Opinion
No. 4000049
March 29, 2005
MEMORANDUM OF DECISION
This vigorously contested appeal from the actions of the Town of Griswold Planning Zoning Commission ("the commission") came to this Court by Citation and Appeal of the plaintiffs/appellants Helmut J. Reinholtz and Pamala W. Reinholtz and others ("the plaintiffs or appellants") dated June 25, 2004. In their appeal the plaintiff's claim that the commission erred in granting a Special Exception to the codefendant Albemarle Pleasant View, LLC permitting a 102-unit multifamily development for property located on Pleasant View Street in the town of Griswold, Connecticut.
Pleadings and Briefs were filed in due course and the matter came before this Court for oral argument on March 9, 2005 at New London. All parties were represented by counsel and made argument in furtherance of their respective claims. Witness testimony was offered with exhibits to prove aggrievement to take this appeal which was not contested by the defendants. Supplemental briefs were filed thereafter with permission of the court. The commission adopted the position of the applicant.
The standard of review on appeal to the Superior Court has been often stated in an appeal from the decision of a zoning board, the reviewing court reviews the record to determine whether there is factual support for the commission's decision, not for the contentions of the applicant. Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 270 (1991).
The standard of review of zoning commission decisions by the Superior Court is limited to a determination of whether the commission acted arbitrarily, illegally or unreasonably. Wnuk v. Zoning Board of Appeals. 225 Conn. 691, 695-96 (1993). The credibility of witnesses and the determination of fact issues are matters solely within the province of the commission. Municipal Funding, LLC v. Board of Zoning Appeals, 270 Conn. 447, 453 (2004). The commission is not required to believe any witness and is not required to use in any particular fashion any of the materials presented to it, so long as the conduct of the hearing is fundamentally fair. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 597 (1993).
This court's function is not to retry the case when reviewing the commission's action on the application. Harris v. Zoning Commission, 259 Conn. 402, 416 (2002); Primerica v. Planning and Zoning Commission, 211 Conn. 85, 96 (1989). Consequently, the question to be answered by this court is not whether it would have reached the same conclusion as the Commission. As the Appellate Court stated:
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 . . . Although a zoning commission or board possesses the discretion to determine whether a proposal meets the standards established in the regulations, it lacks the discretion to deny a special permit if a proposal satisfies the regulations and statutes . . .
[C]ourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . The trial court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board's] findings . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons . . . (Citations omitted; internal quotation marks omitted.)
Oakbridge/Rogers Ave. Realty, LLC v. Planning Zoning Board, 78 Conn.App. 242, 247-48 (2003); quoting Municipal Funding, LLC v. Zoning Board of Appeals, supra, 74 Conn.App. 161-62; see Smith Bros. Woodland Management, LLC v. Planning and Zoning Commission, 88 Conn.App. 79, 84-85 (2005).
The plaintiffs in their complaint/appeal make several allegations and claim that the commission action was capricious, unreasonable and inconsistent with the intent of their regulations and without due regard to the facts. They also allege that it acted contrary to the evidence contained in the record as a whole.
In their brief and argument the plaintiffs make five separate claims of irregularity.
First, the plaintiffs claim that the commission failed to record the hearing on June 14, 2004 as required by law and that without a transcript the actions of the commission are "voidable" at the option of the plaintiffs, citing the cases of Wagner v. Zoning Board of Appeals, 153 Conn. 713, 714 (1965), and London v. Zoning Board of Appeals, 150 Conn. 411, 414 (1963), among others. In the alternative if it is not "voidable" then the plaintiffs request a remand to the Commission for a de novo hearing. The defendants argue that those cases do not support the plaintiff's claims and, upon analysis, the court agrees. Chucta v. Planning Zoning Commission, 154 Conn. 393 (1967). In the Chucta case the plaintiffs had the burden of proof, as here, and failed to take advantage of remedial legislation which permitted supplementing the record if it was deficient. The alternative of a remand is also not appropriate since this case is considerably different than the case cited by Plaintiffs in support of a remand.
"The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision." (Internal quotation marks omitted.) Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 603, cert denied, 260 Conn. 901 (2002); Sciortino v. Zoning Board of Appeals. 87 Conn.App. 143, 147 (2005).
