF REVIEW
"It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record." (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).
"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.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
"If a trial court finds that there is substantial evidence to support a zoning [commission's] findings, it cannot substitute its judgment for that of the [commission] . . . 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." (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 560, 916 A.2d 5 (2007).
"A reviewing court may not substitute its own judgment for that of the commission. 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 . . . The evidence, however, to support any such decision must be substantial . . . In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty . . ." (Citation omitted; internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 452-53, 908 A.2d 1049 (2006).
The Supreme Court has recently explained the standard of review for the denial of an application for a special permit, also commonly referred to as special exception, as follows: "[A] special exception allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . Nevertheless, special exceptions, although expressly permitted by local regulations, must satisfy [certain conditions and] standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values [as required by General Statutes § 8-2] . . . Moreover, we have noted that the nature of special exceptions is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site . . . We also have recognized that, if not properly planned for, [such uses] might undermine the residential character of the neighborhood . . . Thus, we have explained that the goal of an application for a special exception is to seek permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 426-27, 941 A.2d 868 (2008).
"It is axiomatic that the review of site plan applications is an administrative function of a planning and zoning commission . . . When a commission is functioning in such an administrative capacity, a reviewing court's standard of review of the commission's action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion . . . In determining whether a zoning commission's action was illegal, arbitrary or in abuse of its discretion, a reviewing court's principal inquiry is whether the commission's action was in violation of the powers granted to it or the duties imposed upon it." (Citations omitted; internal quotation marks omitted.) Clifford v. Planning Zoning Commission, supra, 280 Conn. 440. "In ruling upon a site plan application, the planning commission acts in its ministerial capacity, rather than its quasi-judicial or legislative capacity. It is given no independent discretion beyond determining whether the plan complies with the applicable regulations." (Internal quotation marks omitted.) Barbieri v. Planning Zoning Commission, 80 Conn.App. 169, 172, 833 A.2d 939 (2003). "A zoning commission's authority in ruling on a site plan is limited. [A] site plan is an administrative review procedure that assists in determining compliance of an underlying development proposal with zoning regulations . . . A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning . . . regulations." (Citations omitted; internal quotation marks omitted.) Yagemann v. Planning Zoning Commission, 92 Conn.App. 355, 361, 886 A.2d 437 (2005).
V DISCUSSION
In the notice of decision that was mailed to the plaintiff, which was dated January 25, 2008, the defendant stated the following six reasons for its decision. (1) "The proposed project was not in keeping with the existing and future character of the neighborhood which is primarily residential in nature"; (2) "The traffic circulation was not adequately addressed, notwithstanding the findings and recommendations in the report submitted by Fuss O'Neill"; (3) "Testimonial evidence presented by neighbors and residents who received notice of and attended the public hearing expressed specific concerns about the impact of this development on their property"; (4) "Substantial questions concerning the future of the road network given the fact that it is a state road and subject to potential expansion or change from the state of Connecticut"; (5) "There are other reasonable alternatives available to the applicant to develop the site in a way that might bring the size of the building into more conformance with the existing neighborhood"; and (6) "Notwithstanding testimony from the applicant that there are other non-residential buildings with large square footage in the surrounding areas (i.e, church, fire station) [they] are not of the same height and mass of the proposed building and are more in keeping with the neighborhood." (ROR, Item 17.)
In voting to deny the application, the commission voted to accept the reasons stated in the following colloquy:
Beckert: It's the sense of the Commission that the proposed plan is not in keeping with the existing and future character of the neighborhood. The traffic circulation we do not believe has been adequately addressed notwithstanding the findings and recommendations with the findings of the Fuss [O'Neill] report and based on testimonial evidence presented by neighbors and residents who received notice of the public hearing and attended the public hearing. That there, there's substantial questions concerning the future of the road network itself given the fact that it is a State road and as our understanding is subject to potential expansion or change from the State of Connecticut and that we believe that there's other reasonable and prudent alternatives available to the applicant to develop the site in a way that might
Pogson: Bring the buildings down at more conformance with the existing neighborhood.
