Opinion
CV186073573S
01-31-2019
Joshua PRICE v. TRUMBULL PLANNING & ZONING COMMISSION et al.
UNPUBLISHED OPINION
RADCLIFFE, J.
FACTS
The Defendant, Daniels Farm Estates, LLC, is a contract purchaser of property known as 147 Daniels Farm Road, Trumbull. The property consists of approximately 10.08 acres, and is undeveloped.
When the contract purchaser began efforts aimed at establishing a Village Residence District (VRD) on the site, it was located in a Residence A zoning district. In January of 2017, the contract purchaser submitted an application to amend the Trumbull Zoning Regulations to the Defendant, Trumbull Planning and Zoning Commission.
The proposed amendment was the subject of a public hearing conducted in February of 2017. Public hearings concerning the proposal were also convened in March, April and May of 2017, before the Planning and Zoning Commission approved a text amendment on June 21, 2017.
The adopted Amendment added a proposed Section 2.7 to Article II, Section 2 of the Regulations. The new Regulation provided that a Village Residence District (VRD) is required to contain no less than ten (10), nor more than thirty (30) acres. The District is required to have at least two hundred (200) feet of frontage on a state highway, along with access to sewers.
Development within a Village Residence District (VRD) is limited to single-family detached dwellings. No more than 3.5 units per "net acre" (gross acreage less existing wetlands or watercourses on the site) are permitted.
The Regulations establish buffers and setbacks, and no building can exceed thirty (30) feet in height.
The Defendant Daniels Farm Estates, LLC, was the proponent of the Amendment, which was presented to the Commission. However, although the Text Amendment adopted in June of 2017 was clearly advanced by the contract purchaser with 147 Daniels Farm Road in mind, the regulation is not site specific. No site plan or special permit application was presented when the Regulations were amended.
Trumbull’s Village Residence District (VRD) represents a planning devise commonly referred to as a "floating zone." A floating zone differs from districts established under traditional Euclidian Zoning principles, because it is not tied to any physical boundaries. Pleasant Valley Neighborhood Assn. v. Planning & Zoning Commission, 15 Conn.App. 110, 114 (1988). The Connecticut Supreme Court has recognized the validity and legality of floating zones. Schwartz v. Town Plan & Zoning Commission, 168 Conn. 20, 22 (1975); Sheridan v. Planning Board, 158 Conn. 1, 17 (1969).
The use of a floating zone provides flexibility in zoning, since the location of the new zone is left for future determination. Use of the floating zone concept has been approved for those municipalities which conduct zoning pursuant to a Special Act, and for those which derive their authority to zone from Section 8-2 of the General Statutes. Campion v. Board of Aldermen, 278 Conn. 500, 516-17 (2006); Sheridan v. Planning Board, supra, 18.
On September 27, 2017, Daniels Farm Estates, LLC filed a request for a change in zoning classification (ROR A), with the Trumbull Planning and Zoning Commission, concerning 147 Daniels Farm Road. It sought to change the existing Residence A (one-half acre) Zone, to a Village Residence District (VRD) Zone.
A public hearing concerning the proposed zone change was noticed (ROR UU) for October 18, 2017. On that date, the hearing was continued until November 15, 2017 (ROR LLL, p. 3).
At the November 15, 2017 session, counsel for Daniels Farm Estates, LLC addressed the Commission concerning the change of zone application. He acknowledged that a site plan application had been filed regarding the property, and that it would be before the Commission on December 20, 2017 (ROR SSS p. 2-3).
Concerning the zone change application, counsel argued that the change to Village Residence District (VRD) was consistent with Trumbull’s Master Plan of Development, and satisfied a need for alternative housing. He argued that the concept provides attractive housing alternatives for older residents (ROR SSS, p. 4-8).
The proposal envisioned detached single-family homes, rather than apartment or multiunit condominium structures.
Concerning the zone change proposal, the property meets the required ten (10) acre minimum, has two hundred (200) feet of frontage on a state highway, and is served by public water and sewers, as required by the VRD Regulations (ROR SSS, p. 13-14).
Several members of the public spoke in opposition (ROR SSS, p. 20-42) before the Commission voted to continue the public hearing process until its next meeting.
