Opinion
No. TTD-CV-05-4002528
June 15, 2006
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiff, The Home Selling Team, LLC (Home Selling Team), through its principals, Brian and Kathy McCarthy, appeal from the decision of the defendant, the town of Mansfield Planning and Zoning Commission, approving, with conditions, the plaintiff's application for a special permit.
II BACKGROUND
Pursuant to Article V, Section B of the Mansfield zoning regulations, the plaintiff applied to the commission for a special permit on January 13, 2005. (Return of Record [ROR], Item 4.) In its special permit application, the plaintiff sought to build two 3,000 square foot commercial buildings to add to the existing 1,624 square foot commercial building on its property at 452 Storms Road, also known as Route 195, in Mansfield, Connecticut. (ROR, Item 4.) The property is located on the east side of Route 195 to the south of Bassetts Bridge Road, near the intersection of these two roads within an area zoned as "neighborhood business 2 zone." (ROR, Item 4.) Currently, the property has a driveway entering and exiting the property on Route 195. (ROR, Item 4.) The plaintiff's proposed plans included development of an additional driveway to and from Bassetts Bridge Road. (ROR, Item 4.)
A package store is located at the southeast corner of the intersection of Route 195 and Bassetts Bridge Road and is bounded by the plaintiff's property to the south and east. (ROR, Item 4.) The plaintiff's property is south of the package store on Route 195 and runs east along Bassetts Bridge Road approximately 180 feet beyond the lot of the package store so that the plaintiff's property has frontage on both Route 195 and Bassetts Bridge Road. (Supplemental ROR [Supp. ROR], Item 3A.)
The special permit application was accepted by the commission at its meeting on January 18, 2005, and a public hearing was set for March 7, 2005. (ROR, Items 1, 2 and 3.) The plaintiff alleges, and the commission admits, that notice of the public hearing was published. (Complaint, ¶ 3; Answer, ¶ 1.) On March 7, 2005, a public hearing was held, which was continued to March 21, 2005. (ROR, Items 23, 24 and 25.) On March 21, 2005, the public hearing was closed after all presentations. (ROR, Items 34, 35 and 36.) The commission began to discuss the application at its regular meeting on April 4, 2005, and the discussion was continued at the commission's regular meeting on April 18, 2005. (ROR, Items 41, 42, 43, 46, 47 and 48.) On May 2, 2005, the commission discussed a draft of the conditions of approval. (ROR, Items 50 and 51.) At this meeting, a commissioner moved to approve the special permit application with several conditions; the motion was seconded and unanimously passed. (ROR, Item 51.) The contested conditions required that the driveway on Route 195 be closed, that the only driveway to the property be located on Bassetts Bridge Road and that primary signage for the property be placed on Bassetts Bridge Road with secondary signage on Route 195. (ROR, Items 51 and 53.)
The commission imposed a total of twelve conditions on the plaintiff (ROR, Item 53.) These conditions are largely irrelevant to this appeal because the plaintiff's complaint only contested conditions five and eleven requiring the closing of the Route 195 driveway and the placement of primary signage for the property on Bassetts Bridge Road with secondary signage on Route 195. See footnote 6 of this memorandum.
The plaintiff alleges, and the commission admits, that the notice of approval of the application was published on May 9, 2005. (Complaint, ¶ 7; Defendant's Answer [Answer], ¶ 1; ROR., Item 52.) Pursuant to General Statutes § 8-8, the plaintiff commenced this appeal by service of process on the commission's chairperson and Mansfield's town clerk on May 23, 2005. (Marshal's Return.) This appeal was filed with the court on May 26, 2005. On August 29, 2005, the commission filed an answer and return of record. The parties filed briefs. The appeal was heard by this court on February 28, 2006, at which time the commission, without objection, also filed a supplemental return of record consisting of five additional items.
The return of record contains a copy of the notice, but the pleadings and the record do not indicate the name of the publication or include an affidavit of publication. (ROR, Item 52.)
