Opinion
LNDCV186097131S LNDCV6097307S
01-08-2020
Sofia’s Plazas, LLC v. East Windsor Planning and Zoning Commission et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Berger, Marshall K., J.T.R.
MEMORANDUM OF DECISION
Berger, JTR
I
The plaintiff, Sofia’s Plazas, LLC, appeals decisions of the defendant, the East Windsor planning and zoning commission (commission), approving the special permit and site plan applications of the codefendant, MMCT Venture, LLC, to develop a 188, 000-square-foot casino with gaming, restaurants, bars and retail uses at 105 Prospect Hill Road, also known as Route 5, in East Windsor. (Return of Record [ROR], Item 1; Item 2.) The 28.575-acre parcel is comprised of five former lots at 93, 105, 113, 115 and 119 Prospect Hill Road, and is bounded by Interstate 91 to the west, Route 5 to the east and Route 140, also known as Bridge Street, to the north. (ROR, Item 1; Item 11.)
The defendant is jointly owned by the Mashantucket Pequot Tribe and the Mohegan Tribe of Indians of Connecticut. (Return of Record [ROR], Item 1.)
Prior to the applications being filed, the town of East Windsor and the defendant entered into a development agreement (agreement) on February 28, 2017. (ROR, Item 1.) In exchange for payments by the defendant of $3 million before the casino opened and for $3 million each year after the casino received its certificate of occupancy, among other things, the town agreed to "actively cooperate with and publically support" the defendant’s efforts to get all necessary permits, including zoning permits, for the casino. (ROR, Item 1.) On January 29, 2018, the zoning for all of the former lots was changed to the highway interchange floating zone (HIZ). (ROR, Item 1; Item 23.)
These payments would be in addition to property taxes based upon a fixed assessment value of about $171 million resulting in the town collecting approximately $5.5 million in taxes each year for the first five years. (ROR, Item 1.) The defendant would also pay $1 million to the state and 50 percent of the gross gaming revenue broken down as follows: 10 percent to the state’s tourism marketing account, 15 percent to the general fund and 25 percent to be split with $7.5 million going toward the municipal gaming account, which benefits ten municipalities (but not East Windsor), and with any remaining amounts going to the general fund. General Statutes § § 12-578g and 12-578h.
The applications were filed on May 21, 2018. (ROR, Item 1.) A public hearing was held on June 13, 2018, and June 19, 2018. (ROR, Items 20-21.) On June 19, 2018, the commission conditionally approved the special permit application and notice of the decision was published in the Journal Inquirer on June 22, 2018. (ROR, Item 5; Item 18.) On June 27, 2018, the commission conditionally approved the site plan application and notice was published in the Journal Inquirer on July 2, 2018. (ROR, Item 6; Item 19.)
On July 5, 2018 and July 9, 2018, respectively, the plaintiff commenced these appeals alleging that the commission acted illegally, arbitrarily and in abuse of its discretion in conditionally approving the defendant’s special permit and site plan. On December 27, 2018, this court granted a motion to consolidate the two appeals. The commission and the defendant filed their answers on January 2, 2019, and the commission filed the return of record on January 15, 2019. On January 25, 2019, the plaintiff filed an amendment to the record as of right pursuant to Practice Book § 14-7B(e) (pleading #125.00) and its brief. The commission and the defendant filed their joint brief on February 26, 2019, and the plaintiff filed a reply brief on May 2, 2019. The court heard oral argument on June 11, 2019. Additional briefs were filed by the parties on July 23, 2019. On August 27, 2019, the court heard further oral argument. The parties filed further briefs on September 10, 2019.
The return of record was originally filed on December 19, 2018. The court requested that it be refiled sequentially and these pleadings (##119.00-122.00) contain return of record items one through twenty-three.
This pleading (#125.00) contains return of record items twenty-four through forty-one.
II
General Statutes § 8-8(b), in relevant part, provides that "any person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3 or a special permit or special exception pursuant to section 8-3c, may take an appeal to the superior court ..." Additionally, § 8-8(a)(1), in relevant part, provides that" ‘aggrieved person’ includes any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
The plaintiff owns property, known as Sofia’s Plazas, on the easterly side of Prospect Hill Road directly across and approximately ninety-nine feet from the site of the proposed casino. The parties stipulated that the plaintiff owned the property at the time of the hearing and continues to own it. Accordingly, this court finds that the plaintiff is statutorily aggrieved. General Statutes § 8-8(a)(1) and (b).
