Opinion
No. CV-07-4013996-S
July 9, 2008
MEMORANDUM OF DECISION
I. INTRODUCTION
The Plaintiff, Paulmar Associates Limited Partnership ("Paulmar") brought this administrative appeal pursuant to Connecticut General Statutes § 8-8, claiming it is aggrieved by the decision of the City Plan Commission ("Commission"), denying its joint application ("Application") for Special Permit/Site Plan approval of a Group Dwelling at 1405 Hamilton Avenue, Waterbury, Connecticut, known as "Regency Place" ("the Subject Property"). Aggrievement has been conceded and found.
II. STATEMENT OF FACTS
On or about January 10, 2007, Paulmar submitted a joint Application to the Commission for Special Permit/Site Plan approval relative to the Subject Property. (ROR 1.) The Application was received by the Commission on February 27, 2007 (ROR 3a). Said Application proposed development of a group dwelling consisting of 171 residential condominium units in 18 buildings to be constructed in three phases on approximately 13.35 acres of the Subject Property. The Subject Property is located in a Moderate Density Residential District ("RM zone") (ROR 3f). The proposed buildings are located on 10.36 acres of the total of 13.35 acres.
The Application was submitted pursuant to Section 5.14-3 of the Waterbury Zoning Regulations (the "Zoning Regulations") allowing for "group dwellings" in the Moderate Density Residential district by special permit with site plan approval. ROR 3i(x) at 55-56.
A group dwelling development is permitted in the Moderate Density Residential district subject to special permit review pursuant to Section 5.14-3 and site plan review pursuant to Section 7.43 through 7.46-9 of the Zoning Regulations.
The public hearing opened and closed on June 5, 2007 (ROR 3f at 26-70). During the public hearing, the City Planner, City Traffic Engineer, the applicant's representatives, as well as the public and an intervener, the East Mountain Neighborhood Association, were heard and allowed to present evidence before the Commission relative to the Application. (ROR 3f.)
The Commission tabled the item at the meeting on June 13, 2007 (ROR 3g at 17) and voted to deny the Application on June 28, 2007. ROR 3h at 2. The Commission was provided with two draft resolutions prepared by the City Planner's office — one for approval and one for denial of the Application. Without any discussion or comment by any members of the Commission, Commissioner Gwiazdoski made a motion for denial which was promptly seconded by Commissioner Misset. The motion for denial was approved as drafted by the City Planner by a voice vote. The vote was recorded as six in favor of denial, none opposing and no abstentions. ROR 3h at 2. The Commission did not engage in any discussion whatsoever about the merits of the Application either prior to or following the close of the public hearing. The denial motion was supported by nine reasons which were reviewed by the Commission.
That draft resolution ROR6h is as follows:
RESOLUTION FOR DENIAL
RESOLVED The application of Paulmar Associates, L.P. for a Special Permit and Site Plan for Group Dwellings on a property located at 1405 Hamilton Avenue is denied for the following reasons:
(1) The lack of a functioning program for the municipal inspection of privately maintained fire hydrants creates a public safety problem because it the long-term reliability of said hydrants is questionable making water for fire fighting purposes unavailable in violation of Section 7.46-8.
(2) The proposal has only one traffic lane for entering traffic and thus lacks adequate vehicular entrances as required by Section 7.46-3.
(3) The applicant has not demonstrated that the access and egress points will not be hazardous to the public safety in violation of Section 7.46-3.
(4) The applicant has not demonstrated that the southerly access and egress point is located a safe distance away from the intersection of the southerly leg of Hamilton Avenue in violation of Section 7.46-3.
(5) The traffic study has indicates that the "build conditions" will cause some traffic movements at the intersection of Rt. 69, Pearl Lake Road and Harper's Ferry Road to degrade below a level of service "C" in violation of Section 7.45-1(f).
(6) The traffic study has indicates that the westbound left turn movement at the south access drive will operate below a level of service "C" in violation of Section 7.45-1(f).