Beckert: Precisely.
Wallace: So really it's the size of the building and the corresponding required site that makes it not in keeping with the neighborhood.
Pogson: Notwithstanding the testimony from the applicant that there are buildings with large square footage on the surrounding areas be it the church or be it the fire station but they're also not of the same height and mass of this building so they tend to be more in keeping with the residential flavor of the neighborhood." (ROR, Item 22, pp. 4-5.) These reasons were summarized in the notice that was mailed to the plaintiff which is included in the return of record as item 17.
The plaintiff appeals on the ground that the commission acted illegally, arbitrarily and in abuse of its discretion in one or more of the following ways: (a) "The Commission's decision and the reasons cited are not supported by substantial evidence in the record"; (b) "The Commission's stated reasons for denial do not provide a valid basis for denial of the application"; and (c) "The Application as submitted complied with all of the requirements of the zoning regulations and as such the Commission was without authority to deny it." (Complaint and Appeal, ¶ 7.) In its brief, the plaintiff reiterates these claims and adds the additional argument that the defendant's classification of the plaintiff's land for business use "creates a conclusive presumption that such uses will not have an adverse impact upon nearby properties." (Plaintiff's brief, p. 1.)
A Whether the Defendant's Reasons for Denial Have a Valid Basis in its Regulations and Are Supported by the Record.
It its brief, the plaintiff sets forth several arguments in support of its claim that the defendant's reasons for its denial have no valid basis in its regulations and are not supported by the record. These arguments, and the defendant's responses thereto, will be addressed in turn.
1.
The Defendant's First and Third Stated Reasons
With regard to the defendant's first reason, which was that the "proposed project was not in keeping with the existing and future character of the neighborhood which is primarily residential in nature"; (ROR, Item 17); the plaintiff acknowledges that the defendant's regulations require a proposal to be in general harmony with the character of the surrounding neighborhood, that the character of the neighborhood be protected and that adequate safeguards be taken to protect the neighborhood from detriment; see Farmington Zoning Regs., Art. IV, § 12B; but maintains that the neighborhood is not "primarily" residential. Without referring to any record evidence, the plaintiff describes several other business uses, which it claims are part of the neighborhood, and asserts that the total square footage devoted to nonresidential purposes in the neighborhood exceeds 360,000 square feet, whereas residential uses comprise a total of 70,000 square feet. The plaintiff notes that the subject property is zoned for business use and maintains that the defendant has failed to specify in its notice of decision which attributes of the project are not in keeping with the character of the neighborhood. It argues that "[t]his is a vague and unspecified concern, not tied to any particular aspect of the project, and based upon a flawed premise that the neighborhood is primarily residential." (Plaintiff's brief, pp. 6-7.) For these reasons, the plaintiff argues that this reason cannot support the denial.
The plaintiff next argues that the defendant's third stated reason, which cited "[t]estimonial evidence presented by neighbors and residents who received notice of and attended the public hearing expressing specific concerns about the impact of this development on their property," is not supported by substantial evidence in the record because it refers to unspecified concerns of neighbors, which, without more, do not constitute substantial evidence. It further maintains that the concerns raised by the neighbors at the public hearing do not support the defendant's decision because they do not explain how the proposed project violates the zoning regulations.
The defendant counters that its first stated reason is supported by substantial evidence in the record. It argues that the plaintiff has mischaracterized the neighborhood as encompassing a broader area than it actually does and that the neighborhood is primarily residential. In support, it refers to several examples of testimony at the public hearing in which members of the commission and residents stated that the proposed building would be neither appropriate nor in conformity with neighboring properties. Further, the defendant maintains that the project would not satisfy the requirements of subsections 1, 2 or 5 of article IV, § 12(B) of the Farmington zoning regulations (regulations). It maintains that its finding that the proposal failed to meet these specific regulatory requirements, which was based on the written and testimonial evidence gathered during the public hearing process, supports its decision to deny the application. Accordingly, the defendant maintains, the court may not substitute its judgment for that of the defendant commission.
