Opinion
No. CV03-0177389S
August 18, 2005
MEMORANDUM OF DECISION
Three zoning appeals have been consolidated each naming as the plaintiff, Albert E. Podzunas, Jr. and each involving the same parcels of land. In the first case, docket number CV03-0177389S the original defendants were the Town of Wolcott, and its Planning and Zoning Commission. Thereafter Housewright Development, Inc. and New Samaritan Development Corporation successfully moved to intervene as additional defendants in the case. New Samaritan is the owner of the property which is the subject of the zone change and Housewright Development is the contract purchaser of it.
The first appeal concerned the adoption of a change in the zoning map of the Town of Wolcott by removing the Planned Residential Development (PRD) overlay designation for an area of approximately fifteen acres in the vicinity of Potuccos Ring Road and Wolcott Road, formerly a portion of Wolcott Hills PRD and by changing from General Commercial (CG) District to Residential (R-30) an area of approximately six acres adjacent to the fifteen-acre parcel and also owned by New Samaritan. Prior to the overlay, the fifteen-acre parcel was also in the R-30 district.
The request to amend was initiated by the Planning and Zoning Commission of Wolcott and was heard at a public hearing on February 5, 2003 and approved by the Commission after the close of the public hearing on February 5, 2003. The appeal by Albert E. Podzunas was filed on February 21, 2003.
A hearing on aggrievement was held by the court on August 2, 2005. Mr. Podzunas identified a warranty deed to Yalesville Development, LLC dated September 6, 2002 and testified that he was the sole owner and member of that LLC. He testified that the property described therein was within 100 feet of the land that the two zone changes of February 5, 2003 concerned. CT Page 11936-b
He thereafter identified as Plaintiff's Exhibit 2 a quitclaim deed dated September 28, 2004 from Yalesville Development, LLC to Spectrum Square, LLC. He further testified that the parcel involved in that deed was the same as was acquired by Yalesville Development on September 6, 2002. Again he described himself as the sole owner of Spectrum Square, LLC.
Immediately counsel for New Samaritan moved to dismiss all three appeals because Mr. Podzunas was not the owner of the property within 100 feet of the subject property.
The court will deal with that motion and the general issue of aggrievement at the same time.
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996)
"Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which, may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) RR Pool Home, Inc. v. Zoning Board of Appeals, 43 Conn.App. 563, 569-70, 684 A.2d 1207 (1996). "The fundamental test for determining 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 members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this 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.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987). In Loew v. Falsey, the owner of the building was E.M. Loew. The court found that while the corporation may have held the legal title to the premises, E.M. Loew owned and controlled the corporation and was the beneficial owner. Id. See Infante v. Planning Zoning Commission, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CT Page 11936-c 215062 (January 23, 1986, Jacobson, J.) (as sole stockholder of corporation, plaintiff is beneficial owner of corporation's real property and thus is aggrieved by agency's decision).
On the basis of the limited testimony in this case, the court finds that the plaintiff in each of these appeals is an aggrieved person and is entitled to file these appeals pursuant to Connecticut General Statutes § 8-8(a)(1) and Connecticut General Statutes § 8-8(b).
Some background is necessary for an understanding of this appeal. In 1994, the Wolcott Planning and Zoning Commission approved a development proposal for what was then known as Wolcott Hills Planned Residential District comprised of 200+ acres. The plan was conceptual in nature and required specific site plan approval for each phase of construction. The development mix included single-family, affordable housing pursuant to Connecticut General Statutes § 8-30g and affordable age restricted senior housing. By 1996 all single-family housing had been built.
As of December 4, 1996, the only undeveloped part of the original development property was a 40-unit senior, attached housing complex on what was known as Parcel C consisting of approximately 11 acres. That property was then owned by the defendant New Samaritan Development Corporation. In 1996 New Samaritan and the Town entered into an agreement that provided that if construction on the 40-unit senior attached housing on Parcel C is not commenced by December 4, 2004, the property would be conveyed to the Town.
Sometime in 2002, Samaritan contracted with Housewright Development, Inc. for the 15-acre parcel contingent on the Commission's changing the requirement of 40 affordable senior attached housing units. Housewright then made an application for a 40-unit detached senior housing development without the requirement that it be affordable.
