Opinion
No. 567343
April 13, 2005
MEMORANDUM OF DECISION
I.
STATEMENT OF APPEAL
The plaintiffs, Groton Open Space Assn., Inc.; Edith Fairgrieve; Joan Smith; Frederick Turnbull; Deborah Turnbull; Jeane Provost; Stephen Cravinho; Yolanda Cravinho; Catherine Marques; Karl Paecht and Mary Paecht appeal from the decision of the defendant Groton zoning commission. The defendant commission had approved a special permit application of the defendant Mystic Active Adult, LLC to construct a "residential life care community" on certain real property located in Groton.
II. BACKGROUND
On or about February 28, 2003, the defendant, Mystic Active Adult, LLC (Mystic), filed a special permit application seeking permission to construct a "[r]esidential [l]ife [care [c]ommunity consisting of 161 units in 46 buildings, amenity center with on-site parking, and related site improvements," on the west side of Noank-Ledyard Road in Groton, referred to as "Four Winds at Mystic." The defendant Groton zoning commission conducted a public hearing regarding the application on May 7, 2003, June 4, 2003 and July 2, 2003. It then deliberated on August 13, 2003. On that date, the defendant commission voted to approve the special permit application with certain conditions. The plaintiffs, Groton Open Space Assn., Inc. (GOSA); Edith Fairgrieve; Joan Smith; Frederick Turnbull; Deborah Turnbull; Jeane Provost; Stephen Cravinho; Yolanda Cravinho; Catherine Marques; Karl Paecht and Mary Paecht appealed from the commission's decision to the Superior Court, and the appeal was tried to the court on July 27, 2004.
The defendant commission issued the special permit subject to the following five conditions: (1) "The special permit plan shall be modified to eliminate development activities in accordance with the approved inland wetlands permit for the project and assure that all conditions of said permit are met." (2) "In order to assure compliance with the objectives of the zoning regulations for residential life care communities, the community shall be designed to promote mobility and socialization of residents and provide appropriate facilities, amenities and common/shared spaces and shall include, but not be limited to, the following:" "[s]wimming pool, walking trails with workout stations"; "[a]menity center with facilities including a fully equipped kitchen for social occasions and communal dining situations"; "[c]ommunication with and access to [twenty-four] hour nursing and emergency services"; "[a]ctivities director to facilitate delivery of special meals, housekeeping, and transportation services"; "[f]itness center and flex rooms for a variety of uses." (3) "The applicant shall provide a plan with the site plan application which includes, at minimum, accommodations on site for aging in place including but not limited to: minimum number of exterior steps to facilitate pedestrian access retrofits/modifications over time, [three foot] wide doors and hallways and radii meeting ADA standards in baths, reduction in counter heights to accommodate wheelchairs, and levered door handles to facilitate self mobility." (4) "The applicant shall comply with necessary requirements of [§]7.1-1 of the zoning regulations." (5) "The provisions for the special permit being granted be included in all of the relevant condominium documents related to this project."
III. JURISDICTION A. Aggrievement
"[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." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning and 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).
In the amended complaint, the plaintiffs allege that Frederick Turnbull, Deborah Turnbull, Jeane Provost, Stephen Cravinho, Yolanda Cravinho, Catherine Marques, Karl Paecht and Mary Paecht are abutting property owners or owners of land within 100 feet of the subject property "and thus are statutorily aggrieved by this decision pursuant to [General Statutes] § 8-8." A plaintiff's ownership of "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" gives it the right to appeal a decision of a municipal zoning commission to the Superior Court. See General Statutes § 8-8(a)(1) and (b). At trial on July 27, 2004, the plaintiffs introduced certified copies of warranty deeds demonstrating that Jeanne Provost, Stephen Cravinho, Yolanda Cravinho, Karl Paecht, Mary Paecht, Frederick Turnbull and Deborah Turnbull own certain parcels of land abutting or that are within 100 feet of the subject property. A review of the record further reveals that Catherine Marques also owns land abutting the subject property.
General Statutes § 8-8(a)(1) provides in relevant part, "In the case of a decision by a 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." Section 8-8(b) provides in relevant part, "any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located."
The plaintiffs further allege that they are aggrieved in that GOSA, Edith Fairgrieve and Joan Smith filed a timely verified notice of intervention pursuant to General Statutes § 22a-19. The defendant Mystic argues that the § 22a-19 does not create an independent right of appeal and that the plaintiffs must prove classical or statutory aggrievement to the court. Nevertheless, the Supreme Court has held that intervention pursuant to § 22a-19(a) gives one the right to appeal environmental issues. See, e.g., Branhaven Plaza, LLC v. Inland Wetlands Commission, 251 Conn. 269, 276 n. 9, 740 A.2d 847 (1999).
"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 . . . "Traditionally, citizens seeking to protect the environment were required to show specific, personal aggrievement to attain standing to bring a legal action . . . The Connecticut Environmental Protection Act; General Statutes § 22a-1 et seq.; however, waives the aggrievement requirement in two circumstances. First, any private party . . . without first having to establish aggrievement, may seek injunctive relief in court for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . General Statutes § 22a-16. Second, any person or other entity, without first having to establish aggrievement, may intervene in any administrative proceeding challenging conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." (Citation omitted; internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 129, 836 A.2d 414 (2003); see also General Statutes § 22a-19(a). As intervenors pursuant to § 22a-19(a), the plaintiffs, GOSA, Fairgrieve, and Smith, need not show specific, personal aggrievement to attain standing to bring this appeal as it relates to environmental issues. See Branhaven Plaza, LLC v. Inland Wetlands Commission, supra. 251 Conn. 276 n. 9.
From the facts adduced at trial, and from the facts alleged, the court finds that the plaintiffs are statutorily aggrieved and have standing for the purpose of bringing this appeal.
B. Timeliness and Service of Process
General Statutes § 8-8(f) provides in relevant part: "[A]ny person aggrieved by any decision of a board . . . may take an appeal to the superior court 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 general statutes . . ." Section 8-8(1) provides, in part, that "[f]or any appeal taken before [October 1, 2004], process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."
The plaintiffs commenced this appeal by service of process on the town clerk, who accepted service for the town of Groton and the defendant Groton zoning commission, and on the secretary of state, who is authorized to accept service of process for the defendant "Four Winds Active Adult, LLC," on September 8, 2003. A review of the record reveals that notice of the agency's decision was published on August 22, 2003. The fifteenth day following publication would have been September 6, 2003, a Saturday. As the fifteenth day fell on a weekend, when municipal offices are not open, service of process on the following Monday is timely. See Nine State Street, LLC v. Planning Zoning Commission, 270 Conn. 42, 52, 850 A.2d 1032 (2004) (service of process on commission and municipality on sixteenth day is timely when fifteenth day fell on legal holiday). Accordingly, the court finds that the appeal is timely and that service was made upon the proper parties.
