Opinion
No. CV 03 0069998
December 8, 2003
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS #105
Ultimately, the final determinations of this appeal could shape the landscape of Windham for many years to come. The appellants, Joshua's Tract Conservation and Historic Trust, Inc., filed an appeal on March 12, 2003, and an amended appeal on March 31, 2003, appealing the zoning commission's approval of Home Depot's site plan. Joshua's Tract argues that the acts of the zoning commission deprive it of a specific interest in its property and are likely to cause unreasonable pollution, impairment or destruction of the public trust in natural resources.
On May 1, 2003, Home Depot and Windham Commercial Associates, and later the zoning commission, filed a motion to dismiss on the grounds that (1) the plaintiff was neither statutorily nor classically aggrieved under General Statutes § 8-8, (2) the amended appeal was untimely, (3) the appellants failed to exhaust its administrative remedies, and (4) neither the zoning commission nor the court have authority to entertain arguments regarding environmental issues when considering a site plan application appeal from a General Statutes § 22a-19 intervenor. On July 2, 2003, the Zoning Commission of Windham filed a motion to dismiss for insufficient service of process. Home Depot and Windham Commercial Associates filed support for this ground to dismiss on July 11, 2003. Home Depot, U.S.A., Inc., Windham Commercial Associates, LLC, and the Zoning Commission of the Town of Windham will be referred to collectively as the appellees.
Pursuant to Practice Book § 10-31(a) the appellees have timely filed a memorandum in support of their motion to dismiss. The appellant, pursuant to Practice Book § 10-31(b), has timely filed a memorandum in opposition to the motion to dismiss.
I. FACTS
Home Depot, U.S.A. seeks authority to construct a retail store at land known as Numbers 414, 418, 426 and 426R Boston Post Road in Windham. Initially, Home Depot filed several special permits and a final site plan application for consideration at the zoning commission's meeting of December 19, 2002. At this meeting the commission approved and denied various special permits associated with the project and it denied the final site development plan. In a separate appeal, Home Depot and Windham Commercial Associates have appealed the zoning commission's December 19, 2002 denial of the final site development plan. See Home Depot U.S.A., Inc. v. Zoning Commission, Superior Court, judicial district of Windham at Putnam, Docket No. CV 03 0069678 (January 10, 2003). Home Depot subsequently amended its final site development plan and submitted a revised site plan for approval on February 13, 2003. At the February 20, 2003 zoning commission meeting the commission voted to approve the amended site plan and published notice of its decision in the The Willimantic Chronicle on February 25, 2003.
On March 26, 2003 this appeal was stayed pending the outcome of the present action.
Joshua's Tract is a non-profit Connecticut corporation established to acquire and preserve sensitive ecosystems and historic properties. Particular to this case is the 56-acre Atlantic White Cedar Bog that Joshua's Tract owns. This bog is located "less than 1000 feet downslope" from the proposed Home Depot site. It is undisputed that Joshua's Tract was an intervening party, under General Statutes § 22a-19, in the administrative hearings concerning Home Depot's site plan application. Joshua's Tract alleges, inter alia, that the approved application "will likely result in pollution and/or destruction to natural resources including but not limited to the Atlantic White Cedar Bog . . ."
Throughout the decision, other findings of fact are presented as necessary.
II. LAW
In support of its motion to dismiss, the appellees assert five arguments: (1) there was insufficient service of process, (2) the appellant failed to exhaust its administrative remedies prior to appealing to the Superior Court, (3) the appellant's amended complaint was filed untimely and therefore its allegations do not relate back to the date of the original complaint, (4) the appellant is not classically aggrieved, and (5) neither the zoning commission nor the court have the authority to consider environmental issues in the context of a site plan application.