III
"General Statutes § 8-2(a) provides in relevant part that local zoning regulations may provide that certain ... uses of land are permitted only after obtaining a special permit or special exception ... subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values ... The terms special permit and special exception are interchangeable." (Internal quotation marks omitted.) Meriden v. Planning & Zoning Commission, 146 Conn.App. 240, 244, 77 A.3d 859 (2013).
"[T]he nature of special exceptions is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site ... We also have recognized that, if not properly planned for, [such uses] might undermine the ... character of the neighborhood ... Thus, we have explained that the goal of an application for a special exception is to seek 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." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 426-27, 941 A.2d 868 (2008).
"When [considering] an application for a special permit, a planning and zoning board acts in an administrative capacity ... [Its] function ... [is] 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 ... Review of a special permit application is inherently fact-specific, requiring an examination of the particular circumstances of the precise site for which the special permit is sought and the characteristics of the specific neighborhood in which the proposed facility would be built." (Citations omitted; internal quotation marks omitted.) Meriden v. Planning & Zoning Commission, supra, 146 Conn.App. 244-45.
"Our Supreme Court has 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, [it has] 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 ... would adversely impact the surrounding neighborhood ... The ... trial court ha[s] to 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." (Internal quotation marks omitted.) Id., 246.
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which ... [c]onclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] ... The question is not whether the trial court would have reached the same conclusion ... but whether the record before the [commission] supports the decision reached ... 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 ... 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 ... The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. 427. "The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, 53 Conn.App. 636, 640, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999).
IV
In 2015, the legislature promulgated No. 15-7 of the 2015 Special Acts which authorized the defendant to enter into a development agreement with a municipality to construct a casino. The town of East Windsor was chosen and the defendant and the town entered into the agreement for the subject property on February 28, 2017. (ROR, Item 1.) Thereafter, the legislature passed No. 17-89 of the 2017 Public Acts authorizing, among other things, the defendant to operate the casino. General Statutes § 12-578f.
The agreement, in relevant part, states:
"WHEREAS, in addition to the new jobs and direct investment at the Property, construction and operation of the Casino Facility is expected to create additional job opportunities and career paths for residents of the Town and region with small businesses and other hospitality, entertainment and tourist attractions and amenities within the Town and region; and "WHEREAS, the Town desires that the Company develop the Property for the Intended Use in order to generate possible employment opportunities for Town residents, tax revenues and annual impact payments for the Town. "NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Town and the Company agree as follows: "1. Tax and Impact Payment Commitments of the Company .
The Company agrees, subject to the terms of this Agreement:
"a. To pay to the Town, in a single lump sum payment, the sum of Three Million Dollars ($3,000,000.00) no later than fifteen (15) months prior to the date of opening of the Casino Facility with commercial casino gaming at the Property to the general public (’Open’ or ‘Opening’). The date of anticipated Opening shall be determined by reference to a construction schedule prepared by the Company’s architect and/or contractor and to be provided to the Town by the Company promptly following the Town’s issuance of a building permit for the Casino Facility, as applicable. If such construction schedule changes following submission to the Town and such changes will, in the reasonable judgment of the Company, delay the anticipated date of Opening set forth on the construction schedule most recently submitted to the Town, the Company shall provide written notice to the Town of the changes within thirty (30) days of the Company’s knowledge of the change.
b. To pay to the Town, annually, the lump sum amount of Three Million Dollars ($3,000,000.00), with the first payment due within 15 days after receipt of the final certificate of occupancy (the ‘CO’) for the Casino Facility at the Property, and thereafter on each anniversary of the first payment under this Section 1(b) ...
c. To pay to the Town, annual real property and personal property taxes based on an agreed upon aggregate fixed assessed value of $171,179,582.94 (the ‘Aggregate Fixed Assessment’) for the Casino Facility and all real and personal property, owned, leased and/or used at the Casino Facility in connection with the Intended Use of the Property ...
"2. Reimbursement of Costs .
"a. The Company agrees to reimburse the Town for the reasonable out-of-pocket costs and expenses incurred prior to the CO being issued for the Casino Facility and paid in good faith by the Town to its attorneys, lobbyists and/or third party consultants for: the negotiation of this Agreement; work required to obtain legislative approval of the Property Tax Legislation; and work required in connection with the Town’s land use approval process (collectively, ‘Reimbursable Costs’), including such Reimbursable Costs that were incurred before the approval of this Agreement.