The property in question was comprised of 2 parcels. One was a 15-acre parcel which included the previously described Parcel C which was zoned Planned Residential Development and a second adjoining piece comprising 6 acres which was then zoned General Commercial. The Planned Residential Development designation is an overlay over the R-30 district. New Samaritan is the owner of both pieces. Housewright argued that its proposal could be entertained without a zone change but the Commission disagreed.
On its own the Commission published a notice of a public hearing for February 5, 2002, to remove the overlay designation for the 15-acre parcel and to change the zone of the six-acre parcel from General CT Page 11936-d Commercial to R-30.
ZONE MAP — PROPOSED AMENDMENTS. "(a) By removing the Planned Residential Development (PRD) Overlay designation from an area of approximately 15 acres in the vicinity of Potuccos Ring Road and Wolcott Road, formerly a portion of the Wolcott Hills PRD, which portion is currently owned by New Samaritan Development Corp. (b) By changing from General Commercial GC District to Residential R-30 District an area of approximately 6 acres in the vicinity of Potuccos Ring Road and Wolcott Road, being the remaining portion of that parcel currently owned by New Samaritan Development Corp. referenced in item (a) above."
At the hearing, the plaintiff's present counsel was not present but presented a letter describing the plaintiff's opposition to the changes. He now alleges in his brief at page 10 that "these two changes are significant changes and are of great concern to the plaintiff." No further explanation of that concern was contained in the brief and in the plaintiff's trial testimony he did not further explain his concern.
At the hearing, Anthony Panico, the Town Planner, stated that the PRD was an overlay designation and that the underlying R-30 zone still remained. He further stated that the 6-acre parcel in the General Commercial zone could not be developed because its only access to a highway was through a residential zone which was not permissible.
Counsel for Housewright spoke and described the problem with its earlier application on the basis that the PDR regulation no longer existed. It was the recommendation of the Town Planner that the Commission remove the overlay designation for the 15-acre parcel, change the 6-acre parcel to R-30 and allow Housewright to apply for a special permit to build 40 detached senior housing units which would conform to the Town's 1994 decision to have senior housing on the 11.83-acre parcel.
Counsel for Samaritan also spoke in favor of the CT Page 11936-e changes and explained why it could not develop the property for subsidized affordable senior housing, including a lack of HUD funding, the lack of qualified buyers who could comply with HUD requirements and the change in market conditions favoring detached units.
One person, Keith Mahler, opposed the zone change. His concerns were answered by the planner, Mr. Panico, who said the original PRD plan had already been modified two or three times, that PRD regulations no longer existed and that allowing development under the R-30 zone would meet the interest of the original PRD. Panico also stated that the Commission never envisioned having high-density apartments on the site, because of the incompatibility of a multi-story building in an area of single-family houses.
The hearing was closed and later that night the Commission unanimously approved the zone change for the whole parcel with an effective date of February 11, 2003. There is no record of the Commission providing its reasons for approval.
The plaintiff appealed the decision on February 21, 2003. It gave as its reasons the following:
In approving the Commission Applications, the Commission acted illegally, arbitrarily and in abuse of the discretion vested in it in one or more of the following ways and/or failed to follow correct statutory procedures for amending its zoning regulations and/or zoning districts in one or more of the following ways:
(a) The Commission scheduled, noticed and conducted a mandatory public hearing without first receiving or presenting said application(s) at a Regular Commission Meeting;
(b) The Commission failed to take into account the objectives of the original PRD approval to provide affordable housing of up to forty (40) units in a single building, thereby allowing the original developer to benefit through the earlier phases of the development and not meet its obligation to CT Page 11936-f Wolcott to provide affordable housing in Wolcott;
(c) The Commission failed to state sufficient reasons in the Record to support the approval(s) when said approval(s) negates the Commission's substantial evidence in support of the initial PRD approval;
(d) The approval(s) is not consistent with the Comprehensive Plan of Development in many respects including, but not limited to the goal of preserving and increasing the commercial tax base;
e) The Commission failed to provide required notices to an adjoining municipality. (Connecticut General Statutes § 8-7e.); and
(f) Said approval(s) is not reasonably supported by the evidence in the Record.
