Opinion
No. CV 06 4005639
August 7, 2007
MEMORANDUM OF DECISION
I. STATEMENT OF APPEAL
The plaintiff, Greenland Realty, LLC, appeals from the decision of the defendant, the Durham Planning and Zoning Commission (the commission), denying the plaintiff's application for an extension of a permit it had received to remove topsoil from its property.
II. BACKGROUND
On September 17, 2003, the commission held a public hearing on the plaintiff's application for a special permit to construct a garage and office building on the plaintiff's property which is located in a Design Development District on Mountain Road in Durham. (Supplemental Return of Record [Supp. ROR], Exhibit [Ex.] 15, p. 1.) In addition, the plaintiff sought permission to create an outdoor area for storage of, inter alia, topsoil, mulch and decorative stone. (Supp. ROR, Ex. 15, p. 1.) The plaintiff indicated its business was a trucking operation, and that it intended to use the building solely as a storage area for its trucks. (Supp. ROR, Ex. 15, pp. 4-5.)
Section 07. of the Durham Zoning Regulations concerns Industrial Districts and, in § 07.04., Design Development Districts. Durham Zoning Regulations § 07.04.01. provides: "The Design Development District is established to allow for coordinated, well planned office industrial park and commercial development. The Regulations for this district are intended to encourage development which is compatible with surrounding or abutting residential, institutional or public uses and to insure suitable open space, parking, and sound site planning. Such district shall not be less than 30 acres."
The plaintiff's attorney described the plaintiff's intentions as follows: "[W]e are not going to perform any mechanical repairs on the site. We're not going to be washing trucks on the site. There will be some — the intent is, in the morning, the trucks are going to be — the drivers will come in. They are going to get in their trucks, they're going to drive off site, they're going to be off site all day and then they're going to come back at the end of the day. They're going to bring the trucks in and they're going to store them in the garage. Occasionally, there will be some excess earthen materials. And, for example, a little extra topsoil, perhaps some mulch, some decorative stone. And what we're planning on doing is creating a storage area . . . And leave that on site until it's needed at some time in the future . . . It's not like we're going to be running a retail operation or anything like that." (Supp. ROR, Ex. 15, pp. 5-6.) The commission approved the plaintiff's special permit on January 7, 2004. (Supp. ROR, Ex. 12.)
Subsequently, a large stockpile of topsoil accumulated on the property. (Supp. ROR, Ex. 13, p. 2.) On July 29, 2005, the plaintiff submitted an application pursuant to Durham Zoning Regulations § 07.04.04. (16) for a special exception to remove excess topsoil from the property. (ROR, Ex. 2.) At the public hearing on the plaintiff's application, held September 21, 2005, the plaintiff indicated that the topsoil had been removed intentionally, as is customary, during construction of its garage and office. (Supp. ROR, Ex. 13, p. 2.) The amount of topsoil present on the property had been far more than anticipated, making replacement of the topsoil impossible and leading to a stockpile of approximately 20,000 cubic yards. (Supp. ROR, Ex. 13, p. 5.)
Durham Zoning Regulations § 07.04.04. provides in relevant part: "The following uses, and no others, shall be permitted, subject to issuance of a special exception in accordance with the following and Section 13.05 of the Durham Zoning Regulations . . . (16) Excavation and Earth Removal."
The plaintiff represented to the commission that it had plans to sell approximately 15,000 cubic yards of the soil to a municipal construction project upon which it was then currently bidding. (Supp. ROR, Ex. 13, pp. 3-4.) The soil for the project would not necessitate screening and would be removed promptly upon the plaintiff's winning the bid. (Supp. ROR, Ex. 13, pp. 3-4.) The plaintiff indicated that it would be screening the remaining soil, and provided information as to screening equipment to be used and its mode of operation. (Supp. ROR, Ex. 13, pp. 7-8.)
Concern over the nature of the plaintiff's activities on the site was voiced during the hearing. Commissioner Richard Eriksen stated that the plaintiff's site had become an unauthorized gravel mining operation and insisted on a strict timetable for removal. (Supp. ROR, Ex. 13, pp. 8-9.) Diana Cruise, a resident of Mountain Road, disputed the plaintiff's claim that the topsoil had originated on the site. Cruise claimed that she had witnessed the plaintiff's trucks hauling the soil onto the site over time and subsequently creating the pile. (Supp. ROR, Ex. 13, p. 10.)