On December 20, 2017, the public hearing resumed, concerning both the change of zone, and the special permit and site plan application (ROR TTT).
At the December 20 public hearing, the applicant responded to questions posed by Commission members during previous sessions. Those in attendance who opposed the change of zone and the special permit, were also permitted to supply input.
On February 21, 2018, the Planning and Zoning Commission closed the public hearing concerning the amendment to the zoning map, and the change in the applicable zoning classification from Residence A to Village Residence District (VRD) (ROR PPP, p. 1-2).
The Commission reviewed proposed changes to the site plan, including concerns raised by the Fire Marshall, and the Tree Warden. Recommendations were made concerning on site parking and signage. Several residents of the immediate area voiced opposition to the special permit, before the public hearing was closed (ROR PPP, p. 4-5).
On February 28, 2018, after extensive discussion, (ROR WWW) the Commission voted, unanimously, to approve both the requested change in the zoning map (ROR WWW, p. 98), and the special permit and site plan (ROR WWW, p. 121).
The special permit which was approved authorized the building of thirty (30) single-family homes on the site.
Reasons cited by the Planning and Zoning Commission in support of the change in zoning classification were: (RPR WWW, p. 96-98)
1. It provides a method to utilize certain pieces of property to provide housing alternatives and to allow an applicant to develop property within the guidelines that the Town of Trumbull feels is appropriate.
2. The location on a state highway is appropriate to site higher density single-family residences, within appropriate guidelines.
3. The VRD Zone will provide housing alternatives within the guidelines suggested in the Plan of Conservation and Development (POCD).
4. The location for the DRV is appropriate, because it is a quarter mile from the town center on a state highway, near a bus stop.
5. It creates housing choices, without too great an increase in density.
6. The Village Residence District (VRD) comports with the surrounding area.
In support of the special permit application and site plan approval, the Commission gave the following reasons: (ROR WWW, p. 100-01)
1. The application complies with the Village Residence District (VRD) Regulations.
2. There will be no major impact on traffic, as found by the traffic consultant hired by the Town of Trumbull and by Frederick Clark and Associates.
3. The change of zone is consistent with the Plan of Conservation and Development (POCD).
4. The buffers provided insure a transition between the new development and the existing neighborhood in accordance with the Plan of Conservation and Development (POCD).
5. The addition of pedestrian amenities, parking and landscaping benefit the surrounding area.
6. All engineering recommendations have been met.
7. There will be no adverse impact on nearby wetlands.
8. The development is consistent with the public health, safety and welfare of the community.
9. Approvals have been obtained from the police commission.
10. Applicant will comply with the recommendations of the Tree Warden and landscaping plan.
11. There will be no major impact on the Trumbull public schools.
The Planning and Zoning Commission also attached a number of specific condition to the approval of the special permit: (ROR QQQ, p. 4)
1. A landscaping bond of $ 450, 000. as determined by the Town Tree Warden.
2. Soil erosion control bond estimate to be determined by Town Engineer.
3. Lighting and mailbox design to be submitted and approved by Town Staff.
4. Lot on 131 Daniels Farm Road to have fencing located on the side and rear of the property, providing fencing is on applicant’s property fencing material to be approved by Town Staff.
5. State Traffic Commission approval for ingress and egress on Daniels Farm Road.
6. Water Pollution Control Authority (WPCA) approval for sewer connection.
7. Submit to a Demolition Delay Permit.
8. Maintenance Plan Agreement to be approved by Town Engineer, and Town Attorney. The Maintenance Plan Agreement for drainage and detention basin is to be recorded on the land records and provide for 1) a maintenance schedule, 2) access for Town to inspect, and 3) if the Homeowner’s Association (HOA) fails to comply, to Town may remedy and charge/lien the HOA for costs.
9. Deeds for each unit shall note that it is subject to the Maintenance Plan Agreement recorded on the land records.
10. A reserve for maintenance of drainage and detention basin shall be established for the HOA by providing a special assessment upon the initial sale of each unit in an amount TBD by Town Engineer, but not to exceed $ 1, 000. per unit. HOA governing documents shall require the reserve to be replenished upon use.
