Opinion
No. FST CV 05 4005671 S
November 9, 2006
MEMORANDUM OF DECISION
STATEMENT OF APPEAL
The plaintiffs appeal from the decision of the defendant, the New Canaan Zoning Board of Appeals (hereinafter "ZBA"). The defendant denied the plaintiffs' appeal from a decision of the New Canaan Planning and Zoning Commission (hereinafter "PZC") granting a permit to the defendant Gen Three, LLC (hereinafter referred to as "defendant applicant"), owner of property at 73 Grove Street, New Canaan, to operate a veterinary clinic at that location.
BACKGROUND
Defendant applicant owns property at 73 Grove Street, New Canaan. The property in question is .57 acres upon which is located a two-story frame house. The property is located within Business Zone A. (R.O.R. 3.) In a supplement to its application, defendant applicant proposed a "small veterinary clinic" for the site. Such a clinic was limited to "medical in nature; the practice will not maintain a boarding or grooming facility at the site." (R.O.R. 3.) "The clinic will be low volume, and the clients are scheduled by appointment." (R.O.R. 3.) Defendant applicant provided drawings of proposed uses for each floor in addition to a parking plan. (R.O.R. 3.) No exterior changes or interior expansions were proposed and no variances requested. PZC Inspector Hiram Peck referred the application to the PZC which ordered a public hearing to consider its merits. A public hearing was conducted by PZC on January 25, 2005 after which the application, with two modifications was approved unanimously. (R.O.R. 12.) The two modifications were:
1. Overnight boarding of animals on any kind of routine basis is not permitted at this location. Emergency boarding of surgical or other patients only is permitted.
2. The Commission reserves the right to require additional modifications to the building at anytime in the future, specifically including additional soundproofing as may be needed so that the veterinary clinic does not cause any adverse impact or disturbance to surrounding property owners. (R.O.R. 12.)
Based upon the PZC decision, a zoning permit was issued by Inspector Peck to defendant applicant. On February 17, 2005, the plaintiffs appealed the PZC decision to the ZBA. Two public hearings on this matter occurred on May 2 and June 6, 2005. On June 6, 2005, the ZBA approved the application by unanimous vote. The ZBA did not formally state the reasons for its decision. The plaintiffs appealed the ZBA's decision to the Superior Court which conducted a hearing on July 11, 2006.
JURISDICTION
General Statutes § 8-6(a)(1) grants to the ZBA the power and duty "[t]o hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by" the PZC. General Statutes § 8-7d allow an aggrieved party of appeal decisions of the ZBA to the Superior Court.
A. Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409 (2002). Each of the plaintiffs have established to the Court's satisfaction (and the defendants offered no evidence to the contrary) that they are aggrieved parties in that their properties either abut or lie in close proximity to defendant applicant's property which is the subject of this appeal. (Aggrievement Hearing, Exhibits 1-4 and R.O.R. 60.)
B. Timeliness and Service of Process
General Statutes § 8-8(b) provides, in part, that an "appeal shall be commenced by service of process in accordance with subsection (f) and (g) of this section within fifteen days from the date that the notice of the decision was published as required by the general statutes."
In the present appeal, the defendant ZBA's decision to uphold the defendant applicant's permit was published in The New Canaan Advertiser on June 16, 2005. (R.O.R. 47.) On July 1, 2005, this appeal was commenced by service of process by leaving a true and attested copy of the original appeal, recognizance and citation at the original place of abode of Carroll Yanicelli, chairperson of the ZBA and in the hands of Michael J. Franco, Esq., statutory agent for service of Gen Three, LLC.
The court finds (and the defendants presented no evidence to the contrary) that the appeal is timely and that the proper parties were served.
C. Scope of Review
[A] Court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer [or in the present case, the decision of the PZC, court note], but on the decision of the board and record before the board." Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82 (1993). "[T]he zoning board hears and decides such an 'appeal' de novo, and . . . the action of the zoning enforcement officer [or in the present case the action of the PZC, court note] that is the subject of the appeal is entitled to no special deference by the court." Caserta v. Zoning Board of Appeals, Id., 88-89.
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the [board's] decision . . . Rather the court should determine only whether the assigned grounds are reasonably supported by "the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420 (2002). "Where a zoning board of appeals does not formally state the reasons for its decision, however, the trial court must search the record for a basis for the board's decision." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208 (1995).