The defendant Mystic argues that the appeal is not timely and requests the court to reconsider its motion to dismiss. It also requests, even if that motion is reconsidered and granted, that the court decide the merits of the case in the interest of "judicial economy." Notwithstanding the inconsistent nature of these requests, insofar as the court would not be able to consider the merits of the appeal after determining that it lacks jurisdiction over the subject matter, it should consider the merits of the appeal because it has subject matter jurisdiction for the reasons stated above.
IV. SCOPE OF REVIEW
"The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . Where a zoning agency has stated its reasons for its actions, 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 [board] was required to apply under the zoning regulations . . . 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." (Citations omitted; internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).
"[W]hether a zoning board grants a special permit essentially is a discretionary process." Oakbridge/Rogers Avenue Realty, LLC v. Planning Zoning Board, 78 Conn.App. 242, 246, 826 A.2d 1232 (2003), citing Irwin v. Planning Zoning Commission, 244 Conn. 619, 626, 711 A.2d 675 (1998). "A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values . . . An application for a special permit seeks 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 . . . When a special permit is issued, the affected property may be allowed an exception to the underlying zoning regulations, but it continues to be governed in the same manner as provided in the overall comprehensive plan. When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity . . . [Its] function . . . [is] to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply." (Citations omitted; internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 215-17, 779 A.2d 750 (2001). "The . . . trial court [must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." (Citations omitted; internal quotation marks omitted.) Irwin v. Planning Zoning Commission, supra, 244 Conn. 627-28. "Although . . . the zoning commission does not have discretion to deny a special permit when the proposal meets the standards, it does have discretion to determine whether the proposal meets the standards set forth in the regulations." (Emphasis in original.) Id., 628.
V. DISCUSSION
The plaintiffs appeal on the grounds that "[t]he decision of the commission on August 13, 2003 to approve Special Permit #265, was arbitrary, capricious, illegal in contravention of [General Statutes] § 22a-19(a) and (b), [General Statutes] § 8-2, et seq, and the Groton Zoning Regulations . . . and an abuse of the power and discretion vested in it, and, alternatively, Groton [z]oning [r]egulations § 7.1-1, with its related definitions in [Groton zoning regulations] § 2, is arbitrary, capricious, unreasonably discriminatory, lacking sufficient standards to allow lawful application in particular cases, and constitutes, as such, an illegal amendment of the RS-20 zone and should be invalidated . . . They further set forth, in great detail, several allegations in support of their claims. (In ¶ 12(a) through (j) of the amended appeal.)
Although the plaintiffs set forth many grounds in their complaint, their brief does not address all of those grounds. Any grounds not briefed adequately are deemed waived. See Commissioner of Social Services v. Smith, 265 Conn. 723, 732 n. 11, 830 A.2d 228 (2003). This discussion, therefore, will be limited to the issues that the plaintiffs briefed adequately. The plaintiffs' arguments in support of their appeal primarily challenge four aspects of the defendant's decision. First, the plaintiffs argue that the requirements of § 7.1-1 of the Groton zoning regulations were not met. Second, they argue that the record presented was insufficient to enable the commission legally to find that the proposed residential life care community (RLCC) meets the applicable standards under the regulations. Third, they contend that the standards in the Groton zoning regulations for RLCCs are impermissibly vague. Fourth, they maintain that the requirements of the Connecticut Environmental Protection Act and of § 8.3-8(c) of the Groton zoning regulations were not met.
The defendant stated reasons for its decision in the record, which are as follows: "The application, as conditioned, conforms to the [s]pecial [p]ermit test as stated in [§]8.3, and the conditional use specifications for [r]esidential [l]ife [c]are [c]ommunities as stated in [§]7.1-1 and the 2002 Plan of Conservation and Development . . . [T]he proposed [s]pecial [p]ermit #265 for Four Winds at Mystic, as conditioned does not have, or is not reasonably likely to have, the effect of unreasonably polluting, impairing, or destroying the public trust in the air, water, or other natural resources of the state, including but not limited to such resources as woodland habitat, upland habitat, watercourses, trees, wildlife and historic resources, and based on this finding there is no need to consider whether a feasible and prudent alternative exists which is consistent with reasonable requirements of the public health, safety and welfare." In making this finding the commission noted the following: (a) "The [z]oning [c]ommission has given due regard to the report of the decision of the Groton [i]nland [w]etlands and [w]atercourses [a]gency, which has issued a permit for development activities and environmental protection measures associated with the special permit proposal to prevent unreasonable environmental damage"; and (b) "[t]he [t]own of Groton zoning regulations contain provisions to ensure protection of relevant environmental resources and consideration of environmental matters which impact on the jurisdiction of the [z]oning [c]ommission, including the ability to control the location and size of such use, the nature and intensity of operations, and the site layout to assure that there will not be a negative impact on any environmental and natural resource areas on or adjacent to the site or within the neighborhood."
This decision will address the plaintiffs' claims to determine whether the reasons stated by the defendant are supported by substantial evidence in the record.
A. Whether the Requirements of § 7.1-1 of the Groton Zoning Regulations Were Met
The plaintiffs argue that the requirements of § 7.1-1 of the Groton zoning regulations were not met. They argue that the approved proposal does not meet the requirements of "congregate/independent living." Arguing that "congregate/independent" is not adequately defined in the regulations, they rely on the definition of "[c]ongregate housing" in General Statutes § 8-119e(a), which defines that term, in part, as "a form of residential environment consisting of independent living assisted by congregate meals, housekeeping and personal services . . ." They further rely on § 8-119g-3(a) of the Regulations of Connecticut State Agencies, which provides, in part, that "[c]ongregate services shall include" (2) "[o]ne main meal a day in the facility's main dining area"; (3) "[h]ousekeeping services as required"; (4) "[p]ersonal care services to assist in the delivery of services for daily living activities"; (5) "[a] [twenty-four] hour emergency security." They also note that General Statutes § 8-430(10) provides that "`Congregate housing' means a residential environment for the frail elderly involving independent living assisted by congregate meals, housekeeping and personal services . . ." They also argue that the town regulations require congregate housing to provide congregate meals. Finally, they argue that the federal definition of "congregate," in 24 C.F.R. § 887.491, is also applicable because § 2 of the Groton zoning regulations refer to facilities "commonly known as" congregate housing, although that section actually uses the term "congregate/independent units."
Section 7.1-1 of the Groton zoning regulations provides, in relevant part, "The purpose of [r]esidential [l]ife [c]are [c]ommunities is to provide housing and health care facilities for elderly persons and those persons having handicaps, in a manner which allows aging in place, both in terms of affordability and in terms of the ability to provide a wide variety of housing options that could allow primarily older citizens to remain in their own neighborhoods through all stages of aging. Residential [l]ife [c]are [c]ommunities are to be designed as harmonious units, promote independent living of residents, provide appropriate services to accommodate the needs of the residents, and shall be consistent with the character and scale of the neighborhood. This provision recognizes housing and care facilities for elderly persons as having less impact than other higher-density housing options, and therefore meriting separate consideration. Residential [l]ife [c]are [c]ommunities are permitted uses in the CA, RS, R, RMF, RU, OMF, and IP districts, subject to approval of a special permit and the following conditions . . ."