The appellees also argued that Joshua's Tract was not statutorily aggrieved under General Statutes § 8-8(a)(1). The basis of this argument is that Joshua's Tract property is more than 100 feet from the proposed site contrary to Joshua's Tract allegation in paragraph six of its amended complaint. Joshua's Tract does not dispute this fact and admits that its property is not within 100 feet of the proposed Home Depot site. Joshua's Tract argues that the statement at issue was a scrivener's error and should be read as 1000 feet. Because the original and amended appeal, both at paragraph five, state that the property is less than 1000 feet from the proposed site, the court finds that Joshua's Tract intended for paragraph six to also read 1000 feet from the proposed site. Accordingly, the court will treat the 100 feet figure used by Joshua's Tract in paragraph six of the amended appeal as a scrivener's error.
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). "A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter . . ." Kizis v. Morse Diesel International Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "[I]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Dyous v. Psychiatric Security Review Board, supra, 264 Conn. 773.
A. Insufficient Service of Process
General Statutes § 8-8(b) provides, in part, that an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." General Statues § 8-8(b). General Statutes § 8-8(f) further provides that service "shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality." General Statutes § 8-8(f).
In the present appeal, the zoning commission's decision to approve the final site development plan was duly published in The Williamantic Chronicle on February 25, 2003. On March 12, 2003, this appeal was commenced by service of process by leaving a true and attested copy of the original appeal, recognizance and citation at the usual place of abode of Clarence Sylvester, chairman of the zoning commission, and in the hands of Ann Bushey, town clerk. The same was also served upon the agent of service for Home Depot, U.S.A., Inc. and Windham Commercial Associates, LLC, and at the usual place of abode of Nicholas Thanas and George P. Gionis.
The appellees argue that Joshua's Tract's failure to reference either the chairman or secretary of the zoning commission in the citation for service deprives this court of jurisdiction. The court holds that the citation was legally sufficient. Accordingly, the court finds that the appeal is timely and that the proper parties were served.
"In administrative appeals, the citation is the writ of summons that directs the sheriff or some other proper officer to seek out the defendant agency and to summon it to a particular sitting of a particular court on a specified day." (Emphasis added; internal quotation marks omitted.) Tolly v. Department of Human Resources, 225 Conn. 13, 18, 621 A.2d 719 (1993). "For appeals brought pursuant to Connecticut General Statutes Section 8-8(e) and 8-30(g), the citation is analogous to the writ used to commence a civil action and directs a proper officer to summon the agency whose decision is appealed." Towne Brooke Developments v. Brookfield, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 02 05155125 (September 10, 2003, Eveleigh, J.).
General Statutes § 52-123 states: "No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court." General Statutes § 52-123. "Recent case law has further clarified what is meant by circumstantial errors, mistakes or defects as used in § 52-123. In Lussier v. Burns, 228 Conn. 343, 348-49, 636 A.2d 808 (1994), the court held that it was improper to dismiss an action in which the summons incorrectly named the defendant as the State of Connecticut, Department of Transportation rather than the commissioner of transportation. The court in Lussier stated that [w]hen the correct party is designated in a way that may be inaccurate but which is still sufficient for identification purposes, the misdesignation is a misnomer. Such a misnomer does not prevent the exercise of subject matter jurisdiction if the defendant was actually served and knew he or she was the intended defendant. This is in contradistinction to the case in which the plaintiff has misconstrued the identity of the defendant and has therefore named and served the wrong party." (Internal quotation marks omitted.) Dyck O'Neal, Inc. v. Wynne, 56 Conn. App. 161, 165-66, 742 A.2d 393 (1999).
The citation in the present case named the agent to be served on behalf of the defendant zoning commission as the "Zoning Commission of the Town of Windham" rather than "the Chairman or Secretary of the Planning and Zoning Commission of the Town of Windham." The plaintiff, however, served the citation, appeal, and recognize upon the chairman of the zoning commission. The present situation is analogous to the situation that arose in Lussier. The court holds that the plaintiff designated the correct defendant but by an incorrect name as opposed to misconstruing the identity of the defendant. The failure to include the phrase "Chairman or Secretary of the Planning and Zoning Commission" is therefore a circumstantial error in the present case since the designation, as provided, is sufficient to identify the proper defendant in the action.
