Opinion
FBTCV196085795S FBTCV196085866S
11-18-2019
Christopher PAOLETTI et al. v. PLANNING AND ZONING COMMISSION, Town of Trumbull et al. Peter Karayiannis et al. v. Planning and Zoning Commission, Town of Trumbull et al.
UNPUBLISHED OPINION
RADCLIFFE, JTR
FACTS
The Intervening Defendant, Joseph A. Devellis, is the owner of property known as 6466 Main Street, Trumbull. The property, which consists of approximately one (1) acre, is situated at the southwest corner of Main Street and Wauneta Road. Although the parcel carries a Residence A (R-A) zoning classification, it was used for many years as an architect’s office, a nonconforming use in the one-half acre residential R-A Zone.
The Plaintiff’s predecessors in title, Sound Development Group, LLC and 6466 Main Street, LLC, acquired title to the property as a consequence of a bank foreclosure (ROR 14, TR, p. 1). Sound Development Group, LLC, acting through Philip L. DiGennaro, executed a quitclaim deed dated January 4, 2019, which placed title into the name of 6466 Main Street, LLC. The conveyance is recorded at Volume 1779, Pages 591-92, of the Trumbull Land Records. Both Sound Development Group, LLC and 6466 Main Street, LLC, show an address of 5520 Park Avenue, Trumbull (ROR 1).
6466 Main Street abuts property owned by the Roman Catholic Diocese of Bridgeport, known as St. Joseph’s Manor to the south. St. Joseph’s Manor, a multi-story structure, and Teresian Towers, house an assisted living facility, and a nursing home. Also located on the property are independent living units known as Carmel Ridge development.
Property on Wauneta Road, owned by Peter and Maria Karayiannis, which is also zoned Residence A (R-A), abuts 6466 Main Street to the east. Across Wauneta Road to the north are two (2) residences, one owned by the Plaintiffs Christopher and Joy Paoletti. Both residences carry an R-A designation.
North of the two residences is a dentist’s office. The professional office is part of the Business Commercial-Long Hill Green (BC-LHG) Zone.
6466 Main Street is approximately two hundred fifty (250) feet south of Long Hill Green. At one time, the Green formed a triangle, bounded by Main Street to the west, and Broadway to the east. Broadway has since been closed to thru traffic at its intersection with Main Street.
The historic Long Hill Green, a typical New England green, dates its origin to the early years of the last century. It contains a World War I monument, a flag pole, a gazebo, and paved walking paths.
Several properties adjacent to and in the vicinity of Long Hill Green are included within the Business Commercial-Long Hill Green (BC-LHG) Zone, established pursuant to Article II, Section 3.2, of the Zoning Regulations of the Town of Trumbull.
The stated purpose of the zone, as expressed in Section 3.2.1, is:
... to provide business, commercial and multi-family residential uses in the area surrounding Long Hill Green. Within this area, no building or other structure shall be erected, altered, occupied or used, arranged or designed to be used for other than one or more of the following specified purposes:
No uses of land within the district are permitted as of right, although Section 3.2.2 of the Regulations allows accessory uses, upon the issuance of a certificate of zoning compliance. Section 3.2.4 lists potential uses of land within the BC-LHG Zone. These uses are permitted following the issuance of a special permit by the Planning and Zoning Commission.
Multi-family dwellings are also permitted, subject to standards contained in the Regulations, and the special permit process.
On February 28, 2019, 6466 Main Street, LLC, submitted a request for a change in zoning classification to the Trumbull Planning and Zoning Commission (ROR 1). The application sought to change 6466 Main Street’s designation from Residence A (R-A) to Business-Commercial Long Hill Green (BC-LHG).
A public hearing was noticed for March 20, 2019 (ROR 6).
Counsel for 6466 Main Street, LLC, argued, at the public hearing, that the uses permitted in the BC-LHG Zone are intended primarily to serve the local community. He reviewed the maximum height, coverage and buffer provisions in the existing Regulations. However, he did not refer to the provisions of Section 3.2.5 of the Regulations which permit the Commission to reduce or eliminate buffer requirements, setbacks, and screening of commercial areas from residential areas. The Regulations also permit the Commission to increase the maximum coverage requirements, and gross floor area standards, on a case by case basis.
Although no site plan or special permit application was before the Commission, counsel stated that his client wished to develop the property in a manner which would be consistent with the neighborhood, the Regulations, and Trumbull’s Plan of Conservation and Development (POCD) (ROR 14, TR p. 5-6).