In their brief, the plaintiffs cite "§ 24 CFR 887, 497," which can only be interpreted as an attempt to cite 24 C.F.R. § 887.467, which they claim to attach as "Appendix I." Appendix I to their brief does not contain a copy of that section. Appendix I contains a copy of excerpts from 24 C.F.R. § 887, including § 887.491, which contains the quoted language. In considering the plaintiffs' arguments, it may reasonably be assumed that § 887.491 is the section to which the plaintiffs intended to refer.
In further support of their argument, the plaintiffs cite several Superior Court cases mentioning "congregate" housing. E.g., Bannon v. Wise, 41 Conn.Sup. 469, 586 A.2d 639 (1990), aff'd, 217 Conn. 457, 586 A.2d 596 (1991); Vacon v. Enfield, Superior Court, judicial district of Hartford, Docket No. CV 0358913 (April 2, 1990, Dunnell, J.) ( 1 Conn. L. Rptr. 437); A/C Chatfield Ltd. Partnership v. West Hartford, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 94 0538038 (October 11, 1996, Aronson, J.) ( 18 Conn. L. Rptr. 435).
The plaintiffs contend that the project does not include congregate meals, and that "most of the requirements for [an RLCC] will only be provided . . . if the condo association wants them . . ." They argue that "a place for a potluck supper . . . clearly does not meet the requirements for `congregate meals' or a `congregate facility' in either the spirit and intent of the regulation or the letter of it as defined by common knowledge, state statute, and [f]ederal [r]egulation. The conditional requirement in the approval, of a `kitchen for social occasions and communal dining situations' . . . clearly does not meet the requirements of the regulation, and alone, is sufficient for the decision of the [c]ommission to be overturned by the court."
The defendant commission argues that the Groton zoning regulations define the term "congregate/independent living facility" as "[h]ousing designed for seniors, primarily [fifty-five] years or older, with communal dining facilities and services, such as housekeeping, organized social and recreational activities, and transportation services, who require little, if any, assistance with activities of daily living and who may have some home health care-type services provided to them by in-house staff or an outside agency." See Groton Zoning Regs., § 2. It argues that the plaintiffs' failure to cite this definition undercuts all of its arguments and that the definitions applied by the plaintiffs are not the correct standards to which the commission should be held.
Both of the defendants argue that a congregate/independent living facility is one of three types of facilities included in the definition of an RLCC set forth in § 2 of the regulations. They argue that the language of that definition supports this argument because it contains different requirements for each of the three types, for example, by allowing some facilities to be "without licensed nursing or health care facilities . . ." They further argue that central dining and kitchen facilities are not required for all types of RLCCs because the definition includes the phrase "may also contain . . . dining rooms and central kitchen." Moreover, they argue that the language regarding "congregate meals" relates only to facilities housing "other individuals having permanent and/or temporary difficulties with one or more essential activities of daily living such as feeding, bathing, grooming, dressing or transport . . ." They rely on the definition of "congregate/independent living facility" in § 2 of the regulations for its assertion that such a facility requires only "communal dining facilities" and not congregate meals. Accordingly, the defendants argue that the application meets the requirements of a congregate/independent living facility.
Section 2 of The regulations defines an RLCC, in relevant part, as "[a] service-enriched community . . . including such housing and facilities commonly known as congregate/independent units, assisted living facilities, nursing homes, as such terms are defined by state statute, or these regulations with or without licensed nursing or health care facilities, primarily for the aged. Such facility may also contain meeting rooms, dining rooms and central kitchen, and recreation rooms or areas for the use of the residents of such facility and their guests . . . In addition, other individuals having permanent and/or temporary difficulties with one or more essential activities of daily living such as feeding, bathing, grooming, dressing or transport may also be housed in said facility. Dwelling units are either multi-bedroom units or individual housing units which offer private living space, shared public spaces, congregate meals, and opportunities for organized social activities and staff responsible for daily maintenance of operations and the coordination of social services. At a minimum, said facility shall have communication with and access to [twenty-four hour] nursing and emergency services. Care in the design and location of shared spaces shall encourage residents to avoid isolation . . ." (Emphasis added.) Groton Zoning Regs., § 2.
A review of the record reveals that the application meets the requirements for a "congregate/independent living facility" as set forth in the Groton zoning regulations. It meets the definition of such a facility in § 2 of the regulations because it is primarily restricted to residents who are at least fifty-five years of age. It includes communal dining facilities as part of its amenities center. The use of the permissive phrase, " may have some health care-type services . . ." in § 2 of the regulations, under the definition of congregate/independent living facility, is not a requirement, but is merely a suggested feature of such facilities. (Emphasis added.) Groton Zoning Regs. § 2. Moreover, that reference expressly allows such services to be provided, if they are to be provided at all, by either "in house staff or an outside agency." (Emphasis added.) Groton Zoning Regs. § 2. The project, therefore, does not fail to meet these requirements by failing to provide such services.
The definition of an RLCC in § 2 of the regulations does not impose additional requirements for a congregate/independent living facility. This definition is descriptive of RLCCs in general, including "congregate/independent units, assisted living facilities, [and] nursing homes . . ." On its face, this definition is not to be relied on in defining these terms. After listing the three types of RLCCs referred to above, it includes the phrase, "as such terms are defined by state statute, or these regulations . . ." which suggests that relevant state statutes and other sections of the zoning regulations are to provide substantive definitions of these terms. The commission and the court, therefore, must look outside the definition of an RLCC for specific requirements for a congregate/independent living facility. Moreover, the plaintiff's interpretation of the RLCC definition in § 2, that it requires "congregate meals" to be provided in all RLCCs, is inconsistent with the statement earlier in the same definition, which provides that "said facility may also contain . . . dining rooms and [a] central kitchen. . . ." (Emphasis added.) It is also inconsistent with the definition of "congregate/independent living facility." That definition, as noted above, requires such a facility merely to have "communal dining facilities," which Mystic's attorney, Thomas Londregan, testified will be included as part of the community/amenity center. Further, in the defendant commission's notice of its decision, one of the conditions imposed requires the project to include an "[a]menity center with facilities including a fully equipped kitchen for social occasions and communal dining situations."
Although the definition of an RLCC in § 2 of the regulations refers to "state statute" in defining "congregate/independent units" and other types of RLCCs, the General Statutes contain no definition of the terms "congregate" and "independent" together. Sections 8-430 and 8-119e define "congregate" housing, requiring "congregate meals" to be provided in such housing. By coupling the term "congregate" with the term "independent," and by omitting any reference to "congregate meals," as discussed above, the reference in the Groton zoning regulations to "state statute" cannot logically be construed as an adoption of the statutory requirement to provide congregate meals. The proposed development, therefore, satisfies the requirements of a "congregate/independent living facility" pertaining to communal dining because it will include congregate dining facilities.