B. Exhaustion of Administrative Remedies
"It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in matter." Stepney, LLC v. Fairfield, 263 Conn. 558, 563, 821 A.2d 725 (2003). "The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law . . . The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." (Internal quotation marks omitted.) Id., 563-64. There are several exceptions to the exhaustion doctrine but none were argued and none are applicable to the present controversy. See River Bend Associates, Inc. v. Simsbury Water Pollution Control Authority, 262 Conn. 84, 103, 809 A.2d 492 (2002) (Listing exceptions to the exhaustion of administrative remedies doctrine.). Furthermore, in Fort Trumbull Conservancy, LLC v. Planning Zoning Commission, 266 Conn. 338, 832 A.2d 611 (2003) the Supreme Court held that a § 22a-19 intervenor, unlike a party bringing suit under General Statutes § 22a-16, must exhaust all administrative remedies before proceeding to the Superior Court. Fort Trumbull Conservancy, LLC v. Planning Zoning Commission, 266 Conn. 338, 360-63, 832 A.2d 611 (2003).
In an appeal of a site plan application, the court is to look to General Statutes § 8-8(b). Section 8-8(b) was recently amended to explicitly permit direct appeal to the Superior Court from a decision on a site plan. General Statutes § 8-8(b). "The act, however, merely clarifies that General Statutes § 8-8(b), was intended to allow appeals from site plan decisions to be made directly to [the] Superior Court just as the appeals of most municipal actions and municipal decisions. It does not change the longstanding principles of existing law in the normal appeals process, which require that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." (Internal quotation marks omitted.) Borden v. Zoning Board of Appeals, Superior Court, judicial district of New London at New London, Docket No. CV 558530 (January 14, 2003, Hurley, J.T.R.) ( 33 Conn. L. Rptr. 669). The court nonetheless finds that, to the extent that such remedies were available, Joshua's Tract did exhaust its administrative remedies.
Examining the local ordinances the court makes three findings. First, there is no requirement in Windham that the zoning commission hold a public hearing on a site plan application. See Zoning Regulations, Town of Windham, Article VI, § 61 et. seq. See also R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 20.1, p. 415 ("No public hearing is necessary on an application to a land use agency unless it is mandated by statute . . . [Generally,] [n]o hearing is required on a site plan application.") The zoning commission does have the authority to hold such a hearing when there will be a "major change in conditions" but even then a public hearing is not required. Zoning Regulations § 61.2.1(n). Second, there is no requirement that the decision of the zoning commission be appealed to the zoning board of appeals. See Zoning Regulations, Town of Windham, Article VI, § 61 et. seq.; cf. Borden v. Zoning Board of Appeal, supra, Docket No. CV 558530 (The plaintiff failed to exhaust its administrative remedies by not following the local ordinance procedure and appealing the zoning commission's decision to the zoning board of appeals before appealing to the Superior Court.) Last, an examination of the procedure for site plan applications does not require a public hearing. Zoning Regulations § 61.3.
In the present case, the zoning commission held a meeting on February 20, 2003 to, inter alia, consider Home Depot's revised application for final site development. At this meeting Joshua's Tract requested that the commission hold a public hearing "to allow for further comments on the project" before the commission voted on the revised application. The commission considered the request made by Joshua's Tract, entertained a motion to conduct a public hearing and in a 3 to 2 decision voted against the motion to hold a public hearing on the revised application. With that, the commission moved forward and in a 3 to 2 vote approved the revised application with a condition on the landscaping. Additionally, the commission, again in a 3 to 2 decision, agreed "that the application for site plan approval as presented is not reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water, or other natural resources of the state."