Also on the Commission’s agenda for March 20, 2019, the public hearing date, was a proposal to rezone from Residence A (R-A) to BC-LHG, property owned by the Bridgeport Roman Catholic Diocesan Corporation, known as 6388 Main Street. This parcel, located to the south of Long Hill Green at the corner of Main Street and Elizabeth Street, is separated from 6466 Main Street by the St. Joseph’s Manor property.
A portion of 6388 Main Street, the area located across from Stonehouse Road, was once committed to a nonconforming commercial use. The use has since been abandoned.
6388 Main Street is separated by Elizabeth Street from the Corner Deli, an existing nonconforming use in the residential zone.
In arguing in favor of the rezoning of 6466 Main Street, counsel maintained that the change would be consistent with "the overall rhythm of uses along Main Street, from Town Hall to the Green." (ROR 14, TR p. 5) He acknowledged that 6466 Main Street was surrounded by properties used for residential purposes, and zoned accordingly. However, given its location proximate to Long Hill Green, one hundred fifty (150) feet from the existing BC-LHG Zone boundary to the north, and six hundred (600) feet from 6388 Main Street, he argued that any change in zoning classification was consistent with both Trumbull’s comprehensive plan, and its Plan of Conservation and Development (POCD).
A staff report (ROR 9), pointed out that 6466 Main Street is not included as part of the BC-LHG Zone in the 2014 Plan of Conservation and Development (POCD) or Master Plan. The BC-LHG Zone ends at 10 Broadway.
The staff report also raises the specter of spot zoning (ROR 9).
Those Trumbull residents and nearby property owners who testified in opposition to the proposed change of zone (ROR 14, TR p. 20-29), argued that 6466 Main Street was not part of the Long Hill Green area, and opposed extending the BC-LHG Zone further south along Main Street. Traffic on Wauneta Road, a residential side street was also cited. It was claimed that traffic volume would increase, and an existing problem would be exacerbated, as a consequence of any development, because Wauneta Road serves as a "cut thru" to Whitney Avenue.
The commission rejected an attempt to continue the public hearing, in order to obtain addition input from neighbors who were unable to attend the March 20, 2019 hearing. The attempt to accommodate interested neighbors failed, by a vote of three (3) in favor, and two (2) opposed (ROR 14, TR, p. 51).
Following the close of the public hearing, the Commission voted, 4-1, to approve the change in zoning classification requested by 6466 Main Street, LLC (ROR 12, p. 3-4). The effective date of the action was set as May 1, 2019 (ROR 11).
Prior to the vote concerning 6466 Main Street, the Commission approved the change of zone application filed by the Roman Catholic Diocesan Corporation concerning 6388 Main Street (ROR 12, p. 1-2). Four (4) commissioners voted in favor of that approval, while one (1) abstained.
Notice of the decision regarding 6466 Main Street was published in the March 25, 2019 edition of The Trumbull Times, and these two (2) timely appeals followed.
Both actions were consolidated for purposes of trial.
AGGRIEVEMENT
At trial, the parties stipulated to certain facts.
The Plaintiffs, Peter and Maria Karayiannis, are the owners of 12 Wauneta Road, Trumbull, and have been at all times while their appeal has been pending. 12 Wauneta Road abuts 6466 Main Street to the east.
It was further stipulated, at trial, that the Plaintiffs Christopher and Joy Paoletti, are the owners of 6486 Main Street, Trumbull, and have been at all times during the pendency of their appeal. 6486 Main Street is separated from 6466 Main Street by Wauneta Road, and is therefore within one hundred (100) feet of the property which is the subject of the change of zone application. Because the owner of property abutting a public highway is presumed to own the fee of land to the center of the highway; Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 355-56 (1955); State v. Murlo, 119 Conn. 323, 326 (1935); 6486 Main Street may also be said to abut 6466 Main Street. Peck v. Smith, 1 Conn. 103, 132-33 (1814).
Based upon the stipulation of facts, all Plaintiffs claim to be aggrieved by the decision of the Trumbull Planning and Zoning Commission which generated this appeal.