In support of its argument that its third reason is supported by substantial evidence in the record, the defendant notes that several local residents spoke or submitted written comments regarding the negative impact that the project would have on their neighborhood and that expert testimony is not required for issues such as noise, traffic, or size and scope of the development. It maintains that traffic impact and noise are appropriate issues to be considered because the regulations require the commission to consider the character of and harmony with the neighborhood when ruling on a special permit application. It further maintains that the determination of factual issues regarding traffic and noise and whether a proposed development would have an adverse impact on the neighborhood are matters within the province of the commission. Moreover, it contends, because these issues are not technically complex issues that would require the commission to rely on experts, it was not bound to adopt the opinions of the plaintiff's experts. Accordingly, the defendant argues, the third reason for its decision is supported by ample evidence in the record that the proposed development would negatively impact the properties in the neighborhood.
With regard to protection of and harmony with the neighborhood, article IV, § 12(B) of the regulations provides in relevant part: "In considering applications the Commission shall require compliance with the following . . . 1. That the existing and future character of the neighborhood in which the . . . use is to be located will be protected . . . 2. That adequate safeguards have been taken to protect adjacent property and the neighborhood in general from detriment . . . 5. That the i) basic design of the proposed use(s) or buildings; ii) relationship between the buildings and the land; and iii) overall physical appearance of the proposed use(s) or buildings will be in general harmony with the character of the surrounding neighborhood and will not serve to blight or detract from abutting residences or other property . . ." The court must consider whether substantial evidence in the record supports the defendant's decision to deny the plaintiff's application because the proposed use would not comply with these provisions of the regulations.
"[A] local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances." (Internal quotation marks omitted.) Vivian v. Zoning Board of Appeals, 77 Conn.App. 340, 345, 823 A.2d 374 (2003). The term "neighborhood" is not defined in the regulations. "It is well established that, when determining the meaning of a word, it is appropriate to look to the common understanding of the term as expressed in a dictionary . . . This precept . . . pertains primarily to the situation where no statutory definition is available." (Citation omitted; internal quotation marks omitted.) State v. Spillane, 255 Conn. 746, 755, 770 A.2d 898 (2001); accord, State v. J.R., 69 Conn.App. 767, 772, 797 A.2d 560, cert. denied, 260 Conn. 935, 802 A.2d 89 (2002). Accordingly, the court must look to the dictionary definition of the term. Black's Law Dictionary (6th Ed. 1990) defines neighborhood as "[a] place near; an adjoining or surrounding district; a more immediate vicinity; vicinage." This definition does not provide any guidance as to the size of the area to be considered as the "neighborhood." "Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight . . ." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001). In light of these principles, and in light of the evidence in the record, including the testimony of the commission members and members of the public on this issue, the court will afford deference to the defendant's interpretation of the term "neighborhood" as including the more immediate area surrounding the subject property.
Moreover, substantial evidence in the record supports the defendant's conclusion that the proposed use of the plaintiff's property would not comply with article IV, § 12(B) of the regulations. For example, at the public hearing on September 24, 2007, resident Gary Nicksa testified that "this does dramatically change the nature of the neighborhood on that end of South Road obviously you can't change and you know what's happened basically from Middle and Birdseye west, but you talking east of Middle Road that the neighborhood is different there in this particular parcel of land and that out of the safeguards and number two says adequate safeguards have been taken to protect adjacent property and the neighborhood in general from detriment . . . I think that this particular building and development is out of character with the neighborhood regardless of the B1 zone . . ." (ROR, Item 20, p. 10.) At the public hearing on November 26, 2007, an unidentified member of the public stated, "You know, I think there's a big difference between a fire station which serves a community and a giant office building that serves god knows how many people who are just coming into work. There's a big difference between a church which might have traffic once a week on a Sunday when it's not otherwise busy . . . You know, this is not [an] office complex type environment where we need giant buildings making things worse for the residents who live there." (ROR, Item 21, p. 13.) Katie Wellington, another resident, expressed concern regarding "all of the existing trees I'm assuming are going to be taken down, which will definitely increase the noise level." (ROR, Item 21, p. 13.) Other local residents wrote to the defendant commission regarding their concerns. For example, Zuhair Bahjat of 85 South Road submitted an email setting forth concerns regarding the size of the building and the impact that the proposal would have on traffic and on the residential character of the neighborhood. (ROR, Item 9.) Lynn Foren expressed similar concerns in an email, stating in relevant part: "It would add to already heavy traffic and the loss of trees would increase the noise from the highway." (ROR, Item 10.)