The appellees argue that Joshua's Tract failed to exhaust its administrative remedies by not presenting evidence at the hearing on the revised application. The court would be inclined to agree with the appellees had (1) Joshua's Tract not requested a public hearing on the revised application or (2) the commission held a public hearing that permitted opponents of the project to present their evidence. The record however clearly demonstrates that Joshua's Tract did request a public hearing on the revised application and that no opportunity was afforded to the public to present evidence regarding the project. The court finds that Joshua's Tract did exhaust its administrative remedies before appealing to the Superior Court; the motion to dismiss for this reason is denied.
The appellees also argued that the record is not sufficient to support the appellant's claims and that it would be inappropriate to remand the case to the zoning commission to further develop the record. The sufficiency of the appellant's claims are not currently before the court and are only properly raised by a motion to strike, Practice Book § 10-39. If the appellees are arguing that there is no genuine issue of material fact due to a dearth of facts in the record then the appropriate motion is a motion for summary judgment, Practice Book § 17-44. Neither of these motions is presently before the court; therefore, the court will not address this argument.
C. Relation Back
Practice Book § 10-60 allows an amended complaint to be filed at any time with the consent of the judicial authority. See Thompson v. Bridgeport Hospital, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 352686 (June 18, 2001, Moran, J.). "While our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment . . . The motion to amend is addressed to the trial court's discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial Whether to allow an amendment [however] is a matter left to the sound discretion of the trial court." (Internal quotation marks omitted.) Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 583, 833 A.2d 908 (2003).
"It is true that a party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same . . . If a new cause of action is alleged in an amended complaint, however, it will [speak] as of the date when it was filed . . . A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A right of action at law arises from the existence of a primary right in the plaintiff and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but whe[n] an entirely new and different factual situation is presented, a new and different cause of action is stated." (Citations omitted; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 129-30, 788 A.2d 83 (2002). "Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . ." (Internal quotation marks omitted.) Alswanger v. Smego, 257 Conn. 58, 65, 776 A.2d 444 (2001). The court finds that the single paragraph Joshua's Tract added in its amended complaint merely clarified an alternative theory of liability.
The appellees argue that Joshua's Tract is attempting to add a new party to the suit through its amended complaint and this consequently adds a new cause of action. In support of this claim the appellees rely on Buttner v. Planning Zoning Commission, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 93 0304231 (April 27, 1994, Levin, J.), a case, where in the original complaint, a co-trustee brought suit on behalf of the trust but attempted to amend the complaint and add herself both individually and as executrix.
Buttner is distinguishable. An examination of Buttner reveals that the court primarily denied the amended appeal on a procedural basis. The court interpreted the amended appeal to be an attempt to add a new party and states that an attempt to add a new party can only be done by way of motion. Buttner v. Planning Zoning Commission, supra, Docket No. CV 93 0304231. The present case does not present a situation where the appellant is attempting to add a new party. "The character in which one is made party to a suit must be determined from the allegations of the pleadings, and not from the title alone . . . Where it is doubtful in what capacity a party sues . . . the entire complaint maybe examined to determine the question; and reference may also be had to the pleadings as a whole or the entire record." Buttner v. Planning Zoning Commission, supra, Docket No. CV 93 0304231. A fair reading of the original complaint in the present case reveals that Joshua's Tract was appealing as both a § 22a-19 intervenor and as an aggrieved property owner. Paragraph seven of the original complaint is clearly dedicated to the appellant's claim as a § 22a-19 intervenor. The surrounding paragraphs, read in a light most favorable to the pleader, support a finding that Joshua's Tract was also asserting a claim as an aggrieved property owner. See Section D, infra, Classical Aggrievement. The amended appeal, therefore, relates back in time to the filing of the original appeal and is not barred by the statute of limitations.
