Opinion
LNDCV176074096S
01-31-2018
Hendles, Inc. et al. v. Zoning Commission of the Town of Somers
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Berger, Marshall K., J.T.R.
MEMORANDUM OF DECISION
Berger, J.T.R.
I
On June 30, 2016, the plaintiffs, Hendels, Inc., and Somers Property, LLC, filed a site plan application with the defendant, the zoning commission of the town of Somers (commission), to construct a 4,000-square-foot convenience store and filling station at 589 Main Street at the intersection of Routes 83 and 190 in Somers. (Return of Record [ROR], Pleading [Pl.] #129.00, Item 11.) After conducting a public hearing on September 6, 2016, September 19, 2016, and October 17, 2016, the commission approved the application with modifications on November 28, 2016. (ROR, Pl. #124.00, Items 10a-10e.)
The property is located in a business (B)-zone and the use is permitted in the zone. (Return of Record [ROR], Pl. #124.00, Item 10a, p. 2.) According to the commission, Route 190 runs in an easterly to westerly direction and Route 83 runs in a northerly to southerly direction. (ROR, Pl. #107.00.) These roads do not intersect as a cross; the commission’s counsel describes it as an " off-set" intersection, i.e., " vehicles traveling north on Route 83 must turn right onto Route 190 before making a quick left-hand turn to continue north on Route 83."
The commission electronically filed some items in the record either as one page per pleading or one item per pleading and amended the record several times. For ease of reference, the court refers to the docket entry numbers or both the docket entry and item numbers where necessary.
On December 15, 2016, the plaintiffs commenced this appeal challenging a modification that prohibits vehicles from making any left hand turns into and out of the facility. On May 1, 2017, the commission filed the return of record, which was amended on May 2, 2017, May 10, 2017, and July 21, 2017. It also filed an answer on May 19, 2017. On June 8, 2017, the plaintiffs filed their brief, the commission filed its brief on July 21, 2017, and the plaintiffs filed a brief in reply on August 11, 2017. The court heard the appeal on October 5, 2017.
The plaintiffs also moved to supplement the record with an affidavit on August 11, 2017, to counter the suggestion that a traffic study was a required component of the site plan application. The court granted the motion on September 7, 2017.
II
As owner of the property, the plaintiff, Somers Property, LLC, is aggrieved. Handsome, Inc. v. Planning & Zoning Commission, 317 Conn. 515, 527, 119 A.3d 541 (2015) (" [i]t is well established that a party may be aggrieved for purposes of appeal by virtue of its status as a property owner" ); Bossert Corporation v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1968) (" [a]s the owner of the tract in issue, the plaintiff was certainly aggrieved by the action of the common council" ). Additionally, the co-plaintiff, Hendels, Inc., introduced evidence that it had a contract to purchase the property. " The general rule, which applies in the absence of a specific provision to the contrary, is that one who has contracted to purchase property has standing to apply for a special exception or a variance governing its use." Shulman v. Zoning Board of Appeals, 154 Conn. 426, 431, 226 A.2d 380 (1967). Accordingly, the court finds that both plaintiffs are aggrieved.
III
" A site plan is a plan filed with a zoning commission or other municipal agency or official to determine the conformity of a proposed building, use or structure with specific provisions of the zoning regulations. It is a physical plan showing the layout and design of a proposed use, including structures, parking areas and open space and their relation to adjacent uses and roads, and containing the information required by the zoning regulations for that use ... A zoning commission’s authority in ruling on a site plan is limited ... The agency has no independent discretion beyond determining whether the plan complies with the site plan regulations and applicable zoning regulations incorporated by reference ... A site plan and special permit application aid zoning agencies in determining the conformity of a proposed building or use with specific provisions of the regulations ... General Statutes § 8-3(g) sets out a zoning commission’s authority to act on a site plan application: A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland wetlands regulations." (Citations omitted; internal quotation marks omitted.) Fedus v. Zoning & Planning Commission, 112 Conn.App. 844, 847-48, 964 A.2d 549, cert. denied, 292 Conn. 905, 973 A.2d 104 (2009).
" A commission is not at liberty to ignore its existing regulations and to treat them as invalid ... When acting in a legislative capacity, a zoning commission is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change ... In contrast, when acting in an administrative capacity, a zoning commission’s more limited function is to determine whether the applicant’s proposed use is one which satisfies the standards set forth in the regulations and statutes." (Citations omitted; internal quotation marks omitted.) Id., 850.