11. No marketing or assessment of units as more than three bedrooms.
12. Deed for each unit shall note restriction of no more than 3 bedrooms and 1, 200-3, 000 sq. ft. of conditioned space, excluding garage.
13. Modification to Site Plans to be reviewed and approved by Town Staff as follows:
a. Removal of house # 1 and # 26 is for public safety.
b. Create parking mail area on the north side of old house # 26, the mail area shall be parallel to # 25 in northwest corner near # 25.
c. Create parking and bus stop pad on south side where old house # 1 was.
d. Widen the road to open it up to the property lines of # 25 and # 2.
e. Widen existing exit and entrance to add left and right turn exit lanes.
f. Offer the applicant the option to add a house back into green area on the right side of the entrance road of the inner circle.
g. Add parking spaces to inner circle area.
h. Development limited to 30 units.
Notice of the Planning and Zoning Commission’s approval of the change of zone application and special permit and site plan approval was published in the March 8, 2018 edition of The Trumbull Times, and the March 16, 2018 edition of The Connecticut Post .
This timely appeal by the Plaintiff, Joshua Price, followed.
AGGRIEVEMENT
The Plaintiff, Joshua Price, is the owner of real property known as 163 Daniels Farm Road, Trumbull (Exhibit 1). He has owned the property continually, since purchasing it in July of 2012 (Ex. 2).
163 Daniels Farm Road abuts 147 Daniels Farm Road, the property which is the subject of this appeal (ROR 75).
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); Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307 (1991). 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); Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 508 (1968). The burden of proving aggrievement rests with the party claiming to be aggrieved. London v. Zoning Commission, 149 Conn. 282, 284 (1962). One claiming aggrievement must sustain his interest in the property throughout the appeal. Craig v. Maher, 174 Conn. 8, 9 (1977).
Aggrievement falls into two basic categories— statutory aggrievement, and classical aggrievement.
Statutory aggrievement exists by virtue of legislative fiat, and is a legislative recognition of a right to appeal without regard to an analysis of the facts of a particular case. Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 665 (2006); Tazza v. Planning & Zoning Commission, 164 Conn. 187, 190 (1992). One claiming statutory aggrievement must show that a particular statute grants to a party standing 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) he must prove that the interest has been specifically and injuriously affected by the decision which generated the appeal. Cannavo Enterprises v. Burns, 194 Conn. 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 in this state 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 Plaintiff, Joshua Price, the owner of 163 Daniels Farm Road, owns land which abuts the property which is the subject of both the requested change in zoning classification, and the special permit and site plan application.
It is therefore found, that the Plaintiff has satisfied the test for statutory aggrievement, and the court has jurisdiction to entertain his appeal.
Because Joshua Price is found to be statutorily aggrieved, it is not necessary to consider any claim of classical aggrievement.
STANDARD OF REVIEW— CHANGE IN ZONING CLASSIFICATION
On June 21, 2017, the Defendant, Trumbull Planning and Zoning Commission, unanimously approved a text amendment to the Trumbull Zoning Regulations. The Amendment added Section 2.7 to Article II, Section 2 of the Regulations. The Amendment permitted the creation of a Village Residence District (VRD) on a parcel of land consisting of no less than ten (10) acres, not more than thirty (30) acres, in the Town of Trumbull.
Since the Amendment did not affect any specific parcel of land, no one was aggrieved by the adoption of the "floating zone" Regulations. Aggrievement is only possible after the zone is mapped onto a particular property, and a change in zoning classification is voted by the Commission. Schwartz v. Town Plan & Zoning Commission, 168 Conn. 20, 23 (1975); Sheridan v. Planning Board, supra, 16.
When a planning and zoning commission grants an application to site a floating zone on a specific parcel, it alters the zone boundaries by carving a new zone out of an existing zone, and amends the zoning map. In performing this function, the commission acts in a legislative capacity, rather than in an administrative or quasi-judicial capacity. Sheridan v. Planning Board, supra, 17.
