Opinion
No. CV05 400 50 48 S
August 14, 2007
MEMORANDUM OF DECISION
FACTS
The defendant, 3319 Main Street, LLC is the owner of property located at 3319 Main Street in the City of Bridgeport. The property abuts, and is north of, property owned by the defendant, Frederick D. Paoletti, known as 3301 Main Street, Bridgeport.
In November of 2004, 3319 Main Street, LLC and Frederick D. Paoletti submitted a joint application to the Planning and Zoning Commission of the City of Bridgeport, seeking a change of zoning classification from Residence A to an Office/Retail Regional (OR-R) zone. In the same application, the property owners sought a special permit, site plan review, and soil erosion and sedimentation control review (ROR 1; ROR 2, p. 4).
The combined parcels form a rectangle, measuring 200 feet by 140 feet, comprising approximately two-thirds of an acre. The property has 200 feet of frontage along Main Street, and 140 feet bordering Terry Place to the north and Wentworth Street to the south.
3319 Main Street is an unimproved vacant lot, where a one-family structure once stood. 3301 Main Street is a one-family structure, where Frederick D. Paoletti maintains a law office. Attorney Paoletti is not required to live in the building as a condition for using the house as a law office (ROR 2, p. 6).
The change of zoning classification from Residence A to Office/Retail Regional (OR-R) was requested, in anticipation of demolishing the existing home at 3301 Main Street and constructing a new 12,000 square foot office building on the property. In July of 2004, the Bridgeport Zoning Board of Appeals had denied a request for a variance, which would have enabled the owners to construct the office building (ROR 9).
After the request for a change of zone and site plan review were submitted, the proposal was reviewed by the Bridgeport Department of City Planning in advance of the public hearing (ROR 9). The review pointed out that the properties are situated in a Residence-A Zone, and that the nearest OR-R zone is between one-half mile and three-quarters of a mile to the north of the site. The comprehensive plan designation for the parcels was Residence-A, and the Bridgeport Master Plan designated the parcels as Residential #1 (ROR 9, p. 2).
The report noted that the OR-R zone is "designed for large scale commercial development that is regional in scope." The recommendation was (ROR 9, p. 2):
Based on the expressed purpose of the Office/Retail Regional Zone, it is reasonably clear that the location is not suitable for the kind of development permitted by the OR-R zone. Therefore, it is recommended that the zone change and special permit be denied.
The Bridgeport Zoning Regulations, § 6-5-1, outline the rationale for designating a parcel an OR-R zone. The purpose of the zone classification is:
"The Office/Retail Regional (OR-R) Zone is intended for those commercial uses of a scale that attracts clientele from outside the city, and produces significant automobile traffic. Such uses include office parks, major shopping centers, sports facilities and theater and entertainment complexes. Industrial uses are limited to avoid adverse effects different in kind or amount from office/retail uses and to ensure that they do not dominate the character of the commercial area. Development standards are intended to provide compatibility with adjacent uses and neighborhoods.
Uses permitted in the OR-R zone, as of right, include short-term lodging, wholesale trade, day care centers, and commercial outdoor recreation. Uses which are conditional, and subject to the special permit process, are office uses (up to 20,000 square feet), retail sales and services, retail trade-automotive, etc.; entertainment, restaurant and recreation trade, industrial service, and medical centers (§ 6-5-2, Bridgeport Zoning Regulations).
At the reconvened public hearing of December 2, 2004, the applicants' attorney argued for the change of zone from Residence-A to OR-R. He repeatedly referred to the area surrounding the two-thirds of an acre parcel as a "commercial area," (ROR 2, p. 5-6). Referring to Attorney Paoletti's law office, he maintained "on this site, right now, we have a commercial use."
Properties in the vicinity which were nonconforming uses were discussed, as well as properties which had been granted variances by the Bridgeport Zoning Board of Appeals. Included in the properties named was a 40,000 square foot office building situated near Beechmont Avenue, and a parcel occupied as a professional office by Dr. Thomas Rago, which had been the subject of a change of zone. (ROR 2, p. 7.)
Variances granted to neighboring properties were mentioned, along with the residential zone designation, and the existing zoning map. The commission was told: "This is clearly a commercial area. If not designated by you (sic) Master Planner (sic) or your Zoning Map, certainly designated by use and certainly designated by the Zoning Board of Appeals . . ." (ROR 2, p. 13).