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. An owner of property that is the subject of an application is aggrieved for the purpose of bringing an appeal and a plaintiff may prove aggrievement at the time of trial. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).
In the present case, the parties stipulated at trial to facts concerning the plaintiff's ownership of the subject property. As a result the court finds that the parties have stipulated to facts from which it may find that the plaintiff is aggrieved.
It should be noted that Home Selling Team is the named plaintiff in this appeal. Home Selling Team is also the applicant according to the special permit application, but the owners of record of the property are Brian and Kathy McCarthy. (ROR, Item 4.) The plaintiff's brief maintains, however, that Brian and Kathy McCarthy are the applicants and the principals of Home Selling Team. (Plaintiff's Brief, p. 1.)
B Timeliness and Service of Process
General Statutes § 8-8(b), in relevant part, provides, "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 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. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court."
General Statutes § 8-8(f)(2) further provides that "[f]or any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57. Such service shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal."
General Statutes § 52-57(b)(5) provides, in relevant part, that "[p]rocess in civil actions against the following-described classes of defendants shall be served as follows . . . against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
The plaintiff alleges, and the commission admits, that the notice of approval of the application was published on May 9, 2005. (Complaint, ¶ 7 and Answer, ¶ 1.) The plaintiff caused process to be served upon the commission, care of both the Mansfield town clerk, upon whom two copies were served, and the chairman of the commission at his place of abode on May 23, 2005. (Marshal's return.) Thus, the proper parties were served in a timely manner.
See footnote 3 of this memorandum.
IV STANDARD OF REVIEW
General Statutes § 8-2(a) provides, in relevant part, that local zoning regulations "may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values." "The terms special permit and special exception have the same legal import and can be used interchangeably . . . 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." (Internal quotation marks omitted.) Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 73 Conn.App. 442, 459, 807 A.2d 1089, cert. denied, 262 Conn. 928, 814 A.2d 379 (2002). "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." (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 217, 779 A.2d 750 (2001).
"In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." (Internal quotation marks omitted.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 669, 894 A.2d 285 (2006). "[I]n reviewing the actions of an administrative agency, [a court] is not permitted to substitute its judgment for that of the agency or make factual determinations on its own." (Internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record." (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, supra, 258 Conn. 221.
"[W]here an exception or a special permit is granted and the grant is otherwise valid except that it is made reasonably conditional . . . its issuance will not be held invalid solely because of the existence of any such condition . . . Thus, conditions attached to a special permit are not per se invalid. Rather, their validity must be determined on a case-by-case basis. A key determinant in whether a condition to a special permit is valid is that condition's relationship to the action sought by the applicant." (Citation omitted; internal quotation marks omitted.) Kobyluck v. Planning Zoning Commission, 84 Conn.App. 160, 170-71, 852 A.2d 826, cert. denied, 271 Conn. 923, 859 A.2d 579 (2004).
"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 commission'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, 788 A.2d 1239 (2002). "The [decision] must be sustained if even one of the stated reasons is sufficient to support it." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995). In reviewing the conclusions of a zoning authority, "[c]ourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions." (Internal quotation marks omitted.) DeBeradinis v. Zoning Commission, 228 Conn. 187, 199 n. 7, 635 A.2d 1220 (1994).
In the present case, the commission acted in an administrative capacity when it approved the plaintiff's special permit. See Heithaus v. Planning Zoning Commission, supra, 258 Conn. 217. Therefore, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record. Id., 221. This court must decide the validity of the conditions attached to the approval of the plaintiff's special permit. See Kobyluck v. Planning Zoning Commission, supra, 84 Conn.App. 170-71. As discussed in detail below, the commission stated the reasons for the conditions it imposed. (ROR, Item 53.) Thus, the court must determine if the reasons given are supported by the record and are relevant to the commission's decision. Harris v. Zoning Commission, supra, 259 Conn. 420. If even one of the stated reasons is sufficient to support the commission's decision, it must be sustained. Bloom v. Zoning Board of Appeals, supra, 233 Conn. 208.