" It is axiomatic that the review of site plan applications is an administrative function of a planning and zoning commission ... When a commission is functioning in such an administrative capacity, a reviewing court’s standard of review of the commission’s action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion." (Citation omitted; internal quotation marks omitted.) Gerlt v. Planning & Zoning Commission, 290 Conn. 313, 322, 963 A.2d 31 (2009).
" Judicial review of zoning commission determinations is governed by the substantial evidence standard, under which [c]onclusions reached by [the] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] ... The question is not whether the trial court would have reached the same conclusion ... but whether the record before the [commission] supports the decision reached ... If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board ... If there is conflicting evidence in support of the zoning commission’s stated rationale, the reviewing court ... cannot substitute its judgment as to the weight of the evidence for that of the commission ... The [commission’s] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) St. Joseph’s High School, Inc. v. Planning & Zoning Commission, 176 Conn.App. 570, 601, 170 A.3d 73 (2017).
IV
The plaintiffs argue that the commission was required to approve the site plan if it met all the regulations and that the applicable regulations do not refer to traffic. They also assert that the modification is illegal and arbitrary and unsupported by substantial evidence. Specifically, they point out that a member of the public at the end of the third day of the public hearing suggested the modification and that no evidence in support of it was introduced. They further assert that evidence supporting the modification was not mentioned in the commission’s deliberations.
The commission argues that its regulations allow it to request further information and to consider street congestion. Additionally, the commission asserts that substantial evidence supports its decision. It argues that several members of the public testified during the public hearing about the difficulty of making left hand turns at the intersection and about accidents. It asserts that the former bank on the property had a driveway onto Route 83 for egress only. It emphasizes that modification is not the same as denial and that both traffic experts believed that most people would be turning right. Further, it posits that the imposition of the modification is proper because it effects internal circulation.
In the plaintiffs’ brief in reply, they argue that traffic congestion is irrelevant to the approval of a permitted use and that the regulations that the commission relies on as justification for considering traffic are too generic. Further, they assert that the commission is obliged to credit the uncontroverted expert testimony.
A
The first issue is whether the commission could impose the modification as part of its site plan approval. " The designation of a particular use of property as a permitted use establishes a conclusive presumption that such use does not adversely affect the district and precludes further inquiry into its effect on traffic, municipal services, property values, or the general harmony of the district." Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 443, 418 A.2d 82 (1979). Nevertheless, review of traffic concerns may be appropriate under the applicable regulations. See Friedman v. Planning & Zoning Commission, 222 Conn. 262, 267, 608 A.2d 1178 (1992) (allowing review under " regulation dealing with the placement of entrances and exits so as to minimize the disturbance of existing traffic flow" ); but see TLC Development, Inc. v. Planning & Zoning Commission, 215 Conn. 527, 532, 577 A.2d 288 (1990) (holding that commission could not base denial of plaintiff’s site plan application on offsite traffic considerations because " the general objectives [of the regulations] are to serve solely as the basis for requiring a modification of the proposed site plan" ). " The net result is that the site plan cannot be denied because of off-site traffic conditions, but the commission can control the exits and entrances from the site onto the public highway if the regulations permit it in order to minimize the disturbance to existing traffic flow." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015) § 33:5, pp. 289-90.
Section 214-101(B)(17) of the zoning regulations of the town of Somers (regulations) provides that a zoning permit and site plan application shall include " [s]uch additional information as required by the Commission or its desigiated agent, where it is necessary to determine that the requirements of these Zoning Regulations are met." (ROR, Pl. #123.00, pp. 73-74.) Additionally, § 214-101(C) provides that " [t]he Commission or its designated agent may require the applicant to submit additional information if it finds that such information is necessary or would be helpful in determining whether the proposed building, structure or use conforms to these regulations." (ROR, Pl. #123.00, p. 74.)
The pages of the regulations are not numbered. Thus, the court refers to the page numbers of this pleading (#124.00) throughout this memorandum of decision.
