Opinion
No. CV08 402 45 20-S
May 29, 2009
MEMORANDUM OF DECISION
The plaintiffs, Emilio Ruiz, et al, appealed the decision of the defendant, Stratford Zoning Commission, dated March 18, 2008 which approved the defendant, Oronoque 15, LLC's application for eleven (11) age restricted units of residential housing under § 4.1.6.16 and § 20 of the Stratford Zoning Regulations.
In September of 2004 Hawley Enterprises, Inc., submitted an application for a change in the zoning regulations to allow for the development of sixteen (16) units of age restricted housing on the property which is the subject of this application. The application was denied. An appeal from this decision was brought by the then applicant, Hawley Enterprises, Inc. In May of 2006 the appeal was submitted for mediation pursuant to § 8-8a of the Connecticut General Statutes. An agreement was reached by the parties to that litigation as a result of said mediation. The agreement was later reduced to writing and signed by the members of the Commission and submitted for hearing to the Commission in December of 2006. The settlement agreement was approved by the Zoning Commission on January 16, 2007 as well as by a judge of the Superior Court on February 23, 2007. The approved settlement added a new section to the Stratford Zoning Regulations, namely § 4.2.6.16.
Based upon the revised Zoning Regulations, the applicant, Oronoque 15, LLC, submitted an Application for a Special Case under § 20 of the Stratford Zoning Regulations in December of 2007 relating to a proposal for developing eleven (11) age restricted residential units pursuant to § 4.1.6.16 of the Town of Stratford Regulations. The submission was based specifically on § 4.1.6.16 entitled "Active Adult Housing Small Development" and the application provided that over sixty (60%) percent of the units are two (2) bedroom units, as required under § 4.1.6.16. The applicant's engineer opined that the runoff and drainage of the proposed project would have no adverse impact on the surrounding area and neighbors. The Zoning Officer, contrary to his letter of January 15, 2008, represented at the public hearing that the applicant did, in fact, meet the required bedroom standards in § 4.1.6.16 of the Stratford Zoning Regulations and complied in all respects and was in full conformity with § 4.1.6.16 entitled "Active Adult Small Development." The applicant agreed and stipulated to and incorporated into the plans all comments of the Town Engineer as put forth in ROR 9. The applicant represented that the application complied with the Active Housing Small Development Zoning Regulation (§ 4.1.6.16.4) which requires the project to be located in a transitional area between areas of higher and lower density, which issue had been raised by the Town Planner. The Stratford Wetlands Commission approved the application relating to this property.
Stuart Sacks, a Licensed Landscape Architect, who was a consultant for the applicant, gave testimony as to the existing vegetation and preservation of existing trees and the lighting plan as referred to in criteria in § 20-2.1e. He testified as to the adequacy of the landscaping plan presented as part of the application as well as the proposed lighting plan which was a part of the submitted plan for the project. He also testified that, in his opinion, the twenty-eight (28) remaining trees plus the additional twenty (20) "some-odd" evergreens to be planted as shown on the plan would be sufficient for proper screening. The applicant also stipulated to any revised lighting requirements imposed by the Commission as a special condition. Pursuant to the defendant Commission's approval of the plaintiff's application on March 11, 2008, the Commission required that the applicant file a final landscaping plan which was submitted. The Zoning Commission approved the applicant's final landscaping plan at its meeting on May 20, 2008. The applicant's Traffic Consultant, testified that the proposed development would have no effect or impact or otherwise adversely affect safety within the streets as referred to in § 20-2.1D and members of the Stratford Police Department confirmed that the project did not constitute a traffic problem. Mr. Frank Delvecchio, a licensed Real Estate Broker and Consultant for the applicant, testified that there would be no effect on the property values of the surrounding area referred to in § 20-2.1B of the Stratford Zoning Regulations. Notice of Approval with Special Conditions was issued by the Zoning Administration on March 20, 2008.
Our Supreme Court has stated that it is the function of a zoning board commission to decide:
"within prescribed limits and consistent with the exercise of its legal discretion whether a particular section of the zoning regulation applies to the given situation and the manner in which it does apply. The trial court has the responsibility to decide whether the board correctly interpreted the section of the regulations and applied it with reasonable discretion to the facts." Pascale v. Zoning Board of Appeals, 150 Conn. 113, 116 (1962); Stern v. Board of Zoning Appeals, 140 Conn. 241, 244 (1953).