V DISCUSSION
As a preliminary matter, the plaintiff set forth four grounds for its appeal. (Complaint, ¶ 9.) Specifically, the plaintiff alleges that "[t]he [c]ommission's decision was based upon factors other than those it could legally consider . . . [t]he [c]ommission's decision was contrary to, and not supported by the testimony and evidence presented to it at the [p]ublic [h]earing . . . [t]he [c]ommission's decision was contrary to the Connecticut General Statutes governing same . . . [t]he [c]ommission's decision was contrary to the zoning regulations of . . . Mansfield." (Complaint, ¶ 9.)
The plaintiff's complaint did not cite a specific statute or regulation that the commission allegedly violated. In its brief, the plaintiff did not argue that the commission's decision violated any General Statutes or the town's zoning regulations. Additionally, although the plaintiff contests condition eleven dealing with the property's proposed signage in its complaint, the plaintiff made no arguments about this in its brief.
"[The Supreme Court is] not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . These same principles apply to claims raised in the trial court." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). Therefore, because the plaintiff has not briefed these arguments, it has abandoned these arguments, and the court does not address them.
The commission granted approval of the plaintiff's special permit application because it was "considered to be in compliance with Article V, Section B and other provisions of the Mansfield [z]oning [r]egulations." (ROR, Item 53.) As previously set forth, General Statutes § 8-2(a) provides, in relevant part, that local zoning regulations "may provide that certain classes or kinds of buildings, structures or uses of land permitted only after obtaining a special permit . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values." To this end, Article V, § B.5 of the Mansfield zoning regulations sets forth the approval criteria for special permits and incorporates Article V, § A.5, which contains the approval criteria for site plan applications. (ROR, Item 54, pp. 19-20, 25.) Specifically. Article V, § A.5.e requires that the commission find that "vehicular and pedestrian access to the property and egress from the property and internal vehicular and pedestrian traffic patterns are safe and suitable and have been designed to maximize safety and avoid hazards and congestion." (ROR, Item 54, p. 20.) Article V, § B.6 authorizes the commission to "stipulate additional conditions and safeguards that are deemed necessary to protect and promote property values, the area's environment, better overall neighborhood compatibility and improved site development." (ROR, Item 54, p. 25.) "Such conditions and safeguards may include . . . (e.) [r]egulation of number, design and location of access drives . . ." (ROR, Item 54, p. 25.)
The commission cited these regulations when it approved the plaintiff's special permit but imposed conditions on the plaintiff. (ROR, Item 53, p. 1.) The contested condition requires the plaintiff to close the property's current driveway on Route 195 so that the property may only be accessed from the new driveway on Bassetts Bridge Road. (ROR, Item 53, p. 1.) In its letter to the plaintiff, the commission stated that its reason for the condition is "concern about potential vehicular and pedestrian traffic safety impacts along Route 195 . . ." (ROR, Item 53, p. 1.) The commission further explained the condition as "necessary to approve the subject application and has been included pursuant to provisions of Article V, Sections B.5 and B.6 [of the town's regulations] . . . due to the proximity of the Route 195/Bassetts Bridge Road intersection, which is a [d]epartment of [t]ransportation-identified high-accident location; the high volumes of traffic on Route 195; the limited width of Route 195 and the lack of turning or by-pass lanes at the proposed driveway location and concern that a linkage between Route 195 and Bassetts Bridge Road would create an unsafe pass-through traffic pattern." (ROR, Item 53, p. 2.)
In approving the special permit with the condition, the plaintiff claims that the commission acted arbitrarily, illegally and abused its discretion. The plaintiff's complaint alleges that the commission's decision is not supported by the evidence and testimony presented to it at the public hearing and that the commission improperly considered factors other than those it could legally consider. Specifically, the plaintiff argues that: (1) the proximity of the property to a supposed high accident intersection is not supported by the record; (2) the commission improperly considered traffic volume instead of traffic congestion; (3) the commission's stated concern about the width of Route 195 was contradicted by the department of transportation's approval of the plaintiff's development; and (4) there was evidence that the property's development would not create a pass-through traffic pattern.