These regulations are broad and do not specifically mention traffic. Nevertheless, Article XVIII, is entitled, " Administration and Enforcement." (ROR, Pl. #123.00, p. 72.) Within Article XVIII, § 214-10, entitled " Zoning permit and site plan approval," subsection (B)(7) requires that the application contain " [t]he location and name of any Town or state street, road or highway which passes through or adjoins the lot or, if no such street, road or highway passes through or adjoins the lot, the entire route of vehicular access to the lot from such a street, road or highway." (ROR, Pl. #123.00, p. 73.) Additionally, subsection (B)(9) requires that the application identify " [t]he location of any existing or proposed driveway. (A driveway permit is required before any driveway may be constructed or altered.)" (ROR, Pl. #123.00, p. 73.) Section 214-1 references General Statutes § 8-2 indicating that the regulations were adopted " more specifically for the following purposes: (1) To protect and promote the public health, safety, welfare, convenience and property values, (2) To lessen congestion in the streets ..." (ROR, Pl. #123.00, p. 3.)
By comparison, § 214-102, entitled, " Special use permit," sets forth specific traffic related requirements. (ROR, Pl. #123.00, pp. 76-81.)
In the plaintiffs’ brief at footnote 57, they acknowledge that " under the rule of TLC Development [v. Planning & Zoning Commission, supra, 215 Conn. 527], these general objectives permit the modification of a site plan but not the denial ." (Emphasis in original.) The plaintiffs argue, however, that the left hand turn restriction is tantamount to a denial.
As acknowledged, the court in TLC Development held that " [a]s a ‘general objective,’ such a consideration could not serve as the basis for denying the plaintiff’s application but could only have served as a reason for requiring a modification." Id., 533. Moreover, the regulations, particularly § 214-10(B)(7), gives the commission the authority to control the exits and entrances from the site onto the public highways presumably to minimize the disturbance to existing traffic flow. See Friedman v. Planning & Zoning Commission, supra, 222 Conn. 267. Therefore, the commission may examine exits and entrances and impose certain traffic related modifications.
B
1.
As the commission has the authority to impose the modification, the second issue is whether the record contains substantial evidence to support the commission’s modification in light of the experts’ testimony concerning traffic issues. On the first night of the public hearing, David Sullivan of Milone & MacBroom presented the traffic impact study covering traffic flow and other related concerns. Unlike the previous bank which had exit access only onto Route 83, the proposed business would have two driveways with full access to and from Routes 83 and 190. (ROR, Pl. #124.00, Item 10a, p. 11.) The commission’s traffic expert, Scott Hesketh, testified to the appropriateness of the traffic study. (ROR, Pl. #124.00, Item 10a, p. 26.) In terms of the two driveways, he indicated that Milone & MacBroom " conducted a capacity analysis for the site driveways and both of the driveways will operate at acceptable levels of service based on the directional distribution which they presented." (ROR, Pl. #124.00, Item 10a, p. 28.) He stated, " [O]ur review of the application indicates that ... the traffic report was prepared consistent with current engineering design practices. They used the appropriate reference materials. And we have no concerns with the recommendations or conclusions expressed in the application." (ROR, Pl. #124.00, Item 10a, p. 30.) In connection with the review by the state department of transportation (department), he noted, " [W]e’ve got a driveway to each roadway today. We’re going to continue to have a driveway to each roadway. There hasn’t been any demonstrable accident experience at those locations to indicate that the movements are unsafe at any of those locations. So although it’s possible they could make such a recommendation, they would probably need something to base it upon in order to do so. So it’s likely they would review the plan and approve it in its general state. Again, they make some small recommendations or they may be thinking about something that we haven’t thought of and something may come out of left field. But it’s possible." (ROR, Pl. #124.00, Item 10a, p. 33.)
In response to a question from commission member Karl Walton about expanding the driveway access to and from Route 83, Hesketh replied, " [T]he good thing about that is that the driveway is located on the leg of the intersection moving away from the intersection. So right turns and left- right turn movements in and out of the driveway would not be a concern because of the traffic should be free flowing in that direction. They are moving the driveway farther away from the intersection to provide more stacking distance for the light." (ROR, Pl. #124.00, Item 10a, p. 34.) When Walton noted that this driveway was being moved [o]nly feet further away," Hesketh stated that " the provision of two driveways on either side of the intersection, in my opinion, makes for better traffic flow for customers because it, again, this is a convenience type of use, you tend to make a right hand turn in and right hand turn out ... So for traffic disbursement and moving the traffic, you know, rather than concentrating all of the existing movements of one driveway, to spread them out with the two would provide a better level of service and help to spread the traffic out so there’s less of an impact on either roadway in my opinion." (ROR, Pl. #124.00, Item 10a, pp. 34-35.)