The plaintiffs next argue that the approval does not meet the standard of "affordability." They argue that the applicant gave no evidence of affordability. Relying on General Statutes § 8-39a, they contend that the term "affordability" is commonly used in reference to the initial cost of ownership. They argue that the defendant commission should not have ignored the term by stating that it is not defined, and that all terms in the regulations must have meaning.
General Statutes § 8-39a provides, "As used in this title, `affordable housing' means housing for which persons and families pay thirty per cent or less of their annual income, where such income is less than or equal to the area median income for the municipality in which such housing is located, as determined by the United States Department of Housing and Urban Development."
The defendants counter that Mystic has met the requirement of affordability. The defendant Mystic notes that the term is not defined in the regulations and argues that its ordinary dictionary definition, therefore, should be used. It further argues that it has met this requirement because many of the services to be offered in the community will be available "on an a la carte basis." The defendant commission contends that the term "affordability" is tied to the concept of "aging in place," in that services would be provided only when needed, thereby eliminating excess cost. It argues that this will make the facility affordable and allow residents to remain in the community as they age. It further argues that by providing level access, wide doorways, as well as other features to enhance accessibility at the time of construction, residents will not have to incur the expense of adapting their units to their changing needs as they age. Finally, relying on Smith-Groh, Inc. v. Planning Zoning Commission, 78 Conn.App. 216, 218 n. 4, 826 A.2d 249 (2003), it argues that the term "affordability" in the regulations is not tied to the definition of that term in the affordable housing statute, General Statutes § 8-39a.
The Groton zoning regulations do not require RLCCs to meet the state definition of affordable housing in General Statutes § 8-39a. While the regulation uses the term "affordability" in describing RLCCs, it wakes no reference to the affordable housing statute and does not provide a definition of the term "affordability." Further, the context of the term shows that it is tied with the concept of "aging in place," as the defendant commission argues. Section 7.1-1 of the regulations provides in relevant part, "The purpose of [RLCCs] is to provide housing and health care facilities for elderly persons and those persons having permanent and/or temporary handicaps, in a manner which allows aging in place, both in terms of affordability and in terms of the ability to provide a wide variety of housing options that could allow primarily older citizens to remain in their own neighborhoods through all stages of aging . . ." (Emphasis added.) Groton Zoning Regs., § 7.1-1. Moreover, to apply the state definition of "affordable housing" is not warranted because the regulations have referenced neither that definition nor have they used that term. Accordingly, "affordability" should be construed in accordance with its ordinary dictionary definition and the context in which it appears.
"Affordability" is a noun form of the word "afford," which is defined as, "[t]o have the financial means for; be able to meet the expense of." American Heritage Dictionary (New College Ed. 1982.) The use of the term "affordability" in the context of "aging in place," therefore, indicates that residents of RLCCs should be able to meet the expense of aging in place, that is, remaining in their own neighborhoods through all stages of aging. Having established the meaning of "affordability" in the context of § 7.1-1, the court now must determine whether the record contains substantial evidence to support the commission's finding with regard to affordability.
In its notice of decision, the commission found that the "application, as conditioned, conforms to . . . the conditional use specifications for [RLCCs] as stated in [§]7.1-1 . . ." Implicit in this finding is the conclusion that the application is consistent with the purpose of RLCCs, to provided housing that allows residents to meet the expense of aging in place. A review of the record shows that the project is consistent with this purpose because it is designed with, and required by the commission's conditional approval to include, many accessability enhancing features, such as "minimum number of exterior steps to facilitate pedestrian access retrofits/modifications over time, [three foot] wide doors and hallways and radii meeting ADA standards in baths, reduction in counter heights to accommodate wheelchairs, and levered door handles to facilitate self mobility." Also, Ronald Bonvie, the developer, testified that the units will have "raised dishwashers" and "seats within showers." In addressing whether the proposed community provides for affordability to age in place, Rich Carlson, a marketing expert for Mystic, testified that some of the features to be included in the units to "accommodate varying degrees of physical limitations which might arise after someone moves in" will be "a minimum number of steps to enter the home, wide doorways to and throughout the home to accommodate a wheelchair, first floor master suite to allow someone to live on one level if desired or necessary, levered door handles for ease of use, varied lighting sources and adjustable controls, counter height ovens, front controls on cook top ranges, [and] single lever faucets." By providing these accessability enhancing features at the outset, residents are likely to incur minimal expense to modify their units in accordance with their changing needs as they age. The proposed development, therefore, meets the "affordability" requirement in § 7.1-1 of the regulations.
The plaintiffs also argue that the approved proposal fails to meet the requirement that the project include a "wide variety" of housing options, pursuant to § 7.1-1 of the Groton zoning regulations. They argue that only one variety of housing is offered. They contend that the term "wide variety" in the regulation requires the project to offer such a variety within its boundaries and that the existing housing in the surrounding neighborhood is irrelevant to whether such variety will result from the project. They argue that the purpose of this requirement is to allow residents to remain living within the development, while periodically shifting among the various housing options as they age, without the need to relocate outside of the development. They further contend that the conditions stated in the approval are insufficient to ensure that the regulations are met.
See note 4.
The defendants argue that the application meets the requirement for the provision of a wide variety of housing options. The defendant commission argues that the plaintiff misconstrues the phrase "wide variety" by interpreting § 7.1-1 of the regulations as requiring the elements of all three RLCC facilities in every project. The defendant Mystic contends that housing units are available in two sizes, specifically, smaller units of 1400 to 1500 square feet or larger units of 1600 to 1700 square feet. Further, Mystic argues that the regulations do not require a wide variety of housing options within each project; they sought to integrate different types of housing in a geographic area.
The defendant commission correctly interpreted the phrase "wide variety" in considering the defendant Mystic's special permit application. As with "affordability," § 7.1-1 of the regulations uses the phrase "ability to provided a wide variety of housing options" in the context of allowing residents "to remain in their neighborhoods through all stages of aging." The term "wide variety," therefore, refers to the surrounding neighborhood, not merely the project alone. Moreover, § 7.1-1 describes RLCCs in general, which include three separate subcategories. A reasonable interpretation of that phrase in the context of three types of facilities is that by providing various types of RLCCs in Groton, residents of Groton will have a wide variety of options, including congregate/independent living facilities, assisted living facilities and nursing home facilities. Section 7.1-1 of the regulations, therefore, does not require each proposed RLCC to offer a "wide variety" of housing options. The appeal, therefore, cannot be sustained on the basis of the applicant's failure to provide a wide variety of housing options.
Finally, the plaintiffs contend that the project does not meet other requirements of the regulations, including the requirements that it have available nursing and emergency services beyond that which is available to the general public, arguing that the condition imposed with regard to emergency services is inadequate and an improper delegation of the commission's authority; that it is not a service-enriched community primarily for the aged, as it must be, but is merely an upscale, age-restricted condominium for active adults, which is not allowed in an RS-20 zone; that the proposal will not avoid isolation or provide mobility of the residents, arguing that at least one meal per day must be prepared for and offered to the residents of a congregate housing project and that the layout of the project does not avoid isolation.