The commission ultimately granted the plaintiff's request, giving the plaintiff a special exception that was valid until March 30, 2006. (Supp. ROR, Ex. 14, p. 15.) The plaintiff's activities of hauling, bulldozing and screening the soil were limited to the hours of 8 a.m. to 4 p.m., Monday through Friday. (Supp. ROR, Ex. 14, p. 15.)
On March 29, 2006, the plaintiff submitted the application which is the subject of the present appeal: a request to extend the permit for removal of the topsoil pursuant to Durham Zoning Regulations § 07.04.04 (16). (ROR, Ex. 1.) At the public hearing on the application, held May 3, 2006, the plaintiff explained that it had removed approximately 2,000 cubic yards of soil but was unable to remove the remaining soil from the property due to extraordinarily wet weather in the preceding six months. (ROR, Ex. 6, pp. 2-5.) In support of its claim, the plaintiff presented four exhibits showing weather information from the preceding year. (ROR, Ex. 4, items A-D.) Regarding its plans to use 15,000 cubic yards on a municipal project, the plaintiff stated that the customer ultimately used an alternative product, and did not need as much soil as originally anticipated. (ROR, Ex. 6, p. 5.) The plaintiff also indicated that it had applied to the Durham Inland Wetlands Commission for an extension and that this request had been granted. (ROR, Ex. 6, p. 4; Ex. 4, item E.)
Durham Zoning Regulations § 07.04.04. (16) provides in relevant part: "Approval of applications for renewal of existing earth excavation and removal permits shall be permitted subject to site plan review only in accordance with the requirements of Section 12.05. of these Regulations."
Significant opposition was raised to the plaintiff's proposal. Commissioners Brian Ameche and Eriksen noted that the zoning regulations required a separate application for screening, and that the commission had erred in allowing the plaintiff to screen under its previous special exception. (ROR, Ex. 6, pp. 8-9.) Neighbor William Cruise disputed the plaintiff's contention that weather conditions had made dirt hauling impossible. Cruise stated that he was in the construction industry and had hauled a significant amount of earth during the previous six-month period. (ROR, Ex. 6, p. 10.) Neighbor Cindy Turcik stated that the plaintiff's trucks had been hauling materials off the site during the preceding fall and winter, regardless of the weather. (ROR, Ex. 6, p. 11.) Diana Cruise said the plaintiff's trucks had been running as early as 4 a.m. and as late as 7 p.m. (ROR, Ex. 6, pp. 11-12.) She also described the dust resulting from the passing trucks as "torture" and added that, as a result, it was now "horrible living there." (ROR, Ex. 6, p. 18.) Fred Serle, a resident of Wallingford Road, also stated that the plaintiff's trucks were operating at 4 a.m. and were loud enough to raffle the abutting houses' windows. (ROR, Ex. 6, p. 17.)
Commissioner Gene Riotte responded to the plaintiff's weather evidence, noting that, with the exception of one month, the previous six months had been relatively dry. (ROR, Ex. 6, p. 24.) As a result, Riotte observed that there was no reason for the plaintiff not to have removed the soil within the time frame provided. (ROR, Ex. 6, p. 24.) Ameche suggested the commission ask the plaintiff to relocate the remaining soil on its property into protective berms which would shield its neighbors from its operations. (ROR, Ex. 6, p. 27.)
Upon the conclusion of comments by the commission and the public, the hearing was closed. (ROR, Ex. 6, pp. 28-29.) The commission's minutes, which provide a record of the subsequent discussion of the plaintiff's application, contain the following: "Gene Riotte stated that he agreed with Ameche's recommendation that the applicant use the material on site to create berms that help to shield the site from the neighbors. [Commissioner] Dave Foley indicated that the problem should be put `back where it belongs, on the property owner.'" (ROR, Ex. 5, p. 9.)
A motion to approve the application was denied upon a vote of 7-2. (ROR, Ex. 5, p. 9.) Notice of the decision was published in the Middletown Press on May 10, 2006. (ROR, Ex. 8.) The plaintiff commenced this appeal on May 18, 2006. Trial was held on May 3, 2007.
III. JURISDICTION
Appeals from decisions of municipal zoning commissions to the Superior Court are governed by General Statutes § 8-8. "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
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003).