In its brief the plaintiff only sets forth two issues that it is claiming:
1. Did the Zoning Commission have the authority to change the original development plan to delete the requirement for attached and affordable residential housing when this specific housing mix was a significant component of the original development plan?
2. Does the Zone Map Amendment constitute illegal spot zoning?
The major difference created by the zone change is that under the change it would allow for the construction of senior age restricted single-family detached condominium units as opposed to one building of 40 senior residential apartments and to delete the statutory affordability set aside requirements pursuant to Connecticut General Statutes § 8-30(g).
The burden is on the Plaintiff to prove that the COMMISSION acted illegally or so arbitrarily as to invalidate its decision. Chucta v. Planning and Zoning Commission of Town of Seymour, 154 Conn. 393, 396; Woodford v. Zoning Commission of Town of Ridgefield, 147 Conn. 30, 32, 156 (1959).
"We note at the outset of our analysis, that a reviewing court's CT Page 11936-g discretion in examining a zoning body's actions in ruling upon a zone change application is very limited." "When formulating zoning regulations, including the establishment of particular zones and the designation thereof a local zoning authority is acting in its legislative capacity." (Emphasis added.) Coastal Sub ban Builders, Inc. v. Planning Zoning Commission, 2 Conn.App. 489, 492, 479 A.2d 1239 (1984). "We have said on many occasions that courts cannot substitute their judgment for the wide and liberal discretion vested, in local zoning authorities when they have acted within their prescribed legislative powers Courts must not disturb the decision of a zoning commission unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally." First Hartford Realty Corporation v. Plan Zoning Commission, 165 Conn. 533, 540-41, 338 A.2d 490 (1973).
The Court has established a two-part test for determining if a zone change should be upheld. First, "[t]he zone change must be in accord with a comprehensive plan . . . and (2) it must be reasonably related to the normal police power purposes enumerated in [General Statutes] 8-2 . . ." Ghent v. Zoning Commission, 220 Conn. 584, 600, 600 A.2d 1010, (1991), citing First Hartford Realty Corporation v. Plan Zoning Commission, 165 Conn. 533, 541, 338 A.2d 490 (1973).
When deciding a zone change, the Commission acts in a legislative capacity. Protect Hamden/North Haven v. Planning and Zoning, 220 Conn. 527, 542, 600 A.2d 757 (1991). The Court has stated that "the commission, acting in a legislative capacity, [has] broad authority to adopt amendments. (Cite omitted.) In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record." Protect Hamden/North Haven v. Planning and Zoning, at Pages 542-43.
The question before the trial court is not would it reach the same decision but "whether the record before the agency supports the decision reached." Protect Hamden/North Haven v. Planning and Zoning, at page 543, citing Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 22 (1979)." Primerica v. Planning Zoning Commission, 211 Conn. 85, 96, 558 A.2d 646 (1989).
Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment. [citing] Luery v. Zoning Board, 150 Conn. 136, 145, 187 A.2d 247 [1962]; Clark v. Town Council, 145 Conn. 476, 483, 144 A.2d 327 CT Page 11936-h [1958]. The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission. Court will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion.
Protect Hamden/North Haven v. Planning and Zoning, supra, at page 543-44.
Failure of the Commission to give reasons for its decision does not void the approval. Nielson v. Zoning Commission, 149 Conn. 410, 411, 180 A.2d 754 (1962). The requirement under Connecticut General Statutes § 8-3 is directory only. Morningside Ass'n. v. Planning Zoning Board, 152 Conn. 154, 156, 292 A.2d 893 (1972). "Failure to state reasons merely places a burden on the court to search the record to see whether the board was justified in granting the petition." Id. at page 156. "The plaintiff, to prevail on his appeal . . . still had the burden of proving that the commission acted illegally in making the change of zone, or so arbitrarily and unreasonably as to invalidate its action." Woodford v. Zoning Commission, 147 Conn. 30, 32, 156 A.2d 470 (1959), citing Mainolfi v. Zoning Board of Appeals, 146 Conn. 634, 635, 153 A.2d 460.