This court will not "[indulge] in a microscopic search for technical infirmities in [the commission's] actions." (Internal quotation marks omitted.) See DeBeradinis v. Zoning Commission, supra, 228 Conn. 199 n. 7. Because the commission stated the reasons for the condition it imposed, this court must 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.) See Harris v. Zoning Commission, supra, 259 Conn. 420. Accordingly, the court will search the record to determine whether it contains substantial evidence overall to support the reasons given by the commission when it imposed the condition at issue. See Heithaus v. Planning Zoning Commission, supra, 258 Conn. 221.
A
The plaintiff argues that condition five, requiring the closing of the existing driveway to and from Route 195, is not supported by the evidence because the proximity of the property to a supposed high-accident intersection is not supported by the record. The plaintiff contends that the intersection of Route 195 and Bassetts Bridge Road is not a hazardous intersection.
The plaintiff's permit plan map illustrates that the current driveway on Route 195 is approximately 75 to 100 feet from the intersection of Route 195 and Bassetts Bridge Road (intersection). (Supplemental ROR [Supp. ROR.], Item 3A.) The plaintiff's crash review, dated March 17, 2005, documents at least twenty-nine accidents that occurred on Route 195 between Mountain and Cemetery Road — a stretch of road approximately 1,500 feet long that includes the intersection — from June 30, 2001 to June 30, 2004. (ROR, Item 33, p. 2, Table 1; Supp. ROR, Item 2.) During the same time period, the crash review further shows that at least fifteen accidents occurred in the intersection. (ROR, Item 33, Traffic Accident Tables for Route 195 from 3.28 to 3.28.) As a result, the intersection is on the "suggested list of surveillance study sites" of the Connecticut Department of Transportation, indicating that a higher number of accidents have occurred at the intersection than anticipated. (ROR, Item 8, Traffic Evaluation, p. 2; Item 33, p. 1.) The plaintiff does not dispute that the intersection appears on the department of transportation's list. (Plaintiff's Brief [PL's Br.], p. 8.) Furthermore, the plaintiff, speaking through one of its principals, Brian McCarthy, also publicly recognized that Route 195 "has a set of problems and accidents . . ." (ROR, Item 36, p. 10.)
The crash review states that "only the accidents that result in death, injury or property damage in excess of $1,000 are required to be reported." (ROR, Item 33, p. 1.)
Additionally, the resident state police troopers' office "recognized this intersection as having a noticeable number of accidents." (ROR, Item 26, p. 1.) At the public hearing and by letters to the commission, local residents also expressed their concerns about traffic safety at the intersection. (ROR, Item 25, pp. 12-14, comments of Johnny Robertson, Henry Schone and Meg Reich; ROR, Item 30, Letter of David Dorwart.) Indeed, the 1993 plan of development for the town of Mansfield emphasizes the need for safety improvements "along Route 195, particularly near the Bassetts Bridge Road . . . intersection." (Supp. ROR, Item 5, pp. 163-65.)
The record also demonstrates that the commissioners were personally aware of the safety concerns at the intersection and that this awareness informed the commission's decision. (ROR, Item 25, p. 7, comments of Commissioner Holt; ROR, Item 36, p. 6, comments of Commissioner Hall; ROR, Item 43, pp. 2-3, comments of several commissioners; ROR, Item 48, p. 3, comments of Commissioner Plante; ROR, Item 51, p. 6, comments of Commissioner Gardner.) Specifically, at the commission's regular meeting on May 2, 2005, Commissioner Kochenburger stated, "Due to the concerns we've all expressed and just our basic knowledge of [Route] 195, the number of curb-cuts on that road and the proximity of Bassetts Bridge, this draft motion proposes eliminating the curb-cut on 195, with the possible exception of emergency vehicles." (ROR, Item 51, p. 1.)