Approximately eighteen residents spoke against the proposal mainly based upon traffic concerns and frustration over the need for a stop light. (ROR, Pl. #124.00, Item 10a, pp. 36-82.) Fran Golden voiced her concerns about the volume of traffic at the intersection, the waiting times to a make a left hand turn and the problems that would be caused by a motorist making a left hand turn into the station. (ROR, Pl. #124.00, Item 10a, pp. 36-39.) Steve Kryzinski stated, " If you try to pull into that driveway from 83, you will stop all traffic that is in back of you traveling south because the road is not wide enough for another pass. The bank had that one way for a reason. Because you can’t turn into that road and not have all the traffic just back up there. If you do anything, you make this driveway one way. That is a real hazard." (ROR, Pl. #124.00, Item 10a, p. 47.) Tom Chilicki advised, " Don’t count the number of cars going up and down, because I agree with you, the number of cars isn’t going to increase, but the left turns, right turns and the volume of traffic going in and out of that gas station is going to be tremendously increased." (ROR, Pl. #124.00, Item 10a, p. 63.)
As the public hearing continued on September 19, 2016, Hesketh reported on the department’s preliminary signal plan and noted, " [B]asically, they are not doing any improvements to the roadway. They are doing improvements to the traffic signal itself" (ROR, Pl. #124.00, Item 10b, p. 17.) Hesketh detailed what the current traffic situation is for the intersection and what the department change of split phasing the traffic signals would mean for cars making left hand turns. (ROR, Pl. #124.00; Item 10b, pp. 24-25.) Specifically, he stated, " The revised state plan does separate the northbound and southbound approaches to the intersection. Where the Route 83 approach is currently today, they operate concurrently which means the northbound and southbound approaches go together, You heard a number of people in the public say it’s difficult to make a left hand turn because of the offset nature of the approaches. The state’s proposed plan is to provide a split phasing for the northbound and southbound approaches. So if you’re coming in a northbound direction, under the state’s new plan when you get a green light, you are the only traffic moving at that time. So there is no one coming in the southbound that can interfere with you. Conversely, if you’re traveling in a southbound direction, when you get a green indication, you are the only traffic moving so the northbound traffic is stopped at that time. So you will be able to go without anybody conflicting with you. It should make it easier to make those left hand turns which the public was concerned about." (ROR, Pl. #124.00, Item 10b, pp. 24-25.)
Hesketh continued, " [T]he incremental impact of this proposed development is the same whether or not these improvements are completed and the impacts are minimal under the very conservative analysis that they presented. So it’s going to be some increase in delay because there’s more traffic, there’s a new development, but the impacts are nearly identical whether the project moves forward or the project does not move forward." (ROR, Pl. #124.00, Item lob, p. 26.)
Approximately eight members of the public spoke concerning a number of topics ranging from snow removal to light pollution to hours of operation to the potential for criminal behavior. (ROR, Pl. #124.00, Item 10b, pp. 30-59.) Linda Lacasse expressed her concern that " [t]he intersection of Route 190 and Route 83 at the heart of our historic Somers center which is listed on the national historic registry has neither crosswalks nor sidewalks. It has contributed to a minimum of 51 car accidents since 2000. Two people have lost their lives in an attempt to cross the street; one person has been permanently disabled. The proposed gas station to be built at this deadly intersection poses an even more dangerous threat to life." (ROR, Pl. #124.00, Item 10b, p. 41.)
On the last night of the public hearing on October 17, 2016, many of the same residents continued to voice their concerns. Approximately twelve people expressed concerns ranging from impact on the wetlands to sale of cigarettes to the color of the canopy with very little mention of left hand turns. (ROR, Pl. #124.00, Item 10c, pp. 11-93.) Chilicki returned, however, to the topic of safety and the two driveways. He asked the " commission to improve the safety of that intersection based on the number of cars that will be coming in and out of the Henny Penny from both 190 and 83, modify the traffic pattern in and out of Henny Penny so that there are no left turns going into Henny Penny from either of those two roads or no left turns leaving Henny Penny onto those two roads. So that way if they are going out onto Turnpike Road, they can’t make a left turn and immediately be on top of that traffic light and the same thing is true coming down 190, crossing the traffic light and now waiting in line to make a left hand turn. Those are the two dangerous things that we’ve talked about so eliminating left hand turns into Henny Penny and leaving Henny Penny would greatly improve the safety of that intersection." (ROR, Pl. #124.00, Item 10c, pp. 94-95.) The commission closed the public hearing that evening. (ROR, Pl. #124.00, Item 10c, p. 101.)