The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal. R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470 (2001). "It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) R R Pool Patio, Id. "Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." Wood v. Zoning Board of Appeals, 258 Conn. 691, 698 (2001).
DISCUSSION 1. Was the application sufficiently complete for the issuance of a zoning permit?
The defendant applicant submitted two documents as his application for a zoning permit, a one-page document entitled "Planning and Zoning Commission Application for Zoning Permit" (R.O.R. 2) and a five-page document entitled "Application for Veterinary Clinic 73 Grove Street New Canaan, CT." (R.O.R. 3.) Within the application was the proposed use for the pre-existing structure, interior plans regarding the placement of tables and cabinets as well as an exterior plan showing the placement of 7 pre-existing parking spaces in relation to the structure. No changes in the footprint or demolition were contemplated. No modification or expansion of the exterior was proposed.
The plaintiffs claim a number of deficiencies in the submitted application as required by New Canaan Zoning Regulations (see § 60-3.3(B)(C)(G)(H), § 60-3.4(A)(B)(C), § 60-3.6(B)(C)(D)(E)(F) and § 60-22.4(A)(B)(D)(E)). The plaintiffs also claim non-compliance with proper notification of nearby property owners pursuant to § 60-3.16.
Upon review of the entire record, this court determines that the ZBA could reasonably conclude that the requirements of § 60-3.3 were satisfied by the defendant applicant's submission of R.O.R. 2 and R.O.R. 3. In addition, as no request was made to erect or expand the exterior or interior gross floor area or alter the exterior of the structure in question pursuant to § 60-3.5, the ZBA could reasonably conclude that no site plan was required, thereby rendering § 60-3.4 and § 60-3.6 inapplicable. Furthermore, the ZBA could reasonably conclude that no hearing of the PZC was "required" and therefore the requirements of § 60-22.4 and § 60-3.16 were inapplicable. This court concludes "that the information provided to the commission provided a substantial basis to approve" the defendant applicant's submission. Woodburn v. Conservation Commission of the Town of Redding, 37 Conn.App. 166, 179 (1995). It should be also noted that the plaintiffs do not claim lack of notice for the "de nova" hearing of the ZBA which occurred on May and June 2005. Even if one accepts, for purposes of argument, that the plaintiffs were entitled to notice of the PZC hearing, the subsequent trial before the ZBA was sufficient remedy and gave the plaintiff's adequate opportunity to be heard.
2. Was the application for a use permitted in a Business Zone A? CT Page 20885
Although undefined by zoning regulations, the term "animal hospitals" is utilized § 60-4.1(A)(8) to preclude their establishment in residential zones. This is the only use of the term "animal hospitals" in the regulations of the town of New Canaan. As a result they are not specifically included or excluded in § 60-10-1 which establishes Business Zone A. The court notes the language of § 60-10.1(A) which in part states: "The purpose of this district is to provide areas for single-purpose shopping and services which require on-site parking facilities." The regulation suggests "[a]utomotive services, drive-in banking and certain professional and personal services which often represent a special-purpose trip" as "appropriate uses in this area." § 60-10-1(E) further allows for the establishment of "medical, dental or similar health-oriented facilities . . ." The terms "medical," "dental" or "similar health-oriented facilities" are undefined in the zoning regulations.
The regulations must be interpreted so as to reconcile their provisions and make them operative as far as possible. (Internal citations omitted.) When one or more construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results. (Internal citations omitted.) Planning and Zoning Committee v. Gilbert, 208 Conn. 696, 706 (1988).
The Court cannot find as a matter of law that the ZBA acted in an unreasonable, arbitrary or illegal fashion in allowing the defendant applicant to operate a veterinary clinic as opposed to a veterinary hospital/boarding establishment.
The record reveals the ZBA considered whether a veterinary clinic fell within the term "similar health-oriented facilities." Without a definition within the regulations to provide guidance, the Board considered the fact that the proposal limited the hours of operation and examinations to an appointment basis. Furthermore, after-hours emergencies were to be referred elsewhere. Also no boarding or grooming services would be available. Two cages maintained inside the building would be available on those non-routine occasions when an animal recovering from a medical procedure would require an overnight stay. (R.O.R. 55.) The ZBA also considered the fact that practitioners of animal medicine must receive a medical license issued by the Department of Public Health, be supervised by the State of Connecticut and maintain certain professional standards. (R.O.R. 56.) The ZBA also considered that the proposed use is ". . . still 15-minute visits with the same amount of people going in and out. They're not . . . the intensiveness of the use is the same whether it's a medical office — a human medical office or a veterinary clinic." (R.O.R. 56.) Lacking a definition of "medical" or "health-oriented" services, the sum of these factors allowed the ZBA to determine that the request came within the scope of professional services relating to health-oriented facilities.
