Opinion
No. CV08-4016204S
August 28, 2009
MEMORANDUM OF' DECISION
Before the court is an appeal by the plaintiff, Level Development Corporation (Level) from a denial by the Zoning Commission of the City of Waterbury (Commission) of Level's application for a special permit for earth excavation dated October 27, 2007.
FACTS
Level is the owner of a 56-acre parcel of land located at the end of Sheffield Street in the City of Waterbury. This parcel contains two separate pieces, one of approximately 26 acres which is zoned residential and the second of approximately 30 acres which is zoned industrial. It is the second parcel that is the subject of this appeal. This property has been owned by the Hychko family since approximately 1960 and by Level, a Corporation owned by the Hychko family since 1990. The property has been in continual use as a quarry for the entire period of time it has been owned by the Hychko's and Level.
On October 2007 Level filed with the Commission in accordance with Section 5.15-3 of the Waterbury Zoning Regulations a Special Permit Application for Earth Excavation and Related Activities, (ROR1a) and in conjunction therewith, a site plan for the subject premises. A public hearing on the application was opened on January 23, 2008, and continued on February 9, 2008, February 27, 2008 and concluded on March 26, 2008. (ROR3a-d) At its meeting April 23, 2008, the Commission denied Level's application as "incomplete and inadequate." Level claims that in denying its application the Commission acted illegally, arbitrarily, and in abuse of the discretion vested in it by law as an administrative agency.
JURISDICTION
General Statutes § 8-8(b) provides in pertinent part that "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." "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
Aggrievement
"[P] leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). Aggrievement is a factual issue, "and credibility is for the trier of the facts." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001). 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); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 703.
In the present appeal, Level alleges aggrievement as the owner of the property affected by the commission's decision. (Appeal, ¶¶ 1, 2.) At trial, Michael Hychko testified that he is the secretary of Level and that Level is the owner of the property affected by the Commission's decision. The Court finds that Level has sufficiently alleged and proven aggrievement.
STANDARD OF REVIEW
The standard of review of a decision of an administrative body is well settled in Connecticut. "In reviewing an appeal from an administrative agency, the trial court must determine whether the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion" Smith v. Zoning Board of Appeals, 227 Conn. 71, 80 (1993), cert. denied, 114 S.Ct. 1190 (1994). In determining whether a zoning commission's action was illegal, arbitrary or in the abuse of its discretion, a reviewing court's principal inquiry is whether the commission's action was in violation of the powers granted to it or the duties imposed upon it. Clifford v. Planning and Zoning Commission City of Ansonia, 280 Conn. 434, 440, 908 A.2d 1049 (2006).
In this action the Commission's position is that its denial of the application was not illegal or arbitrary. That the denial was based upon the duties and powers granted the Commission pursuant to § 5-153(j) of its regulations which reads as follows, "(j) Basis for denial. Without limiting the discretion and authority of the Zoning Commission, failure to comply with application requirements and/or adopted administrative procedure shall be grounds for denial of the application" the Commission had the authority to deny an application on the basis that it is incomplete. The court agrees with the Commission. The record (ROR 3e at 9-10) reveals that the motion made to deny the application without prejudice to be resubmitted should the deficiencies be corrected, was on the basis the application was incomplete. The court finds the record supports the finding by the Commission that the application was incomplete and that the Commission acted within its authority.
It is also well settled law in Connecticut that [W]hen [an] 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 the assigned reasons are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the regulations . . . The principle that a court should confine its review to the reasons given by [an] . . . agency . . . applies [only] where the agency has rendered a formal, official collective statement of reasons for its actions, Clifford v. Planning and Zoning Commission City of Ansonia, 280 Conn. 434, 439-40 n. 6, 908 A.2d 1049 (2006), Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). The court finds the Commission has satisfied this requirement. The record reveals that the Commission had a lengthy discussion concerning this application and it deficiencies, specifically the need for updated and revised plans. (ROR 3e pages 1-10.)
There also several references throughout the record where the Commission and the City Planner discuss the inadequacies of the plans. At the January 23, 2008 meeting, Mr. Sequin the City Planner notes the maps are inadequate to show all proposed activities (ROR 3a at 6-7,10), the commission itself noted items not on the maps (ROR 3a at 20, 36). At the March 26, 2008, the City Planner again advised the Commission that no revised plans had been submitted and that before any permit would be effective, new revised plans were required. (ROR 3d at 1-6.)
CONCLUSION
The court finds based upon a review of the record, the exhibits and the arguments of counsel that the plaintiff has not proven the Commission acted illegally, arbitrarily or abused its discretion in denying the plaintiff's application. For the above stated reasons the appeal is dismissed.