The commission also reviewed information concerning the proposed site plan and special permit (ROR 2, p. 22-29; ROR 12, 13), both of which were dependent upon the granting of the change in zoning classification.
The opposition expressed by the commission's staff (ROR 9) as part of the pre-hearing review, was supplemented at the public hearing. The proposed change of zone, and the accompanying site plan and special permit generated intense neighborhood opposition.
Those who addressed the commission maintained that the change of zone from Residence-A to OR-R was inconsistent with the character of the neighborhood, particularly the single family residences located along Terry Place and Wentworth Street to the west of the parcel. (ROR 2, p. 33-45.) It was also argued, in accordance with the staff memo (ROR 9), that the proposed changed of zone was inconsistent with the Bridgeport Plan of Development, and the city's comprehensive plan. (ROR 2, p. 45-52.)
Following the public hearing, a majority of the commission voted to approve the requested change of zone. Following that action, the majority also approved the requested site plan and special permit. (ROR 11; Supplemental ROR, 6-13-2007.)
The commission's majority announced a single reason in support of the change in zoning classification (ROR 11):
1. The proposed change in zone classification is consistent with uses established in that area.
Regarding the site plan and special permit applications, the commission's majority assigned the following reason in support of its action:
1. The project as approved complies with the Site plan Review standards of § 14-2-5 of the Bridgeport Zoning Regulations; and
2. The project as approved complies with the Special Permit standards of § 14-4-4 of the Bridgeport Zoning Regulations.
The commission failed to comply with the requirements of § 8-3(b) of the General Statutes or § 8-3a(a) of the General Statutes. No mention was made, by the majority, of the municipal Master Plan.
Section 8-3(b), C.G.S. — "Such . . . boundaries shall be established, changed or repealed only by a majority vote of all members of the zoning commission . . . In making its decision, the commission shall take into consideration the plan of conservation and development, prepared pursuant to section 8-23, and shall state on the record its findings on consistency of the proposed establishment, change or repeal of such . . . boundaries with such plan."
Section 8-3a(a), C.G.S. — In any municipality which has a combined planning and zoning commission . . . the commission shall state, on the record, its findings on consistency of a proposed zoning regulation or boundaries or changes thereof, with the plan of development of the municipality."
The two commissioners who opposed the change of zone (Guman, Freddino), stated reasons for their opposition. (ROR 11, p. 2; Supplemental ROR, 6-13-2007.) The reasons given by the commission's minority were:
1. The proposed change of zone does not comply with the comprehensive plan.
2. (The proposed change of zone) does not comply with the Master Plan of the City of Bridgeport.
3. (The proposed change of zone) constitutes spot zoning.
4. (The proposed change of zone) is considered an encroachment into the existing residential zone.
CT Page 14500
5. (The proposed change of zone) will not promote stability of the residential neighborhood.
6. (The proposed change of zone) will not lessen traffic, which impacts the public health and general welfare.
The same two commissioners voted not to approve either the Site Plan or the Special Permit application, stating that the applications did not comply with § 14-2-5, 14-2-5d, and 14-4-4 of the Bridgeport Zoning Regulations. (ROR 11, p. 2.)
The decision of the commission was published in The Connecticut Post on December 7, 2004 (ROR 6). This appeal followed.
At the initial hearing on April 20, 2007, a stipulation concerning certain facts was received, on the issue of aggrievement.
In light of the claim of spot zoning raised by the plaintiffs, and cited by the two dissenting commissioners, the record was expanded to include the Zoning Regulations of the City of Bridgeport, the Zoning Map, and the Bridgeport Master Plan of Development, 1996. Subsequently, a Supplemental Return of record was filed with the court by the defendant Planning and Zoning Commission, consisting of the minutes of the December 2, 2004 public hearing, and the voting session which followed the hearing.
Counsel for all parties were invited to submit additional briefs concerning the question: "May a reviewing court consider variances granted by the Zoning Board of Appeals, and nonconforming uses, when determining whether a change in zone boundaries is consistent with a municipality's comprehensive plan?"