The Court, in applying the law to the facts of a particular case, takes into consideration that the board is endowed with discretion and its action is subject to review by the courts only to determine whether said discretion was unreasonable, arbitrary or illegal. Connecticut Sand Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442 (1963); Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560-1 (1967). On appeal, the Court reviews the record of the administrative proceedings to determine whether the commission or the board has acted fairly or with proper motives or upon valid reasons. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988); Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654 (1980). The Court in reviewing the actions of the Planning and Zoning Commission may not substitute its own judgment for that of the Commission. Friedman v. Planning and Zoning Commission, 222 Conn. 262, 268 (1992). The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs. Adolphson v. Zoning Board of Appeals, supra.
The Connecticut Supreme Court has judicially construed the amount of discretion given to the Zoning Board of Appeals in evaluating a special exception. In Irwin v. Planning and Zoning Commission of the Town of Litchfield, 244 Conn. 619, the Connecticut Supreme Court definitively set out the degree of discretion given to a Zoning Board of Appeals in evaluating a special exception application.
We previously have recognized that the special permit process is, in fact, discretionary. In Whisper Wind Development Corp. v. Planning Zoning Commission, 229 Conn. 176, 177, 640 A.2d 100 (1994), we concluded that general 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. Also, we have stated that `before the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood.' Barberino Realty Development Corp. v. Planning Zoning Commission, 222 Conn. 607, 613, 610 A.2d 1205 (1992). The Appellate Court has acknowledged that `Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process . . . If the special permit process were purely ministerial there would be no need to mandate a public hearing.' (Emphasis added). Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, 29 Conn.App. 1, 6-7, 613 A.2d 1358 (1992); see also T. Tondro, Connecticut Land Use Regulation (2d Ed. 1996 Sup.) 64," Irwin at 626-27.
The Court went on to say:
"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. Connecticut Sand Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 (1963), Schwartz v. Planning Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). (Internal quotations marks omitted.) Double I Ltd. Partnership v. Plan Zoning Commission, 218 Conn. 65, 72 588 A.2d 624 (1991)." Irwin at 628.
An examination of the record demonstrates that the defendants complied in all respects to the "Active Adult Housing Small Development" Regulation.
A review of the record demonstrates that the applicant submitted information into the record to demonstrate in full compliance with § 4.1.6.16. Each section of the "Active Adult Housing Small Development" regulation was satisfied.
The plaintiffs' allegations cited in their brief as to why the application failed to comply with § 4.1.6.16 are not supported by the record. Plaintiffs' claim that the letter from the Zoning Administrator, Gary Lorenston (ROR 8) constitutes evidence that the applicant did not comply with the regulation relating to the number of two (2) bedroom units is subsequently dispelled. Mr. Lorenston, on page 47 of ROR 46, specifically stated that there was a misunderstanding as to his calculation as to the number of two (2) bedroom units as required in § 4.1.6.16(7) and was satisfied that this condition was met. In addition, Mr. Lorenston reiterated the fact that the applicant did meet all of the requirements of § 4.1.6.16 of the Stratford Zoning Regulations. The issue as to the number of two (2) bedroom units was the only reason raised by the plaintiffs as to non-compliance with the Zoning Regulation at issue in this case relating to "Active Adult Housing Development." ROR 19 demonstrates the applicant's compliance with this provision.
Section 20.2.1 of the Stratford Zoning Regulations provides "before approving any Special Case the Commission shall consider the following Special Case criteria and objectives in addition to all site plan objectives as set forth in 20.2.2." It is clear that the special criteria and objectives found in the above section are general considerations to be considered by the commission in reviewing an Application for Special Cases. The fact that the Commission approved of the developer's Application for Special Uses with a number of detailed, specific special conditions further demonstrates that these specific conditions of approval were considered in order for the application to fully be in compliance with all of the standards in § 20.2.1.