Pleading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of an appeal. Stauton v. Planning & Zoning Commission, 271 Conn. 153, 157 (2004); Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996). The question of aggrievement is one of fact, to be determined by the trial court. Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93 (1989). The burden of proving aggrievement rests with the party claiming to be aggrieved. Harris v. Zoning Commission, 259 Conn. 402, 410 (2002). One claiming aggrievement must sustain his interest in the property throughout the course of an appeal. Craig v. Maher, 174 Conn. 8, 9 (1977); Goldfield v. Planning & Zoning Commission, 3 Conn.App. 172, 177 (1985).
Aggrievement falls into two (2) basic categories- statutory aggrievement, and classical aggrievement.
Statutory aggrievement exists by virtue of legislative fiat, and is a legislative recognition of a right to institute an appeal without regard to an analysis of the facts of a particular case. Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 665 (2006); Weill v. Lieberman, 195 Conn. 123, 124-25 (1989). One claiming statutory aggrievement must show that a particular statute grants to a party the right to pursue an appeal, without the necessity of demonstrating actual injury based upon the particular facts at hand. Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156 (2005); Fort Trumbull Conservancy v. Alves, 262 Conn. 480, 485-87 (2003).
Classical aggrievement, on the other hand, requires a party to satisfy a well-established two-fold test: 1) the party claiming aggrievement must demonstrate a personal and legal interest in the decision appealed from, as distinct from a general interest such as concern of all members of the community as a whole, and 2) the party must prove that the specific personal and legal interest has been specifically and injuriously affected by the decision which generated the appeal. Cannavo Enterprises v. Burns, 194 Corm. 43, 47 (1984); Hall v. Planning Commission, 181 Conn. 442, 444 (1980).
Section 8-8(1) of the General Statutes defines "Aggrieved person" to include:
... any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board ...
The Plaintiffs, Peter and Maria Karayiannis own 12 Wauneta Road. That property abuts 6466 Main Street, the property which is the subject of the change of zone application.
It is therefore found, that Peter and Maria Karayiannis have satisfied the test for statutory aggrievement, and have standing to maintain this appeal.
The Plaintiffs, Christopher and Joy Paoletti, own 6486 Main Street. That property is separated from 6466 Main Street by Wauneta Road.
It is found that Christopher and Joy Paoletti have proven that they are statutorily aggrieved by the decision of the Trumbull Planning and Zoning Commission, which changed the zoning classification of 6466 Main Street from Residence A (R-A) to Business Commercial-Long Hill Green (BC-LHG).
Because all Plaintiffs in these consolidated appeals have satisfied the criteria for statutory aggrievement, it is not necessary to consider any claim of classical aggrievement.
STANDARD OF REVIEW- CHANGE OF ZONING CLASSIFICATION
When passing upon an application for the rezoning of property, a planning and zoning commission sits in a legislative capacity, rather than in an administrative or quasi-judicial capacity. D&J Quarry Products, Inc. v. Planning & Zoning Commission, 217 Conn. 447, 450 (1991); Dutko v. Planning & Zoning Board, 110 Conn.App. 228, 230 (2008).
When acting as a legislative body, the commission is the formulator of public policy, and its discretion is much broader than an administrative board, or one exercising a quasi-judicial function. Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 543 (1991); Parks v. Planning & Zoning Commission, 178 Conn. 657, 660 (1979); Malafronte v. Planning & Zoning Board, 155 Conn. 205, 209 (1967). The commission’s legislative discretion is wide and liberal, and must not be disturbed by a court unless the action taken was arbitrary, illegal, or an abuse of discretion. Harris v. Zoning Commission, supra, 416-17; Burnham v. Planning & Zoning Commission, 189 Conn. 261, 265 (1983).
In the exercise of its discretion, a commission is free to amend its zoning regulations and/or its zoning map, whenever time, experience and reasonable planning for contemporary or future conditions justify the need for a change. Campion v. Board of Aldermen, 278 Conn. 500, 526-27 (2006); Kaufman v. Zoning Commission, 222 Conn. 112, 156 (1995). Zoning must be sufficiently flexible to meet the demands of changing conditions, and liberal discretion is vested in a municipal zoning authority, because it is closer to the circumstances and conditions which create the problem, and shape the solution. Raybestos-Manhattan, Inc. v. Planning & Zoning Commission, 186 Conn. 466, 470 (1982); Stiles v. Town Council, 159 Conn. 212, 219 (1970); Luery v. Zoning Board, 150 Conn. 136, 145 (1962).
Questions concerning the credibility of witnesses, and the determination of issues of fact, are matters within the province of the agency. Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 697 (1993). The question is not whether another decision maker, such as the trial court, would have reached a different conclusion, but whether the record compiled before the agency supports the decision reached. Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).