D. Classical Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of an administrative [zoning] appeal." (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Pursuant to General Statutes § 8-8(b) . . . any person `aggrieved' by a decision of a municipal planning or zoning commission may appeal to the Superior Court." Brookridge District Assn. v. Planning Zoning Commission, 259 Conn. 607, 612, 793 A.2d 215 (2002). "[The Connecticut Supreme Court] has not set forth a precise standard that defines the required interest a non-owner must possess in order to become an aggrieved party under §§ 8-8 and 8-9. Rather, [the court has] held that the extent to which a party with an interest in the property other than that of an owner is aggrieved depends upon the circumstances of each case, because the concept of standing is a practical and functional one designed to ensure that only those parties with a substantial and legitimate interest can appeal an order." Primerica v. Planning Zoning Commission, 211 Conn. 85, 93, 558 A.2d 646 (1989).
Although the Supreme Court has not created a precise standard that defines an aggrieved, non-property owner under § 8-8, it has created a basic test to determine a party's status. "The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Citations omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, supra, 266 Conn. 539. Joshua's Tract has meet its burden of alleging the requisite facts to sustain a claim that it is classically aggrieved by the decision to approve Home Depot's site plan.
In Berlani v. Zoning Board of Appeals, 160 Conn. 166, 276 A.2d 780 (1970) the Supreme Court held that the defendant's interference with the plaintiff's use and enjoyment of her property satisfied the aggrievement requirement of a specific personal and legal interest in the subject matter of the controversy. Berlani v. Zoning Board of Appeals, 160 Conn. 166, 168, 276 A.2d 780 (1970). Similarly, Joshua's Tract's specific personal and legal interest lies in the fact that the non-profit corporation has a legal interest in the use and enjoyment of its property. Based on the Supreme Court's holding in Berlani the court finds that Joshua's Tract has a specific personal and legal interest in the subject matter of the controversy; the first element of classical aggrievement has been satisfied.
Joshua's Tract has also pleaded sufficient facts to establish the possibility of an adverse effect on its use and enjoyment of the property. Joshua's Tract alleges that the approved Home Depot site plan will result in conditions that interfere with its legal right to use its property as a natural preserve since the approved plan "will likely result in pollution and/or destruction to . . . the Atlantic White Cedar Bog." Construing these facts in a light most favorable to the pleader, the court finds that Joshua's Tract has pleaded sufficient facts to satisfy the second element of the classical aggrievement analysis.
Joshua's Tract has satisfied both elements of the test for classical aggrievement; therefore, the appellee's motion to dismiss on this basis is denied.
E. The Zoning Commission's and Court's Authority to Consider Environmental Issues In the Context of a Site Plan Application Appealed by a § 22a-19 Intervenor 1. The Zoning Commission's Authority"[Section] 22a-19 grants standing to intervenors to raise only those environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding into which the party seeks to intervene . . . [Section] 22a-19 of the [act], which permits any person, on the filing of a verified pleading, to intervene in any administrative proceeding and to raise therein environmental issues must be read in connection with the legislation which defines the authority of the particular administrative agency. Section 22a-19 is not intended to expand the jurisdictional authority of an administrative body whenever an intervenor raises environmental issues . . . [Furthermore,] [c]ities and towns must operate in zoning matters within the enabling statutory scheme." (Citations omitted; internal quotation marks omitted.) Scaringe v. Meriden Planning Commission, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0274515 (November 26, 2002, Gilardi, J.). See Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 494-96, 815 A.2d 1188 (2003). The court is therefore faced with deciding whether consideration of environmental impacts of the proposed development expands the jurisdiction of the zoning commission when it is considering a site plan application.
As a § 22a-19 intervenor, the appellant additionally has "standing to raise constitutional as well as statutory issues that have an environmental nexus." Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 484 n. 5, 576 A.2d 510 (1990). This however does not abrogate the fact that the commission must still have the authority to consider environmental issues when voting on a site plan application.