The record clearly establishes that evidence was submitted by both the applicant and consultants for the applicant to demonstrate that the Commission not only acted upon substantial evidence but considered the various Special Cases criteria and objectives set forth in § 20.2-1 of the Stratford Zoning Regulations. A Zoning Commission is not required to specifically set forth in the decision each and every fact which was placed in the record which supported all of the criteria to be utilized in review of a Special Cases Application. This Court must determine whether the Commission acted upon substantial evidence. "Evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonable inferred." Mobile Oil Corp. v. Zoning Board of Appeals of the City of Bridgeport, 35 Conn.App. 204, 209 (1994). Our Supreme Court has defined what constitutes "substantial evidence":
"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 . . . it 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 . . . [It] is a compromise between opposing theories of broad or de nova 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 application. On the other hand, it is review of such breadth as is entirely consistent with effective administration . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. (Citations omitted; internal quotation marks omitted.) Id., 541." Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 697-98 A.2d 1277 (1993). (Deberadinis at 199-200.)
The plaintiffs' criticize the action of the defendant Commission for failure to consider the criteria as to the density of dwellings per acre when taking into consideration that the project would be "harmonious with the character and appearance of the surrounding neighborhood." However, the density issue was in full accord with § 4.1.6.16 under which this application was made and was specifically addressed by the applicant during its presentation at the public hearing and it set forth that the density requirements were fully complied with. Section 4.1.6.16 of the ordinance allows a maximum density of 3.50 units per acre with a maximum of eleven (11) units. This is fully consistent with the plan which was submitted by the applicant.
The claim that the Commission did not comply with the criteria of § 20.2.1 in that applicant's plan failed to contain any open space or recreational facilities is without merit. The Regulation for "Active Adult Small Housing Development" specifically eliminates the necessity requiring either open space or recreational facilities. Section 4.1.6.16(3) states: "An Active Adult Small Housing Development shall have not community building, clubhouse or recreational facilities."
The Commission discussed in great detail the issue of blasting and took into consideration this issue which was raised by the plaintiff, Emilio Ruiz. This discussion was not limited to one (1) Commissioner but was referred to by almost all of the speakers at the deliberation session. The Commission properly addressed concerns over the potential impact of the development as a result of any blasting which may occur during the construction process.
The same analysis applies to the plaintiffs again relating to the proposed landscaping for the project and the number of trees to both remain and to be planted as part of said landscaping plan. The proceedings on March 11, 2008 clearly addresses the landscaping issue specifically relating to the retention of mature trees and a revised landscaping plan. This proposed plan was not only discussed in detail but was subject to additional submission of a final landscaping plan by the applicant by letter received the Commission on May 15, 2008. The final landscaping plan was approved by the Commission at its meeting on May 20, 2008. These matters were clearly discussed and considered by the Commission.
A Zoning Commission cannot deny a Special Permit if the Zoning Regulations are satisfied. Raczkowski v. Zoning Commission of Naugatuck, 53 Conn.App. 636, 640 (1999); Connecticut Resources Recovery Authority v. Planning and Zoning Commission of the Town of Torrington, 46 Conn.App. 566, 569 (1996), cert. denied, 243 Conn. 935 (1997). The Commission adequately considered the criteria in § 20.2 is the conditions that they placed upon the approval of the defendant's Application for a Special Case. The record reflects that the Commission had substantial evidence regarding all of these criteria and that it acted properly and reasonably upon the evidence in determining that the applicant conformed to all of the standards set forth in this section of the Town of Stratford Zoning Regulations.
A suggestion in plaintiffs' brief seems to set forth that the decision of the Commission is illegal in that the reasons for its decision were not stated upon the record. The Supreme Court, in the case of Gagnon v. Inland Wetlands and Watercourses Commission of the Town of Bristol, 213 Conn. 604, 608 (1990), decided this issue stating:
Notwithstanding this statutory language, our case law clearly requires the trial court, in appeals from planning and zoning authorities, to search the record to determine the basis for decisions made by those authorities. In Parks v. Planning Zoning Commission, 178 Conn. 657, 661-62, 425 A.2d 100 (1979), we said that `[t]he [planning and zoning] commission's failure to state on the record the reasons for its actions, in disregard of General Statues § 8-3, renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission's decision . . . `We further stated that `[i]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld.' (Emphasis in original.) Id., 662-63. We have enunciated this duty of a trial court with respect to appeals from zoning boards in a long line of cases. See, e.g., A.P. W. Holding Corporation v. Planning Zoning Board, 167 Conn. 182, 186, 355 A.2d 91 (1974); Morningside Ass'n. v. Planning Zoning Board, 162 Conn. 154, 156, 292 A.2d 893 (1972).