The record also contains numerous statements from members of the defendant commission regarding the negative impact of the proposed project on the neighborhood. At the public hearing on September 24, 2007, commission member Wolf stated, "I have to say that the size of this building that you keep referring to as a small building, I don't think [it] is small for that area . . . I think it's gotta be five, six times as big as any house in that area. It [is] bigger, way bigger than the church or the fire department and I don't personally think that it fits in the character of the neighborhood at all." (ROR, Item 20, p. 3.) Commissioner Beckert echoed these sentiments at that same hearing. (ROR, Item 20, p. 5.) At the November 26, 2007 hearing, commissioner LeBouthillier stated, "I visited this several times and I walked this property and I listened to many of the folks that came in during the first public hearing who had interesting concerns. But I do share a concern of the size of the building, you know, the Commissioners before us changed the zone and they went on to not approve something that was 6,000 square feet. I'm sure they did so with something in mind. I just think this building is immense. You know, you say that it's next to the firehouse which is 7,000 square feet and this is 14,000 so this is twice the size seems to me at least a little bit much." (ROR, Item 21, pp. 7-8.) He further stated, "I'm concerned with the rain gardens the way they're put on this property and that's simply because I don't think it leads to any kind of a buffer that's going to buffer this, this piece of property and the adjoining neighbors with what's going to happen and this is you're going to open up this particular road without those trees there to the noise of the I-84 and you know to me that is a serious concern. I walked that neighborhood and I could hear the highway with all those trees. I know that if I lived in that area I would have some concern so what I don't see here is any kind of way in which we're looking at the potential of increased noise . . . And lastly . . . what concerns me . . . more [than screening the parking area] is screening a 35 foot building and I'd like to see if this building is going, whatever size this building ends up being, that it's screened a little bit more, if it's not going to look like it's in keeping as much with some of the residential homes in that area and the firehouses and the churches. Then certainly I think that there can be . . . some better screening in there." (ROR, Item 21, p. 8.)
This testimony supports the defendant's conclusion that the proposed project would violate article IV, § 12(B) of the Farmington zoning regulations. This substantial evidence in the record shows that the project would not protect "the existing and future character of the neighborhood in which the . . . use is to be located," that it did not incorporate "adequate safeguards . . . to protect adjacent property and the neighborhood in general from detriment," and that the basic design of the proposed use or buildings, the relationship between the buildings and the land, and the overall physical appearance of the proposed use or buildings will not be in general harmony with the character of the surrounding neighborhood and will serve to blight or detract from abutting residences or other property. See Farmington Zoning Regs., art. IV, § 12(B)(1), (2) and (5).
"In making a determination on a special permit, a zoning authority is to consider the standards provided in the zoning regulations themselves and the conditions necessary to protect the public health, safety, convenience and property values." Holt-Lock, Inc. v. Zoning Planning Commission, 161 Conn. 182, 190 286 A.2d 299 (1971). The Supreme Court's holding in Holt-Lock Inc. v. Zoning Planning Commission, supra, 161 Conn. 182 is instructive. In that case, the court explained: "One of the reasons given by the commission for the denial of the plaintiff's [special permit] application was that the requested removal of sand and gravel `would have a detrimental effect on the surrounding residential property.' This reason is in accord with § 9.4.6 of the Granby zoning regulations. The remaining reasons assigned by the commission can be said to be in accord with § 9.1 of the Granby zoning regulations. The commission was entitled to take into account its own knowledge of the local conditions, and the burden rested on the plaintiff to show that the commission acted improperly." (Internal quotation marks omitted.) Id., 191.