(7) The Commissioner finds this proposal is not in conformance with the Plan of Conservation and Development in violation of Section 7.46-2.
(8) The proposal is not consistent with the character and appearance of the surrounding neighborhood in violation of Section 7.46-9.
(9) The application has not demonstrated that the soil erosion and sedimentation control plan is adequate.
Reason Number 1 has been abandoned by the defendant.
Shortly after receipt of the Application, the Commission enacted a moratorium on the filing of applications for multi-family development in the City of Waterbury. The threat of the enactment of that moratorium had prompted the filing of several multi-family applications within Waterbury including this one which obviously put a strain on the city staff which had to deal with these applications.
On the same date of the filing of this application, January 10, 2007, Paulmar also submitted to the same Commission an application for a subdivision approval of a 25-lot subdivision containing 162 housing units on the exact premises as the special permit which is the subject of this appeal. That application was also denied and is subject to a separate appeal with this same court. So the applicant was filing for two separate approvals at the same time on the same property.
It is impossible for this court not to know that the applicant has been seeking multi-family development for this parcel for nearly nine months prior to its decision on this application on June 28, 2007. On the same night of the hearing on this matter, June 5, 2007, the Commission also heard testimony on the other application for subdivision approval. That hearing transpired over several nights. The court emphasizes this to illustrate clearly that the Commission was fully aware of the intentions of these applications, the area involved and the arguments in opposition.
The area in question is generally situated in an area of single-family residential homes. It has frontage on Hamilton Avenue, a town road and Prospect Road (also known as State Route 69), a well traveled state highway, which the court will henceforth refer to as Route 69. Route 69 is a north-south road running between Waterbury and Prospect with Waterbury to the north and Prospect to the south. Route 69 continues through Prospect all the way into New Haven. In the area of this property which abuts Route 69, the roadway is a fairly steep hill running uphill from north to south. So if you are going from Waterbury to Prospect you will be going up the hill as you pass the property. Adjacent to this project there are two lanes for traffic moving in the north-south direction and only one lane moving in the south to north direction as you pass this property.
The proposed 171 townhouses were designed with two bedrooms, a garage and were to be priced in the high $200,000 range. With off street parking, the number of cars serving these units not including vendors and visitors would exceed 250 cars. The whole development had two access points. One was for egress only and only allowed for a right hand turn going north towards Waterbury. The other outlet provided both egress and ingress. There were two lanes for egress one allowing for a right hand turn north onto Route 69 and one a left hand turn across the northerly lane of Route 69 into the two-lane southerly direction heading towards Prospect.
Connecticut General Statutes § 8-2(a) authorizes local zoning authorities to provide for special permits. It provides, in relevant part, that local zoning regulations "may provide that certain . . . 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 . . ." Connecticut General Statutes § 8-2(a).
Waterbury's regulations regarding special permits are found in § 5.14, et seq. of the City of Waterbury Zoning Regulations ("Regulations"). Under the Regulations, Group Dwellings are a permitted use in an R.M. zone, and like other special uses, require a public hearing and both special permit and site plan approval under § 5.14-3. (ROR 5a.) The Commission's review of a special permit/site plan application involves the exercise of related administrative actions and, although each involve a different standard of review by the Commission, they are inseparable as the regulations requires site plan approval as a condition for approval of special permit. (ROR 5a, Section 5.14-3.) The law in this area is not in dispute and I will quote from the party's briefs.
STANDARD OF REVIEW OF SPECIAL PERMIT APPLICATION BY THE COMMISSION
The Commission, in reviewing and deciding a special permit application, must first determine whether the basic application requirements have been met, and then must determine "whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district." Irwin, 244 Conn. at 678. Special permit uses are considered permitted uses consistent with the underlying zoning but require a heightened level of review in order to mitigate any potential impacts.