Second, the plaintiffs claim that the failure of the commission to state the reason for the decision is dispositive. This claim is not supported by the law. Gagnon v. Inland Wetlands Watercourses Commission, 213 Conn. 604 (1990); Parks v. Planning Zoning Commission, 178 Conn. 657 (1979).
Third is the claim that there was a failure of notice of the hearing to plaintiffs, A. Betty Curran and Francis Curran. The plaintiffs' brief cites Section 8-8(a)(1)of the General Statutes as requiring notice to those property owners within 100 feet of the proposed activity and alleges that their property at 28 Ann Street falls within that limit. They also cite the Griswold Zoning Regulations ("the regulations") Section 2.15 as requiring notice to them. Section 8-8(a)(1) is a definition of an "aggrieved person" and does not deal with notice. Section 2.15 of the regulations does deal with the issue of notice and requires notice in certain situations to abutting owners and owners directly opposite the applicant's property. Here the plaintiffs at first did not claim to be abutting owners or opposite the applicant's property. The first time these plaintiffs claimed to own property across the street from the applicant's property was at the trial. Various deeds and maps were introduced at the court hearing. The defendants claim that there was a failure to respond to interrogatories relating to this claim. Nevertheless the court finds the plaintiffs have failed in their burden of proof on the issue of ownership of property opposite the applicant's property. Moreover, even if notice was required, the court finds that the plaintiff Francis Curran, who is the husband and co-owner of whatever property is in fact owned by them, did have actual notice, attended the hearing before the commission and participated by expressing his opposition to the application. Notice to one co-owner is notice to all co-owners. Katz v. West Hartford, 191 Conn. 594, 601 (1983). Accordingly the plaintiffs can not prevail on this claim.
Fourth, is the plaintiffs' conflict of interest claim relating to the fact that a former planner for the town of Griswold actually was presenting the application for the applicant. It is undisputed that he was not at the time of the application or hearing still in the employ of the town which had a different Town Planner. The short answer to this claim is that there is no prohibition in the law to the actions taken by the former planner, whatever the plaintiffs or this court may think the law in Griswold should be.
Lastly, the plaintiffs make the claim that the applicant had not complied with all of the regulations of the town relating to Special Exceptions at the time of the hearing so as to become entitled to the granting of the application. Reliance is placed on the rule in cases such as Raczkowski v. Zoning Commission, 53 Conn.App. 636, cert. denied, 250 Conn. 921 (1999), where it is clearly held that an applicant must satisfy all conditions imposed in the regulations. Special Exceptions are specifically covered in the Griswold Zoning Regulations under Section 12 which also incorporate Section 13 as it relates to the site plan. But there are other provisions which come into play. Section 12.3 says in part "In evaluating an application . . . the Commission shall determine that the proposed use shall be in harmony with the appropriate and orderly development of the neighborhood and will not hinder or discourage the development of adjacent property nor impair the value thereof . . ." The plaintiffs have set forth ten separate areas of the regulations with which they raise concerns.
All but one of the ten rely on the various provisions of Section 11.8 of the regulations entitled "Landscaping, Screening, Buffer and Architectural Design Requirements." It is clear these provisions shall apply to uses requiring Special Exceptions. The parties, however, disagree in at least two separate and distinct areas. The defendants argue in the first instance that "design standards" while applicable do not constitute "conditions" or "required elements" or "minimum requirements" and therefore, their absence is not fatal to the permit. This argument, they claim, is supported by the case of McLachlan v. Planning Zoning Commission, Superior Court, Danbury, Docket # CV 00 339830 (July 6, 2001), an unreported decision of Adams, J. Next, the defendants in their brief have responded to each and every area of the regulations cited by the plaintiff with specific reference to items in the record which address the claims raised.
The first of the plaintiffs' claims relates to specimen trees. The specific terms of the regulations, however, suggests the rule is applicable only "to the extent possible." Also with regard to the trees, the applicant submitted testimony at the hearing evincing a willingness to comply with the intent of that regulation. The commission addressed this area of their regulations.
The second area cited by the plaintiffs is Section 11.8.2(b) dealing with shade trees. The short answer to this claim which has been suggested by the applicant is that there are shade trees provided on the plan and the commission in their approval have dealt with the conflict between the required trees on the one hand and the sight line requirements on the other in their decision.