The plaintiff's reliance on Kosinski v. Lawlor, 177 Conn. 420, CT Page 5001 418 A.2d 66 (1979), is misplaced. The plaintiff cites that case for the proposition that vague and unspecified concerns that are not fled to any particular aspect of the project cannot support the defendant's denial. (Plaintiff's brief, p. 7, citing Kosinski v. Lawlor, supra, 177 Conn. 423.) In Kosinski, an appeal from the trial court's issuance of a mandamus overruling the commission's denial of a site plan application, the defendant commission had "adopted a resolution stating that `it is the opinion of this Commission that the site plans [meet] all applicable regulations for a B-3 zone as interpreted by this Commission.' The defendants then voted to deny approval of the site plan on the ground that it was a `poor use of the site.'" Kosinski v. Lawlor, supra, 177 Conn. 422. The Supreme Court upheld the trial court's issuance of a mandamus because the regulations did not allow the commission to deny a site plan application for "poor use of the site" and because the commission had found, based on the evidence before it, that the application complied with all applicable regulations. Id., 423-24. By contrast, in the present case, in ruling on the special permit application, the defendant commission properly took into account its own knowledge of the local conditions, as well as that of the local residents, in concluding that the proposed use would not be in compliance with the applicable zoning regulations. The record, therefore, contains substantial evidence in support of the first and third stated reason for the defendant's decision, and these reasons are in accordance with the applicable regulations.
2. The Defendant's Second and Fourth Stated Reasons
The plaintiff also contends that the defendant's reasons relating to traffic issues are not supported by substantial evidence in the record. This argument concerns the defendant's second and fourth reasons for its denial, which are: (2) The traffic circulation was not adequately addressed, notwithstanding the findings and recommendations in the report submitted by Fuss O'Neill; and (4) "Substantial questions concerning the future of the road network given the fact that it is a state road and subject to potential expansion or change from the state of Connecticut." (ROR, Item 17.) With regard to reason two, the plaintiff argues that the defendant's apparent concern that the use of two driveways on the site will create traffic congestion or safety issues is not supported by the record and that the expert evidence on the record from the plaintiff's traffic engineer supports the opposite conclusion. Moreover, it argues that the concern voiced by one of the commissioners that the double driveway meant that the applicant might use the building for a purpose other than that proposed in the application does not constitute substantial evidence to support a denial. The plaintiff maintains that because the expert evidence regarding the lack of an adverse impact on traffic is uncontradicted, and because there is nothing in the record to support the defendant's statement that the issue was not adequately addressed, the second stated reason is not supported by substantial evidence in the record.
The defendant responds to this argument by asserting that the plaintiff has confused the claim of traffic congestion or safety issues on South Road with internal traffic circulation within the site. It maintains that the report prepared by the plaintiff's traffic consultant does not address internal traffic circulation, other than driveway ingress and egress. It argues that neither the plaintiff nor its traffic consultant provided any testimony at the public hearing regarding internal traffic circulation. This omission, the defendant maintains, supports its decision to deny the application. Moreover, the defendant argues, the site plans submitted reveal deficiencies in the internal parking lot, in that the plans incorporate two curb cuts "on a very busy road in a residential neighborhood" and that "cars parked on the west side of the island adjacent to the easterly entranceway are at risk when pulling out of those spaces as cars enter the east entranceway and come around the island. Neither the cars entering the site, nor the cars backing out of the noted parking spaces, will be able to immediately see each other, thereby creating a very dangerous condition." It maintains that the plaintiff's expert, Fuss and O'Neill, did not address these issues in its report and that the record supports the defendant's denial of the application for these reasons.