"3. Employment and Contracting .
a. The Company anticipates that the construction of the Casino Facility will create 1, 700 construction jobs for the initial development of the Casino Facility and approximately 1, 700 Casino Facility operating jobs, approximately 75% of such operating jobs are anticipated to be full time.
b. The Company shall hold at least two (2) job fair events in the Town, with event space to be furnished by the Town at its expense, to provide information regarding the Company’s employment needs for the Casino Facility and to encourage local applications. In furtherance of the Company’s and the Town’s mutual desire to encourage the employment of local persons, after Opening, the Company will use reasonable efforts to achieve a workforce of no fewer than 4% Town residents and no fewer than 15% to be residents from inside a 25-mile radius around the Casino Facility.
c. In furtherance of the Company’s and the Town’s mutual desire to encourage the use of local businesses for the Company’s Casino Facility procurement needs, the Company will locally publicize information about its procurement processes and its anticipated needs for goods and services in connection with the Casino Facility and will use reasonable efforts to procure from local businesses at least $1,000,000 of goods and services per year in connection with the Casino Facility.
"4. Indemnification .
"a. Subject to Section 4(b) of this Agreement, the Company agrees to defend and indemnify the Town and each of its officers, agents and employees (collectively Indemnitees’ and individually Indemnitee’) from and against any claim (administrative or judicial), charge, dispute, petition or litigation threatened or filed against the Indemnitees or any individual Indemnitee arising out of or related to the Town’s negotiation and approval of this Agreement (including, but not limited to, petitions by a member of the public or others with standing), the Town’s permitting process and approvals related to the Casino Facility or the Property’s development for the Casino Facility, the Town’s entering into this Agreement, and the passage by the State General Assembly of the Authorizing Legislation ...
"6. Commitments of the Town .
The Town agrees, at its cost and expense (except as otherwise expressly set forth in Sections 2, 4(a) and 4(b)):
"a. To support the Company’s efforts to obtain from appropriate local, state and federal bodies and agencies, all such permits, licenses and approvals (including zoning approvals) as may be necessary or reasonably desired by the Company to authorize the development and operation of the Property for the Intended Use, including without limitation the Authorizing Legislation. Without limiting the generality of the foregoing, the Town shall, to the extent permitted under applicable law, (i) informally advise the Company and actively cooperate with and publically support the Company’s efforts to obtain all necessary permits, licenses and approvals in connection with carrying out the Intended Use of the Property and (ii) support efforts by the Company to effectuate any required amendments to and/or legally permitted waiver of or variance from applicable municipal requirements under the Town charter, ordinances, and/or regulations to permit development and operation of the Property for the Intended Use, both initially and on an ongoing basis, consistent with this Agreement.
"b. To diligently pursue passage of the Property Tax Legislation ..." (ROR, Item 1.)
The defendant sought the permits to develop a casino on the subject property in the HIZ and the commission considered it a "new commercial recreation facility/casino" throughout the administrative proceedings. (ROR, Items 18-19.) Section 502 of the zoning regulations of the town of East Windsor (regulations) allows certain uses by right in the HIZ, without the need for a special permit, and others with the approval of a special permit. (ROR, Item 23, pp. 40-41.) It is undisputed that a general development plan (GDP) special permit was required under § 504.3 for the use in the present case.
Section 504.3 provides: "SPECIAL PERMIT. All uses in this Zone shall be approved as part of the General Development Plan (GDP) special permit process and shall require a determination by the Commission that:
a. Traffic or other hazards will not be created;
b. General Property values will be conserved;
c. There will be no adverse effects on existing uses in the area;
d The general welfare of the community will be served;
e There will be no adverse impacts on the capacity of present and proposed utilities, streets, drainage systems, sidewalks, and other infrastructure;
f. The Commission shall grant all approvals subject to such conditions and safeguards as will carry out the expressed purpose of this regulation." (ROR, Item 23, p. 45.)