"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." Oakridge/Rogers Avenue Realty, LLC v. Planning and Zoning Board, 78 Conn.App. 242, 247 (2003). A review of the record fails to convince this court that the issuance of a permit to the defendant applicant was in any way contrary to the letter or the spirit of the zoning regulations of the Town of New Canaan. The court is satisfied that the ZBA could reasonably conclude that the defendant applicant's submission fell within the purview of § 60-10.1 of the regulations.
3. Were conditions imposed upon the permit by the ZBA which mandate reversal of its decison?
The first condition purports to limit boarding of animals only to surgical or other patients who require emergency overnight stays. The plaintiffs contend such a modification is beyond the authority of the ZBA. The defendant applicant does not object to the condition. The Court finds that the condition neither modifies nor engages in the legislating of zoning regulations. In fact, it is a condition that restates § 60-10-1(E) as it applies to the defendant applicant. The board reemphasized that as a "medical" or "similar health oriented facilit[y]," the defendant applicant cannot engage in non-health oriented activities such as boarding or grooming; common non-medical activities of traditional animal hospitals.
The second condition purports to reserve to the ZBA the right to order sound-proofing if the issue of noise from animal patients becomes an issue in the future. The defendant applicant does not oppose this condition. The plaintiffs again contend the condition is integral to the permit and therefore an abuse of the ZBA's discretionary authority, notwithstanding the defendant applicant's position.
The court fails to find any authorization within the regulations that allows for such conditions to be attached to a zoning permit (as opposed to a special permit). The defendant applicant as well as the town's attorney concede as much in their briefs and argue that the conditions are severable from the permit. If the defendant applicant is entitled by right to operate a medical clinic in Zone A, the ZBA cannot without statutory authority attach conditions to that permit.
The court's inquiry does not end upon the finding that the ZBA has abused it's authority by imposing conditions; the question then is whether the two conditions are so integral to the permit as to render them inseparable. If they are integral and inseparable from the permit, then the permit must be revoked as the product of the ZBA's abuse of discretion.
While conditions imposed upon a permit are presumed to be integral, "[w]here illegal conditions are attached to a special permit, the question on appeal is whether an illegal condition is severable from the permit." Floch v. Planning and Zoning Commission, 1993 Ct.Sup. 8379, 8388 (Fuller, J., October 14, 1993). A principal purpose of the conditions was to address the concerns of numerous homeowners from the adjacent residential zone relating to potential noise from barking dogs. (R.O.R 55, 56.) Limited as that possibility is under these circumstances, it can hardly be said that these conditions are "significant" in the words of Fuller, J. Floch v. Planning and Zoning Commission, id. As such the Court finds they are not integral to the permit itself.
Trial courts have severed similar conditions enacted without statutory authority and designed to address neighborhood concerns:
A permit to operate a gas station was sustained but without statutory authority, commission imposed restrictive conditions including a limit on hours of operation were severed in Kenyon Oil Company v. Planning and Zoning Commission, No. CV 385324, (Munro, J., November 25, 1996) ( 18 Conn. L. Rptr. 392).
Approval for a subdivision was sustained but conditions involving the placement of plantings and restricting the placement of a driveway so as to limit potential visual, noise, auto exhaust and light pollution for an adjoining neighbor were severed as improper exercises of board discretion. Cook v. Planning Board, No. CV 04-0199726, (Dooley, J, July 19, 2005).
The ZBA had no authority to attach conditions to the permit. By doing so the ZBA acted unreasonably, arbitrarily and illegally. This court, however, having found the conditions to be non-integral, adopts a similar philosophy as enunciated in Kenyon Oil and Cook and concludes the conditions are severable from the permit issued to the defendant applicant.
CONCLUSION
The court sustains the permit issued to the defendant applicant. The two conditions attached to the permit are hereby severed.