Opinion
No. CV X20 03 0480942
August 6, 2004
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiffs appeal from the decision of the defendant Guilford planning and zoning commission (commission) granting the defendant Big Y Foods, Inc. (Big Y), a special permit to expand its grocery store.
The plaintiffs in this appeal are Pamela Rottier, Stephen Rottier, Robert Whitman, Eleanor Whitman, Maureen Bransfield, and MaryAnne Simhoni. For clarity's sake, they are referred to as "the plaintiffs" in this memorandum of decision.
II BACKGROUND
On May 14, 2003, Big Y applied to the commission for a special permit to expand its grocery store located within the Shoreline Plaza on the Boston Post Road in Guilford. (Return of Record [ROR], Exhibit [Exh.] 3.) Big Y seeks to transform the existing 35,000-square-foot Big Y Supermarket into a 55,700-square-foot World Class Market. (ROR, Exh. 3.) To do so, Big Y proposes to absorb 5,300 square feet of adjacent retail space and to expand the building's footprint by approximately 14,600 square feet. (ROR, Exh. 3.) This expansion would increase the Shoreline Plaza's footprint from roughly 153,000 to 167,700 square feet and, therefore, requires a special permit under § 273-128L of the Guilford zoning regulations: No building or other structure [in the shopping center zone] shall exceed a total floor area of 150,000 square feet (up to 200,000 square feet with special permit in accordance with § 273-118)." (ROR, Exh. 46, p. 142.) On July 16, 2003, the commission voted unanimously to approve, with conditions, Big Y's CT Page 11232-cv application for a special permit. (ROR, Exh. 38, p. 58.) It had notice of its decision published in the Guilford Courier on July 24, 2003; (ROR, Exh. 32); and within two weeks, the plaintiffs commenced this appeal.
On May 13, 2004, the court, Conway, J., conducted a trial on this matter.
III JURISDICTION
General Statutes § 8-8 governs appeals taken from the decision of a zoning commission to the superior court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
A Aggrievement
"`[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal. It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 410.
Under General Statutes § 8-8(a)(1), a statutorily aggrieved person includes "any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." In their appeal, the plaintiffs allege that they own land that abuts or is within 100 feet of the subject property; (Plaintiffs' Appeal, ¶ 2); and at a hearing held on May 13, 2004, they introduced deeds demonstrating such ownership. (Plaintiffs' Exhs. 1-3.) Thus, the plaintiffs have sufficiently pleaded and proved that they are statutorily aggrieved. CT Page 11232-cw
B Timeliness and Service of Process
General Statutes § 8-8(b) provides, in part, that an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." Under subsection (f), service "shall be directed to a proper officer and shall be made by leaving a true and attested copy of the process with, or at the usual place of abode, of the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."The commission had notice of its decision published in the Guilford Courier on July 24, 2003. (ROR, Exh. 32.) Thirteen days later (August 6, 2003), the plaintiff commenced this appeal by serving process on James Barry, the commission's chairman, and Janice Teft, Guilford's town clerk. Accordingly, the plaintiffs commenced this appeal in a timely manner by service of process on the proper parties.
IV SCOPE OF REVIEW
"A special exception is also known as a special permit . . . and whether a zoning board grants a special permit essentially is a discretionary process . . . A special permit allows a property owner to use his property in a manner expressly permitted by local zoning regulations . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values . . . An application for a special permit seeks 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 . . . When a special permit is issued, the affected property may be allowed an exception to the underlying zoning regulations, but it continues to be governed in the same CT Page 11232-cx manner as provided in the overall comprehensive plan . . .
"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 . . .
"When ruling upon an application for a special [permit], a planning and zoning board acts in an administrative capacity . . . Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The . . . trial court [must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . 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 . . . [G]eneral 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 . . .
"[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 CT Page 11232-cy from which the fact in issue can be reasonably inferred . . . Where the board states its reasons on the record we look no further . . . Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board's decision . . . More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons." (Citations omitted; emphasis in original; internal quotation marks omitted.) Oakbridge/Rogers Avenue Realty, LLC v. Planning Zoning Board, 78 Conn.App. 242, 245-48, 826 A.2d 1232 (2003).
V DISCUSSION
The plaintiffs claim that the commission acted illegally in approving Big Y's special permit application because: (1) the proposed building violates the shopping center zone's (SC zone) maximum building size regulation, (2) the proposed building violates the SC zone's maximum expansion regulation, (3) the regulations under which the commission approved Big Y's application illegally authorize the commission to grant special permits to expand non-conforming buildings, (4) they are unconstitutionally vague, (5) they constitute illegal "contract zoning," and (6) they were purportedly enacted without having gone though the requisite statutory procedure.