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., 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). In the exercise of that discretion, a commission is free to amend its regulations and its zoning map whenever time, experience, and reasonable planning for contemporary or future conditions reasonably indicate the need for a change. Campion v. Board of Aldermen, supra, 526-27; Kaufman v. Zoning Commission, 222 Conn. 122, 150 (1995).
Such broad discretion is vested in a municipal planning and zoning commission, because, the commission 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). Courts will not interfere with the exercise of legislative discretion, unless the action taken is contrary to law, arbitrary, illegal, or an abuse of discretion. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 265 (1983). Questions concerning the credibility of witnesses, and the determination of issues of fact, are matters within the province of the land use 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 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 when 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).
When acting upon a change in zoning classification, the test to be applied is whether substantial evidence 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. Planning & Zoning Commission, 283 Conn. 553, 584-85 (2007); Pike v. Zoning Board of Appeals, 31 Conn.App. 270, 277 (1993).
Where, as here, the commission has stated collective reasons for its decision on the record, a court should not go beyond the reasons provided by the agency, but should only determine whether any reason given is supported by substantial evidence. Gibbons v. Historic District Commission, 285 Conn. 755, 770-71 (2008); DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541 (1970). If any reason given would be a valid basis to uphold the decision of the Commission, the decision must be upheld. Cottle v. Planning & Zoning Commission, 100 Conn.App. 291, 294 (2007).
STANDARD OF REVIEW— SPECIAL PERMIT, SITE PLAN
A special permit allows a property owner to use its property in a manner which is expressly permitted by the zoning regulations. A.P. & W. Holding Corporation v. Planning & Zoning Commission, 167 Conn. 82, 85 (1984); Kobyluck v. Planning & Zoning Commission, 84 Conn.App. 160, 169-70 (2004). The terms "special permit" and "special exception" have the same meaning, and may be used interchangeably. Summ v. Zoning Commission, 150 Conn. 79, 87 (1962).
The authority of a municipal planning and zoning commission to issue a special permit, derived from S. 8-2 of the General Statutes. The authorizing statute does not permit a commission, in the exercise of its discretion, to vary the application of its regulations on a case by case basis. MacKenzie v. Planning & Zoning Commission, 146 Conn.App. 406, 428-29 (2013).
Section 8-2, C.G.S.— "... regulations ... may provide that certain classes or kinds of buildings structures or uses of land are permitted only after obtaining a special permit ... subject to standards set forth in the regulations and conditions necessary to protect the public health, safety, convenience and property values."
When ruling on a special permit application, a planning and zoning commission sits in an administrative capacity, rather than in a legislative or quasi-judicial capacity. Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627 (1998); Goldberg v. Zoning Commission, 173 Conn. 23, 29 (1977). The commission’s role is to determine whether the application, as presented, satisfies standards contained in the regulations. Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn.App. 533, 537 (1999).
However even though the commission acts administratively, when reviewing a special permit request, the process is not purely ministerial. The commission has a right to interpret its regulations, and to determine whether a particular regulation applies and whether general statutes concerning health, safety, and welfare have been satisfied. Whisper Wind Development Corp. v. Planning & Zoning Commission, 229 Conn. 176, 177 (1994); St. Joseph’s High School, Inc. v. Planning & Zoning Commission, 176 Conn.App. 570, 599 (2017).
In applying the law to the facts of a particular case, a planning and zoning commission is endowed with liberal discretion, and its actions are subject to review by a court only to determine whether the challenged action was unreasonable, arbitrary or illegal. Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152 (1988). The exercise of that discretion is inherently fact specific, and requires an examination of the particular circumstances of the precise site for which the special permit is sought, along with the particular characteristics of the specific neighborhood in which the proposed use will be situated. Municipal Funding v. Zoning Board of Appeals, 270 Conn. 447, 457 (2003). On factual questions, a reviewing court cannot substitute its judgment for that of the municipal commission. Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 380, 401 (1992).
Conclusions reached by the commission must be upheld, if supported by substantial evidence in the record. The substantial evidence standard is highly deferential, and permits less judicial scrutiny than a "clearly erroneous" or "weight of the evidence" standard. Sams v. Department of Environmental Protection, 308 Conn. 359, 374 (2013).