Counsel for the plaintiffs submitted a brief dated June 28, 2007. The record was supplemented by the receipt of information concerning zoning variances issued by the Zoning Board of Appeals concerning properties located in close proximity to the two-thirds of an acre property which was the subject of the change of zone.
Counsel for the defendant, 3301-3319 Main Street, LLC, declined the opportunity to file a reply brief or memorandum.
AGGRIEVEMENT
On April 20, 2007, the parties stipulated to certain facts.
Bernice Roundtree owns and resides in a home located at 34 Wentworth Street. Her home abuts the property which is the subject of this appeal, 3301-3319 Main Street.
Erma Roundtree is the owner of 44 Wentworth Street, while Gene and Susan Allen are the owners of 49 Wentworth Street. Both parcels are located within 100 feet of 3301-3319 Main Street.
Aggrievement is jurisdictional, and a prerequisite for maintaining an appeal. 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).
Section 8-8(a)(1) of the General Statutes defines "aggrieved person" to include one "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."
Based upon their ownership of property which abuts or is within 100 feet of 3301-3319 Main Street, it is found that all of the plaintiffs are aggrieved by the action of the defendant Bridgeport Planning and Zoning Commission.
It is therefore unnecessary to consider whether any of the plaintiffs may also substantiate a claim for classical aggrievement.
STANDARD OF REVIEW — CHANGE OF ZONE BOUNDARIES
When passing upon an application seeking the re-zoning of property, or a change in the zoning regulations, a planning and zoning commission acts in a legislative capacity, rather than in an administrative or quasi-judicial capacity. D J Quarry Products, Inc. v. Planning Zoning Commission, 217 Conn. 447, 450 (1991).
When acting as a legislative body, the discretion possessed by the commission is broader than that of a commission sitting in an administrative or quasi-judicial capacity, because its role is to formulate public policy. Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 543 (1991); Malafronte v. Planning Zoning Board, 155 Conn. 205, 209 (1997). In the exercise of that discretion, a commission is free to amend its regulations and/or its zoning map, whenever time, experience and reasonable planning for contemporary or future conditions reasonably indicate the need for a change. Kaufman v. Zoning Commission, 232 Conn. 122, 150 (1995). Such discretion is vested in a municipal zoning authority because the zoning authority 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).
Questions concerning the credibility of witnesses, and the determination of issues of fact, are matters solely within the province of the commission to determine. 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 the same 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 where 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. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).
Where, as here, a zoning agency has stated its reasons for its action, a court should not go beyond the official collective reasons, and attempt to speculate concerning other reasons which might have influenced some or all of the members of the commission to reach the collective decision. DeMaria v. Planning Zoning Commission, 159 Conn. 534, 541 (1970); Central Bank for Savings v. Planning Zoning Commission, 13 Conn.App. 448, 452 (1988). The court should only determine whether the assigned reasons are reasonably supported by the record, and are pertinent to the considerations which the zoning agency was required to apply. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208 (1995).
Because zoning decisions must be sufficiently flexible to meet changing conditions, the action of a planning and zoning commission should not be disturbed by a court, unless the commission has acted arbitrarily or illegally. Burnham v. Planning Zoning Commission, 189 Conn. 261, 265 (1983). The party challenging the action of the agency, assumes the burden of proving that substantial evidence does not exist, to support the decision reached. Feinson v. Conservation Commission, 180 Conn. 421, 425 (1980).
When acting upon a request for a change of zone, the test of the action of the commission is 1) the action must be in accordance with the municipality's comprehensive plan, and 2) it must be reasonable related to the normal police powers enumerated in § 8-2 of the General Statutes. First Hartford Realty Co., v. Planning Zoning Commission, 165 Conn. 533, 541 (1973). The comprehensive plan of a community consists of the zoning regulations, and the zoning map. Damick v. Planning Zoning Commission, 158 Conn. 78, 83 (1969).
STANDARD OF REVIEW — SITE PLAN AND SPECIAL PERMIT
When considering a site plan application, a planning and zoning commission acts in an administrative capacity. Goldberg v. Zoning Commission, 173 Conn. 23, 29 (1977); Allied Plywood, Inc. v. Planning Zoning Commission, 2 Conn.App. 506, 512 (1984). The commission also acts in an administrative capacity, when considering a special permit application. A.P. W. Holding Corporation v. Planning Zoning Board, 167 Conn. 182, 184-85 (1974).