We previously have observed that [a] special exception allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . Nevertheless, special exceptions, although expressly permitted by local regulations, must satisfy [certain conditions and] standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values [as required by General Statutes § 8-2] . . . Thus, we have explained that the goal of an application for a special exception is to seek permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district.
Municipal Funding v. Zoning Board of Appeals, 270 Conn. 447, 453-54 (2004) (quoting A. Aiudi Sons, LLC v. Planning Zoning Commission , 267 Conn. 192, 203-04 (2004) (internal quotations and citations omitted)).
Because special permit uses are considered consistent with the underlying zoning, a commission acts in its administrative capacity when considering an application for a special permit. The Commission, in determining whether the procedural requirements have been met has limited discretion, similar to the standard for a subdivision or site plan application. However, when making a determination of compliance with the substance of the regulations and whether the proposed use will adversely affect the public health, safety or welfare, a commission has slightly more discretion, in part due to the inherent subjectivity of such regulations. "Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process. Irwin, 244 Conn. at 627. "If, during the exercise of its discretion, the zoning commission decides that all of the standards . . . are met . . . it can no longer deny the application. The converse is, however, equally true. Thus, the zoning commission can exercise its discretion during the review of the proposed special exception, as it applies the regulations to the specific application before it." Jewett City Savings Bank v. Town of Franklin, 280 Conn. 274, 281-82 (2006) (quoting Irwin v. Planning Zoning Comm'n, 244 Conn. 619, 628 (1998)).
Therefore, the relevant inquiry for this Commission was 1) whether the Application met all of the procedural requirements; and 2) whether the proposed group dwelling development complied with the requirements for the Moderate Density Residential district in which it would be located as set forth in the Zoning Regulations.
STANDARD OF JUDICIAL REVIEW FOR APPEAL OF DENIAL OF SPECIAL PERMIT
A commission acts in its administrative capacity when considering an application for a special permit. However, the amount of discretion it may exercise differs slightly when acting with respect to a special permit as compared to subdivision or site plan applications which are also considered administrative actions. "We previously have recognized that the special permit process is, in fact, discretionary." Id. at 626. "Although it is true that the zoning commission does not have discretion to deny a special permit when the proposal meets the standards, it does have discretion to determine whether the proposal meets the standards set forth in the regulations." Irwin, 244 Conn. at 628. Thus, the authority to exercise discretion lies in the act of applying the substance of the regulations to the unique facts and circumstances presented by each application. "In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." Id.
STANDARD OF REVIEW OF SITE PLAN APPLICATION BY COMMISSION
A commission has extremely limited authority in reviewing a site plan application. Although often referred to as "acting in its administrative capacity," a commission has virtually no authority to exercise its discretion.
Initially, we note that, in rendering decisions on site plan applications, the plan commission acts in an administrative capacity. Moreover, in reviewing site plans the commission has no independent discretion beyond determining whether the plan complies with the applicable regulations . . . [and] is under a mandate to apply the requirements of the regulations as written. This austere standard of review is mandated by our legislature. General Statutes § 8-3(g) provides in relevant part: The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations . . .
Konigsberg v. Bd. of Aldermen of New Haven, 283 Conn. 553, 594-95 (2007) (quoting Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 12-13 (1988) (internal quotations omitted)).
Site plan review is typically required where the use is permitted as of right within the zoning district to ensure that the layout and design of the proposed development conforms to the requirements specified in the zoning regulations for that district. "The zoning regulations may require that a site plan be filed with the commission . . . to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations." Connecticut General Statutes § 8-3(g). The only relevant inquiry is whether the proposed development complies with the regulations and, if it does, a permit must issue. "Once the defendants had determined that the site plan complied with the applicable regulations, the issuance of a certificate of approval became a mere ministerial act." Kosinski v. Lawlor, 177 Conn. 420, 427 (1979).