"It is well established that lay members of a commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety, traffic congestion or local property values . . . If, however, 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." (Citation omitted.) United Jewish Center v. Brookfield, 78 Conn.App. 49, 57, 827 A.2d 11 (2003). In the present case, the commissioners appear to have relied on their personal knowledge, at least in part, with regard to street safety — a matter readily within their knowledge. Furthermore, it does not appear that the commission relied on any special knowledge outside the scope of an ordinary trier of fact.
Despite this evidence, the plaintiff argues that the commission should not require the closing of the Route 195 driveway because the plaintiff's crash review concluded that the proposed development would have "little effect on safety at this location." (ROR, Item 33, p. 2.) "[A]n 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." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 597, 628 A.2d 1286 (1993). Similarly, the commission was not required to use the plaintiff's crash review in any particular manner or to believe the conclusion of the review.
The plaintiff further argues that the commission should not impose the condition requiring the closing of the Route 195 driveway because the conclusion of the crash review is supported by "town employees," namely Grant Meitzler, the assistant town engineer, and by the department of transportation's approval of the plaintiff's plans. The record reveals that Meitzler expressed an intent to recommend approval of the plaintiff's special permit application and that the department of transportation approved the plaintiff's plans in a letter dated April 12, 2005. (ROR, Items 32 and 45.) Nevertheless, "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) DeBeradinis v. Zoning Commission, supra, 228 Conn. 200. Additionally, research does not reveal, and the plaintiff does not cite to, any authority for the proposition that the department of transportation's approval is conclusive upon the decisions of the commission.
Moreover, evidence in the record belies the plaintiff's argument as to the support of "town employees." For example, in a memorandum to the commission dated March 3, 2005, Gregory Padick, the town planner, indicated that "[t]he proposed driveway to Bassetts Bridge [Road] is considered an essential element of the project, due to the amount of traffic on [Route] 195 and the proximity of the existing drive to the intersections of Storrs and Bassetts Bridge Roads." (ROR, Item 19, p. 2.) Additionally, Meitzler, in a memorandum to the commission, dated March 7, 2005, noted that "the [r]esident [s]tate [p]olice [t]rooper's office . . . comment is that . . . driveway movements on Route 195 are . . . important with respect to accidents." (ROR, Item 26, pp. 1-2.) In another memorandum from Padick to the commission, dated March 15, 2005, Padick recognized that issues of "[t]raffic and parking approval criteria involve [commission] judgments" and that "traffic-related issues raised by the public need to be addressed to the [commission's] satisfaction." (ROR, Item 29, p. 1.) Padick reiterated this in his March 29, 2005 memorandum to the commission. (ROR, Item 40.)
Regardless, Meitzler's opinion and the department of transportation's approval do not refute the fact that the plaintiff's property is near an intersection that is on the department of transportation's "suggested list of surveillance study sites" because a higher number of accidents have occurred at the intersection than anticipated. (ROR, Item 8, p. 2; Item 33, p. 1.) Moreover, this court "is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 470. In sum, the commission did not act improperly in rejecting the conclusion of the crash review and by imposing the condition requiring that the Route 195 driveway be closed based on the safety-related evidence that was presented, the testimony that was heard and the personal knowledge of the commissioners. The court finds that the record does not support the plaintiff's claim that the property is not in proximity to a dangerous intersection and that the commission properly imposed the condition requiring the closing of the existing driveway to and from Route 195.
B
The commission also considered traffic in making its decision. The plaintiff argues that in taking into account the traffic the commission improperly considered volume instead of traffic congestion. The plaintiff maintains that the two traffic studies, the traffic evaluation, dated January 12, 2005; (ROR, Item 4); and the crash review, dated March 17, 2005; (ROR, Item 33); are "substantial evidence [that] satisfies the applicant's burden of showing that traffic congestion was not a problem."