In both instances, the commission has no independent discretion beyond determining whether the application, as presented, satisfies the standards set forth in the regulations or statutes. Kosinski v. Lawlor, 177 Conn. 420, 426-27 (1979); Quality Sand Gravel, Inc. v. Planning Zoning Commission, 55 Conn.App. 533, 537 (1999).
However, even though an agency acts administratively, when reviewing a site plan or special permit request, the role is not purely ministerial. A municipal land use agency has a right to interpret its regulations to determine whether a particular regulation applies in a given situation, or to determine whether general standards concerning health, safety and welfare contained in the regulations, have been satisfied. Irwin v. Planning Zoning Commission, 244 Conn. 619, 627 (1998). However, the discretion exercised must be controlled by fixed standards applying to all cases in a like nature. Sonn v. Planning Zoning Commission, 172 Conn. 156, 163 (1976).
On factual questions, a court cannot substitute its judgment for that of the commission. Timber Trails Corp. v. Planning Zoning Commission, 222 Conn. 380, 401 (1992). The burden is on the party challenging the action to show that the commission acted unreasonably, arbitrarily, or illegally. Baron v. Planning Zoning Commission, 23 Conn.App. 255, 257 (1990).
If any reason given by the commission would support the decision reached, the appeal must fail. Blakeman v. Planning Commission, 152 Conn. 303, 306 (1965); Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 111 (1996).
CHANGE IN ZONING CLASSIFICATION FROM RESIDENCE-A TO OFFICE/RETAIL REGIONAL (OR-R) REQUIRES "SPOT ZONING" ANALYSIS
3301-3319 Main Street consists of two-thirds of an acre, and is surrounded by a Residence-A zone on all sides. Wentworth Street and Terry Place are residential side streets. The nearest OR-R zone is located north of the property.
The plaintiffs, and the two commissioners who voted against the change of zone, argue that the commission engaged in "spot zoning" when it voted to change the zone designation from Residence-A to OR-R.
In order to sustain a claim of spot zoning, two separate elements must be established: 1) the change of zoning clarification must affect only a small area, and 2) the change must be out of harmony with the comprehensive plan of the municipality. Langer v. Planning Zoning Commission, 163 Conn. 453, 461 (1972); Morningside Associates v. Planning Zoning Board, 162 Conn. 154, 161 (1972); Michel v. Planning Zoning Commission, 28 Conn.App. 314, 319 (1992). Spot zoning refers to a circumstance where a zone change is implemented concerning a small area of land, and the change is out of harmony with the comprehensive plan. Eden v. Town Plan Zoning Commission, 139 Conn. 59, 63 (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 for spot zoning, if the zone change is in accordance with the comprehensive plan, and is related to the police powers contained in § 8-2 of the General Statutes. Fuller, Robert A. " Land Use Law and Practice" (second edition) § 4.8 p. 60 (1999). However, a change in zoning classification, regardless of the size of the parcel, cannot be upheld, unless the action is in accordance with the city's comprehensive plan. Campion v. Board of Alderman, 278 Conn. 500, 531 (2006); Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, supra, 543-44; Damick v. Planning Zoning Commission, supra, 84-85.
A 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 the properties. The requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interest of the entire community. Konigsberg v. Board of Alderman, 283 Conn. (SC17841) (2007); First Hartford Realty Corp. v. Planning Zoning Commission, supra, 541; The zoning regulations and the zoning map comprise the comprehensive plan. Burnham v. Planning Zoning Commission, supra, 267; Pierrepont v. Zoning Commission, 154 Conn. 463, 466 (1967).
The comprehensive plan must be distinguished from the community's plan of development, or Master Plan, prepared by the planning and zoning commission pursuant to § 8-23 of the General Statutes. Although the plan of development is controlling as to municipal improvements and the regulation of subdivisions of land; Purtill v. Town Plan Zoning Commission, 146 Conn. 570, 572 (1959); the master plan does not control the zoning board in its enactment of zoning regulations, or changes in zone boundaries. In these areas, it is merely advisory. Lathrop v. Planning Zoning Commission, 164 Conn. 215, 223 (1973); Sheridan v. Planning Board, 159 Conn, 1, 9 (1969).