The court notes that in its complaint, the plaintiff claims several procedural errors by the Commission but has not briefed or argued those issues. Those issues are therefore abandoned. Shaw v. Southbury Planning Commission, 5 Conn.App. 520, 525. Further, the plaintiff has offered no reason why the change of zone of the six-acre parcel from commercial to R-30 was improper so that claim is without merit.
The plaintiff seems to be arguing that because of the 1994 action by the Zoning Commission involving the 200-acre property it could not in 2003 amend the zone unless new conditions arose to alter the character of the area. Although that may be a general rule in some circumstances it does not apply in a situation as we have in this case.
[a] local zoning authority, however, acts in a CT Page 11936-i legislative capacity when it enacts or amends its regulations. [Cites omitted.] In acting, such a legislative body must be relatively free to amend or modify its regulations whenever time and experience have demonstrated the need for a revision. [Cites omitted.] The board, acting in a legislative capacity, was, therefore, not bound by the general rule which would prohibit it from reversing an earlier decision without evidence of a change in conditions. [Cites omitted.] (Emphasis added.)
Morningside Ass'n. v. Planning Zoning Board, supra at page 157.
The Plaintiff's first claim is that the Commission did not have the authority to change the original Wolcott Hills PRD plan of development to delete the requirement for attached and affordable residential housing. This argument fails to acknowledge that the issue before the commission was not a change to the original development plan but the removal of an overlay zoning designation for a zone which was no longer in the regulations. The Court has long held that "[a] local board is free to amend its regulations `whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change.'" Arnold Bernard Co. v. Planning Zoning Comm., 194 Conn. 152, 164, 479 A.2d 801 (1984). The elimination of the overlay zone simply allows the owner to utilize the property in any manner permitted by the underlying zone R-30.
Connecticut General Statutes. Section 8-2 requires any zone change to be in accordance with the town's Comprehensive Plan. A Comprehensive Plan consists of the zoning regulations themselves and the zoning map which has been established pursuant to those regulations. Burnham v. Planning Zoning Commission, 189 Conn. 261, 267, 455 A.2d 339 (1983). In the instant case the Regulation which authorized development within the PRD no longer existed. Further, the Zoning Regulations prohibited commercial activities within residential zones. Based upon the foregoing, the decision to remove the PRD zone, reestablish the underlying residential zone on the fifteen-acre parcel and extend the residential zone to the six-acre parcel with its access CT Page 11936-j through a residential zone was clearly in conformance with the town's comprehensive plan and therefore proper.
The plaintiff then argues that the zone change here amounts to spot zoning and is illegal. He argues that "any substantial deviation from the original plan constitutes spot zoning as a matter of law." (Plaintiff's Brief at page 17.) He cites no authority for that proposition. Spot zoning is the "reclassification of a small area of land in such a manner as to disturb the tenor of the surrounding neighborhood." Morningside Ass'n. v. Planning Zoning Board, [ 162 Conn. 154, 161, 292 A.2d 893 (1972)]. Two elements must be satisfied before spot zoning can be said to exist. First, the zone change must concern a small area of land. Second, the change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole. Id.
The comprehensive plan for the Town of Wolcott, as evidenced by its then existing zoning map and zoning regulations, and the Wolcott Hills PRD approval called for 11.83 acres of the fifteen-acre parcel to be used for 40 senior housing units. Since the Commission had eliminated the PRD regulation, there was no existing regulation under which these units could be built. The Record discloses that the Commission determined that the 40 units of senior housing could be built under its new Age Restricted Planned Residential Development regulation if the PRD overlay designation was removed. Based upon the foregoing, the decision to change the zone on the fifteen-acre parcel was in keeping with the town's comprehensive plan and therefore not spot zoning.
As to the six-acre parcel zoned GC, the Record discloses that this was a rear parcel, behind properties zoned R-30. Its only access to a public road was to utilize a right of way within the R-30 zone which is specifically prohibited by the regulations. Further, the extension of the R-30 zone to this rear parcel was in keeping with the town's comprehensive plan and not spot zoning. CT Page 11936-k
For all of the foregoing reasons the Court finds that the plaintiff has failed to prove that the actions of the Commission on February 5, 2000 in approving these zone changes was illegal, arbitrary or in abuse of its discretion and the appeal is denied.
GORMLEY, JTR CT Page 11936-l