Conclusions reached by the commission must be upheld, if they are supported by substantial evidence in the record. Substantial evidence is enough evidence to justify, if the trial were to a jury, the refusal to direct a verdict where the conclusion sought to be drawn is one of fact. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 541 (1987). The possibility of drawing two inconsistent conclusions, does not prevent a decision from being supported by substantial evidence. Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993). The party challenging the action taken, assumes the burden of proving that substantial evidence does not support the decision reached. Feinson v. Conservation Commission, 180 Conn. 421, 425 (1980).
When acting upon a request for a change in zoning classification, the test to be applied is whether the record supports a finding that: 1) the action is in accordance with the municipal comprehensive plan, and 2) whether it is related to the normal police powers enumerated in Section 8-2 of the General Statutes. First Hartford Realty Corp. v. Planning & Zoning Commission, 165 Conn. 533, 541 (1973). The comprehensive plan consists of the zoning regulations, and the zoning map. Konigsberg v. Board of Aldermen, 283 Conn. 553, 584-85 (2007); Pike v. Zoning Board of Appeals, 31 Conn.App. 270, 277 (1993).
The municipal comprehensive plan must be distinguished from the community’s Plan of Conservation and Development (POCD) or Master Plan, prepared by the planning and zoning commission pursuant to S. 8-23 of the General Statutes. Although the POCD is controlling as to municipal improvements and the regulation of subdivisions of land; Purtill v. Town Plan & Zoning Commission, 146 Conn. 570, 572 (1959); the Master plan does not control the zoning board in its enactment of zoning regulations or changes in zone boundaries. In these areas, it is purely advisory. Lathrop v. Planning & Zoning Commission, 164 Conn. 215, 223 (1973); Sheridan v. Planning Board, 159 Conn. 1, 9 (1969).
Section 8-23(a), C.G.S.- "The commission shall prepare, adopt and amend a plan of conservation and development for the municipality. Such plan shall show the commission’s recommendation for the most desirable use of land ..."
However, although it is advisory, the Master Plan may not be ignored when changes in zoning classification are contemplated. Section 8-3(a) of the General Statutes requires a planning and zoning commission to "... state on the record its findings on consistency of a proposed zoning regulation or boundaries or changes thereof with the plan of development of the municipality ..."
Where a municipal land use agency has stated collective reasons for its decision, a court should not go beyond the collective reasons, but should only determine whether any reason given is supported by substantial evidence in the record. Gibbons v. Historic District Commission, 285 Conn. 755, 770-71 (2008). However, when an agency fails to state collective reasons for its decision, that fact is not fatal. In that event, a reviewing court is obligated to search the record, to determine whether substantial evidence supports the decision reached. Harris v. Zoning Commission, supra, 423-24; Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 (1985); Parks v. Planning & Zoning Commission, supra, 661-62.
VILLAGE DISTRICT STATUTE DOES NOT PREVENT CHANGE OF ZONE VOTED BY THE COMMISSION
The Plaintiffs contend that the Business-Commercial Long Hill Green (BC-LHG) Zone created a "Village District" pursuant to the provisions of § 8-2j, of the General Statutes. Therefore, they argue, the Trumbull Planning and Zoning Commission cannot amend Trumbull’s zoning map, because the specific property, 6466 Main Street, is not identified as part of the BC-LHG Zone on Trumbull’s Plan of Conservation and Development (POCD).
Section 8-2j constitutes enabling legislation. It specifically permits the creation of a village district through a vote of the municipal zoning commission. The statute reads:
(a) The zoning commission of each municipality may establish village districts as part of the zoning regulations adopted under section 8-2 or under any special act. Such districts shall be located in areas of distinctive character, landscape or historic value, that are specifically identified in the plan of conservation and development of the municipality.
The Trumbull Regulations creating the BC-LHG Zone make no reference to § 8-2j. Section 3.2 of Article II, designates the zone "BC-Long Hill Green (Business/Residential)."
Furthermore, neither the record nor the Zoning Regulations provide any support for the proposition that the Commission, when it established the BC-LHG Zone in September of 2010, made a conscious decision to be bound by the criteria set forth in § 8-2j.
Additional properties being added to the zone was clearly contemplated when it was established. Section 3.2.5.1 of the Regulations provides:
All lots existing at the time of the formation of the B-C Long Hill Green Zone on (September 13, 2010) and subsequently incorporated into that zone, will be regarded as buildable lots in terms of lot frontage and minimum coverage.
