Opinion
No. CV03 08 34 79
September 8, 2004
MEMORANDUM OF DECISION
This is an administrative appeal from a final decision of the defendant, Oxford planning and zoning commission (commission), denying the plaintiff's application for a special permit for regrading and excavating.
The plaintiff, Hawkstone Associates (Hawkstone), owns property known as Hawkstone Terrace (premises) located in the town of Oxford. The premises are situated in residence districts A and D single-family residential zoning districts. Pursuant to Article 10 and Article 14 of the Oxford regulations, the plaintiff applied to the commission for an excavation permit for major regrading and excavation. A public hearing for the application was held on August 7, 2003, and continued on August 21, 2003, September 4, 2003, September 18, 2003 and October 2, 2003 when it closed. (Return of Record, [ROR], Items 20, 30, 41, 44.) On October 2, 2003, the commission held a regular meeting where the plaintiff alleges that the commission "took further testimony from the general public on the application. On that date, the commission denied the plaintiff's application with prejudice. (ROR, Item 44). Thereafter, the plaintiff appealed from the commission's denial of the special permit to the Superior Court, and the appeal was tried to this court on July 9, 2004.
General Statutes § 8-8 governs an appeal taken from a decision of a planning and zoning commission to the superior court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
"[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.) Harris v. Zoning Commission, CT Page 13341 259 Conn. 402, 409, 788 A.2d 1239 (2002). Aggrievement is a factual issue. See Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001). An owner of the subject property is aggrieved and entitled to bring an appeal. See Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).
The burden of proving aggrievement rests with the plaintiff. See Quarry Knoll II Corp. v. Planning and Zoning Commission, supra, 259 Conn. 702. A plaintiff may prove title to the subject property "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Id., 703.
In the present appeal, the plaintiff alleges that it is aggrieved because it is the owner of the property involved in the decision. The plaintiff has submitted a certified copy of a warranty deed evincing its ownership in the subject property. (Plaintiff's Exhibit 1.) The court finds that the plaintiff has properly pleaded and proven aggrievement for the purpose of bringing this appeal.
General Statutes § 8-8(b) provides, in part, that an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." Section 8-8(f) further provides that service "shall be made 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." "It is well established that within the context of administrative appeals, defects in service of process deny the court subject matter jurisdiction over the appeal." Gadbois v. Planning Commission, 257 Conn. 604, 607, 778 A.2d 896 (2001).
The record indicates that notice of the commission's decision concerning the plaintiff's application was published in the Voices on October 10, 2003. (ROR, Item 45, Answer, First Count ¶ 4.) The plaintiff commenced this appeal on October 23, 2003 by service of process upon the town clerk of Oxford, Margaret Potts, and the chairman of the commission, David Robinson. The plaintiff made timely service of process upon the proper parties.
"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 . . . 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; footnote omitted; internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 215-17, 779 A.2d 750 (2001).
The 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, 244 Conn. 619, 627-28, 711 A.2d 675 (1998). "[O]n factual questions . . . a reviewing court cannot substitute its judgment for that of the agency . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given. (Citations omitted; internal quotation marks omitted.) Id., 629.
The plaintiff appeals on the ground that the commission acted illegally, arbitrarily and in abuse of its discretion. Specifically, the plaintiff alleges that: (1) the commission took testimony from the general public after it closed the hearings; (2) the plaintiff produced sufficient evidence to warrant a finding that the application should be granted; (3) the commission failed to state upon the record the reason for denying the requested application in violation of General Statutes § 8-7; (4) the commission's decision deprived the plaintiff of his property rights and of the reasonable use and enjoyment of his property without due process of the law; (5) the commission's denial of the plaintiff's application is not supported by the record; and (6) the commission failed to give due consideration and weight to the expert evidence proffered by the plaintiff.
The first contention advanced by the plaintiff is that the commission improperly took testimony from the general public after it closed the public hearing. The plaintiff contends that it did not have an opportunity to rebut this additional information. According to the plaintiff, the commission's acceptance of this prejudicial information requires reversal of the commission's decision.