A
The plaintiffs first claim that the commission acted illegally in approving the special permit application because the proposed building violates the SC zone's maximum building size regulation. That regulation provides: "Maximum building size: (1) No building or other structure shall exceed a total floor area of 150,000 square feet (up to 200,000 square feet with special permit in accordance with § 273-118). (2) No freestanding retail building shall exceed 60,000 square feet and no single retail store use in a multi-tenant building shall exceed 60,000 square feet." (ROR, Exh. 46, p. 142.) According to the plaintiffs, the existing CT Page 11232-dz 153,000-square-foot Shoreline Plaza is not a "building" that is subject to the 200,000-square-foot limitation in subsection (1), but, rather, a "freestanding retail building" that is subject to the 60,000-square-foot limitation in subsection (2). This argument is belied by the fact that the Shoreline Plaza currently houses non-retail uses, including a restaurant (Naples Pizza), a personal service establishment (Nilsa's Nails), and a retail clothes cleaning and/or laundering establishment (Crystal Hanger Cleaners). (ROR, Exhs. 18; 38, p. 23.) That said, the Shoreline Plaza is more akin to the "multi-tenant building" mentioned in subsection (2), in which no "single retail store use" (e.g., Big Y) shall exceed 60,000 square feet. It follows naturally — and logically — that the Shoreline Plaza, itself, is a "building" that is governed by the 200,000-square-foot limitation in subsection (1). See Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 605, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2003) ("[c]ommon sense must be used in construing the regulation, and [the court] assume[s] that a rational and reasonable result was intended by the local legislative body" [internal quotation marks omitted]). Accordingly, the court rejects the plaintiffs' initial claim.
Section 273-127A lists the uses permitted in the SC zone:
I. Retail stores.
II. Business and professional offices.
III. Financial institutions.
IV. Personal service establishments.
V. Restaurants (excluding drive-through service).
VI. Retail clothes cleaning and/or laundering establishments.
VII. Recreational facilities, including gymnasiums, and physical fitness establishments, and studios for dance, musical and theatrical instruction (not to exceed 10,000 square feet). (ROR, Exh. 46, p. 141.)
VIII. Schools, including day-care facilities.
B
The plaintiffs next claim that the commission acted illegally in approving Big Y's application because the proposed building violates the SC zone's maximum expansion regulation. They argue that the existing 153,000-square-foot Shoreline Plaza is a non-conforming building (because it exceeds the 150,000-square-foot limitation in § 273-128L), but note that § 273-131 allows preexisting non-conforming buildings to expand by five percent. Big Y's proposed 14,600-square-foot expansion of its grocery store, they contend, would bring the Shoreline Plaza's total floor area to 167,700 square feet, an impermissible 9.5 percent increase. The court agrees.
Section 273-131 reads: "No building, existing as of the effective date of this regulation, which is nonconforming with respect to maximum building size, maximum coverage, or maximum floor area may expand CT Page 11232-da except by special permit, and no such expansion shall exceed 5% of the total floor area of the building." (ROR, Exh. 46, p. 143.) Thus, to apply, § 273-131 requires a building (1) that existed as of its effective date and (2) that is non-conforming under the regulations with respect to maximum building size, maximum coverage, or maximum floor area. If those two requirements are satisfied, the building may expand by special permit only, and that expansion cannot exceed five percent of the building's total floor area.
Here, the record reflects that the Shoreline Plaza existed as of § 273-131's effective date (indeed, it was the only building existing within the SC zone at the regulations's inception). (Planning and Design Guidelines. p. 4.) It also reflects that, at 153,100 square feet, the Shoreline Plaza is non-conforming under § 273-128L, which, as stated earlier, provides that no building shall exceed a total floor area of 150,000 square feet (up to 200,000 square feet with special permit). Thus, it may expand by special permit only, and that expansion cannot exceed five percent of the Shoreline Plaza's total floor area, that is, it cannot exceed roughly 160,000 square feet. Because Big Y's proposed expansion of the Shoreline Plaza's floor area would exceed that limit by more than 7,000 square feet, it violates § 273-131.
These guidelines were made part of the record after the commission filed a motion to supplement the record under General Statutes § 8-8(k).
That is not to say that the Shoreline Plaza can never exceed 160,000 square feet; to the contrary, it can grow to 200,000 square feet. But each individual application for a special permit is limited to a five percent increase in building's total floor area.
The commission disagrees, and in an effort to explain away § 273-131, it argues that "[t]he purpose of this section is to provide incentives for nonconforming buildings that are not otherwise allowed to expand under the zoning regulations, to nevertheless be eligible for modest expansions to provide an incentive for appropriate design improvements." (Emphasis in original.) (Commission's Brief, p. 11.) The court declines to adopt this interpretation, as it would render § 273-131 meaningless, because this section applies only to buildings within the SC zone that existed as of the regulation's effective date — and the Shoreline Plaza is the only building within the SC zone that fits that description. See Planning Zoning Commission v. Gilbert, 208 Conn. 696, 705, 546 A.2d 823 (1988) ("[w]henever possible, the language of zoning regulations will be construed so that no clause is CT Page 11232-db deemed superfluous, void or insignificant").