Nowhere in the Regulations is there a requirement that the Master Plan be amended, prior to any change in the zoning classification of any property, or the addition of properties to the BC-LHG Zone. References to a "village green" or the "Village of Long Hill" are insufficient to invoke the provisions of § 8-2j, in the absence of specific action by the Commission.
It was once famously observed that Trumbull, like Gaul, is divided into three areas- Long Hill, Trumbull Center and Nichols. Each section, it can be observed, contains its own village green. However, historic citations, cannot, standing alone, create the necessary intent to create a "Village District" within the meaning of § 8-2j. However, even assuming, arguendo, that the BC-LHG Zone constitutes a "Village District" pursuant to the General Statutes, that fact will not avail the Plaintiffs. Section 8-2j(a) does not require a meets and bounds description of all properties in the Village District. Rather, the statute merely requires the specific Area to be identified, a criteria which is amply satisfied in Trumbull’s Master Plan. The POCD specifically identifies the Long Hill Green area, along with various development concepts (Supplemental ROR, p. 56-69).
Provisions in the Master Plan, which are advisory only, and serve as a guide to a commission, cannot be used to restrain a commission’s legislative flexibility.
The creation of the BC-LHG Zone, the accompanying regulations, and any amendments, are governed by § 8-2, which allows a commission to " ... divide the municipality into districts of such number, shape and area as may be best suited to carry out the provisions of this chapter ..."
Nor can the Plaintiffs creditably claim that the applicant failed to comply with the provisions of General Statutes § 8-7, or the companion provisions of the Trumbull Regulations. Section 8-7 reads:
... Notice of the hearing shall be published in a newspaper having a general circulation in such municipality where the land that is the subject of the hearing is located at least twice, at intervals of not less than two days, the first not more than fifteen days nor less than ten days and the last not less than two days before the date set for the hearing ...
The public hearing was properly noticed in the Connecticut Post (ROR 6). The published notice unambiguously stated that the hearing concerned a change of zone for 6466 Main Street, from Residence A (R-A) to BC-LHG. A copy of the meets and bounds description of the property, as required by § 8-3(d) of the General Statutes, was on file with the Trumbull Town Clerk.
Although the failure of an applicant to satisfy personal notice requirements in a municipal ordinance does not affect subject matter jurisdiction; Lauer v. Zoning Commission, 220 Conn. 455, 465 (1991); the record demonstrated compliance with all notice requirements established by the Trumbull Zoning Regulations (ROR 7).
CHANGE IN ZONING CLASSIFICATION DOES NOT CONSTITUTE SPOT ZONING
The Plaintiffs claim that the decision of the Trumbull Planning and Zoning Commission, changing the zoning classification of 6466 Main Street from Residence A (R-A) to Business-Commercial-Long Hill Green (BC-LHG), is illegal, because the change constitutes "spot zoning."
This claim is not persuasive.
Spot zoning has been generally defined as the reclassification of a small area of land in such a manner as to disturb the surrounding neighborhood. Langer v. Planning & Zoning Commission, 163 Conn. 459, 461 (1972); Furtney v. Zoning Commission, 159 Conn. 585, 600 (1970). Two separate elements must be established in order to constitute spot zoning: 1) the change in zoning classification must affect only a small area, and 2) the change must be out of harmony with the comprehensive plan of the municipality. Morningside Associates v. Planning & Zoning Board, 162 Conn. 154, 161 (1972); Guerriero v. Galaso, 144 Conn. 600, 607 (1957); Eden v. Town Plan & Zoning Commission, 139 Conn. 59, 63 (1952).
Merely because a change of zoning classification involves a small area of land, and the new classification differs from that of the immediate area, does not mean that a claim of spot zoning will inevitably or necessarily prevail. Pierrepont v. Zoning Commission, 154 Conn. 463, 468 (1967); Kutcher v. Town Planning Commission, 138 Conn. 705, 710 (1952). Some commentators have opined that the concept of spot zoning is obsolete, in that the size of the parcel will not support a claim of spot zoning, if the zone change is in accordance with the comprehensive plan, and is related to the police powers contained in § 8-2 of the General Statutes. Fuller, Robert A. "Land Use Law and Practice ," (4th Ed. 2015), S. 4.8, p. 80.