The powers of the zoning commission are extensive: a "[zoning] commission enjoys reasonable discretion in construing the regulations that it is charged with enforcing." (Internal quotation marks omitted.) LePage Homes, Inc. v. Planning Zoning Commission, 74 Conn. App. 340, 349, 812 A.2d 156 (2002). "As a general matter, a zoning commission is empowered to determine whether: (1) the proposed use of the property is permitted under the zoning regulations; (2) the standards contained in the regulations are satisfied; and (3) conditions of approval or modifications to [a] proposal are necessary to protect public health, safety, convenience and property values, as provided for in General Statutes § 8-2 . . . Recent decisions of [the Supreme Court] . . . have evidenced a trend toward investing zoning commissions with greater discretion in determining whether [a] proposal meets the standards contained in the regulations. The agency [may now] [decide] within prescribed limits whether a particular section of the zoning regulations applies to a given situation and the manner in which it applies . . . In making such determinations, moreover, a zoning commission may rely heavily upon general considerations such as public health, safety and welfare." (Citations omitted; internal quotation marks omitted.) Torrington v. Zoning Commission, 261 Conn. 759, 769-70, 806 A.2d 1020 (2002).
General Statutes § 8-3(g) and local regulations provide the procedures, rights and standards applicable to site plan approval. It is therefore necessary to explore both the statute and the regulations to determine if either restrains the authority of the zoning commission.
"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 in the zoning regulations. [Section 8-3(g)] specifically provides that a site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations." (Internal quotation mark omitted.) R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 3.10, p. 36. The "[zoning commission's] authority pursuant to § 8-3(g) . . . permit[s] the [commission] to consider information necessary to ensure compliance with the site plan application." RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 477, 778 A.2d 61 (2001).
"[G]enerally [when] the zoning . . . commission acts . . . upon a site plan application, it acts in an administrative capacity." Internal quotation marks omitted.) Borden v. Planning Zoning Commission, 58 Conn. App. 399, 408, 755 A.2d 224, cert. denied, 254 Conn. 921, 759 A.2d 1093 (2000). Acting in this capacity, "a zoning commission is empowered to determine whether: (1) the proposed use of the property is permitted under the zoning regulations; (2) the standards contained in the regulations are satisfied; and (3) conditions of approval or modifications to the proposal are necessary to protect public health, safety, convenience and property values, as provided for in General Statutes § 8-2." Torrington v. Zoning Commission, supra, 261 Conn. 769. Section 8-3 therefore permits a zoning commission to consider environmental factors when examining a site plan as long as the regulations set forth conditions relevant to the environment.
In Windham, the local regulations confer the zoning commission with the authority to examine the environmental impact of a proposed site development. First, the regulations grant the commission the authority to require an applicant to submit information addressing the environment when there will be a "major change in conditions," Zoning Regulations § 61.2.1(n), and when such information is "necessary to make an informed determination of the adequacy of the final site development plan and the impact of the proposed uses on the site and the neighborhood." Zoning Regulations § 61.2.1(p). Zoning Regulations § 61.2.1(n)(2), for example, specifically requires an applicant to submit data forecasting "[t]he anticipated alteration in the current water quality and flooding characteristics of inland wetlands, water courses and ground water." Zoning Regulations § 61.2.1(n)(2).
Additionally, when zoning regulations establish criteria for approval, the applicant's failure to conform with the criteria will suffice as grounds for denial. Friedman v. Planning Zoning Commission, 222 Conn. 262, 266-68, 608 A.2d 1178 (1992). The criteria for approval of a site plan in Windham are found in Zoning Regulations § 61.5 of the regulations. These criteria state, inter alia, that the site plan "shall conform to all the requirements of these Regulations as well as good engineering and planning practices," Zoning Regulations § 61.5.1, and that "[p]roper provision shall be made for drainage Zoning Regulations § 61.5.5. Most telling however is Zoning Regulations Article VII, § 74 — Performance Standards. Zoning Regulations § 74.4 states: "No refuse or other waste materials and no liquids shall be dumped on any lot or dumped or discharged into any river, stream, watercourse, storm drain, pond, lake or swamp so as to constitute a source of water pollution." Additionally, Zoning Regulations § 74.9.3 provides: "In examination of plans subject to review by the [Zoning] Commission/[Zoning Board of Appeals], special emphasis shall be given to the following objectives . . . d. Protection of Neighbors: To protect the value and use of neighboring property owners and users by ensuring that reasonable provisions [have] been made for such matters as surface water drainage . . ." (Emphasis added.) Zoning Regulations § 74.9.3. Clearly, for the zoning commission to determine if the site plan conforms with these `Performance Standards' it must delve into an assessment of the impact that the development will have on the environment.