In considering an application for site plan review, a commission also acts administratively. Carr v. Bridgewater, 224 Conn. 44, 54 (1992); Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 12 (1988). In reviewing a site plan, the commission has no independent discretion beyond determining whether the plan complies with applicable regulations. Kosinski v. Lawlor, 177 Conn. 420, 427 (1979); Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn.App. 506, 512 (1984). A site plan may be modified or denied only if it fails to comply with the requirements already set forth in the regulations. Connecticut Resource Recovery Authority v. Planning & Zoning Commission, 46 Conn.App. 566, 570 (1997); SSM Associates, Ltd. Partnership v. Planning & Zoning Commission, 15 Conn.App. 561, 566-67 (1988).
Where a municipal land use agency has stated collective reasons for its decision, a court should not go beyond the collective reasons of the agency, but should only determine whether any reason given is supported by substantial evidence. Cottle v. Planning & Zoning Commission, supra, 295.
ACTION OF PLANNING AND ZONING CMMISSION DID NOT CONSTITUTE ILLEGAL SPOT ZONING
The Plaintiff, Joshua Price, claims that the decision of the Trumbull Planning and Zoning Commission to rezone the 10.08-acre parcel from Residence A to Village Residence District (VRD) is not supported by substantial evidence in the record. He maintains that the Commission engaged in "spot zoning," and that its action is therefore illegal.
This claim is not persuasive.
Spot zoning has been generally defined as the reclassification of a small area or tract 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 which involves an illegal exercise of power by a zoning authority: 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. Galasso, 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 the immediate area, does not mean that a claim of spot zoning will inevitably or necessarily prevail. Pierrepont v. Zoning Commission, 154 Conn. 463, 465 (1967); Kutcher v. Town Planning Commission, 138 Conn. 705, 710 (1952). Some commentators have stated 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 related to the police powers contained in S. 8-2 of the General Statutes. Fuller, Robert A. "Land Use Law and Practice" (fourth edition), Section 4.8, p. 80 (2015).
Cases in which the decision of a zoning authority have been reversed, because the decision of the zoning agency amounted to spot zoning, are rare. Eden v. Town Plan & Zoning Commission, supra, 62-63; Kuehne v. Town Council, 136 Conn. 452, 461 (1950). Regardless of the size of the parcel, courts have consistently held that a change in zoning classification cannot be upheld, unless the action taken is in accordance with the 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 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 uses of property. Konigsberg v. Board of Aldermen, supra, 584-85. The requirement of a comprehensive plan is generally satisfied, when a zoning authority acts with the intention of promoting the best interest on the community. First Hartford Realty Corp. v. Planning & Zoning Commission, supra, 541; Dutko v. Planning & Zoning Board, 110 Conn.App. 228, 241 (2008).
Courts have refused to sustain appeals premised upon claims of spot zoning, in cases involving parcels which are decidedly smaller than the 10.08 acres involved in this appeal. Campion v. Board of Aldermen, supra (4.04 acres, surrounded by a residential zone); Morningside Associates v. Planning & Zoning Board, supra (6.5 acres of undeveloped land); Kutcher v. Town Planning Commission, supra (2.5 acres in a rural residential zone).
A case which underscores the irrelevance of the size of the land which is the subject of a rezoning, is Bartram v. Zoning Commission, 136 Conn. 89 (1949). In Bartram, the Bridgeport Zoning Commission voted to change the classification of a lot on Sylvan Avenue, with a street frontage of 125 feet, and a depth of 133 feet, from a residential to a business zone.
After the effort was successfully challenged as an exercised in spot zoning in the trial court, the Connecticut Supreme Court, in an opinion authored by Chief Justice Maltbie, rejected the spot zoning claim. The Supreme Court declared that the use of this small area in a manner different from the surrounding area would permit neighborhood stores outside the downtown central business district. Therefore, the Court reasoned, the best interest of the community was served by the change of zone, notwithstanding the size of the lot. Bartram v. Zoning Commission, supra, 96.
Even assuming, arguendo, that this 10.08-acre site satisfies the first prong of the spot zoning test, the decision of the Planning and Zoning Commission is supported by substantial evidence in the record.