Section 8-23(a), C.G.S. — "The commission shall prepare, adopt and amend a plan of conservation and development for the municipality. Such plan shall show the commission's recommendation for the most desirable use of land . . ."
Permitting the Master Plan of Development to control zoning decisions has been discouraged, because it would restrain a commission's flexibility in the control of land use and development. Fuller, Robert A., " Land Use Law and Practice" (second edition) § 4.4, p. 33 (1999).
This does not mean that the plan of conservation and development or Master Plan should be ignored, when changes in zoning classification are contemplated. Both § 8-3(b) and § 8-3a(a) of the General Statutes require a commission to consider the plan of development, and make findings on the record, a requirement with which the Bridgeport Planning and Zoning Commission failed to comply.
However, while the failure to comply with the statute is not fatal to the commission's action, the omission is more glaring here, where the minority did address the issue, and the commission has determined that Bridgeport's Master Plan is "an integral part of the community's overall comprehensive plan."
The size of the property affected by the change of zone, two-thirds of an acre, easily satisfies the first prong of the spot zoning test, because the change of zoning classification affects only a small area.
However, the change of zone will withstand any spot zoning attack, if the reclassification is consistent with the comprehensive plan.
In arguing for the creation of the OR-R zone, the applicant's attorney repeatedly referred to the area as "commercial," pointing to nonconforming uses, and to those uses permitted through a variance granted by the Zoning Board of Appeals. He also made specific reference (ROR 2, p. 69) to a change of zone voted by the commission concerning a physician's office. In commending the commission for voting in favor of that zone change, he asked, somewhat rhetorically, "who's to say that Dr. Rago's office building is something that should have been maintained as an old nonconforming pre-existing structure?"
Because Bridgeport's comprehensive plan consists of its zoning regulations, and the zoning map, the first question which must be addressed is whether the presence of nonconforming uses, or the granting of variances by the Zoning Board of Appeals, may be considered when determining whether the change of zone from Residence-A to OR-R is in accordance with the comprehensive plan.
For a use to be considered nonconforming, under a municipality's zoning regulations, it must 1) be a lawful use, and 2) have been in existence at the time the zoning regulations making the use nonconforming were enacted. Helicopter Associates, Inc., v. Stamford, 201 Conn. 700, 712 (1986); Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 482-83 (1979).
During the course of the public hearing, counsel for the applicant cited nonconforming uses in the area, including a 40,000 square foot office building, and a three-family house. (ROR 2, p. 19-20.)
When the office building was constructed, as pointed out during the hearing by the City Planning Engineer, William Shaw, (ROR 2, p. 20), the zone was changed to a Designed Business District. After the building was completed, the zoning classification was changed back to Residence A in 1996, the last time the zoning map was updated.
Since nonconforming uses are inconsistent with the comprehensive plan; Raffaelle v. Planning Zoning Board, 157 Conn. 454, 462 (1965); they cannot be considered when evaluating whether a change of zone classifications is consistent with the comprehensive plan. This is in accord with the general principle, that nonconforming uses should be abolished, or reduced to conformity as the fair interest of the parties will permit. Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 383 (1972).
It is settled law, that before a zoning board of appeals can grant a variance, two conditions must be fulfilled: 1) the variance must be shown not to effect substantially the comprehensive plan, and 2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship, unnecessary to the carrying out of the general purposes of the zoning plan. Francini v. Zoning Board of Appeals, 228 Conn. 785, 790 (1994); Smith v. Zoning Board of Appeals, 174 Conn. 323, 326 (1978).
By definition, a variance is not consistent with the zoning regulations, but constitutes permission to act in a manner which, without the variance, would be prohibited by the zoning ordinances of the municipality. Burlington v. Jencik, 168 Conn. 506, 508 (1975). An applicant must show, that because of some peculiar characteristic of his property, the strict application of the zoning regulations produces an unusual hardship, not affecting other properties in the zone. Dolan v. Zoning Board of Appeals, 156 Conn. 426, 430 (1968).
A zoning board of appeals is without power to grant a variance, where the granting of the variance would impair the integrity of the comprehensive plan. Whitaker v. Zoning Board of Appeals, 179 Conn. 650, 656 (1980); Miclon v. Zoning Board of Appeals, 173 Conn. 420, 424 (1977); Parsons v. Zoning Board of Appeals, 140 Conn. 290, 295 (1953).