The commission concedes that at the regular meeting on October 2, 2003, two members of the public addressed the commission regarding the plaintiff's application. The commission argues there is an issue as to whether the statements to the commission were evidence regarding the application. The commission contends that the statements concerned an enforcement issue rather than statements concerning the application. The commission also contends that there is no indication the commission considered the comments in acting upon the application. Further, the commission argues that even if they were considered by the commission, they were not stated as a reason for the denial of the permit and therefore, were nonprejudicial.
The record reveals that after the close of the public hearings at a regular meeting on October 2, 2003, two members of the public spoke to the commission. The minutes state the following: "Eugene Rourke of 14 Hawkstone Terrace introduced himself and stated that one item has not been brought up for the Hawkstone Associate's project. That is at the very beginning of the property there is a waste dump consisting of old cars, parts, household waste, etc. He stated that he has contacted the State and the EPA on this matter; however, nothing has been done. He explained that in the winter it smells like old gasoline and varnish. Vice Chairman Vizzo explained that his best avenue would be the State and the EPA.
David Grillo of 12 Hawkstone Terrace introduced himself and wished to give a quick overview of the area. He explained that the children in the neighborhood are not teenagers. He began to explain the width of Hawkstone Terrace; however, Vice Chairman Vizza interrupted explaining that the Commission cannot consider that information as the public hearing [had] been closed. Mr. Grillo understood and stated that there are too many gravel pits along Roosevelt Drive." (ROR, Item 44.)
"[Connecticut] law clearly prohibits the use of information by a municipal agency that has been supplied to it by a party to a contested hearing on an ex parte basis." (Emphasis in original.) Norooz v. Inland Wetlands Agency, 26 Conn.App. 564, 569, 602 A.2d 613 (1992). A commission may not consider evidence submitted by an applicant following the close of a public hearing without guaranteeing the right to opponents to cross-examine witnesses and inspect documents. Pizzola v. Planning Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974). The improper receipt of such evidence, however, does not automatically render a commission's decision void. See Blaker v. Planning Zoning Commission, 212 Conn. 471, 481 n. 5, 562 A.2d 1093 (1989).
"In the context of ex parte communications, the appropriate inquiry regarding prejudice to the appellant's right must focus on whether the agency's decision making process was irrevocably tainted so as to make the ultimate judgment of the agency unfair . . . Such a determination necessarily involves consideration of the role the ex parte communication played in the agency's decision." (Citations omitted; internal quotation marks omitted.) Martone v. Lensink, 207 Conn. 296, 306, 541 A.2d 488 (1988). Once an ex parte communication has been established, a rebuttable presumption of prejudice arises. Henderson v. Department of Motor Vehicles, 202 Conn. 453, 458, 521 A.2d 1040 (1987). The burden of showing that the prohibited ex parte communication has not resulted in prejudice shifts to the agency. Blaker v. Planning Zoning Commission, supra, 212 Conn. 476-80.
Here, it was not a party, but members of the public who made statements to the commission. The Supreme Court has concluded that claims involving ex parte communications generated by members of the public do not void the decision of the agency. See Nielsen v. Zoning Board of Appeals, 152 Conn. 120, 123, 203 A.2d 606 (1964) ("[w]e do not think that, on the record before us, the ruling of the board should be voided for impropriety although we strongly condemn the misguided zeal of those who sought to communicate with one of its members"). In First Hartford Realty Corp. v. Planning Zoning Commission, 165 Conn. 533, 545, 338 A.2d 490 (1973), the Supreme Court held that "[e]ven if the reception of the post-hearing evidence was illegal . . . it was at most harmless error because the action of the commission is adequately supported by assigned reasons not based on the allegedly tainted evidence."