The plaintiff challenges the commission’s conditional approvals on a number of grounds. First, the plaintiff argues that the defendant did not apply for a special permit to sell alcohol as required by § § 504.7 and 805 and that the prehearing and post-hearing notices were defective because they did not indicate the sale of alcohol. Second, the plaintiff maintains that the defendant’s grading on the property requires a special permit under § 814.2. Third, the plaintiff argues that § 900.1 requires that notice of the hearing on the special permit be posted on the premises at least ten days before the hearing, but that notice was only posted on one of the five former lots. Fourth, the plaintiff asserts that the administrative process in this case constituted unlawful contract zoning. Fifth, the plaintiff argues that there was an unfair hearing in that certain comments prepared by town staff concerning the traffic issues were not made available to the commission.
Section 900.1(g) provides: "On any application for a Special Permit or Zone Change, the applicant shall:
"post a sign or signs on the premises which is the subject of the application at least ten (10) days before the commencement of the public hearing (amended/effective 7/28/14);
"obtain such signage from the Planning and Development Department upon receipt of a cash deposit;
"locate and maintain the signage so as to be visible and readable from the street or highway upon which property has frontage for the full time of the required posting;
"submit an affidavit at the public hearing that the signs were posted in accordance with these requirements;
"remove such sign or signs within ten days after the completion of the hearing." (ROR, Item 23, p. 110.)
The plaintiff also asserted in its complaint that the defendant failed to serve notice on the abutting property owners within 100 feet in violation of § 900.1(h). The regulation provides that "[t]he applicant shall provide written notice to all abutting property owners within 100 feet from the property line and shall submit proof of mailing (Certificate of Mailing from the post office) to the Commission at the public hearing." (ROR, Item 23, p. 110.) It may be that a certain record item resolved this allegation. Nevertheless, as the plaintiff has not briefed this issue, the court will consider it waived. See Doyle Group v. Alaskans for Cuddy, 146 Conn.App. 341, 351, 77 A.3d 880 (2013) ("We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... [F]or this court judiciously and efficiently to consider claims of error raised on appeal ... the parties must clearly and fully set forth their arguments in their briefs" [internal quotation marks omitted]).
The commission and the defendant counter that the GDP special permit was the only special permit the defendant was required to obtain and that individual special permits for the sale of alcohol and for grading were not needed. Additionally, the commission and the defendant argue that the defendant substantially complied with § 900.1 in posting the public hearing signs on the property. Further, the commission and the defendant assert that the agreement is not illegal contract zoning. Finally, they argue that the administrative process was not fundamentally unfair.
A
As to the first issue concerning alcohol, the plaintiff argues that defendant was required to apply for a special permit to sell alcohol by § § 504.7 and 805 and that the prehearing and post-hearing notices were defective because they did not indicate that the defendant was seeking to sell alcohol. The commission and the defendant counter that § 504.7 and 805 are inapplicable and that § 504.3 provides that all proposed uses, including the sale of alcohol, be approved as part of the GDP special permit. Additionally, they argue that the prehearing and post-hearing statutory notices sufficiently apprised the public of the action ultimately taken by the commission because the "application and filed plans clearly reflect that restaurants and bars are included in the casino operations and, as such the casino will involve the sale of alcohol." They further assert that "it is common knowledge that the sale of alcohol is a use associated with casino operations."
In the plaintiff’s brief in reply, it argues that use of the word "casino" in the post-hearing notices was insufficient to give the public notice of the sale of alcohol. It also asserts that there was nothing in the prehearing or post-hearing notices or in the applications and plans that suggests that alcohol would be served in the restaurants or on the gaming floor. Further, identifying a special permit use of the sale of alcohol would have broadened the scope of the interested public from abutters to all of the taxpayers in the municipality.
"[Z]oning regulations are legislative enactments ... and therefore their interpretation is governed by the same principles that apply to the construction of statutes." (Citation omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 699, 784 A.2d 354 (2001). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Tayco Corp. v. Planning & Zoning Commission, 294 Conn. 673, 679, 986 A.2d 290 (2010).
"Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes ... [A]n agency’s factual and discretionary determinations are to be accorded considerable weight ... Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion ... Furthermore, when [an] agency’s determination of a question of law has not previously been subject to judicial scrutiny ... the agency is not entitled to special deference ... [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law ... These principles apply equally to regulations as well as statutes." (Internal quotation marks omitted.) Anatra v. Zoning Board of Appeals, 307 Conn. 728, 737-38, 59 A.3d 772 (2013).