The property is located on a state highway, a short distance from the Trumbull Center commercial district. Access to Route 25, a limited access highway, provides ingress and egress to the area, without extensive use of local roads.
Although residential density is increased in the VRD District, each dwelling is a single-family structure, which provides alternative housing for an aging community, and for young families struggling to acquire a starter home in a community where the cost of housing may otherwise be prohibitive.
No multi-family units are permitted, thus rendering the DRV Zone more compatible to the adjacent single-family homes, than a zone in which multi-unit housing is a permitted use.
The record compiled during the public hearing amply supports the unanimous decision of the Commission to change the zoning classification of the ten (10) acre parcel to a Village Residence District (VRD). The decision is, therefore, consistent with the municipal comprehensive plan.
The Plaintiff also attacks the Commission’s decision, by claiming that it adopted the VRD floating zone Regulations, and changed the zoning classification of the property, in order to prevent the parcel from being used as an "affordable housing" project, consistent with Section 8-30(g) of the General Statutes. He seems to argue that this motivation is improper, and renders both the Regulations and the change in zoning classification subject to attack.
This claim is not well taken.
For many years, the prospect of owners of large undeveloped parcels submitting "affordable housing" applications has hung like the Sword of Damocles over proceedings before municipal planning and zoning commissions. Particular to the Town of Trumbull, in which less than ten (10) percent of the residential dwelling units qualify as "affordable" pursuant to state law, the prospect of a project being foisted upon municipal decision makers is clear and obvious. This is particularly true, where, as in this case, the presence of sewers facilitates dense, multiunit housing developments.
In a traditional zoning context, a municipal planning and zoning commission has broad discretion when amending its regulations, and its zoning map. A reviewing court must give deference to the decision of local land use officials, and the standard of review recognizes and respects the prerogatives of local elected officials. Raybestos-Manhattan, Inc. v. Planning & Zoning Commission, supra, 470.
However, Section 8-30g(g) mandates a different standard of review in an affordable housing appeal. The burden of proof in such cases shifts to the commission, and judicial activism is specifically invited, without regard to the action of the municipal land use body. The statute reads:
Upon an appeal taken under subsection (f) of this section, the burden shall be on the commission to prove, based upon evidence in the record, compiled before such commission, that the decision from which such appeal is taken, and the reasons cited for such decision, are supported by substantial evidence in the record. The commission shall have the burden to prove, based upon evidence in the record, that (1)(A) the decision is necessary to protect substantial public interest in health, safety, or other matters which the commission may legally consider, (B) such public interests clearly outweigh the need for affordable housing, and (C) such public interest cannot be protected by reasonable changes to the affordable housing development ...
A reviewing court, in applying the S. 8-30g(g) criteria, must first determine whether the record before the commission establishes that there is more than a theoretical possibility, although not necessarily a likelihood, of specific harm to the public interest, if the application is approved. Eureka V v. Planning & Zoning Commission, 139 Conn.App. 256, 265 (2012). If the court finds that sufficient evidence is present, it is then obligated to conduct a plenary review. Jag Capital Drive, LLC v. East Lyme Zoning, 168 Conn.App. 655, 667-68 (2016). The plenary review of the record is designed to determine whether the commission has met its burden, concerning the three-fold test contained in Section 8-30g(g). River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 1, 26 (2004); JPI Partners, LLC v. Planning & Zoning Board, 259 Conn. 675, 688-90 (2002).
The prerogatives of a reviewing court are also broader than those allowed in a traditional zoning appeal. Section 8-30g(g) specifically provides:
... If the commission does not satisfy the burden of proof ... the court shall wholly or partially revise, modify, remand or reverse the decision from which the appeal was taken, in a manner consistent with the evidence in the record before it ...
Faced with the prospect of an application submitted pursuant to Section 8-30g, it is not surprising that a planning and zoning commission would be proactive. If a motivating factor behind the action was a desire to avoid the Section 8-30g mandates, and avoid the possibility of a dense multi-unit, multi-story development on the subject property, that fact would only accentuate the Commission’s desire to act in the best interest of the community as a whole.