The commission argues that the record contains substantial evidence to support its finding that the project will have less impact than other higher-density housing options. It contends that the project will be of much lower density than other options available for the property. It farther argues that it will be a service-enriched community and not merely an upscale condominium because it will offer adequate nursing and emergency services to those who need it and are willing to pay for it. Both Mystic and the commission argue that no regulation requires available nursing and emergency services on-site. Mystic notes that the definition of an RLCC in § 2 of the regulations specifically refers to a community " without licensed nursing or health care facilities . . ." It farther argues that the definition of congregate/independent living facility expressly allows such services to be provided by an outside agency, which the applicant proposed.
The defendants' interpretations of the regulations' requirements regarding medical services are correct. As the defendants argue, the definition of an RLCC allows facilities with or without licensed nursing or health care facilities. The regulations allow a congregate/independent living facility to be without nursing or health care services because such a facility provides the lowest level of care and the highest level of independence of its residents when compared with other RLCCs. Moreover, the definition of a congregate/independent living facility expressly permits such services to be provided by an outside agency as the applicant has proposed. Further, the condition imposed by the commission, requiring "[c]ommunication with and access to [twenty-four] hour nursing and emergency services" is not an impermissible delegation of its duty to ensure that this requirement would be met. The record contains substantial evidence that Mystic will provide enhanced access to emergency services. For example, each unit will have a "panic button" located in the master bathroom and downstairs bedroom, which will be monitored by an alarm company that will contact local authorities in the event of an emergency. This meets the minimum requirement of § 2 that all RLCC must have communication with and access to twenty-four hour emergency services. Based on this testimony, the commission had substantial evidence that this requirement would be met.
The record also shows that the development will be a "service-enriched community" as required by the definition of an RLCC in § 2 of the regulations. At the public hearing on May 7, 2003, Bonvie testified, "Healthcare, etc., you'll see in flex rooms. You'll see office rooms. They very easily could be utilized for blood pressure screening, which we do quite often. We do flu shots. We do eye examinations, etc. We do that at the development I'm doing now . . . We have enough people in this development where we can have our own flu shots here. Those are the types of things that would be going on as far as health care." He farther testified, "Twenty-four hour emergency access, generally what we do is we put a panic button within all the sleeping areas which they can reach out to which goes through . . . the phone line and possibly even a backup radio system in case they lose . . . power to EMT, etc., and that gives them a measure of comfort."
The term "service-enriched" is not defined in the regulations. The context in which it appears, in the definition of RLCC in § 2, provides several examples of services that an RLCC might offer, "such as, but not limited to, a general store, beauty shop, and laundry for the use of the residents . . ." This definition farther explains that "[a]t a minimum, said facility shall have communication with and access to [twenty-four hour] nursing and emergency services." Carlson provided a written document which explained that Mystic will offer "off-site trips and tours." As the record evidence set forth above shows, the project will exceed this minimum requirement because panic buttons will be provided and additional health screening services will be offered.
Mystic further argues that the project will avoid isolation of its residents. It argues that the plaintiffs' contention that a lack of congregate meals will lead to isolation is "pure speculation" and that the record contains no evidence that such a result would occur. The commission contends that substantial evidence in the record shows that many means will be taken to ensure that residents will not be isolated from one another.
The record contains substantial evidence that the requirement in § 2 of the regulations, that "[c]are in the design and location of shared spaces shall encourage residents to avoid isolation," will be met by the project. On its face, this requirement relates not to congregate meals, as the plaintiff suggests, but to "the design and location of shared spaces." As it relates to Mystic's proposal, "shared spaces" would include the amenity/community center, walking trails, sidewalks, and other common areas of the facility. In its notice of decision, the commission imposed several conditions, including requirements that Mystic provide a swimming pool, walking trails with workout stations, an amenity center with a fully equipped kitchen for social occasions and communal dining situations, and a fitness center and "flex rooms for a variety of uses." At the public hearing on May 7, 2003, Bonvie testified, "The amenity center is the focal point of the development such as all of the developments I've done . . . It also has a walking trail with workout stations . . . [W]e have twenty workout stations at various stations." He also testified, "I'll tell you why I choose to have mailboxes within the amenity center or a post office. It is not for ease of pickup of your mail. It would be much easier to pick up the mail at your own residence." He farther explained, "We find that this clientele, these people sometimes begin their lives at this point staying home too often. They don't reach out to other people. If they have to get their mail here, they meet friends or neighbors. They start interacting. They start enjoying each other. They start connecting. They're now involved in this amenity center. That's why we try to have the mail center in this building . . . We try to get them out of their homes and into some camaraderie." The appeal, therefore, cannot be sustained on this basis because substantial evidence in the record shows that the shared spaces of the project are designed to avoid isolation of the residents.
B. Whether the Record Presented Was Sufficient to Enable the Commission Legally to Find the Proposed Life Care Community Meets the Requisite Standards Under the Regulations The plaintiffs argue that the defendant Mystic failed to provide the defendant commission with sufficiently precise and definitive plans, pursuant to §§ 6.7 and 8.3 of the Groton zoning regulations, in order for the commission to be presented with substantial evidence that both the requirements and intent of the regulations have been met. The plaintiffs argue that architectural drawings and that factual details with regard to design elements and services that would be provided for the elderly were not submitted. They contend that the application lacks any requirements that would demonstrate that the project would meet the provisions and intent of the regulations. They maintain that little or nothing is included that would allow "aging in place," or accommodate the needs of aging residents. They also argue that these details are required pursuant to §§ 7.1-1, 6.7-2 and 6.7-6 of the Groton zoning regulations. They argue that Mystic, rather than providing drawings of the proposed buildings, merely provided "samples" of other projects it has built, with no assurance that these designs would be used in this project, which deprived the defendant commission of substantial evidence that it would be in harmony with the existing neighborhood. The plaintiffs concede, nevertheless, that the Groton zoning regulations do not require submission of a site plan with a special permit application. Finally, they contend that the defendant commission has impermissibly delegated its authority by deferring to the "site plan process."The defendants argue that Mystic submitted all of the information required for a special permit application. The defendant commission distinguishes a case relied upon by the plaintiff, Barberino Realty Development Corp. v. Planning Zoning Commission, 222 Conn. 607, 613-15, 610 A.2d 1205 (1992), because, in that case, the town's zoning regulations required applicants for special use permits to submit both that application and an application for a site plan simultaneously. It argues that Groton's zoning regulations create a "bifurcated process," in which the zoning commission must issue a special permit pursuant to § 8.3 before an applicant is compelled to file a site plan application, pursuant to § 8.4. It contends that the applicant has met or exceeded the special permit requirements of § 8.3. It further contends that a special permit application is conceptual in nature, contrasted with a site plan which contains the "detailed nuts and bolts of a project." Mystic argues that the regulations do not require "architectural drawings" to be submitted with a special permit application. It also contends that the "Carlson report" contains full details of the services to be provided to residents and that the phrases "could be," "may be provided," and "if requested by the owner" reflect the fact that not all residents will wish to utilize all of the available services.