On November 7, 2016, the commission met briefly on the application and continued its deliberations to November 28, 2016. (ROR, Pl. #124.00, Item 10d.) Walton indicated that left hand turns from both roads onto the property would block traffic. (ROR, Pl. #124.00, Item 10e, p. 5.) The commission discussed the left hand turn modification, among other modifications, with its attorney. (ROR, Pl. #124.00, Item 10e, pp. 5-9.) The commission unanimously approved the site plan with the modification " to show right turns in and out only from Route 83 and Route 190; reconfigure entrances and exits to be shown on site plan. Final design to be approved by town engineer." (ROR, Pl. #124.00, Item 10e, p. 53.)
The commission did not state its reasoning for the modification in its motion to approve the application. Consequently, the court must search the record for the basis of the commission’s decision. Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991) (" the failure of the zoning agency to give such reasons requires the court to search the entire record to find a basis for the commission’s decision" [internal quotation marks omitted] ).
2.
Traditionally, traffic congestion has been an area where commissioners may rely on their own personal knowledge. See Feinson v. Conservation Commission, 180 Conn. 421, 427, 429 A.2d 910 (1980) (" [w]e have in the past permitted lay members of commissions to rely on their personal knowledge concerning matters readily within their competence, such as traffic congestion and street safety" ); Dram Associates v. Planning & Zoning Commission, 21 Conn.App. 538, 542, 574 A.2d 1317 (" [e]xpert testimony on matters of traffic control ... is not required" ), cert. denied, 215 Conn. 817, 576 A.2d 544 (1990); Jenkins v. Planning & Zoning Commission of the Town of Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket Nos. CV-99-0162595-S and CV-99-0170006-S (February 1, 2001, Mintz, J.) (" [a]gency members may rely on their personal knowledge in some matters such as traffic congestion, street safety and similar matters which do not involve any special expertise" ). Significantly, " the consideration that applies to zoning applications is not the overall volume of traffic but whether the increase in traffic will cause congestion." Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, 73 Conn.App. 442, 470, 807 A.2d 1089, cert. denied, 262 Conn. 928, 814 A.2d 379 (2002); see also CMB Capital Appreciation, LLC v. Planning & Zoning Commission, 124 Conn.App. 379, 399, 4 A.3d 1256 (2010) (" while traffic problems and related safety concerns can be a valid reason for a denial ... there must be more than a traffic increase, and either traffic congestion or an unsafe road design at or near the entrances and exits from the site" [internal quotation marks omitted] ), cert. granted in part, 299 Conn. 925, 11 A.3d 150 (2011) (appeal withdrawn September 15, 2011). " Moreover, the significance of the impact should not be measured merely by the number of additional vehicles but by the effect that the increase in vehicles will have on the existing use of the roads. An increase of 100 vehicles per hour may have a negligible impact at one time or location and a ruinous impact another time or location." Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 434, 941 A.2d 868 (2008).
" An administrative agency is not required to believe any witness, even an expert ... Nor is an agency required to use in any particular fashion any of the materials presented to it as long as the conduct of the hearing is fundamentally fair." (Citations omitted.) Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980); see also Rinaldi v. Zoning & Planning Commission of the Town of Suffield, Superior Court, judicial district of Hartford, Docket No. CV-87-0331492-S (July 6, 1990, Corradino, J.) (" if the question is, given evidence in the record raising this issue and adequate notice, can the commission, relying on its personal knowledge, reject the conclusion of the plaintiff’s expert regarding traffic safety, the answer is an obvious yes" ). Nevertheless, the Supreme Court has also held that " [a]lthough the commission would have been entitled to deny an application because it did not believe the expert testimony, however, the commission had the burden of showing evidence in the record to support its decision not to believe the experts- i.e., evidence which undermined either the experts’ credibility or their ultimate conclusions." (Emphasis in original.) Kaufman v. Zoning Commission, 232 Conn. 122, 156-57, 653 A.2d 798 (1995); see also Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 296, 947 A.2d 944 (2008) (" [w]e previously have stated that decision makers for an administrative body may not disregard competent expert testimony and rely, without more, on their own knowledge of ‘technically sophisticated and complex’ issues on which they ‘have not been shown to possess expertise’ " ); Gevers v. Planning & Zoning Commission, 94 Conn.App. 478, 486, 892 A.2d 979 (2006) (" [u]nless presented with evidence that undermines either the credibility or the ultimate conclusions of an expert, the commission must credit expert testimony" ).