Big Y also disagrees, claiming that the plaintiffs' argument "can only have relevance if this building — the only one located within the zone being created — was intended specifically to be made non-conforming by the new regulation." (Big Y's Brief, p. 7.) In support of its claim, Big Y cites the following statement by George Kral, Guilford's town planner, at the July 16, 2003 public hearing: "I just want to make one comment on the Zoning issue that was raised by Mr. Bennet [the plaintiffs' attorney], as to whether or not this somehow is part of the variance. I don't believe that that is the case; that certainly is not the intent of the Zoning Regulations. The Zoning Regulations for the Shopping Center District is the only SC District written exclusively to govern this facility that the authors knew that there was an existing shopping center there and allow for the expansion of the shopping center up to 200,000 S.F. by special permit. That was quite explicit and quite clear, that is what this application is attempting to do is expand the shopping center within the framework of what is permitted by special permit and does not require a variance." (ROR, Exh. 46, pp. 54-55.) According to Big Y, "[t]his interpretation of the regulation that no variance is required for the proposed expansion of the existing building is only another way of saying that the existing building is not non-conforming. If it were non-conforming, only a variance (or perhaps a further regulation amendment) would allow its expansion." (Emphasis in original.) (Big Y's Brief, p. 8.)
Not quite. In his land use treatise, Fuller notes that "[t]he zoning regulations . . . may allow expansion of a non-conforming use by special permit." (Emphasis added.) R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 52.2, p. 552, citing Beckish v. Planning Zoning Commission, 162 Conn. 11, 14, 291 A.2d 208 (1971). And that is precisely what § 273-131 purports to do. Thus, Big Y's argument is without merit. CT Page 11232-dc
C
In their third claim, the plaintiffs assert that §§ 273-131 and 273-118 allow the commission to grant special permits to expand non-conforming buildings and, therefore, invade the exclusive jurisdiction of the zoning board of appeals. They argue as follows: "In the instant case, the Defendant Commission purports to give itself the power to vary its own regulations on several different matters. Specifically, as to lot coverage, total floor area, and maximum building size (see § 273-131) by special permit, and by way of conditioning an approval of a special permit under [§]273-118, by picking and choosing `optional criteria' for the special permit." (Plaintiffs' Brief, p. 9.) In support, they indirectly refer the court to Lunger v. Planning Zoning Commission, 163 Conn. 453, 313 A.2d 44 (1972).
The plaintiffs quote language from Langer, but cite — incorrectly — to Farina v. Zoning Board of Appeals, 157 Conn. 420, 254 A.2d 492 (1969). In Farina, the Supreme Court held that the zoning board of appeals improperly "delegated to the town traffic commission the duty of determining the extent of the traffic increase owing to the proposed . . . development and what corrective measures, if any, would be required in order to accommodate this increased traffic." Id., 423. Since Farina is irrelevant to the facts of this case, the court will confine its discussion to Langer.
In Langer, the Supreme Court addressed the validity of the following amendment to the Westport zoning regulations: "The Planning and Zoning Commission, on written request from the applicant, may modify, vary, waive or accept other uses as set forth in the above paragraph in harmony with the general purpose and intent of these Regulations, where the effect thereof is arbitrary, or where a literal enforcement of the Regulations would result in practical difficulties not required to accomplish the purpose of a professional office district, so that substantial justice will be done and the general purpose and intent of these Regulations will be accomplished." (Internal quotation marks omitted.) Id., 457. According to the plaintiffs, that regulation effectively authorized the planning and zoning commission to grant a variance in cases where the applicant could establish a hardship — a power vested entirely in the zoning board of appeals. Id. The Supreme Court agreed, concluding that "the power to vary the ordinance to accommodate practical difficulties and do substantial justice lies exclusively in a board of appeals." (Emphasis added.) Id.
Here, the regulations neither explicitly (as in Langer) nor implicitly authorize the commission to vary the zoning regulations based upon a showing of hardship; instead, they allow modest expansions to non-conforming buildings only after a special permit has CT Page 11232-dd been obtained from the commission, guided by specific standards set forth in the zoning regulations. According to Fuller, that is perfectly acceptable: "The zoning regulations . . . may allow expansion of a non-conforming use by special permit." 9 R. Fuller, supra, § 52.2, p. 552. The court, therefore, rejects the plaintiffs' third claim.