In the present case, § 504.7 provides: "Buildings and premises used for hotels, conference centers and restaurants may be used for the sale of alcoholic beverages for on premises consumption in accordance with Section 805 except that such proposed uses in the HIZ shall be exempt from the dimensional requirements set forth therein." (ROR, Item 23, p. 48.) While a casino might have one or all of those types of uses, a casino is not in and of itself a restaurant, a hotel or a conference center. The section does not specifically address other uses in the HIZ.
Section 504.7 references § 805, the special regulation concerning alcohol, but that section does not indicate that it is applicable to the HIZ zone. Specifically, § 805(d), in relevant part, provides, "Restaurant permits for the sale of beer, wine, or spirituous liquors, to be consumed on the premises, shall be permitted only when such sales are incidental to the operation of a restaurant, hotel, motel, bowling alley restaurant, or private clubs, shall be permitted only in B-1, B-2, and B-3 zones. Liquor sales may be permitted by special use permit in the M-1 zone when associated with an approved hotel, recreational or catering facility. (Amended Effective 4/25/2012) ..." (ROR, Item 23, p. 92.) Thus, insofar as the defendant proposes its casino and the other uses, § 805(d) provides for liquor sales only when incidental to the operation of a restaurant in the B-1, B-2 or B-3 zones or when associated with a recreational use in the M-1 zone. (ROR, Item 23, p. 92.) Moreover, nothing in § § 502 or 805(d) or any other regulation appears to allow for bars. (ROR, Item 23, pp. 40-41, 92.) Nevertheless, the commission approved "bar ... uses" in its motions to approve the defendant’s special permit and site plan. (ROR, Item 18, p. 1; Item 19, p. 1.)
Section 805, in relevant part, provides: "The sale or manufacture of alcoholic beverages, at wholesale or retail, for consumption either upon or off the premises, shall be permitted only by Special Permit subject to the following regulations:
"a. No alcohol related use shall be permitted within 500 feet of any public or private school (defined as: the instruction of children under 18 years of age and giving instruction at least 3 days a week for 8 or more months a year), daycare center, public place of worship, charitable institution, hospital, convalescent home, cemetery, library, public playground, or any municipal building.
b. Daycare centers are exempt from the above requirement in relation to full service restaurants, provided they are not located within the same structure.
c. The required minimum distance shall be determined by two nearest points of both properties as measured on the Town Assessor’s Maps.
d. Restaurant permits for the sale of beer, wine, or spirituous liquors, to be consumed on the premises, shall be permitted only when such sales are incidental to the operation of a restaurant, hotel, motel, bowling alley restaurant, or private clubs, shall be permitted only in B-1, B-2, and B-3 zones. Liquor sales may be permitted by special use permit in the M-1 zone when associated with an approved hotel, recreational or catering facility. (Amended Effective 4/25/2012) ..." (ROR, Item 23, p. 92.)
Section 200.1 provides that "[u]se of land, building or structures not clearly permitted in the various zoning districts is prohibited." (ROR, Item 23, p. 12.)
Despite § 504.7, the commission and the defendant argue that § 502 indicates that alcohol sales are permitted when associated with a hotel, recreational use and catering subject to a special use permit. (ROR, Item 23, pp. 40-41.) This court cannot ignore that section. See Kobyluck Brothers, LLC v. Planning & Zoning Commission, 167 Conn.App. 383, 391, 142 A.3d 1236 ("[A] court must interpret a statute as written ... and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation ... The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant" [internal quotation marks omitted]), cert. denied, 323 Conn. 935, 151 A.3d 383 (2016). Nevertheless, "it is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling ... The provisions of one statute which specifically focus on a particular problem will always, in the absence of express contrary legislative intent, be held to prevail over provisions of a different statute more general in its coverage." (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 302, 21 A.3d 759 (2011). "To the extent possible, statutes should be reconciled ... When two statutes conflict, however, as in the present case, the more specific legislation governs over the general legislation." (Citation omitted.) Wisniowski v. Planning Commission, 37 Conn.App. 303, 313, 655 A.2d 1146, cert. denied, 233 Conn. 909, 658 A.2d 981 (1995).
It is, however, merely comment 2 that indicates that "[l]iquor as an associated use with hotel, recreational use and catering permitted with special use permit and may be limited to beer & wine." (ROR, Item 23, p. 41.)