Given this case law, the present case illustrates the sometimes difficult course interested parties must chart in procuring a land use permit. Are the designs and operations of driveways onto heavily trafficked state roads technically complex issues? Can a commission simply disregard the opinions of traffic experts and impose modifications not proposed by the experts? Can the commission do so without finding that the experts are not credible- or without other some basis? Can lay commissioners make their decision based on their knowledge of the area in contravention of the experts’ opinions? Are the comments or petitions of hundreds of residents- however well meaning- legally sufficient to make a land use determination or impose a modification? Perhaps it is time to revisit the deference to commissions where traffic safety matters are involved.
In the present case, the commission admits in its brief at page eighteen that traffic congestion and levels of service at the intersection " are technically complex issues that require expert testimony" and it is undisputed that the commission had no expert testimony to controvert the plaintiffs’ expert. Indeed, both the plaintiffs’ and the commission’s traffic experts concluded that the two driveways would not cause more congestion or traffic safety issues. Yet members of the public with anecdotal evidence offered testimony of traffic safety concerns leading the commission to prohibit left turns. Other than the comments of Golden, Kryzinski and Chilicki, the record lacks evidence to support the left hand turn only restriction or to explain how the restriction would make the intersection less congested or safer. There is also no indication that the commissioners did not believe the traffic experts and the commission points to no evidence which undermines the experts’ credibility or their conclusions. Of course, " the record ... includes the knowledge of the board members gained through personal observation of the site ... or through their personal knowledge of the area involved." (Internal quotation marks omitted.) Timber Trails Associates v. Planning & Zoning Commission, 99 Conn.App. 768, 783, 916 A.2d 99 (2007). Nevertheless, personal knowledge or observation of the area is not enough here given that these were, as admitted by the commission, " technically complex issues that require expert testimony." See Rural Water Co. v. Zoning Board of Appeals, supra, 287 Conn. 296.
Further, in Rosemary Costanzo Trust v. Planning & Zoning Commission of the Town of Branford, Superior Court, judicial district of New Haven, Docket No. CV-16-6060514-S (January 25, 2017, Robinson, J.) , the court stated that the commission " should consider the unanimity of the opinions of traffic experts, in making findings regarding the affect of a plan on traffic. See, Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, [supra, 73 Conn.App. 469-70] ([i]t was error for the Commission to conclude that the plan would adversely affect traffic, when both the applicant’s expert and an independently retained expert agreed that the plaintiff’s plan would have minimal effect on traffic safety and operation)." With facts somewhat similar to this case, the court held, " While it appears that neither the Traffic Study, nor the testimony of either Traffic Expert directly addressed Wilford Avenue, the plaintiffs fail to present authority for the proposition that this renders the traffic evidence flawed. The plaintiffs did not present expert testimony or case law to support their argument. Instead, they urge this court to rely simply on the concerns raised by neighbors who owned property on Wilford Avenue and on representation of plaintiffs’ counsel that the studies were flawed. This court cannot do that. In Bethlehem the court concluded that ‘comments of residents regarding the dangers of ... additional trips ... are based on speculation and do not rise to the level of substantial evidence.’ ... [Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, supra, 472.] Therefore, this court concludes they form an insufficient basis for the [commission] to have denied the site plan application; the substantial evidence supported the [commission’s] approval of the plan." Rosemary Costanzo Trust v. Planning & Zoning Commission of the Town of Branford, supra, Superior Court, Docket No. CV-16-6060514-S.