Nonetheless, in order to assess whether the site plan comports with the regulations there must be a substantive rule that "provide[s] a specific basis on which to deny a site plan application." Berlin Batting Cages, Inc. v. Planning Zoning Commission, 76 Conn. App. 199, 221, 821 A.2d 269 (2003). "A regulation should be as precise as the subject matter requires, and adequate and sufficient enough to allow the commission to perform its obligations . . . As long as the regulations provide a standard that can be applied to all cases of a like nature so as to reduce the likelihood of allowing a zoning agency to act in a capricious manner, the regulations will not be deemed to contain meaningless standards that can lead to unpredictable results." (Citation omitted.) Smith-Groh, Inc. v. Planning Zoning Commission, 78 Conn. App. 216, 233, 826 A.2d 249 (2003). The zoning commission procedures require that the commission assess whether the site plan conforms to all of the requirements of the Windham regulations. Zoning Regulations § 61.5.1. The court finds that the Regulations, in certain enumerated sections, do provide standards that the site plan must conform with, therefore, the commission has a basis on which it may assess and deny a site plan application. Thus, the local regulations permit the zoning commission to include environmental factors in the analysis of a site plan application.
For example, Inland Wetlands and Watercourses Regulations Town of Windham, § 1 et seq.
In accord with the rubric of state statutes and local zoning regulations, the court holds that the Windham Zoning Commission has authority to consider the environmental impacts of the proposed land use when evaluating a site plan application.
2. The Court's Authority
The appellees additionally assert that the court has a limited scope of review and is prohibited from considering environmental issues in the context of a site plan application. "The settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as [the decision of the zoning commission] reflects an honest judgment reasonably exercised." (Internal quotation marks omitted.) Children's School, Inc. v. Zoning Board of Appeals, 66 Conn. App. 615, 627, 785 A.2d 607, cert. denied, 259 Conn. 903, 789 A.2d 990 (2001). "In traditional zoning appeals, the scope of judicial review depends on whether the zoning commission has acted in its legislative or administrative capacity." (Internal quotation marks omitted.) Kaufman v. Zoning Commission, 232 Conn. 122, 150, 653 A.2d 798 (1995). Where the commission acts in an administrative capacity, as here, the standard of review is whether that decision was illegal, arbitrary, or an abuse of discretion. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980). That is to say, "[t]he trial court . . . decide[s] whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 697, 784 A.2d 354 (2001). Thus, the court is prohibited from examining the potential environmental impact of the proposed development; the extent of the court's review is to determine whether the commission acted arbitrarily, illegally or unreasonably in applying the local ordinances to this site plan application.
III. CONCLUSION
The citation served upon the zoning commission was legally sufficient. Prior to appealing the zoning commission's decision to the superior court, the. appellant exhausted all available administrative remedies. The appellant's amended appeal relates back in time to the filing of the original appeal and the appellant has alleged sufficient facts to sustain its status as a classically aggrieved party. Lastly, the zoning commission has the authority to consider environmental issues in the context of a site plan application; however, the court is limited to deciding whether the zoning commission acted arbitrarily, illegally or unreasonably when applying the local ordinances to this site plan application.
The appellees' motion to dismiss is therefore denied on all accounts.
FOLEY, JUDGE.