In this case, there is no indication from the record that the information supplied to the commission was from a party or that the information received by the commission tainted the proceedings before the commission. Moreover, the record reveals that the commission did not view the comments as pertaining to the application. Additionally, it is clear from the chairman's comments that the commission could not consider any information after the close of the hearing. Further, as will be discussed, there is ample evidence in the record, independent of these comments, to support the commission's decision to deny the plaintiff's permit application. See First Hartford Realty Corp. v. Planning Zoning Commission, supra, 165 Conn. 545; see also R. Fuller, 9A Connecticut Practice Series; Land Use Law and Practice (Second Edition) § 47.4, p. 446 (1999). The court therefore finds that the plaintiff's appeal should not be sustained on this ground.
The court will address jointly several of the plaintiff's arguments, including the argument that it produced sufficient evidence to warrant a finding that the application should be granted and that the commission's denial of the plaintiff's application is not supported by the record. The plaintiff argues that the "zoning regulation referred to by the Board in its decision contains a laundry list of requirements to be met by an applicant for this special exception to be granted," and that the plaintiff's evidence meets this list. In support of this argument, the plaintiff asserts that there was no expert evidence against the application, rather the plaintiff's expert evidence indicated that it had met all the requirements for the special exception. Lastly, the plaintiff asserts that the commission failed to state upon the record the reason for its decision as required by General Statutes § 8-7.
The commission responds by pointing to its reasons for denying the plaintiff's application. The commission contends that the plaintiff admits, through its own representations, that the application does not comply with the requirements cited by the commission.
The minutes of the regular meeting on October 2, 2003 reveal that the commission denied the permit with prejudice because the premises did not meet the following zoning regulations: Article 14, Sections 1.5, 3.10 and 3.15, and Article 10, Sections 3.1 and 3.2. Where, as here, the commission, as required by statute, has stated reasons for its decision, this 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).
The court notes that, contrary to the plaintiff's argument, the commission has sufficiently stated upon the record the reasons for its decision.
Article 14 of the zoning regulations for the town of Oxford concerns earth regrading and excavation. Section 1.5, entitled "Regrading in Conjunction with Site Plans," provides that the commission may approve regrading provided that certain conditions are met. Subsection 1.5A requires that the final grades "reflect the minimal disturbance to the property that would be required to achieve the purpose of development." Subsection 1.5B requires that the final grades "reflect the minimum amount of fill required to be brought onto the site, or the minimum amount of material to be removed from the site, which is necessary to achieve the proposed development." Subsection 1.5C allows the removal of more than 5,000 cubic yards of material from the site without obtaining a special exception, provided that the commission determines that all other conditions of Article 14 have been met and the proposed excavation activity "will have no negative impacts upon the natural environment, nearby properties or traffic circulation."
The plaintiff's application for an excavation permit sought approval for the removal of 88,000 cubic yards of earthen material from 3.2 acres of a 15.71-acre parcel. (ROR, Item 5; Item 20, p. 3.) "The purpose of the removal was to create a suitable area for future residential building." (ROR, Item 20, p. 3.)
The commission's stated reason that the premises do not comply with the subject regulations is reasonably supported by the record. At the public hearing on August 7, 2003, the commission inquired of the plaintiff's representative, Michael H. Horbal (Horbal), as to the purpose of removing 87,000 cubic yards from the site. In response, Horbal stated "[t]he reason for removing the 87,000 yards is to create a buildable suitable building site in this area, in the middle of the proposed excavation." (ROR, Item 20, p. 12.) The dialogue continued as follows: "[Commission: Okay. Are you presenting at this time that the lot is not suitable for a building? Horbal: No. Portions of the lot are suitable, but they are too small for the desires of the property owner . . . [Commission]: In other words, is this the minimum amount necessary to meet the buildable land required? Horbal: This is the minimal, minimum amount of land needed to meet the owner's desires." (Emphasis added.) (ROR, Item 20, p. 15.)
At the public hearing on August 21, 2003, Horbal stated: "So if you look at the zoning questions, particularly do we have enough room to build a house on slopes 20 percent or less . . . The answer is yes . . . [W]e have 23,000 square feet of area within the little red dashed line here where we would build the house. And, then using the proposed grading, we would then come up to approximately 39,000 square feet." (ROR, Item 32, p. 28.)