The VRD floating zone increases density, and provides for alternative housing options in the Town of Trumbull. Any commission should be commended for responsibly exercising its obligation to "plan" and "zone" without surrendering the power it was elected to utilize, to high-density developers, and unelected judges.
That the Commission may have sought to foreclose the possibility of a less attractive and less appealing alternative use of 147 Daniels Farm Road, as mandated by a court, does not provide a bona fide basis for challenging the approval of the VRD Regulations, or the Commission’s decision to change the zoning classification of the 10.08-acre tract.
SECTION 8-2m OF THE GENERAL STATUTES DOES NOT APPLY TO THE TOWN OF TRUMBULL
The Plaintiff next claims that the Trumbull Planning and Zoning Commission lacks the authority to enact "floating zone" Regulations and to establish a floating zone pursuant to those regulations, pursuant to Section 8-2m of the General Statutes.
This claim must fail, based upon the text of the statute, and its legislative history. Section 8-2m reads:
The zoning authority of any municipality that (1) was incorporated in 1784, (2) has a board of aldermen form of government, and (3) exercises zoning power pursuant to a special act, may provide for floating and overlay zones and flexible zoning districts, including, but not limited to, planned development districts, planned development units, special design districts, and planned area developments. The regulations shall establish standards for such zones and districts. Flexible zoning districts established under such regulations shall be designed for the betterment of the municipality and the floating and overlay zones and neighborhood in which they are located and shall not establish in a residential zone a zone that is less restrictive with respect to uses than the underlying zone of the flexible zoning district. Such regulations shall not authorize the expansion of a pre-existing nonconforming use when the underlying zone is a residential zone.
Section 8-2m resulted from an Amendment to Senate Bill 546, introduced by Senator Martin Looney during the 2006 General Assembly session. The Amendment was adopted while Campion v. Board of Aldermen, supra, was before the Connecticut Supreme Court awaiting decision.
The Amendment became section 2 of Public Act 06-128, with an effective date of October 1, 2006. The Supreme Court decided Campion on June 6, 2006.
In Campion, the Supreme Court upheld the creation of a Planned Development District (PDD) encompassing approximately four (4) acres located in the City of New Haven’s eastern shore area. The PDD included a catering facility, Anthony’s Oceanview, which was a nonconforming use in the residential zone.
The new zoning district, established as a result of the approval of the Planned Development District (PDD) by the New Haven Board of Aldermen, was surrounded by a residential zone.
The Supreme Court decision upheld the decision of the New Haven Board of Aldermen and the trial court, while reversing a decision of the Appellate Court, which had determined that the Planned Development District (PDD) violated principles of Euclidian Zoning. (See Campion v. Board of Aldermen, 85 Conn.App. 820 (2004).)
Although Public Act 06-128 did not apply to Campion, the technical reviser bill, Public Act 06-196 Section 290, changed the effective date of Section 2 of Public Act 06-128 from October 1, 2006 to June 2, 2006, effective June 7, 2006. Therefore, any application for a Planned Development District (PDD) filed in the City of New Haven on or after June 7, 2006, would be subject to Public Act 06-128.
The City of New Haven was incorporated in 1784, and has a mayor and a board of aldermen form of government. New Haven’s zoning authority is derived from a Special Act, passed by the General Assembly in 1925. Campion v. Board of Aldermen, supra, 510. No other Connecticut municipality satisfies this three-fold test.
This statutory anomaly has been described as "limited and strange" in that the general statute seems to constitute special legislation applicable to only one municipality. Fuller, Robert A. "Land Use Law and Practice," (fourth edition), Section 4:49, p. 187-88 (2015).
Trumbull, which was incorporated in 1799, and has a first selectman and Town Council form of government, exercises zoning authority pursuant to General Statute Section 8-2, rather than through a special act of the legislature. Therefore, the Town possesses none of the three (3) characteristics which must be satisfied, in order for the provisions of Section 8-2m to apply.
Senator Looney, a resident of New Haven’s eastern shore, who has represented the area as a member of the General Assembly for many years, crafted general legislation, which addressed a New Haven concern, without impacting other municipalities. It is a tribute to his legal and legislative acumen that he effectively succeeded in amending the 1925 New Haven Special Act, through the adoption of a general statute.