The two traffic studies do not address, however, the issue of traffic volume or the congestion on Route 195. The traffic evaluation estimates that ninety-two vehicles will enter and exit the plaintiff's property on the weekdays, with fifteen entering and seventy-two exiting during peak evening hours, and provides that "[c]urrent operational observations of this traffic signal suggest . . . there is significant capacity to accept additional vehicles at this location." (ROR, Item 4, Traffic Evaluation, p. 2.) The crash review only details the accidents occurring in and around the intersection. (ROR, Item 33.) Therefore, the two traffic studies do not constitute substantial evidence concerning existing traffic congestion on Route 195 and, as stated in the previous section, the commission was not obligated to adopt the conclusions of the traffic studies.
Nevertheless, "[t]he 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). The commission gave "high volumes of traffic on Route 195" as one of the reasons for the condition requiring the closing of the Route 195 driveway. (ROR, Item 53, p. 2.) Evidence in the record illustrates, however, that congestion, not mere volume, was an issue and that an increase in traffic would cause more congestion.
For example, the plaintiff's traffic evaluation recognized that "[a]t times, queues from the intersection, extend beyond the site driveway, decreasing the ability of a patron to readily exit/enter the site." (ROR, Item 4, Traffic Evaluation, p. 2.) To minimize this concern, the evaluation notes the importance of encouraging the use of the new driveway on Bassetts Bridge Road instead of the existing driveway on Route 195. (ROR, Item 4, Traffic Evaluation, p. 2; ROR, Item 26, p. 1.) The plaintiff also acknowledged in its brief that the two traffic studies were submitted because it was known that traffic would be a concern. (Pl.'s Br., pp. 2-3.)
Additionally, several residents testified about the existing traffic. (ROR, Item 25, pp. 13-14, comments of Johnny Robertson and Henry Schone; ROR, Item 30, Letter of David Dorwart; ROR, Item 36, p. 8, comments of Gary Robinson.) Specifically, Meg Reich, a resident of Bassetts Bridge Road and "a planner by profession," explained that "traffic backs up a couple of times a day up all the way to [Route] 89 north of here and can back up a considerable distance south of here." (ROR, Item 25, p. 14.) She also stated that she personally counted "hundreds" of "semi-tractor-trailer trucks" a day using these roads as a "shortcut between [Route] 6 and Mansfield and the University of Connecticut" adding to the existing traffic situation. (ROR, Item 25, p. 14.)
Route 89, also known as Warrenville Road, is approximately 2,000 feet north of the Route 195 and Bassetts Bridge Road intersection. (Supp. ROR, Item 2.)
The commission also received a memorandum, dated March 1, 2005, from the Mansfield design review panel commenting that the "[d]riveway from [Route] 195 can be a traffic problem." (ROR, Item 18.) As stated above, the town planner noted in a memorandum to the commission that the Bassetts Bridge Road driveway was essential to the approval of the special permit because of the amount of traffic on Route 195. (ROR, Item 19, p. 2.)
Furthermore, the members of the commission were personally aware of the traffic problems. (ROR, Item 25, p. 7, comments of Commissioner Holt; ROR, Item 43, pp. 2-3, comments of several commissioners; ROR, Item 48, pp. 1, 3, comments of several commissioners; ROR, Item 51, pp. 1, 6, comments of Commissioner Kochenburger and Commissioner Gardner.) On November 9, 2004, members of the Mansfield Inland Wetland Agency (agency) and members of the commission visited the property "to observe [the] site and neighborhood characteristics." (Supp. ROR, Item 4.) Commissioner Plante, a member of both the commission and the agency, initially suggested that the only entrance and exit to the property be located on Bassetts Bridge Road to "eliminate the queuing on 195" at the commission's regular meeting on April 4, 2005. (ROR, Item 43, p. 7; Supp. ROR, Item 4.)