The record contains substantial evidence in support of the defendant's second reasons for its denial. As the defendant has noted, the traffic impact study prepared by Fuss O'Neill, the plaintiff's traffic expert, does not address internal traffic circulation at all; it merely addresses the impact that the proposed development would have on the existing road network. The transcripts of the public hearing support the defendant's assertion that internal traffic circulation was not adequately addressed, as the applicant presented no evidence concerning internal traffic circulation at the public hearing, other than physical descriptions of the arrangement of parking spaces and driveways. (See e.g., ROR, Item 20, p. 1 [comments of Robert Donald]; Item 21.) Although the plaintiff's traffic expert, Mark Vertucci of Fuss O'Neill, stated that incorporating two driveways into the design "helps with site circulation" because, with two driveways, "[y]ou don't have you know, vehicles all congregating and funnel[ing] into one exit"; (ROR. Item 21, p. 11.); he did not address any aspects of internal traffic circulation other than those relating to driveways. Article IV, § 12(B)(3) of the regulations requires that "traffic circulation within the site and the amount, location and access to parking [be] adequate, and adequate sight distance [be] provided for all proposed and existing driveways." The record contains substantial evidence submitted by the applicant that sight lines for the proposed driveways will exceed the requirements imposed by the department of transportation by more than 100 feet. (ROR, Item 21, p. 2 [comments of Mark Vertucci].) Nevertheless, neither the plaintiff nor its experts addressed the requirements that "traffic circulation within the site and the . . . location and access to parking [be] adequate . . ." Farmington Zoning Regs., Art. IV, § 12(B)(3). The burden of proving compliance with the regulations is on the applicant. See, e.g., Finley v. Inland Wetlands Commission, 289 Conn. 12, 40, 959 A.2d 569 (2008) (applicant has burden of proving compliance with statutory requirements for wetlands permit); Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 569, 785 A.2d 601 (2001) (applicant for variance bears burden of demonstrating existence of hardship); Hoffer v. Zoning Board of Appeals, 64 Conn.App. 39, 42, 779 A.2d 214 (2001) (same). In the present case, the plaintiff failed to meet its burden with respect to article IV, § 12(B)(3) of the regulations. Accordingly, the defendant's second reason for its denial is supported by the record.
The plaintiff further maintains that the fourth stated reason relating to the "future road network" is not a reason at all, because it is merely an acknowledgment of the fact that it does not control expansion or changes to state highways. It maintains that uncertainties about the future development of the state road network are not a proper basis for the denial.
The defendant concedes that South Road is a state highway that is in the exclusive jurisdiction of the state highway commission. Nevertheless, it argues, its decision was based on the plaintiff's noncompliance with the special permit standards relating to traffic impacts. It maintains that based on the special permit standards and evidence in the record, it "could reasonably deny the Application on the basis of existing or future off-site traffic issues, including those pertaining to South Road." (Defendant's brief, p. 26.) In support of this assertion, the defendant relies on Jalowiec Realty Associates v. Planning Zoning Commission, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 03 0081041 (January 24, 2006, Nadeau, J.) (under the circumstances of that case, "it was proper for the commission to examine the offsite traffic conditions created by the proposed facility").
The defendant's fourth reason for its denial is not supported by substantial evidence in the record and is not a proper basis for the denial. Notwithstanding the defendant's attempt, in its brief, to characterize its fourth reason differently, this reason was stated on the record as follows:
"Substantial questions concerning the future of the road network given the fact that it is a state road and subject to potential expansion or change from the state of Connecticut . . ." (ROR, Item 17.) There is no evidence in the record to support this finding. To the contrary, the evidence submitted by the applicant's traffic experts, Fuss O'Neill, supports the opposite conclusion. The traffic impact study states: "The recent ConnDOT roadway improvement projects completed on South Road, Birdseye Road, and Route 4 within the study area have resulted in safer traffic conditions and improved intersection operations." (ROR, Item 14, p. 10.) At the public hearing on November 26, 2007, Vertucci stated that "the Department of Transportation is looking at interchange improvements on 1-84 at the Route 4, Route 9 interchange to provide a direct connection from Route 4 to Route 9 and that, when that's completed in the future, that will ultimately reduce the background traffic volumes on South Road." (ROR, Item 21, p. 1.) The record, therefore, contains evidence that future changes by the department of transportation will alleviate traffic problems near the site. There is no evidence that such changes would render the proposed use problematic. Accordingly, the defendant's fourth reason for its decision is not supported by substantial evidence in the record.