"The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Citations omitted; internal quotation marks omitted.) CT Page 14739 Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987). The owner of property that is the subject of the application is aggrieved. Id.
The plaintiff alleges ownership of the property which is the subject of the application. (Appeal, ¶ 2.) At trial, Fred Melillo, a member/partner of the plaintiff limited liability company, testified as to the plaintiff's ownership of the subject property. The plaintiff also introduced a deed demonstrating ownership. (Plaintiff's Ex. 1.) The court finds that the plaintiff has sufficiently alleged and proved aggrievement.
B. Timeliness and Service of Process
General Statutes § 8-8(b) provides that an appeal "shall be commenced by service of process in accordance with sections (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." Section 8-8(f)(2) requires that "[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." In an action against a town commission, process must be served "notwithstanding any provision of law, upon the clerk of the town . . . 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 . . . commission . . ." General Statutes § 52-57(b)(5).
The commission published notice of its decision in the Middletown Press on May 10, 2006. (ROR, Ex. 8.) The plaintiff commenced its appeal by service of process on the Durham town clerk on May 18, 2006. (Marshal's Return.) Accordingly, the court finds the plaintiff's appeal was timely and service of process was proper.
IV. SCOPE OF REVIEW
The decisions of a zoning commission acting in an administrative capacity must be supported by substantial record evidence. Kaufman v. Zoning Commission, 232 Conn. 122, 151, 653 A.2d 798 (1995). "The substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." (Internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 452, 908 A.2d 1049 (2006). Substantial evidence is "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. at 541.
When a commission has provided reasons for its action, the reviewing 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." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). When a commission has failed to provide such reasons, however, the court must search the record to determine a basis for the commission's decision. Clifford v. Planning Zoning Commission, 280 Conn. 452.
In the present case, the commission did not provide any reason for its denial of the plaintiff's application. The statements made during the commission's deliberations — that the plaintiff should be asked to create berms with the excess material and that the problem should be put "back where it belongs, on the property owner"; (ROR, Ex. 5, p. 9); — do not address the merits of the plaintiff's application, nor the substantive requirements of the town's zoning regulations. Thus, they do not constitute valid reasons for the commission to deny the application. The court will therefore search the record in order to ascertain a basis for the commission's decision.
V. DISCUSSION
As a preliminary matter, the commission argues that the plaintiff's application was one requiring a special exception, rather than site plan review. In support, the commission cites to A. Aiudi Sons, LLC v. Planning Zoning Commission, 72 Conn.App. 502, 806 A.2d 77 (2002), aff'd, 267 Conn. 192, 837 A.2d 748 (2003). In A. Aiudi Sons, the plaintiff applied unsuccessfully for approval to excavate sand and gravel from a residentially owned parcel. Id. at 503-04. On appeal, the trial court construed the application as one seeking site plan review, but nonetheless dismissed the appeal, finding the commission properly denied the application on the basis of general health and safety considerations found in its zoning regulations. Id. at 504. The plaintiff sought review in the Appellate Court, arguing, inter alia, that the trial court had improperly held that general criteria in zoning regulations could be the basis to deny a site plan application. Id. at 505. The Appellate Court summarized the relevant facts and zoning regulations as follows: "The plaintiff's property is located in an R-11 zone, which is zoned for multifamily and single-family use. Not only is the removal of sand, gravel or clay not permitted as of right in an R-11 zone, § 900 of the zoning regulations provides in relevant part that `[e]xcept as otherwise provided for in this Article, there shall be no removal from the premises, in any district, of earth, sand, gravel or clay . . .' Although the removal of sand, gravel or clay is not permitted as of right, the plaintiff applied for a two year permit pursuant to § 910.2. Section 910.2 provides in relevant part that `the [defendant] may, after a public hearing, subject to the provisions of Article 6, grant a permit for the removal of sand, gravel or clay in any zone . . .' (Emphasis added.)" A. Aiudi Sons, LLC v. Planning Zoning Commission, 72 Conn.App. at 507-08.
The Appellate Court concluded that the plaintiff's application was "in substance, an application for a special permit." Id. at 505. On appeal, the Supreme Court affirmed the decision of the Appellate Court, finding: "[T]he regulations explicitly [allow] the plaintiff's proposed use, namely, the removal of sand and gravel from its property, but [subject] such removal to numerous conditions and standards . . . Accordingly, this regulatory scheme bears resemblance to those regulatory schemes that define and govern special exceptions." A. Aiudi Sons, LLC v. Planning Zoning Commission, 267 Conn. 192, 204, 837 A.2d 748 (2003). Therefore, the commission in Aiudi properly relied on general health and safety considerations in denying the application. Id. at 208.