Variances differ from nonconforming uses in that nonconforming uses are acknowledged to be inconsistent with the comprehensive plan, while variances are deemed consistent with the comprehensive plan, by the zoning board of appeals which grants the variance.
Connecticut courts have not specifically addressed the issue of whether properties subject to variances may be considered, when determining whether a change of zoning classification is consistent with the comprehensive plan.
The plaintiffs have pointed to a rule, adopted in some jurisdictions, known as the "change or mistake" rule. This rule permits a determination by a zoning authority that a de facto change in the comprehensive plan has occurred, even in the absence of action by the responsible zoning body, The rule, in its strictest form, requires one seeking to re-zone property in a manner inconsistent with the comprehensive plan, to demonstrate that a change in the neighborhood has occurred since the last re-zoning, or the re-zoning process relied upon information which was mistaken or erroneous when evaluating the zoning classification. (See Jefferson County v. O'Rorke, 394 So.2d 937 (Ala. 1981); City Commission of Miami v. Woodlawn Park Cemetery Co., 553 So.2d 1227, 14 FLW 1799 (1989 Fla.App. D 3); 83 Am.Jur.2d 107).
No case has been located which stands for the proposition that a variance, as defined by Connecticut law, can form the basis for a finding of "changed conditions." Furthermore, adherence to a "change or mistake" standard would unduly restrict a planning and zoning commission in the exercise of its legislative authority. A planning and zoning commission, in the exercise of its broad legislative discretion, is not prohibited from reversing an earlier decision, in the absence of a change in conditions. Morningside Associates v. Planning Zoning Board, supra, 158-59; Hawkes v. Town Plan Zoning Commission, 156 Conn. 207, 209 (1968); Malafronte v. Planning Zoning Board, supra, 208-09.
Variances, like nonconforming uses, run with the land, and are not personal to the holder of the variance. Reid v. Zoning Board of Appeals, 235 Conn. 850, 860 (1996). However, unlike a nonconforming use, a variance enjoys statutory protection, and is not subject to the principle that it be reduced to conformity as a matter of public policy.
Section 8-6(b), C.G.S. — "Any variance granted by a zoning board of appeals shall run with the land, and shall not be personal in nature to the person who applied for and received the variance. A variance shall not be extinguished solely because of the transfer of title to the property or the invalidity of any condition attached to the variance, that would affect the transfer of the property from the person who initially applied for and received the variance."
Therefore, the "change or mistake" concept can be helpful, when confronting that rate situation in which a proliferation of variances has altered the comprehensive plan, notwithstanding the implicit or explicit finding that the variances were consistent with the comprehensive plan. Consideration should only be given, however, to those variances granted since the most recent update of the zoning map, and only where the basis of the commission's decision includes a claim that the character of a neighborhood has changed.
The only reason given by the commission in support of the change of zone from Residence-A to OR-R is that the change is "consistent with uses established in the area. Therefore, variances granted since 1997 may be considered, when determining whether substantial evidence exists to support the decision of the commission.
SUBSTANTIAL EVIDENCE DOES NOT SUPPORT A FINDING THAT THE CHANGE TO AN OR-R ZONE IS CONSISTENT WITH THE COMPREHENSIVE PLAN
Merely because a change of zoning classification involves a small area of land, and the new classification differs from that of the immediate area, does not mean that a claim of spot zoning will inevitably or necessarily prevail. Pierrepont v. Zoning Commission, supra, 648. Where a zoning authority, in its collective reasons, indicates that the change in zoning classification is designed to accommodate the needs of the community, and the general plan of zoning, it will survive a claim of spot zoning, and will be found consistent with the comprehensive plan. Bartram v. Zoning Commission, 136 Conn. 89, 94 (1949); Michael v. Planning Zoning Commission, 28 Conn.App. 314, 319-20 (1992).
The Bartram decision concerned the City of Bridgeport, and was referred to during the public hearing process. In Bartram, the commission had voted to change the zone in a small area on Sylvan Avenue from a residential to a business zone. In voting for the change of zone, the commission determined that the action was in accordance with the comprehensive plan, and served the goal of alleviating congestion in the centralized shopping district.