Plaintiffs' contention that the Special Case criteria and objectives set forth in § 20.2.1 serve merely as a guide to the Commission in its analysis of a Special Cases Application is without merit. These criteria and objectives are not mandatory and failure to consider each and every element does not invalidate the decision. The Supreme Court in the case of Crest Pontiac v. Nancy Hadley, Commissioner of Motor Vehicles, 239 Conn. 437 (1996), stated:
Well established principles of statutory construction govern our determination of whether [a statute's provisions are] mandatory or directory. Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993); Iovieno v. Commissioner of Correction, 222 Conn. 254, 258, 608 A.2d 1174 (1992); Chairman v. Freedom of Information Commission, 217 Conn. 193, 200, 585 A.2d 96 (1991). Steward v. Tunxis Service Center, 237 Conn. 71, 76-77, 676 A.2d 819 (1996).
While we generally will not look for interpretative guidance beyond the language of the statute when the words of that statute are plain and unambiguous; Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54, 523 A.2d 477 (1987); our past decisions have indicated that the use of the word `shall,' though significant, does not invariably create a mandatory duty. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985); Tramontano v. Dilieto, 192 Conn. 426, 433-34, 472 A.2d 768 (1984), Hall Manor Owner's Ass'n. v. West Haven, 212 Conn. 147, 152, 561 A.2d 1373 (1989). In order to determine whether a statute's provisions are mandatory we have traditionally looked beyond the use of the word `shall' and examined the statute's essential purpose. Id. `The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially whether the requirement is stated in affirmative terms unaccompanied by negative words.' (Internal quotation marks omitted.) Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995). Furthermore, if there is no language that expressly invalidates an action taken after noncompliance with the statutory provisions, the statute should be construed as director. Id., at 676.
The Special Case criteria and objectives in § 20.2.1 are merely discretionary guidelines and are not mandatory or directory. The criteria and objectives set forth in the Special Cases Regulation do not prescribe these criteria as being the essence of what is to be accomplished and do not relate to a matter of substance but more properly to a matter of convenience. Actual compliance with § 4.2.6.16 is the mandatory provision to be followed. In addition, the language within 20.2.1 fails to contain any language which would invalidate a decision if there was noncompliance. See Crest Pontiac at 676. To hold otherwise would allow § 20.2.1 to take precedence over the criteria for Active Adult Housing Small Development Regulation. The Supreme Court, in TLC Development, Inc., v. Planning and Zoning Commission, 215 Conn. 527, 532-33 (1990), noted that "designation of a particular use of property as a permitted use establishes a conclusive presumption that such use does not adversely affect the district and precludes further inquiry into its effect on traffic, municipal services, property values or the general harmony of the district." Thus, it is clear that the implication of the TLC Development decision is that there is a preclusive presumption established by the inclusion of the "Active Adult Housing Small Development" Regulation as a permitted use, that such uses in the district preclude the Commission from denying an application because of any of the Special Case criteria and objectives in § 20.2.1 of the Town of Stratford Zoning Regulations, which are contrary to the regulation itself.
Plaintiffs allude in their brief to a claim that an improper executive session was held by the Commission on February 11, 2008. Plaintiffs have not raised this executive session issue in its appeal. Section 1-206(b)(1) provides a mechanism for appealing to the Freedom of Information Commission where a party claims it was "wrongfully" denied the right to attend any meeting of a public agency." An appeal must be filed within thirty (30) days. No appeal was taken and our courts have held that "it is axiomatic that when a procedure is established by statute, lack of strict compliance with the statute makes the matter subject to dismissal subject to jurisdiction." Shine v. Powers, 37 Conn.Sup. 710 (1981). The plaintiffs have not exhausted any of their administrative remedies and this issue is not before this court. Therefore, any issue raised by the plaintiffs as to this issue cannot be considered. See also Raymond v. Freedom of Information Commission, 75 Conn.App. 142 (2003).
The plaintiffs' appeal is dismissed.