Similar to the regulations in the A. Aiudi Sons case, the Durham zoning regulations mandate a permit for all excavation and removal of earth. Section 12 of the regulations is entitled "SPECIAL REGULATIONS" and § 12.05 deals specifically with "Sand and Gravel Pits." Section 12.05.01.01 provides: "An excavation and removal permit from the Planning and Zoning Commission, issued under such conditions as the Commission may impose . . . is required for the removal of sod, peat, stone, loam, soil, clay, gravel, or any other earth or mineral products from any land." Excavation and earth removal in a Development Design District, where the plaintiff's property lies, requires a special exception. Durham Zoning Regulations § 07.04.04.(16).
The present appeal is distinguishable from A. Aiudi Sons, however, because the plaintiff here sought to renew a permit which the commission had already granted. The Durham regulations distinguish between an application for an earth excavation and removal permit and renewal of such a permit. Section 12.05.02.02. provides in relevant part: "Requests for renewal of an existing earth excavation and removal permit shall be subject to Site Plan Review . . ." (Emphasis added.) Further, the regulations specific to Design Development Districts also state that "[a]pproval of applications for renewal of existing earth excavation and removal permits shall be permitted subject to site plan review only in accordance with the requirements of Section 12.05. of these regulations." (Emphasis added.) Durham Zoning Regulations § 07.04.04.(16). The plaintiff's here sought a renewal of the permit granted on September 21, 2005. Therefore, under the clear language of the applicable zoning regulations, the plaintiff's March 29, 2006 application was one seeking site plan approval and not for a special exception.
In support of its appeal, the plaintiff argues that pursuant to General Statutes § 8-3(g), a site plan application may only be denied if it fails to comply with the requirements already set forth in the zoning regulations. It maintains that since the commission approved its original application for a permit to remove the topsoil, the commission must have found that the application met the standards for a special exception and for a site plan review. Because it contends that there is no evidence that the plaintiff's removal of topsoil no longer complies with the zoning regulations, the plaintiff argues that the commission erred in denying its application.
In opposition, the commission argues that the plaintiff had the burden of demonstrating that its application met the requirements for approval of a site plan. The commission generally contends that the plaintiff did not meet this burden, and that the commission's decision is supported by the record.
Section 07.04.04. of the Durham Zoning Regulations enumerates permitted uses within Development Design Districts. Such uses are subject to issuance of a special exception in accordance with the regulations. Excavation and earth removal is a permitted use. Section 07.04.04.(16) provides that "[a]pproval of applications for renewal of existing earth excavation and removal permits shall be permitted subject to site plan review only in accordance with the requirements of Section 12.05. of these Regulations."
Section 12 of the regulations concerns special regulations and § 12.05. deals specifically with sand and gravel pits. A permit is required for removal of "any . . . earth or mineral product from any land." Durham Zoning Regulations § 12.05.01.01. Section 12.05.02. contains regulations for applications for excavation and removal permits. Section 12.05.02.01. provides in relevant part: "Requests for renewal of an existing earth excavation and removal permit shall be subject to Site Plan Review in accordance with Sections 12.05.04. and 13.03. of these Regulations." These two sections, 12.05.04. and 13.03., provide the regulatory basis for the commission's decision in denying the plaintiff's application.
Section 12.05.04.02. provides in relevant part: "The Commission may renew or extend a permit issued under these regulations upon the application of the permittees when the following conditions have been met: . . . (2) That the excavation already completed and to be completed in the next 12 months conforms with the plan of operation as approved." (Emphasis added.) Section 12.05.04.03. also provides: "The Zoning Commission may deny an application for renewal or extension, if the permittee has not conformed to the plan of operation as approved, until such time as the permittee has brought his operations into conformance with the plan of operation." (Emphasis added.)