STANDARD OF JUDICIAL REVIEW FOR APPEAL OF DENIAL OF SITE PLAN
"A reviewing court must defer to the judgment of the local zoning authority when considering an appeal of a site plan application decision. This court has explained that, "the court may not substitute its judgment for that of the commission . . . [I]f it concludes that any one of several reasons submitted by the commission for its action is reasonably supported by the record, then the commission's actions must stand." Konigsberg, 283 Conn. at 595.
REASONS FOR DENIAL MUST BE SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD
As with other administrative review and decision-making processes, the reasons provided as the basis for denial of an application for a special permit and site plan approval must be supported by substantial evidence in the record.
We begin by setting forth the applicable standard of review. In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, conclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached.
Municipal Funding v. Zoning Bd. of Appeals, 270 Conn. 447, 453 (2004) (quoting West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513 (1994)).
General Statutes Section 8-3c specifically requires that "[w]henever a commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision." This so-called "substantial evidence rule" also applies to site plan review. See Friedman, 222 Conn. at 268.
Where a commission fails to provide any reasons for its decision, "the trial court must search the record for a basis for the board's decision." Municipal Funding, 270 Conn. at 454 (quoting Bloom v. Zoning Bd. of Appeals, 233 Conn. 198, 208 (1995) (internal quotations omitted)). However, if the reasons cited are insufficient or insubstantial, a trial court may not supplant the commission and substitute its judgment of the evidence in the record for that of the commission. "When an administrative agency specifically states its reasons, the court should go no further. The court may not go beyond the reasons stated by the commission as that would invade the fact finding mission of the agency. Gibbons v. Historic District Comm'n, 285 Conn. 755, 771 (2008). Finally, we have recognized that members of municipal board or commission are entitled to take into consideration whatever knowledge they acquire by personal observation. Dubeil v. Zoning Board of Appeals, 147 Conn. 517 (1960).
ARGUMENT
"The basic rationale for the special permit . . . is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated because of the particular topography, traffic problems, neighboring uses, etc., of the site." (Internal quotation marks omitted.) Oakbridge/Rogers Avenue Realty v. Planning Zoning Board of Milford, 78 Conn. 242 (2003), citing Municipal Funding, LLC v. Zoning Board of Appeals, 74 Conn.App. 155, 160 (2002), cert. granted on other grounds, 262 Conn. 945 (2003). "Whether a zoning board grants a special permit essentially is a discretionary process." Irwin v. Planning Zoning Commission, supra, 244 Conn. at 626.
Before dealing with the eight remaining reasons for denial, the court observes that in the complaint the plaintiff alleges in paragraph 18(e) that the Commission acted improperly by failing to provide on the record a collective statement of the reasons for its decision prior to the Decision. That same argument was made and briefed in the companion case, the subdivision case. In this case it was not briefed and the court treats it as abandoned. If it had been briefed, the court would find this allegation not to have been proven for the same reasons set forth on page 12 and 13 of the subdivision case, CV-07-4014271-S.
Further in the plaintiff's brief, it argues that as to reasons for denial two, three and four, the language of Zoning Regulation Section 7.46-3 is too vague, standardless and offers no guidance to the applicant in presenting his case. The court has reviewed the complaint and nowhere within it is this allegation made. It's simply not in the case, but the court will make some reference to it. The court totally disagrees with the plaintiff's argument.
As for the reasons stated by the Commission, reasons two through six involve different claims re: traffic safety. Reason seven claims that the proposal is not in conformity with the Plan of Conservation and Development in violation of Zoning Regulation 7.46-2. Reason eight claims the proposal is not consistent with the character and appearance of the surrounding neighborhood in violation of Section 7.46-9 and reason nine claims that the applicant has not demonstrated that the said erosion and sedimentation control plan is adequate.
This court concludes that all of the reasons stated in items two through nine of the decision are proper considerations for the Commission to utilize in evaluating this application. As was stated in Irwin v. Planning and Zoning Commission, 619 at 626 (1998).