The Connecticut Supreme Court rejected the "spot zoning" claim which had prevailed in the trial court. In an opinion authored by Chief Justice Maltbie, the Court's majority upheld the change of zone, because the commission had determined that use of the small area in a manner different than the surrounding area, would serve the best interest of the community as a whole. Bartram v. Zoning Commission, supra, 94.
Here, the commission did not find that changing the designation of the two-thirds of an acre property from Residence-A to OR-R would serve the interest of the community as a whole, as distinct from the interest of the applicant. Nor was there any finding that the change would advantage the neighborhood, or serve any general need.
The commission did not find that the change of zone was consistent with Bridgeport's Master Plan of Development. Nor did the commission indicate, if it believed that the decision was inconsistent with the Master Plan, any reason why the Master Plan should not be followed.
There was no finding by the commission of consistency with the comprehensive plan, a determination, which, if supported by the record, would usually prove sufficient to withstand a "spot zoning" challenge.
The only reason given by the commission was that the re-zoning was "consistent with other uses in the area." The majority declined to specify how its action benefitted the City of Bridgeport, or a significant portion of the city, or was an act which advanced the goals of zoning, as described in § 8-2 of the General Statutes.
Section 8-2, C.G.S. — ". . . Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter . . ."
The facts presented here are analogous to those addressed in Kuehne v. Town Council. 136 Conn. 452 (1950), a case decided shortly after Bartrum.
In Kuehne, a small parcel on which vegetables were grown and a greenhouse was maintained, was changed from a residential zone to a business zone. The court determined that the change of zone constituted spot zoning.
Chief Justice Maltbie, in the opinion of the Court, emphasized that the zoning authority had failed to consider the effect that the change of zone would have upon the general plan of zoning in the community. Kuehne v. Town Council, supra, 461.
At the December 2, 2004 public hearing, the parcels surrounding and in close proximity to the two-thirds of an acre property were characterized as "commercial." This description is misleading, and somewhat disingenuous.
Putting aside the fact that some of the office uses were the result of variances, use of those properties as professional offices is not prohibited under the existing Residence-A zoning regulations.
The current Bridgeport Zoning Regulations applicable to Residence-A zones, permit the use of property as a "Home Occupation," either in the form of a "Home Office," or a "Home Business." These uses are subject to regulation and are permitted as either a conditional use, or a use subject to the special permit process, and maintenance of the residential appearance of the structure.
Section 12-7, Bridgeport Zoning Regulations — "In general (Home Occupations) are activities carried out for financial gain, that are home based, but to no materially change the residential nature of the neighborhood in which they are permitted. The uses can include but are not limited to, professional offices . . ."
Bridgeport Zoning Regulations, § 4-2-2.
Bridgeport Zoning Regulations, §§ 12-7-1(d) and 12-7-2(e).
During the public hearing, counsel for the applicant conceded that neither the Bridgeport Master Plan nor the zoning map designated the area as "commercial." (ROR 2, p. 13) He then argued that the area had been designated commercial "by the Zoning Board of Appeals."
This argument confers upon the Bridgeport Zoning Board of Appeals a power to change the zoning map which it does not possess. It further assumes that the Bridgeport Zoning Board of Appeals has systematically ignored the requirement that any variance be in harmony with the comprehensive plan.
Although the Master Plan is not binding, but is advisory in nature, it has been designated as part of the comprehensive plan by the defendant Planning and Zoning Commission. Therefore, its provisions should be looked to for guidance.
A review of the properties in the area, as demonstrated by the record as supplemented, reveals that most are committed to uses which are not prohibited in a Residence-A zone, under the current regulations. While variances were required initially in many cases, amendments to the zoning regulations have relaxed certain requirements, and non-owner occupied professional offices are allowed, subject to maintaining a residential appearance to the property, and subject to the requirements of the special permit process.
Only two variances have been granted in the area since the zoning map was revised in 1997. These do not provide any basis for a finding that a de facto change of zone from residential to commercial has taken place.
Equally unavailing, is the reference to a change of zoning classification voted by the commission, concerning a property located several blocks south of the subject property (ROR 2, p. 69). The zoning map designates the property occupied by Dr. Thomas Rago as an Office/Retail Neighborhood Zone (OR-N).