The plan of operation in this case is evidenced by the commission's order of September 21, 2005, granting the plaintiff's application for a permit to remove the excess topsoil from his property. That order provided that: (1) all operations, including hauling, bulldozing and screening of topsoil, were to be undertaken only during the hours of 8 a.m. and 4 p.m., Monday through Friday; and (2) the permit was to expire March 30, 2006. (Supp. ROR, Ex. 14, p. 15.) The testimony of neighboring residents Diana Cruise; (ROR, Ex. 6, pp. 11-12); and Serle; (ROR, Ex. 6, p. 17); provided support for the commission to determine that the plaintiff had not conformed to the approved plan of operation. Considering this testimony, the commission could reasonably have found that the plaintiff had not abided by the hours of operation restrictions instituted by the commission when granting the plaintiff's original permit request.
The main reason the plaintiff presented to the commission for its failure to complete the removal during the six-month time frame was unseasonably wet weather. The commission had before it the plaintiff's exhibit, which consisted of four pages of printouts from various websites containing information on precipitation levels in the preceding months. (ROR, Ex. 4.) The commission also heard testimony from William Cruise, who stated his opinion, based on his own experience in the construction business, that dirt hauling was possible during the preceding six-month period. (ROR, Ex. 6, p. 10.) In addition, Turcik testified that the plaintiff had in fact been hauling materials during the time period in question. (ROR, Ex. 6, p. 11.) The commission had the duty to review this information and determine its credibility. Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 543, 600 A.2d 757 (1991). The court finds that there is record support for a finding that the plaintiff failed to conform to the plan of operation as approved by the commission on September 21, 2005.
Section 13.03. of the zoning regulations concerns site plan review. Section 13.03.03. provides in relevant part: "The Commission shall approve an application to permit establishment of a use for which a site plan is required if it shall find that the proposed use . . . will conform to the following standards in addition to such special standards for particular uses as may be imposed: (1) The location, type, character and size of the use . . . shall be in harmony with and conform to the appropriate and orderly development of the Town and the neighborhood and will not hinder or discourage the appropriate development and use of adjacent lots or impair the value thereof . . ."
A site plan is "a physical plan showing the layout and the design of the site of a proposed use . . . It generally should indicate the proposed location of all structures, parking areas and open spaces on the plot and their relation to adjacent roadways and uses . . . As used in General Statutes § 8-3(g), a site plan is a general term which is used in a functional sense to denote a plan for a proposed use of a particular site, purporting to indicate all the information required by the regulations for that use." (Citation omitted; internal quotation marks omitted.) Barberino Realty Development Corp. v. Planning Zoning Commission, 222 Conn. 607, 613-14, 610 A.2d 1205 (1992).
General Statutes § 8-3(g) provides in relevant part: "The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations . . . A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning . . . regulations. Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d . . . A decision to deny or modify a site plan shall set forth the reasons for such denial or modification. A copy of any decision shall be sent by certified mail to the person who submitted such plan within fifteen days after such decision is rendered. The zoning commission may, as a condition of approval of any modified site plan, require a bond in an amount and with surety and conditions satisfactory to it, securing that any modifications of such site plan are made. The commission shall publish notice of the approval or denial of site plans in a newspaper having a general circulation in the municipality."
"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, 280 Conn. 440.
"A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning . . . regulations." General Statutes § 8-3(g). A zoning commission may deny a site plan on the basis of general conditions if site plan denial is specified in the regulations. A. Aiudi Sons, LLC v. Planning Zoning Commission, 72 Conn.App. 515. Although the Durham zoning regulations do not explicitly use the term "deny," they provide conditions which must be met for the commission to approve a site plan. Our Supreme Court has construed zoning regulations containing only criteria for approval of a site plan as also containing an implication that it is proper for the zoning commission to deny a plan which does not fulfill the requirements. See Friedman v. Planning Zoning Commission, 222 Conn. 262, 266-68, 608 A.2d 1178 (1992).
The record supports a finding that the plaintiff's application did not conform to § 13.03.03., requiring the proposed use of a site plan to be in harmony with its surrounding neighborhood and not impair property values. The testimony of neighbors Diane Cruise, Cindy Turcik and Fred Serle concerning the unauthorized operation of trucks at early hours, and the effects of those trucks in creating noise and spreading dust, provided the commission an evidentiary basis for denying the application. Thus, in denying the application, the commission could reasonably have concluded that the plaintiff's activities in hauling or removing the topsoil were not in harmony with the surrounding neighborhood and could be damaging to property values.
VI. CONCLUSION
Because there is record support for the commission's decision denying the plaintiff's application for a renewal of its permit, the plaintiff's appeal is dismissed.