Cases in which the decision of a zoning authority has been reversed, because the action of the agency amounts to spot zoning, are rare. Eden v. Town Plan & Zoning Commission, supra, 62-63; Kuehne v. Town Council, 136 Conn. 452, 461 (1950). This is due to the fact that courts have consistently held that regardless of the size of the parcel, a change in zoning classification will be upheld, if the action taken is in accordance with the municipal comprehensive plan. Campion v. Board of Aldermen, supra, 531; Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 543-44. The comprehensive plan, which consists of the zoning regulations and the zoning map, has been defined as a general plan to control and direct the use and development of property in a municipality, or a large part thereof, by dividing it into districts according to the present and potential use of property. Konigsberg v. Board of Aldermen, supra, 584-85. The requirement of adhering to a comprehensive plan is generally satisfied, when a zoning authority acts with the intention of promoting the best interest of the community. First Hartford Realty Corp. v. Planning & Zoning Commission, supra, 541; Dutko v. Planning & Zoning Board, supra, 241.
When considering a parcel which satisfies the first prong of the spot zoning test, a reviewing court must determine whether a municipal planning and zoning commission has enacted a change in zone boundaries predominately to benefit the community as a whole, rather than a single individual or property owner. DeMeo v. Zoning Commission, 148 Conn. 68, 73-74 (1961).
In Bartram v. Zoning Commission, 136 Conn. 89 (1949), a small parcel with one hundred twenty-five (125) feet of frontage on a public street, and a lot depth of one hundred thirty-three (133) feet, was rezoned from residential to commercial. The commission gave several reasons for its decision, including the goal of alleviating congestion in the centralized shopping district, and an attempt to relieve traffic congestion.
The Connecticut Supreme Court rejected the "spot zoning" claim which had prevailed in the trial court. In an opinion authored by Chief Justice Maltbie, the Court’s majority upheld the change in zoning classification, notwithstanding the size of the property. The Court focused on the Commission’s finding that allowing the use of a small area in a manner different from the surrounding area, would serve the best interest of the community as a whole. Bartram v. Zoning Commission, supra, 94.
During the March 20, 2019 public hearing (ROR 14), counsel for the applicant argued that the proposed rezoning of 6466 Main Street was consistent with the development of Main Street, from the Trumbull Town Hall, north to Long Hill Green (ROR 14, TR p. 5). He insisted that the rezoning of the one-acre parcel was consistent with the uses of property, including nonconforming uses along Main Street. Council highlighted the contemporaneous rezoning of 6388 Main Street, and its location adjacent to and south of St. Joseph’s Manor, near the Corner Deli.
The analysis presented to the Commission presupposes that nonconforming uses of property should be considered, when determining whether a proposed change of zoning classification is consistent with the municipal comprehensive plan. Any such assumption is contrary to applicable case law, and the public policy regarding nonconforming uses.
In order for a use to be considered nonconforming under a municipal zoning regulation, it 1) must be a lawful use, and 2) must have been in existence at the time the zoning regulations making the use nonconforming were enacted. Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 712 (1986); Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 482-83 (1979). Nonconforming uses are protected by statute. Section 8-2 provides that regulations enacted by a municipal planning and zoning commission "shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations."
Nonconforming uses are, by definition, inconsistent with the comprehensive plan. Damick v. Planning & Zoning Commission, 158 Conn. 78, 84 (1969); Raffaele v. Planning & Zoning Board of Appeals, 157 Conn. 454, 462 (1969). Therefore, it is an established principle of zoning law that they should be abolished, or reduced to conformity as quickly as the fair interests of the parties will permit. In no case, should they be permitted to expand. Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 382 (1972); McMahon v. Board of Zoning Appeals, 140 Conn. 433, 440 (1953). Zoning regulations generally seek the elimination of nonconforming uses, not their creation or enlargement. Woodbury Donuts, LLC v. Zoning Board of Appeals, 139 Conn.App. 748, 760-61 (2012); Planning & Zoning Commission v. Craft, 12 Conn.App. 90, 96 (1987).
By emphasizing the presence of nonconforming uses on Main Street, the applicant effectively urges the Trumbull Planning and Zoning Commission and this court to consider certain properties as de facto commercial areas, for the purpose of evaluating consistency with Trumbull’s comprehensive plan. This invitation to engage in slippery slope sophistry, in support of an attempt to rezone 6466 Main Street from Residence A (R-A) to Business-Commercial Long hill Green (BC-LHG), must be declined.