D
Next, the plaintiffs claim that the special permit criteria in § 273-118 are unconstitutionally vague. "[T]he burden of showing that regulations are unconstitutionally vague rests with the plaintiff[s] . . . Moreover, the plaintiff[s] [are] required to show that the regulation complained of is impermissibly vague as applied to the facts of the particular case." (Citations omitted; emphasis added; internal quotation marks omitted.) Barberino Realty Development Corp. v. Planning Zoning Commission, 222 Conn. 607, 620, 610 A.2d 1205 (1992); see also Spero v. Zoning Board of Appeals, 217 Conn. 435, 446, 586 A.2d 590 (1991) ("it is well established that, as a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute's applicability to the particular facts at issue" [internal quotation marks omitted]). Here, the plaintiffs have made absolutely no attempt to demonstrate that the special permit criteria were vague as applied to the facts surrounding Big Y's application. Thus, the plaintiffs have failed to satisfy their burden, and the court, therefore, rejects their claim.
E
The plaintiffs next claim that the regulations constitute illegal contract zoning. In support, they argue as follows: "The regulations adopted by the Defendant Commission purport to adopt standards, and then immediately provide for the relaxing of those standards through negotiation with individual applicants." (Plaintiffs' Brief, p. 17.) Even assuming, for the sake of argument, that the plaintiffs' assertion is valid, it does not support their claim of illegal contract zoning. "Illegal contract zoning is said to CT Page 11232-de involve the process by which a local government enters into an agreement with a developer whereby the government extracts a performance or promise from the developer in exchange for its agreement to rezone the property . . . and . . . is disapproved of largely on the basis of the principle that a municipality may not contract away its police power to regulate on behalf of the general welfare." (Internal quotation marks omitted.) Rando v. North Attleborough, 44 Mass.App.Ct. 603, 607, 692 N.E.2d 544 (1998); see also 9 R. Fuller, supra, § 22.16, p. 505. There is absolutely no record evidence to suggest that the commission engaged in any such conduct. Thus, the plaintiffs' claim must fail.
Under their illegal contract zoning claim, the plaintiffs also seem to argue that the special permit criteria violate the uniformity requirement of General Statutes § 8-2. "[T]he granting of special permits [however] does not violate the uniformity requirement of § 8-2 of the General Statutes because this statute was specifically amended in 1959 to exempt special permits from that requirement." 9 R. Fuller, supra, § 5.1, p. 135, citing Summ v. Zoning Commission, 150 Conn. 79, 86, 186 A.2d 160 (1962).
F
In their final claim, the plaintiffs assert that the regulations were purportedly enacted without having gone through the requisite statutory procedure. According to the plaintiffs, the commission "purported to adopt two documents as an integral part of the regulations: A report entitled `Planning and Design Guidelines Route 1 East Boston Post Road, dated August 2000' and a second item referred to as `Survey of the Historic Architecture of Guilford, Connecticut (1981-82).'" (Plaintiffs' Brief, p. 20.) In doing so, they argue, the commission violated the notice requirements in General Statutes § 8-3(a), because "[a]t no time were either the `Guidelines' or the `Survey' published, made available for inspection prior to any hearing, or presented at any public hearing, in direct contravention of the statutory requirement." (Plaintiffs' Brief, pp. 20-21.) The court rejects this claim, as it relies wholly upon evidence that is not part of the administrative record — which is readily apparent from the plaintiffs' lack of citation thereto. See Blakeman v. Planning Zoning Commission, 82 Conn.App. 632, 641 n. 8, 842 A.2d 1177, cert. denied, 270 Conn. 905 (2004) ("[t]his court is limited in its review to matters contained within the record"); see also Brunswick v. Inland Wetlands Commission, 29 Conn.App. 634, 636, 617 A.2d 466 (1992) ("[t]he review of the administrative agency proceedings is normally limited to the record"). CT Page 11232-df
General Statutes § 8-3(a) provides in part: "No such regulation or boundary shall become effective or be established or changed until after a public hearing in relation thereto, held by a majority of the members of the zoning commission or a committee thereof appointed for that purpose consisting of at least five members, at which parties in interest and citizens shall have an opportunity to be heard. Notice of the time and place of such hearing shall be published in the form of a legal advertisement appearing in a newspaper having a substantial circulation in such municipality at least twice at intervals of not less than two days, the first not more than fifteen days nor less than ten days, and the last not less than two days, before such hearing, and a copy of such proposed regulation or boundary shall CT Page 11232-dh be filed in the office of the town, city or borough clerk, as the case may be, in such municipality, but, in the case of a district, in the offices of both the district clerk and the town clerk of the town in which such district is located, for public inspection at least ten days before such hearing, and may be published in full in such paper. In addition to such notice, such zoning commission may, by regulation, provide for notice by mail to persons who are owners of land which is included in or adjacent to the land which is the subject of the hearing . . ."
VI CONCLUSION
Because Big Y's proposed expansion of its grocery store violates the maximum expansion regulation, the commission acted improperly in approving its application for a special permit. The appeal is, therefore, sustained.