Barberino Realty Development Corp. v. Planning Zoning Commission, supra, 222 Conn. 613-15, is distinguishable from this case for the reasons argued by the defendant commission. At the outset of that opinion, the court stated, "[t]his appeal involves a zoning regulation that requires a site plan showing the specific project proposed to be submitted with an application for a special permit." Id., 608. The Groton zoning regulations do not contain such a requirement. Section 8.3-2 of the regulations sets forth the requirements of a special permit application. A review of the record shows that all of the required application materials have been submitted to the commission. As required by § 8.3-2, Mystic's special permit application included "[a] statement describing the proposed use or uses," "[a] location map in accordance with [§] 8.4-4B," "a sketch plan indicating the boundaries of the property, the location and height of all buildings and uses, the location and arrangement of parking and loading spaces, the location and description of all open spaces, screening and buffer area," "[a]n application fee" and "[s]uch other information as the [c]ommission may require to determine compliance with the intent and purpose of these regulations." Moreover, as discussed, supra in section A of this memorandum, the applicant provided ample information regarding design elements, services and features to facilitate "aging in place." The appeal, therefore, cannot be sustained on the basis of the alleged inadequate information submitted to the commission.
Section 8.4-4B of the regulations details the requirements for a location map. It provides, "Applications shall include an accurate scale location map as depicted on the [z]oning [m]ap and shall be submitted showing the subject property and all property and streets within 1000 feet of any part of the subject property, and the following information:" (1) "[a]ll lots and lot lines"; (2) "[a]ll zoning district boundaries"; and (3) "[a]ll existing streets and roads."
The plaintiffs next argue that the project does not meet certain criteria for special permits in § 8.3-8(A) and (B) of the regulations. They contend that it fails to meet § 8.3-8(A) because it will not be consistent with the character and scale of the neighborhood. In support of this contention, it notes that the project will be a gated townhouse community surrounded by single-family homes. They argue that the proposal fails to meet § 8.3-8(B) because members of the public and commissioner Stephen Hudecek expressed concerns at the public hearing that the project will overburden the surrounding roads. They also argue that the traffic impact will cause the project to fail to meet one of the requirements in § 7.1-1 that RLCCs have "less impact than other higher-density housing options."
The defendants argue that the record contains substantial evidence that the project will not have an adverse impact on "traffic circulation." They note that the state traffic commission determined that the project would have no adverse impact on any state road. They argue that Mystic presented the only evidence relating to traffic impacts, consisting of the testimony of a traffic expert who testified that the project will not have a detrimental impact on traffic. The commission contends that the only evidence to the contrary consisted of speculation and nonexpert analysis by opponents of the project. Accordingly, the commission argues, the evidence presented by Mystic's experts constitutes substantial evidence in the record, upon which the commission properly relied.
The record contains substantial evidence that the project will not have an adverse impact on traffic. In a letter received by the planning department on April 25, 2003, Joseph Santaniello, a professional engineer and executive director of the state traffic commission of the department of transportation, wrote, "[t]he conclusions of the investigation revealed that the site-generated traffic will not substantially affect the state highway system in the area." At the public hearing on May 7, 2003, William Vliet, a professional engineer, explained that he had prepared a traffic impact study which was submitted to the state and to the town. He testified that "it is the professional opinion of Vliet and O'Neill, LLC that the introduction of traffic generated by this proposed development will not disrupt the continuity of peak-hour traffic flow in the area roadway systems. Roadway conditions will be sufficient to provided safe and efficient traffic for peak-hour traffic." While some members of the public presented their traffic concerns at the public hearing, this does not prevent the commission's decision from being supported by substantial evidence. Moreover, a zoning commission is not required to give credence to any witness, even an expert witness. See Kaufman v. Zoning Commission, 232 Conn. 122, 156, 653 A.2d 798 (1995); see Pelliccione v. Planning Zoning Commission, 64 Conn.App. 320, 331, 780 A.2d 185 (2001).
The defendants also contend that the record contains substantial evidence that the project will be in harmony with the neighborhood. They argue that the surrounding area consists of single-family homes. The defendant Mystic contends that the area is zoned "Residential R20," which allows both single-family homes and townhouses such as those in the proposed development. Mystic further contends that if such housing is permitted in the zone, then it is not out of harmony with the neighborhood. It further argues that the proposed development does not exceed the density requirements for the zone, which require no more than two units per acre.
The defendant commission argues that Mystic submitted evidence relating to the existing conditions in the neighborhood in its application, describing the condition and uses of adjacent properties, as well as details of the project, such as larger setbacks than those required for a conventional subdivision. It further contends that Mystic submitted conceptual drawings of buildings, which are small in scale, consisting of three or four units, which appear similar in design to typical single-family homes. They further argue that the fact that the development will be a "gated community" does not make it inharmonious with the neighborhood because the gates will provide safety to the residents and there will be no fence surrounding the property.
The record contains substantial evidence that the project will meet the requirements of § 8.3-8(A) of the regulations. That section requires the "location, size, and character" of the project to "be in harmony with the appropriate and orderly development of the district in which it is proposed to be situated" and not to be "detrimental to the orderly development of adjacent properties in accordance with the zoning classification of such properties." Groton Zoning Regs., § 8.3-8(A). The mere fact that the development will be a "gated community" is not sufficient to show that it will violate the requirements of § 8.3-8(A), particularly in light of the evidence submitted that all buildings will be located at least seventy-five feet from any property line and 150 feet away from any existing residence, and will be "colonial looking buildings," with primary living space on the first floor. Moreover, Clint Brown, an engineer for Mystic, testified at length at the public hearing on May 7, 2003 with regard to the harmony requirement. He testified that "[t]he style of the building is very similar to what you'd see in a single-family development as far as architectural treatment and as far as height goes." He also explained that "[a]s you look at this plan. I think it becomes apparent that this project is much like a cluster type of residential subdivision, two very well defined clusters of residential units in a very well-defined area."
The fact that the proposed development primarily consists of townhouses rather than single-family homes is not a violation of § 8.3-8. The proposed development is located in an RS-20 district, a residential district, which allows single-family dwellings as of right, and allows, inter alia, residential life care communities, subject to applicable district regulations and the conditions set forth in § 7.1. Groton Zoning Regs., § 5.1. The record contains no evidence that the proposed development would be "detrimental to the orderly development of adjacent properties in accordance with the zoning classifications of such properties." See Groton Zoning Regs., § 8.3-8(A). The appeal, therefore, cannot be sustained on this basis.
C. Whether the Standards in the Groton Zoning Regulations for Residential Life Care Communities are Impermissibly Vague
As an alternative to its arguments discussed, supra, the plaintiffs contend that the defendant commission had difficulty determining the standards to be used in evaluating a congregate/independent RLCC because the Groton zoning regulations are impermissibly vague and do not contain ascertainable standards. They argue that important, significant terms, such as "congregate," "affordability" and "communal dining," are not defined and that the regulations are thereby left largely without meaning. They contend that without such definitions, the defendant commission is allowed to permit a condominium development in an RS-20 zone, despite the prohibition of such developments in § 5.1-3 of the regulations.