However, Senator Looney’s ability to skillfully navigate the shoals and rapids of the legislative process, cannot advantage the Plaintiff in this appeal.
Nor does the creation of the VRD Regulations with 147 Daniels Farm Road in mind, undercut the validity of the floating zone. By definition, a floating zone does not apply to a specific piece of property. River Bend Associates v. Zoning Commission, supra, 30. The floating zone Regulation, by its terms, is applicable to any parcel satisfying the criteria contained in the Regulation.
DECISION TO APPROVE SPECIAL PERMIT/SITE PLAN SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD
The Plaintiff does not claim that the requested special permit and the accompanying site plan as approved by the Trumbull Planning and Zoning Commission, violate any of the Regulations applicable to the Village Resident District (VRD) Zone. Nor does he challenge the provisions of the text amendment to the Trumbull Zoning regulations, as approved in June of 2017.
He challenges several of the conditions attached to the special permit, including the approval of lighting and mailbox design and fencing material by the "Town Staff," and the approval of the Maintenance Plan Agreement for drainage and a detention basin.
He also maintains that the Commission cannot condition its special permit approval upon subsequent actions by the Connecticut State Traffic Commission, and the Water Pollution Control Authority (WPCA).
These claims are not well taken.
The State Traffic Commission, not the municipal planning and zoning commission, controls the use of state highways. Section 14-311(c) of the General Statutes, allows the State Traffic commission to wait for local zoning approval, prior to making its decision. Furthermore, the municipal building official cannot issue a building or foundation permit in order to begin construction, until a certificate is issued by the Office of the State Traffic Administrator. Section 14-311c(b), C.G.S.
Section 13-311(c), C.G.S.— "The Office of the State Traffic Administrator, to the extent practicable, shall begin its review of an application prior to final approval of the proposed activity by the municipal planning and zoning agency, or other responsible agency."
Approval for a sewer connection by the Water Pollution Control Authority (WPCA) is also necessary, before a certificate of occupancy may be issued.
Where a municipal planning and zoning commission has no jurisdiction over other public agencies, but the approval of those agencies is a prerequisite to actual development, the commission may make such approvals a condition of the special permit. Lurie v. Planning & Zoning Commission, 160 Conn. 295, 300 (1971).
This case is not controlled by Farina v. Zoning Board of Appeals, 157 Conn. 420, 422 (1969). In that case, the Trumbull Zoning Board of Appeals granted a special exception in order to permit a senior citizen housing complex to be built. The approval was subject to a condition, that the access road to the development "shall be widened at the direction of the town traffic commission, so as to be suitable and adequate to handle the traffic generated by the housing project."
The Supreme Court declared that the board improperly delegated its duty to determine the extent of the traffic increase due to the housing project, and corrective measures to be taken. Farina v. Zoning Board of Appeals, supra, 423.
However, the Farina opinion also recognized a common sense approach to off-site traffic concerns. It observed that it is not necessary to require completion of all road improvements before a special permit application is approved. However, completion of the improvements may be required, prior to occupancy. Farina v. Zoning Board of Appeals, supra, 425. (See also Shulman v. Zoning Board of Appeals, 154 Conn. 426, 431 (1967).)
Nor does requiring the approval of town staff concerning lighting, fencing and mailbox design represent an improper delegation of the Commission’s authority, so long as no violation of the VRD Regulations results.
In Fedus v. Planning & Zoning Commission, 112 Conn.App. 844 (2009), a specific provision of the Colchester Zoning Regulations required that piping used in storm drains must consist of "reinforced concrete pipe (RCP)." The design approved by the commission utilized corrugated high density polyethylene pipe, in lieu of the mandated reinforced concrete. The court found that the commission could not vary the contents of the regulations. Fedus v. Planning & Zoning Commission, supra, 856-57.
The special permit and site plan approval voted by the Trumbull Planning and Zoning Commission does not violate any provision of the Trumbull Zoning Regulations. The conditions of approval are appropriate, and valid.
CONCLUSION
The appeal of the Plaintiff, Joshua Price, is DISMISSED.