Section 6-2-1 of the Bridgeport Zoning Regulations specifies the purpose of the OR-N designation:
The Office/Retail Neighborhood (OR-N) Zone is intended for small areas in or near residential neighborhoods. The zone encourages the provision of small-scale retail and service uses for nearby residents. Uses are restricted in size to promote a local orientation and to limit adverse impacts on nearby residential areas . . .
The statement of purpose stands in stark contrast to the Office/Retail Regional (OR-R) Zone, which is intended for commercial uses producing "significant automobile traffic." Uses which are permitted under the regulations, or conditionally allowed and subject to the special permit process, include office uses (limited to 20,000 square feet), retail sales and service, retail trade/automotive, short term lodging, entertainment, restaurant and recreation trade, and industrial service.
Bridgeport Zoning Regulations, Section 6-5-2.
In an OR-N zone, office uses are subject to special permitting, and retail establishments of no more than 5,000 square feet are allowed. Uses which are prohibited in the OR-N zone are retail/trade, automotive, entertainment, restaurants and recreation trade, and industrial uses.
Bridgeport Zoning Regulations, Section 6-2-2.
Any analogy between the OR-R Zone and OR-N Zone, in this situation, is forced and inapplicable.
Therefore, even if the solitary reason given by the commission in support of the change of zoning classification could be seen as related to the best interests of the community as whole, that reason is not supported by substantial evidence in the record compiled during the public hearing.
It is found that the action of the Planning and Zoning Commission which generated this appeal, constitutes impermissible spot zoning, and is inconsistent with the comprehensive plan. It is further found that the reason proffered in support of the change of zone does not relate to promoting the best interest of the community as a whole.
Assuming, arguendo, that the reason given by the commission in support of the re-zoning could be seen as relating to the community as a whole, that reason is not supported by substantial evidence in the record. Therefore, it cannot be utilized as a basis for validating the action of the commission.
THE COMMISSION POSSESSES BROAD DISCRETION WHEN DETERMINING ZONE BOUNDARIES AND MEETING THE NEEDS OF THE BRIDGEPORT COMMUNITY
The action which is the subject of this appeal, represents one of the rate instances in which a planning and zoning commission, acting in a legislative capacity, had acted arbitrarily and in excess of its authority. This court has determined to restrict the exercise of legislative discretion with great reluctance, and does not wish to be understood as suggesting that the commission cannot act in the future concerning the parcel in question, and the surrounding neighborhood.
As the legitimate formulator of public policy and zoning decisions in the City of Bridgeport, the commission might well determine that a re-zoning of the Main Street area is appropriate, and necessary, in order to implement the police power objectives contained in § 8-2 of the General Statutes.
The commission should not be reluctant to explore imaginative concepts, such as a "Design District Professional," in an effort to encourage the use of structures in the area as professional offices, subject to reasonable regulation and restriction through the special permit process.
It might also determine, should it be presented with a convincing factual record, that this area of Main Street should be re-zoned as something other than Residence-A. The commission is free to conclude that utilizing former residences as professional offices is desirable, and can best be accomplished through the imposition of a separate zone. It might determine that locating professional services adjacent to residential neighborhoods is preferable to restricting them to office parks and office buildings, if that objective can be accomplished without compromising the residential character of the surrounding area.
An examination of the zoning map discloses that the two-thirds of an acre parcel is located on a main artery, which links downtown Bridgeport with the city's North End. Its location in close proximity to a regional hospital might render the parcel, and those surrounding it, appropriate locations for medical offices.
The commission may also examine whether a change in the zoning classification would enhance the city's tax base, thus reducing the burden placed upon homeowners.
Any reasons provided in support of a comprehensive re-zoning of the area, however, should make specific reference to the objectives found in the Bridgeport Master Plan, and the comprehensive plan for the community. Bartram v. Zoning Commission, supra, provides an appropriate model.
CONCLUSION
The appeal of the plaintiffs, Bernice Roundtree, Emma Roundtree, Gene Allen and Susan Allen, is SUSTAINED.
Because the site plan and special permit review are dependent upon the change in zoning classification, it is not necessary to consider the commission's decision on those applications, and the appeal of those approvals is also SUSTAINED.