4. The Defendant's Fifth and Sixth Stated Reasons
The plaintiff also contends that the defendant's fifth and sixth reasons for its denial are not supported by the regulations or by the evidence in the record. These reasons are: (5) "There are other reasonable alternatives available to the applicant to develop the site in a way that might bring the size of the building into more conformance with the existing neighborhood"; and (6) "Notwithstanding testimony from the applicant that there are other non-residential buildings with large square footage in the surrounding areas (i.e., church, fire station) [they] are not of the same height and mass of the proposed building and are more in keeping with the neighborhood." (ROR, Item 17.)
Addressing the sixth reason first, the plaintiff contends that the defendant apparently believes that the proposed building is too big, and that this determination is not supported by the regulations or by the evidence in the record because the total impervious coverage on the site would be 36.3 percent, whereas the regulations set forth a coverage limitation of between 40 and 50 percent of the total area of the site. It further maintains that the project is consistent with other office uses in the neighborhood, several of which have greater lot coverage percentages than the plaintiff's proposal and one of which covers 47 percent of its site. It further notes that in terms of absolute size, the plaintiff's proposal is much smaller than other projects in the area.
In response to the plaintiff's arguments concerning the defendant's sixth reason, the defendant again refers to comments by members of the commission and a resident of the neighborhood in support of its argument that the proposed building would be significantly larger than other buildings in the neighborhood and would, therefore, not be compatible with the neighborhood.
The issues raised concerning the defendant's sixth reason are essentially the same issues that have been addressed in part V A 1, above, concerning the defendant's first reason for its decision, which is that the proposal would not be "in keeping with the existing and future character of the neighborhood . . ." (ROR, Item 17.) Regardless of whether the proposed development complies with lot coverage limitations and height restrictions, as stated in part V A 1, above, substantial evidence in the record supports the defendant's conclusion that the proposed project would not be in keeping with the existing and future character of the neighborhood. Accordingly, the defendant's sixth reason is supported by substantial evidence in the record.
Turning to the fifth reason, the plaintiff maintains that "reasonable alternatives" are not at issue because it is not the commission's function to redesign the application. It argues that the commission's function is to determine whether the project is in general harmony with the neighborhood, and the record does not contain substantial evidence to support the defendant's finding that it is not.
The defendant responds to this argument by characterizing its fifth reason as essentially a restatement of its first reason, which is that the proposed building is not in conformity or in harmony with the existing neighborhood. It reiterates its argument that this reason is supported by the record and also argues that it is entitled to apply the special permit criteria in the regulations to this application and that merely applying "objective" criteria such as height limitations and parking requirements would obviate the need for special permit approval and would render the special permit standards a nullity. It maintains that the proper focus of the defendant in issuing a special permit is to ensure that the proposed use is compatible with the neighborhood and that it complies with the regulations, and that it has broad discretion in deciding a special permit application. Further, it argues, "substantial evidence in the record establishes that there are other alternatives to develop the site in a way that might bring the size of the proposed building into conformity with the existing neighborhood."
Similar to the sixth reason, the fifth reason for the defendant's decision is essentially a restatement of the first reason, which has already been discussed above. Moreover, the defendant's determination that "[t]here are other reasonable alternatives available to the applicant to develop the site in a way that might bring the size of the building into more conformance with the existing neighborhood" is supported by substantial evidence in the record. The record includes the plans that had been approved in the early 1990s for the construction of a 4818-square-foot office building on the subject property. (ROR, Item 25; Item 20, p. 7.) The plans for that project support the defendant's conclusion that a smaller, more residential-looking office building would be possible and would be more in keeping with the residential character of the neighborhood. The testimony discussed in part V A 1, above, also supports that conclusion. For these reasons, the defendant's fifth stated reason is supported by substantial evidence in the record.