6466 Main Street, Trumbull contains slightly less than one (1) acre, and is surrounded by properties which are zoned for residential use. Therefore, the size of the property affected by the change in zoning classification voted by the Planning and Zoning Commission, satisfies the first prong of the spot zoning test.
The change of zone affects only a small area, and the property is not contiguous to any commercially zoned property. While the status of two (2) single-family homes, including that owned by Christopher and Joy Paoletti, was questioned during the public hearing by a commissioner (ROR 14, TR p. 16), the record reflects their Residence A (R-A) status.
Therefore, in order to satisfy the spot zoning challenge, the change of zone voted by the Commission must be consistent with Trumbull’s comprehensive plan- the Zoning Regulations and the zoning map.
Section 3.2.1 of the Regulations declares that the purpose of the BC-LHG Zone is to provide for business, commercial and multi-family residential uses "in the area surrounding Long Hill Green." 6466 Main Street has sidewalks along its Main Street side, and is two hundred fifty (250) feet south of Long Hill Green. One hundred fifty (150) feet to the north of 6466 Main Street, the BC-LHG Zone begins.
The applicant believes that 6466 Main Street is capable of being put to a use which will benefit those living within walking distance of Long Hill Green, including residents of a multi-unit condominium development (ROR 14 TR p. 8-9). It was also stated that this property, given its location near the southern end of Long Hill Green, would serve a "gateway" function.
Trumbull residents speaking in opposition to the application, pointed out that the property was not connected to any other BC-LGH property, and disagreed with the decision to expand the zone south of Wauneta Road (TOT 14 TR p. 23-27). Increased traffic being routed on to Wauneta Road was also discussed.
Although the Commission’s action created a BC-LHG Zone separated from other commercial properties, the Commission had substantial evidence before it, to support a conclusion that the change in zoning classification is consistent with the comprehensive plan.
The parcel is a short distance from Long Hill Green, and abuts St Joseph’s Manor to the south. It is in the vicinity of other properties carrying a commercial designation to the north, and has frontage on a state highway.
Given these facts, particularly 6466 Main Street’s proximity to Long Hill Green, the Commission’s decision is not illegal, arbitrary, or in abuse of its legislative discretion, and does not constitute spot zoning.
A different result might be required, if the property was not within visual range of Long Hill Green, and was otherwise surrounded by residentially zone properties. However, neither the Commission’s action regarding 6388 Main Street, or any property located to the south of Stonehouse Road, is the subject of this appeal. It must be noted, however that any finding that property situated south of Stonehouse Road is located "in the area surrounding Long Hill Green," would be problematic.
Issues involving public health and safety, including increased traffic of Wauneta Road, and the use of that artery as a "cut thru" will again be before the Planning and Zoning Commission, in the event that a special permit application concerning 6466 Main Street is submitted, pursuant to S. 3.2.4 of the Regulations.
Section 3.2.5 of the Zoning Regulations contains building standards concerning coverage, buffers, setbacks, and screening from residential areas. The Regulations permit the Trumbull Planning and Zoning Commission to adjust these standards, on a case by case basis.
General Statutes § 8-2 contains a "uniformity provision" which mandates that: "All ... regulations shall be uniform for each class or kind of buildings, structures or uses of land throughout each district ..."
In MacKenzie v. Planning & Zoning Commission, 146 Conn.App. 406, 428-29 (2013), the Appellate Court determined that a municipal planning and zoning commission, when acting administratively concerning a special permit application, is not permitted to vary the application of its regulations on a case by case basis.
The purpose of the uniformity requirement is to ensure all property owners that there will be no improper discrimination, and that all owners of the same class, in the same zoning district, shall be treated alike. Kaufman v. Danbury, supra, 143; Veseskis v. Zoning Commission, 168 Conn. 358, 359-60 (1975); Bartsch v. Planning & Zoning Commission, 6 Conn.App. 686, 690-91 (1986).
The power to vary municipal zoning regulation, based upon a finding of hardship, rests exclusively with the municipal zoning board of appeals. Santarsiero v. Planning & Zoning Commission, 165 Conn.App. 761, 778 (2016); MacKenzie v. Planning & Zoning Commission, supra, 429; S. 8-6, C.G.S.
CONCLUSION
The appeal of the Plaintiffs, Christopher Paoletti and Joy Paoletti, is DISMISSED. The appeal of the plaintiffs. Peter Karayiannis and Maria Karayiannis, is DISMISSED.