Additionally, " [a]s [the Supreme Court] aptly explained in the analogous context of a trial: A trial court cannot conclude the opposite of testimony it rejects where there is no evidence to justify that opposite conclusion. Nor can it arbitrarily disregard, disbelieve or reject an expert’s testimony in the first instance ... Where the trial court rejects the testimony of a plaintiff’s expert, there must be some basis in the record to support the conclusion that the evidence of the [expert witness] is unworthy of belief." (Internal quotation marks omitted.) Loring v. Planning & Zoning Commission, 287 Conn. 746, 759, 950 A.2d 494 (2008).
The present case is not a simple matter of traffic congestion; indeed, there is no dispute that the intersection is congested. Nevertheless, the prohibition on left hand turns needed to be based upon some evidence to warrant it. The issue is technically complex and commissions should make such determinations based on more than anecdotal information or their own personal knowledge. See id., 760 (" [a]lthough we are mindful that commission members may rely on personal knowledge, their views must be based on facts known to them rather than on speculation" ). Thus, the record lacks substantial evidence to support the commission’s modification.
Furthermore, " [t]he public has the right to know and test the sufficiency of the facts upon which a commission bases its action." Dram Associates v. Planning & Zoning Commission, supra, 21 Conn.App. 543. " If ... the commission relies on its special knowledge outside the scope of that of an ordinary trier of fact, it must afford the plaintiff a fair opportunity to respond ... The sparsity of reliable evidence in this record is underscored by the fact that the commission, in relying on its own knowledge and experience, acted in a manner which placed its data base beyond the plaintiff’s scrutiny. Nowhere in the public hearing, or at any other time and place, was the plaintiff afforded a fair opportunity to hear the commission’s fears and to attempt to allay them ... If an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience, to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative proceedings ." (Citation omitted; emphasis in original; internal quotation marks omitted.) United Jewish Center v. Brookfield, 78 Conn.App. 49, 57-58, 827 A.2d 11 (2003). In the present case, the record indicates that the plaintiffs were not given the opportunity to discuss or to rebut the basis for the modification as it was suggested shortly before the close of the public hearing.
C
Finally, the commission argues that the modification was integral to its decision and that its site plan approval is void if the modification was unlawful. See Reid v. Zoning Board of Appeals, 235 Conn. 850, 858, 670 A.2d 1271 (1996) (" we have held that if a zoning board would have refused to grant a variance without a particular condition, the condition is an integral part of the variance" ). The plaintiffs counter that the modification was not integral and that the imposition of a void modification does not necessarily render the commission’s decision void. See Beckish v. Planning & Zoning Commission, 162 Conn. 11, 18, 291 A.2d 208 (1971) (" [t]he imposition of the void conditions does not necessarily render the whole decision illegal and inefficacious" ).
" [If] the board lacked the authority to impose the contested condition, it may be revoked, set aside and declared to be void and of no force ... The imposition of a void condition, however, does not necessarily render the whole decision illegal and inefficacious. If the decision is otherwise supported by sufficient grounds as found by the board, a modification of the decision may be decreed with a view toward ending further litigation ... On the other hand, [w]here a condition, which was the chief factor in the granting of an exception, is invalid, the exception must fall ... This court has reasoned that a condition imposed by a zoning authority is severable, from a variance that is otherwise valid, if the removal of the condition would in no way destroy the value or effectiveness of the variance ... On this basis, we have held that the dispositive consideration is whether the condition was an ‘integral’ part of the zoning authority’s decision to grant the variance and, if so, the variance, even if valid in all other respects, cannot be upheld." (Citations omitted; internal quotation marks omitted.) Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 65-66, 574 A.2d 212 (1990).
In the present case, the commission discussed many aspects of the site plan, such as snow storage and the photometric plan, during its deliberative session on November 7, 2016. (ROR, Pl. #124.00, Item 5d.) There was no mention of safety, congestion or the need for the left hand turn restriction. On November 28, 2016, the commission discussed the restriction, but the transcript indicates that some of the recording was unintelligible. (ROR, Pl. #124.00, Item 5e, pp. 6-9, 39-44, 53.) Based upon this record, the court cannot determine whether the modification was integral to the commission’s approval.
Accordingly, the matter is remanded to the commission to make a determination as to whether the modification was integral in approving the site plan such that it would not have been granted without the modification. General Statutes § 8-8(1). The commission shall file its decision and the parties shall contact the court to schedule further proceedings not inconsistent with this memorandum of decision.