B
Whether the Defendant's Prior Act in Rezoning the Plaintiff's Property for Business Uses Precludes it from Denying this Application Based on Subjective Concerns That the Proposal Is Not Compatible with the Neighborhood.
Finally, the plaintiff argues that the defendant's prior decision to rezone the property for business uses precludes it from denying this application based on subjective concerns that the proposal is incompatible with the neighborhood. It maintains that the defendant is relying on the "compatibility" standards set forth in article IV, § 12 of the regulations, rather than any of the "objective regulations which control height, area, density, frontage and other measurable criteria." (Plaintiff's brief, p. 16.) Further, the plaintiff argues that its regulations preclude the commission from properly applying the standard for evaluating special permit applications set forth in Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, supra, 285 Conn. 381, because no uses are allowed as of right in business zones in Farmington; all uses other than accessory uses require a special permit. It contends that in applying the same criteria to applications for both special permits and zone changes; see Farmington Zoning Regs., Art. IV, § 12; the defendant fails to recognize that its discretion is more limited in ruling on special permit applications than on changes of zone. It maintains that categorizing "all uses as `special' is not consistent with the statutory special permit process, which is a limited departure from the uniformity requirement inherent in the zoning process and expressed in [General Statutes §] 8-2." (Plaintiff's brief, p. 18.) It argues that under the statute, special permits are required only for certain uses that are permitted in the zone but nonetheless require special consideration to determine whether they are consistent with uses permitted as of right in the district. Consequently, the plaintiff argues, the special permit application should be treated as merely a site plan application. Otherwise, it maintains, the commission would always have the ability to deny a special permit application based only on general concerns regarding compatibility with the surrounding area.
The defendant counters that the rezoning of the property as B-1 did not divest it of control over the use of the property. It maintains that the use of the subject property for an office building is not permitted as of right, but is allowable only by special permit. It further maintains that its regulations require it to consider the potential impact of a proposal on the neighborhood.
The defendant is correct in its assertion that its designation of the property as B-1 did not preclude the defendant from applying the special permit criteria set forth in article IV, § 12(B) of the regulations to the plaintiff's proposal, which require it to consider the effects of the proposal on the surrounding neighborhood. Although "[t]he designation of a particular use of property as a permitted use establishes a conclusive presumption that such use does not adversely affect the district and precludes further inquiry into its effect on traffic, municipal services, property values, or the general harmony of the district"; Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, supra, 285 Conn. 432; the Supreme Court "has limited the application of these principles . . . to site plan approvals and subdivision applications that involve uses that are permitted as of right within the zoning district." (Citation omitted; internal quotation marks omitted.) Id. "[W]hen a use is not allowed as of right, but only by special exception, the zoning commission is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood." (Internal quotation marks omitted.) Id. To ignore the special permit regulations and treat this application as merely a site plan would not be in accordance with the regulations. Notwithstanding the plaintiff's argument in its brief, suggesting that application of the special permit regulations in Farmington is problematic in light of the analysis used in Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, supra, 285 Conn. 434, the plaintiff has not sought to invalidate the special permit regulations, nor has it explicitly argued that they are invalid. A zoning authority is required to adhere to its regulations. Goldberg v. Zoning Commission, 173 Conn. 23, 28, 376 A.2d 385 (1977). It is undisputed that the regulations at issue require the defendant to apply the special permit criteria set forth in article IV, § 12(B) of the regulations. Accordingly, the plaintiff's argument that the defendant is precluded from considering whether the proposal is in keeping with the existing and future character of the neighborhood is unavailing.
VI CONCLUSION
For the foregoing reasons the appeal is dismissed.