The defendants argue that the plaintiffs have failed to meet their burden of proving that the regulations are impermissibly vague. They argue that the plaintiff, in challenging a regulation, must prove its invalidity beyond a reasonable doubt. They further contend that zoning commissions are afforded leeway in the wording of special permit regulations because standards in special permit regulations require flexibility to allow the commission to determine if a particular proposed use is compatible with the permitted uses in the zone and because one standard cannot be adopted to apply to all cases. They further contend that undefined terms in the regulations, such as "congregate," "affordability" and "communal dining," are to be interpreted according to their common meanings and have been interpreted consistently by the commission in the past. They argue that read as a whole, the Groton zoning regulations are clear and provide sufficient standards for the commission to follow.
"When reviewing a challenge to the validity of an ordinance or regulation its invalidity must be established beyond a reasonable doubt." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2004 pocket part) § 36.5, p. 70, citing Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 195, 779 A.2d 134 (2001). Moreover, the plaintiff bears the burden of showing that regulations complained of are unconstitutionally vague or impermissibly vague as applied to the facts of the particular case. Barberino Realty Development Corp. v. Planning Zoning Commission, supra, 222 Conn. 620. The plaintiffs have not met their burden of proving this. As discussed above in section A of this memorandum, and as argued by the defendants, the regulations are coherent and provide sufficient standards for the commission to fulfill its obligations. The terms "congregate/independent living facility" and "residential life care community" are defined in § 2 of the regulations. The lack of a separate definition in the regulations for the term "congregate" does not render the regulations impermissibly vague because the regulations explain, at length, the requirements for a "congregate/independent living facility." Moreover, terms such as "affordability" and "communal dining" need not be defined because the context in which those terms appear, and their ordinary dictionary definitions, leave little, if any, ambiguity as to their meaning.
In Smith-Groh, Inc. v. Planning Zoning Commission, supra, 78 Conn.App. 231-33, the Appellate Court considered whether the term "reasonable cost" in the Greenwich building zone regulations provided an ascertainable standard for the town planning and zoning commission to apply in ruling on the plaintiff's application for special permit and site plan approval. In that case, the court determined that the term "reasonable cost" is an ascertainable standard within the context of the regulations because "[a] regulation should be as precise as the subject matter requires, and adequate and sufficient enough to allow the commission to perform its obligations." Id., 233, citing Sonn v. Planning Commission, 172 Conn. 156, 159, 374 A.2d 159 (1976). The court further reasoned that "[a]s long as the regulations provide a standard that can be applied to all cases of a like nature so as to reduce the likelihood of allowing a zoning agency to act in a capricious manner, the regulations will not be deemed to contain meaningless standards that can lead to unpredictable results." Smith-Groh, Inc. v. Planning Zoning Commission, supra, 78 Conn.App. 233. The court then held that, in the context of the regulations, "reasonable cost" required the housing to be "affordable or moderately priced" for the residents of the town, which requires that applicant to prove more than just what the rent "might" be or that the rental rates "would be reasonable when compared to the more expensive housing ordinarily desired by the more affluent citizens of Greenwich." Id.
In the Groton zoning regulations, the term "affordability" is similarly unambiguous, and, unlike the term "reasonable cost" in Smith-Groh, Inc., is not a factor in itself requiring explicit consideration by the commission. In Smith-Groh, Inc., § 6-62(c) of the Greenwich building zone regulations explicitly required the commission to make a finding as to whether the proposed residential development would accomplish, inter alia, the purpose of providing "attractive, decent and suitable housing at reasonable cost for those who live or work in [t]own." The Groton zoning regulations do not require such a finding to be made with regard to RLCCs.
"Affordability" appears in § 7.1-1 of the regulations to describe one of the ways in which RLCCs are to allow "aging in place." As discuss above, the defendant commission correctly interpreted its regulations as requiring evidence that the proposed development would allow residents to age in place without excessive cost to upgrade or adapt the units to their changing needs as they age. The applicant provided ample evidence of the ways in which the project is designed to allow residents to age in place by incorporating numerous design features, such as wide doorways and hallways and raised dishwashers, which allow easier access and use of the units by residents as their needs change with age. The term "affordability," therefore, provided enough guidance for the commission to find that the proposal met this requirement.
Similarly, the term "communal dining" is not vague or ambiguous in the context of the regulations. Section 2 of the regulations requires a "congregate/independent living facility" to have "communal dining facilities." This requires any proposed "congregate/independent living facility" to provide an area in which its residents will be able to eat together. The regulations are not ambiguous as to whether they require such a facility to provide daily prepared meals; they contain no such requirement. The plaintiffs' arguments to the contrary, based on statutory definitions of "congregate housing" that are not specifically adopted by, and are inconsistent with, the regulations, and its argument that the term "communal dining" is therefore ambiguous, is insufficient to prove that the regulations are invalid beyond a reasonable doubt.
The appeal cannot be sustained on this basis because the plaintiffs have not met their burden of showing that the regulations are impermissibly vague.
D. Whether the Requirements of the Connecticut Environmental Protection Act and of § 8.3-8(C) of the Groton Zoning Regulations Were Met
The plaintiffs argue that under the Environmental Protection Act of 1971 (CEPA), General Statutes §§ 22a-14 through 22a-20, the defendant commission has the authority and the duty to consider the environmental impact of the matters otherwise within its jurisdiction. They argue that the statement in § 7.1-1 of the Groton zoning regulations, that RLCCs are expected to have "less impact than other higher-density housing options," and the requirement within the special permit application procedure in § 8.3-8(C) of the regulations, that the commission must evaluate the potential impact on the environment of the project to ensure that it "will not have a negative impact on any environmental and natural resource areas on or adjacent to the site or within the neighborhood," show that the commission has this authority. Accordingly, they argue, the commission must consider the impact on all of the natural resources within the development and the effect on the adjacent resources.
The defendants argue that General Statutes § 22a-19 does not expand the jurisdiction of an administrative agency beyond its statutorily defined jurisdictional limits; it is not the function of the zoning commission to consider the impact on all of the natural resources of the site. "An administrative agency, as a tribunal of limited jurisdiction, must act strictly within its statutory authority . . . It is a familiar principle that [an administrative agency] which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation." (Citation omitted; internal quotation marks omitted.) Nizzardo v. State Traffic Commission, 259 Conn. 131, 156, 788 A.2d 1158 (2002). "[Section] 22a-19. . must be read in connection with the legislation which defines the authority of the particular administrative agency . . . [and was] not intended to expand the jurisdictional authority of an administrative body whenever an intervenor raises environmental issues. Such a construction of § 22a-19 gives effect to its provisions and to the legislation that defines the scope of authority of an administrative agency." (Internal quotation marks omitted.) Nizzardo v. State Traffic Commission, supra, 259 Conn. 158. With regard to § 22a-19 intervention in an inland wetlands appeal, the Supreme Court held that "[§]22a-19 is not intended to expand the jurisdictional authority of an administrative body whenever an intervenor raises environmental issues. Thus, an inland wetland agency is limited to considering only environmental matters which impact on inland wetlands. Other environmental impacts must be raised before other appropriate administrative bodies, if any, or in their absence by the institution of an independent action pursuant to § 22a-16." (Emphasis in original; internal quotation marks omitted.) Waterbury v. Washington, 260 Conn. 506, 541, 800 A.2d 1102 (2002). Similarly, a zoning commission is limited to consider only environmental matters that are otherwise within its jurisdiction. The commission, therefore, could have considered environmental issues only to the extent that such authority is granted by the General Statutes.