As noted above, "[i]t is well established that lay members of a commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety, traffic congestion or local property values . . . If, however, 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." (Citation omitted.) United Jewish Center v. Brookfleld, supra, 78 Conn.App. 57. In the present case, nothing in the record indicates that the commission relied on any special knowledge outside the scope of that of an ordinary trier of fact. Traffic congestion was readily within the commission's knowledge and the commissioners had discretion to rely on this personal knowledge. Moreover, this court "is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) RR Pool Patio, Inc v. Zoning Board of Appeals, supra, 257 Conn. 470. Thus, given the plaintiff's own admissions, the testimony of local residents, the memoranda of Mansfield employees and the personal knowledge of the commissioners, substantial evidence exists in the record for the commission to impose the condition of closing the Route 195 driveway based upon traffic congestion. As a result, this court finds that there is no record support for the plaintiff's assertion that the commission improperly considered traffic volume instead of traffic congestion.
Related to traffic safety and congestion, the plaintiff contests two additional reasons given by the commission when it imposed condition five. One of the reasons was that the width of Route 195 is limited and there is a lack of bypass lanes in the area of the plaintiff's property, i.e., space for vehicles to drive around other vehicles that are making turns to avoid queuing. (ROR, Item 53, p. 2.) The plaintiff argues that the width of Route 195 was not a valid concern because of the department of transportation's approval of the plaintiff's plan and because the width of the road is beyond the plaintiff's control. The evidence in the record suggests that the commission considered the narrowness of Route 195 as part of the safety and traffic concerns that were presented. (ROR, Item 48, pp. 2-4.) The narrowness of the road contributes to congestion because vehicles cannot get around other vehicles attempting to make turns, which results in queuing. (ROR., Item 25, p. 14; ROR., Item 26, p. 2; ROR, Item 48, pp. 2-4.)
The second reason was that the commission was concerned that allowing driveways at both Route 195 and Bassetts Bridge Road would create a "pass-through traffic pattern," i.e., vehicles would be driven through the plaintiff's property using the driveways to avoid the intersection. (ROR., Item 53, p. 2.) The plaintiff argues that "it is unreasonable to assume that people would pass through at all, let alone in an unsafe manner." Evidence in the record suggests, however, that "pass-through" traffic patterns are common in the area.
For example, Meg Reich, a resident and a planner, testified, "What you're effectively creating here is a ring-road system . . . Already, when traffic's backed up on [Route] 195, enough of the local people, and even temporarily local people know to go into what is now Roma's Restaurant and circumvent the traffic light and come out this way . . . [I]f you approve this application, [you] would be doing the exact same thing." (ROR, Item 25, p. 14.) She further noted, "A similar situation exists with the Post Office." (ROR, Item 36, p. 8; see also ROR, Item 39, p. 2.) Other local residents also expressed similar concerns. (ROR, Item 25, p. 12, comments of Johnny Robertson and Henry Schone; ROR, Item 30, Letter of David Dorwart.) Two of the commissioners also witnessed this. (ROR, Item 36, p. 6, comments of Commissioner Hall; ROR, Item 43, p. 7, comments of Commissioner Goodwin.) As stated above, "lay members of a commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety, traffic congestion or local property values." United Jewish Center v. Brookfield, supra, 78 Conn.App. 57.
Nevertheless, even if this testimony does not rise to the level of substantial evidence for the commission's imposition of the condition, "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.) Heithaus v. Planning Zoning Commission, supra, 258 Conn. 221. In the present case, substantial evidence supports the commission in its decision to impose the condition related to the driveway because of the safety and congestion as addressed above. As a result, the plaintiff's appeal cannot be sustained on the grounds that the commission's decision was not supported by evidence or testimony contained in the record.
VI CONCLUSION
Substantial evidence in the record supports the commission's decision to impose the condition requiring the plaintiff to close the Route 195 driveway. Thus, the plaintiff failed to meet its burden to demonstrate that the commission acted unreasonably, arbitrarily, illegally or abused its discretion. Accordingly, the court dismisses the plaintiff's appeal.