We previously have recognized that the special permit process is, in fact, discretionary. In Whisper Wind Development Corp. v. Planning Zoning Commission, 229 Conn. 176, 177, 640 A.2d 100 (1994), we concluded that general considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit. Also, we have stated that "before the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood." Barberino Realty Development Corp. v. Planning Zoning Commission, 222 Conn. 607, 613, 610 A.2d 1205 (1992). The Appellate Court has acknowledged that "Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process . . . If the special permit process were purely ministerial there would be no need to mandate a public hearing." (Emphasis added.) Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, 29 Conn.App. 1, 6-7, 613 A.2d 1358 (1992); see also T. Tondro, Connecticut Land Use Regulation (2d Ed. 1996 Sup.) p. 64.
The next step is for the court to determine if there is substantial evidence to support any of the reasons given by the commission for its denial. Any fair reading of the transcript of the one public hearing on the application on June 5, 2007 indicates it was all about traffic and the traffic hazards generated by the points of ingress and egress from the subject 171 townhouse development out onto a well traveled state highway, Route 69, right in the middle of a hill.
The plaintiff simply counters that it has satisfied all of the requirements. It cites its traffic report for the proposition that the designed access ways will have little impact on traffic on Route 69 or getting into or out of the subject property safely onto Route 69. It is of little surprise that the applicant's traffic expert supported the application. That does not mean the commission is bound by it if other evidence or the inherent nature of the access ways is dangerous to traffic.
This application, encompassing 171 townhouses with two bedrooms, is estimated to generate over 260 resident owned cars, plus visitors and vendors all of which require access to other roads. The applicant's proposed two means of egress, 1) a one-lane right hand turn only exit going north on Route 69 going towards Waterbury and 2) a two-lane exit with the right lane taking a right hand turn going north on Route 69 and the left lane exiting south going into the two southbound lanes of Route 69 heading to Prospect. The only ingress for the project going north is the single right hand lane of route 69 proceeding down the hill on Route 69. The only ingress for vehicles traveling south up the hill on Route 69 is to get into the outside passing lane and make a left hand turn across the northbound flow of traffic. These cars going up the hill would have to stop in the middle of the hill in the passing lane and wait for traffic on Route 69 proceeding north to pass and watching for traffic entering the project to exit onto Route 69 before proceeding to make their turn.
As a member of the public, Michael Ptak observed at the public hearing on June 5, 2007 (ROR 3F at pg. 64):
CT Page 11318
So having somebody making a left hand turn going into the complex in the afternoon. You are going to have problems that are coming up that travel lane or passing lane whatever you want to call it coming up behind that person, you are going to have a backup there and you could have a bunch of rear end accidents happening at that point.
The attorney representing the intervenor, East Mountain Neighborhood Assoc., painted an even grimmer picture, he added snow. His remarks ROR 3F at page 69 make it clear.
Common sense says that it is only going to be worse and commons sense also says that I would not want to be getting up Route 69 heading south on a snowy day with my car slipping and all and face cars all of a sudden in the left lane trying to make a left hand turn into this project when they have a car also in the right hand lane also struggling to keep going. If I have a slow down in order to get into that lane I am going to loose my momentum and I am going to have a problem. If I have to speed up I am probably not going to be able to because I am going to have a traction issue and the same thing with cars going down. You don't in Waterbury often have perfect driving conditions. Thank you.
There was extensive discussion on the record regarding traffic concerns involving the subject Property. In addition to the traffic study (ROR 3i(ix)), the Commission heard extensively from both the City Planner and the City's Traffic Engineer, and questioned both staff and the applicant regarding this issue. (ROR 3f at 29, 35-40, 42-43, 44-46, 59-62.) Specifically on page 37, the City Planner stated "I would like to show you these intersections as I think traffic is a major issue with regard to this project." In his Power Point presentation, the City Planner advises that "the access drive left turn movement or the uphill movement is designed as a design of level service of less than C." (ROR 3f at 36.) He further indicated that "the areas with the red box indicate the deterioration in the level of service from B to C and that is as I understand it a deterioration from the no build to the build condition. Another (sic) words it is a deterioration caused by the impact of the project." (ROR 3f at 36-37.) As set forth above, Section 7.45-1 requires a level of service of C or above. (ROR 5a.)