The commission's stated reason that the premises does not comply with the subject regulations is further supported by the record. Section 3 of Article 14 allows the commission to grant a special exception provided certain conditions and requirements have been met. The commission cited subsection 3.10 as a reason for the denial of the application, which states that "[t]hat the proposed truck passage will not create safety or traffic hazards." The commission also cited section 3.2 of Article 10, which provides that "the proposed use, buildings, or other structures are adequate to carry the potential traffic and . . . that no traffic hazards will be created . . ."
The record demonstrates that the members of the public complained, inter alia, that the traffic implications of the proposed project would be unsafe and undesirable. (ROR, Item 20, pp. 19-21.) According to a traffic study completed by Bubaris Traffic Associates on behalf of the plaintiff, the excavation "may be completed in about 31 weeks, i.e.: 35 truckloads per day, but depending on demand, may extend to 52 weeks, i.e.: 21 truckloads per day." (ROR, Item 20, p. 8.) Horbal, the plaintiff's representative, even recognized that the truck traffic emanating from the proposed site was a "main concern." (ROR, Item 43, p. 13.) The potential traffic problems discussed in the record further support the commission's decision.
Section 3.1 of Article 10 requires that "the proposed use, buildings or other structures will not be detrimental to the health, safety, welfare and property values in the neighborhood." A member of the public expressed concern that the significant removal of dust would affect the health of neighbors. (ROR, Item 20, pp. 23.) Another member of the public complained of potential damage to the road due to the pressure of dirt trucks traveling on it. (ROR, Item 20, p. 25.) Also of concern was the depth of excavation which could allegedly contaminate the wells surrounding the premises. (ROR, Item 20, p. 25.)
Lastly, the plaintiff's argument that the commission failed to give due consideration and weight to the expert evidence proffered by the plaintiff is misplaced. It is well established that "an administrative agency is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair." Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 542, 525 A.2d 940 (1987). Given this principle, the commission was within its discretion to consider and weigh any expert evidence, and to evaluate the credibility of witnesses. See Lawrence v. Kozlowski, 171 Conn. 705, 708, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066 (1977).
In reviewing the record as a whole, the court finds that the evidence substantially supports the commission's decision to deny the excavation permit.
The plaintiff further appeals the denial of the permit on the ground that "the commission's decision deprived the plaintiff of his property rights and of the reasonable use and enjoyment of his property without due process of the law." The plaintiff argues that the zoning regulations have a confiscatory effect on its property because the lot will be "unusable" and "unbuildable" if it is not granted the permit. In support of this argument, the plaintiff cites, inter alia, Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 365 A.2d 387 (1976).
In response, the commission asserts that the plaintiff's arguments should be rejected because its own representations at the public hearing demonstrate that "the property in its current state is in compliance with all requisites necessary for the erection of a single-family residence without the necessity of major regrading/excavation." According to the commission, the plaintiff's only claim is that it "desires a larger buildable area."
In Chevron Oil Co. v. Zoning Board of Appeals, supra, 170 Conn. 151, the Supreme Court determined that a practical taking of a property justifying a variance requires that a regulation "permanently [restrict] the use of land for any reasonable purpose . . ." According to the record, the plaintiff has not demonstrated a practical taking because it has the option to develop the premises for residential purposes. For example, as conceded by the plaintiff's representative, the lot is suitable for a building without the proposed excavation, but the lot is too small "for the desires of the property owner." (ROR, Item 20, p. 12); see supra Part B. Moreover, the plaintiff's representative conceded that the plaintiff currently has 23,000 square feet to build a house. (ROR, Item 32, p. 28); see supra Part B. Thus, as reflected in the record, the claim of confiscation is unfounded. The court therefore finds that the plaintiff's appeal should not be sustained on this ground.
Based on the foregoing reasons, the plaintiff's appeal is dismissed. The commission did not act illegally, arbitrarily or in abuse of its discretion when it denied the plaintiff's application for a permit.
Judgment may enter accordingly.
THE COURT
CURRAN, J.