The next area cited deals with a claim that the plan does not show a "project sign"; but here the regulations themselves in Section 11.8.2.10 only require the sign in the plan "as applicable" and it must be clear from the approval and the testimony of the town planner that it was not deemed "applicable" by the commission in this instance. The transcript of the hearing makes it clear that the commission will require a separate permit for the sign. Moreover, the location of the site for a sign was shown on the plan and discussed at the hearing.
The forth and fifth claims of the plaintiffs in this area deal with whether the plan shows the location of mailbox clusters and air conditioners. But, again the regulations suggest these are only required "as applicable." In addition, the transcript cited in the brief of the applicant makes it clear these areas were covered by the commission in their deliberations. The granting of the application is an indication of what the commission considers "applicable" in regards to these items.
The sixth area cited by the plaintiffs relates to the extent to which existing stone walls on the property have been incorporated into the plan of the applicant. The plan does show some stone walls; but there are no mandatory standards set forth in the regulations as to how many walls must remain or be reconstructed and the court will not substitute its judgment for that of the commission as to their requirements in this respect.
The seventh claim is that the application did not include final "architectural designs" of the buildings as they claim Section 11.8.2.11 requires. The applicant claims these final plans are not mandated as part of the application in this section and must instead be supplied in the application for the building permit. The commission and its staff must have accepted this interpretation of the regulations since the Public Hearing Minutes of the June 14, 2004 hearing indicate that the town's own Town Planner, Mr. Demian, indicated to the commission that the proposal meets the requirements of the Zoning Regulations.
The eighth claim the plaintiffs make was that Section 11.8.2.11(d) of the regulations relating to topography was not satisfied. Again, the regulation does not set a standard here but only suggest that the existing topography be retained "to the greatest extent possible." The plaintiffs seem to be inviting the court to substitute its judgment in this regard for that of the commission. The court declines to do so.
Building colors and material must be included as part of the application is the ninth claim of the plaintiffs using Section 11.8.2.11(g) as support. That section was part of the discussion at the public hearing and was therefore given consideration by the commission to the extent which the commission considered necessary. In any event, similar to other regulations discussed above, it appears to the court that the regulatory scheme of the town of Griswold reflected in the Record place these details of construction more suitable as part of the building permit application process when a certification must be available. Griswold Zoning Regulations, Sec. 2.9.1.
In their last claim the plaintiffs moved into the area of traffic. They allege that the roads proposed are inadequate to support the increase in traffic as required by Section 13.6.2 of the regulations. Section 13.6 is entitled Site Plan Evaluation and provides "The Commission shall determine the following in its review of a site plan." Section 13.6.2 provides in part "The streets serving the proposed use shall be adequate to safely carry the vehicular traffic generated . . . and there will be provision for entrance and exit points which will not create a traffic hazard or undue traffic congestion." The plaintiffs also claim that they cannot determine from the record if the commission properly evaluated the traffic study. As the applicant claims in its brief, the commission engaged in considerable discussion of the traffic situation, required a traffic study, and resolved this issue in favor of granting the approval. It is not the court's role to substitute its judgment, or that of the plaintiffs, for that of the commission.
If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board. Irwin v. Planning Zoning Commission, 244 Conn. 619, 629 (1998). "If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission." (Internal quotation marks omitted.) Municipal Funding v. Zoning Board of Appeals, 270 Conn. 447, 453 (2004).
"This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury . . . The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration." (Internal quotation marks omitted.) Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 73 Conn.App. 442, 458, cert. denied, 262 Conn. 928 (2002); Smith Bros. Woodland Management, LLC v. Planning Zoning Commission, 88 Conn.App. 79 (2005).
For the reasons indicated the court finds that the commission in approving the Special Exception on June 14, 2004, was not capricious, unreasonable or inconsistent with the intent of the Regulations or without regard to the facts and that the said approval was not contrary to the reliable, probative and substantive evidence contained in the record as a whole and the records of the commission. Moreover, the court having reviewed the record as a whole finds that there is substantial evidence contained therein to support the commission's action.
Accordingly judgment may enter dismissing the appeal.
Robert C. Leuba, JTR