There was also testimony by the Planner that the single access was also a concern "that very well may be an issue for traffic circulation." (ROR 3f at 38.) Contrary to Plaintiff's assertion, the Planner did not indicate that he found access ways to be adequate. Rather, his comments were in the context of appropriate considerations for the Commission in deciding on the Application. (ROR 3f at 42.)
The Commission's finding that one traffic lane for entering the premises lacked adequate vehicular entrances as required by Sec. 7.46-3 of the Zoning Regulations is fully supported by the evidence. You can't go lower than one. Any argument that the language of the regulation "adequate but not excessive" is vague and is of no consequence as there was only one entrance and that issue was not raised in the pleadings.
Reason three is directly related to the egress and ingress to the project and the fact that the applicant has not established that they will not be hazardous to the public safety in violation of Zoning Regulation 7.46-3. Reasons four, five and six in the court's mind have also been established by substantial evidence. Any view of the one access that allows cars to enter from and exit onto Route 69 almost guarantees its dangerous propensity.
Any argument that because some of the surrounding road conditions are already below level of service C in violation of regulation 7.45-1(f) is of no help to the applicant. Granted, the applicant cannot change that situation but it does indicate the difficulty with traffic intersections nearby which can only be exacerbated by this application. Each one of reasons two through six are supported by the evidence, and support the vote for denial.
The court finds that reason seven, lack of compliance with the Plan of Conservation and Development, does not provide a sufficient reason for denial.
Reason eight states that the proposal is not in conformity with the character and appearance of the surrounding neighborhood in violation of 7.46-9. The surrounding area is mainly single-family residences. The project is for 18 buildings containing 171 separate townhouses. Section 7.46-9 states "that the character and appearance of the proposed use, buildings will be in general harmony with the character and appearance of the surrounding neighborhood and will not adversely effect the general welfare of the inhabitants of the city." The applicant argues that these types of things are not valid reasons for denial. This court does not agree.
As a backup argument on page 27 of the plaintiff's brief, it states "In addition the only evidence concerning aesthetic elements in the record are comments on the record by the City Planner in support of the development relative to the neighborhood." Let's review exactly what the Planner said at the public hearing. (ROR 3f at page 30.)
What I have to say about this design is it is very unimaginative site design. It appears to be very much barracks like. The buildings are lined up like soldiers. What I imagine a World War II army base was constructed to deal with the new influx of recruits would tend to look like. You don't hear about this in subdivision applications because we are just doing lots. This site, a comment that I have often give this commission, I would call this site is engineered, it is not designed. Also the rears of the building face Prospect Road as the commission is well aware that is something that I think is pretty bad. On this site however it is not so bad because the site is relatively isolated. There is no pedestrian street frontage along Hamilton Avenue what so every so the fact that these are the backs of the buildings facing the street really, really doesn't matter much. On the inferior road you have the size of the buildings facing the street and again I think that it is just a kind of lousy design. Access to the open space doesn't really seem to be integrated into the design. The walkways are central walkways along the vehicular path. There does not seem to be anything indicated regarding hiking trails or running paths in the major open space area along the river. Again, a lot of the function really does not seem to be, seems to be missing from the overall site design.
That could hardly be described as an advertisement extolling the aesthetics of this project. Reason eight is supported by the evidence and constitutes a valid reason for denial.
As to reason nine, concerning the soil erosion and sedimentation control plan, the record is not conclusive. It is unclear when the applicant satisfied the concerns of the City Engineer and the court will not consider this reason.
However, the court has found that there is substantial evidence to support reasons two, three, four, five, six and eight of the reasons for denial adopted by the Commission and the appeal is denied and dismissed.