General Statutes § 8-2(a) sets forth several environmental factors which zoning commissions may regulate, none of which include the protection of wetlands, wetland obligate species, or biodiversity. A zoning commission may not grant powers to itself beyond those provided under state law. "Under our law, a municipality, as a creation of the state, has no inherent powers of its own." Capalbo v. Planning Zoning Board of Appeals, 208 Conn. 480, 490, 547 A.2d 528 (1988). The commission, therefore, does not have jurisdiction to consider wetlands impacts, which are the province of the Groton inland wetlands agency.
The plaintiffs next argue that once an intervenor makes a prima facie showing that the project does or is reasonably likely to unreasonably impair the natural resources of the state, even if the potential harm is minimal, the commission may not authorize or approve such conduct if a feasible and prudent alternative exists. Relying on Waterbury v. Washington, supra, CT Page 6278 260 Conn. 508, the plaintiffs contend that once the plaintiffs make this showing, the burden of production shifts to the applicant to rebut this showing by submitting evidence to the contrary. They contend that the evidence and testimony presented by Mystic's experts, including reports by Jerome Carr, certified wetland scientist, Charles Meszoely, biologist and herpetologist and Richard Snarski, soil scientist show that the project is likely to have some environmental impact which needs to be mitigated, insofar as they all discussed various ways in which Mystic planned to minimize and mitigate environmental harm. They further argue that the record contains testimony and evidence, which was presented at the public hearing, that the project will unreasonably impair the natural resources of the area, the town and the state, insofar as the development area has been found to be one of the most significant and productive natural resource areas in Groton. They contend that the threshold to invoke CEPA is low because the statute is remedial and that they have met this threshold.
The plaintiffs also argue that the commission's finding concerning the special permit test of § 8.3-8(C) of the Groton zoning regulations is not supported by the record. They contend that § 8.3-8(C) requires the development not to have any negative impact on any environmental or natural resource areas on or adjacent to the site or within the neighborhood in order for a special permit to be issued, and that the evidence does not support a finding that there will be no such impact. They argue that the commission's decision, therefore, is arbitrary, illegal and must be overturned by the court. They further argue that because the evidence supports their position that the project will likely cause environmental harm, Mystic has the burden of demonstrating that no feasible and prudent alternative exists, which they failed to demonstrate. They contend that Mystic presented no evidence of alternatives and that the defendant commission admitted, in its approval, that it did not consider such alternatives because it found, contrary to the evidence, that the project does not, or is not reasonably likely to, have the effect of unreasonably polluting, impairing or destroying the public trust in the natural resources of the site, the surrounding area or the state. Moreover, they argue that the commission circumvented the requirements of the law by making its finding with regard to the application as conditioned, rather than as it was originally submitted.
Section 8.3-8 of the Groton zoning regulations provides in relevant part, that "[i]n evaluating a special permit the [z]oning [c]ommission . . . may prescribe reasonable conditions and safeguards to insure the accomplishment of the following objectives . . . C. That the location and size of such use, the nature and intensity of operations involved in connection therewith, and the site layout and development will not have a negative impact on any environmental and natural resource areas on or adjacent to the site or within the neighborhood." (Emphasis added.)
The defendants argue that the plaintiffs' argument concerning burden shifting incorrectly relies on cases decided under General Statutes §§ 22a-16 and 22a-17, which are not applicable to § 22a-19 intervention. They further argue that even if the plaintiffs' had met the low burden of proof that they claim to meet, the commission is not automatically required to consider feasible and prudent alternatives because Mystic has the ability to refute the plaintiffs' environmental claims. They argue that if those claims are refuted, then the commission does not need to consider feasible and prudent alternatives. They argue that the record contains substantial evidence that the project is not reasonably likely to cause environmental harm and that the commission, therefore, was not required to consider feasible and prudent alternatives.
Section 22a-19 provides in relevant part that "[i]n any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare." General Statutes § 22a-19(b). Accordingly, the commission was required to consider feasible and prudent alternatives only if it found that the project would be reasonably likely to cause unreasonable pollution, impairment or destruction of the natural resources within its jurisdictional limits. See Paige v. Town Plan Zoning Commission, 235 Conn. 448, 465, 668 A.2d 340 (1995). In this case, if the defendant commission's finding with regard to environmental impact is supported by substantial evidence in the record, then it would not have been required to consider feasible and prudent alternatives.
The record contains substantial evidence in support of the defendant commission's finding with regard to environmental harm. For example, in his report, Carr stated that "it is my professional judgment that, potential impacts to watercourses are insignificant relative to every function and value of watercourses." He made a similar finding with regard to the wetlands on site. He also stated, "Given the very low amount of actual watercourse and wetlands alteration, and the design of the detention basins to achieve and exceed the Best Management Practices (BMPs) recommended by the [department of environmental protection], downstream water quality changes will also be insignificant." Further, as the defendant commission notes, Snarski wrote in his letter dated May 28, 2003, "The wetland function of this site will not be altered by this development. There is minimal impact to the wetland function of this site. All BMPs are consistent with the objective of maintaining the wetland's function." He further reported that he does "not see anything in the design that will impact [the Atlantic White Cedars on site]. The Atlantic White Cedars are in the wetlands well west of any proposed activity." At the public hearing on May 7, 2003, Carr testified that "the flood control and the water quality best management practices are adequate to protect water quality and do satisfy the state standards for water quality protection . . . I don't anticipate any significant negative impact to Eccleston Brook or any downstream environment." He further testified that "we have altered the site layout and configuration so that it will not have a significant impact on natural resources on the site."
Evidence of mitigation of environmental impact does not support the plaintiffs' argument that the project will be harmful. Such evidence merely shows that efforts will be taken to minimize environmental harm. Moreover, the reference in § 22a-19 to "unreasonable harm" requires consideration of feasible and prudent alternatives only when potential harm would be "unreasonable." To interpret the statute otherwise would require the court to violate one of the basic canons of statutory interpretation that "[w]e ordinarily do not read statutes so as to render parts of them superfluous or meaningless." (Internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 37, 848 A.2d 418 (2004).
VI. CONCLUSION
For the foregoing reasons, the appeal is dismissed.
Joseph J. Purtill, JTR