In the present case, § 504.7 is specific to the HIZ and limits the sale of alcohol to "hotels, conference centers and restaurants." To the extent the casino seeks to sell alcohol in other places, it is limited by § 504.7. Therefore, the commission abused its discretion in granting the GDP special permit as to the sale of alcohol.
Additionally, the court agrees that the prehearing and post-hearing notices were defective because they did not provide notice that the defendant was seeking to sell alcohol. General Statutes § 8-3c(b), in relevant part, provides that a "planning and zoning commission of any municipality shall hold a public hearing on an application or request for a special permit or a special exception, as provided in section 8-2 ... Such hearing shall be held in accordance with the provision of section 8-7d." General Statutes § 8-7d(a), in relevant part, provides that when a formal application is submitted and a hearing is required or otherwise held on an application that "[n]otice of the hearing shall be published in a newspaper having general circulation in such municipality where the land that is subject of the hearing is located at least twice at intervals of not less than two days ..."
In the present case, the published notice informed the public of the use as a "new commercial recreational use (casino)"; (ROR, Item 4); but did not refer to the sale of alcohol. The published notice did refer to the application, but the application did not indicate "sale of alcohol" on its face or anywhere in the narrative. (ROR, Item 1.) Instead, the application indicated "restaurant/bars" in the narrative; (ROR, Item 1); but, as previously stated, "bars" do not appear to be provided for in the regulations in any zone in the town. (ROR, Item 23, pp. 40-41, 92.)
Simply put, there was a box to check to indicate "sale of alcohol" that was not checked. (ROR, Item 1.)
Furthermore, the court does not find persuasive the commission and the defendant’s argument that the general public was put on notice about the sale of alcohol based on the casino use. "[Z]oning commissions are required to provide adequate published notice of a public hearing to be held on an application or request for a special permit or special exception ... Specifically, this court has held that the purpose behind the notice requirement of § 8-3 is fairly and sufficiently to apprise those who may be affected by the proposed action of the nature and character of the proposed action so as to enable them to prepare intelligently for the hearing." (Internal quotation marks omitted.) Lauver v. Planning & Zoning Commission, 60 Conn.App. 504, 510, 760 A.2d 513 (2000).
The commission and the defendant cite to General Statutes § 30-37k to support the argument that it is common knowledge that casinos serve alcohol. The statute defines a casino as "a gaming facility ... operated with other facilities," which could include restaurants, nightclubs, etc., and provides that "[a] casino permit shall allow the retail sale of alcohol to be consumed on the premises of a casino." General Statutes § 30-37k(a) and (b). The court rejects the commission and the defendant’s argument that the statute demonstrates the common knowledge of the general public or that the taxpayers of the town should have assumed that the defendant was seeking to sell alcohol.
The application need not have been exact. See Shrobar v. Jensen, 158 Conn. 202, 207, 257 A.2d 806 (1969) ("[n]otice of a hearing is not required to contain an accurate forecast of the precise action which will be taken on the subject matter referred to in the notice"). Nevertheless, the sale of alcohol expands the class of those who might be aggrieved by the commission’s decision to all of the town’s taxpayers. See Alliance Energy Corp. v. Planning & Zoning Board, 262 Conn. 393, 403, 815 A.2d 105 (2003) ("when an action taken by a zoning board involves the sale or use of liquor or affects traffic in connection with the sale or use of liquor, taxpayers are presumed to be classically aggrieved"). Without notice that the application involved the sale of alcohol, the general public did not have the opportunity to give input or protest the defendant’s application. See Timber Trails Corporation v. Planning & Zoning Commission, 222 Conn. 374, 379, 610 A.2d 617 (1992) ("[T]he underlying purpose of such requirements is not to permit changes, exceptions or relaxations [in zoning matters] except after such full notice as shall enable all those interested to know what is projected and to have opportunity to protest, and as shall insure fair presentation and consideration of all aspects of the proposed modification. This is not a technical requirement difficult of performance by the unwary. It is dictated by common sense for protection of an established neighborhood to be subject to change only after fair notice" [emphasis in original; internal quotation marks omitted]). Thus, the commission failed to comply with § 8-7d and did not have jurisdiction to consider the application as it relates to alcohol. See Cassidy v. Zoning Commission, 116 Conn.App. 542, 555, 976 A.2d 29 (2009) (holding that commission lacked jurisdiction to consider application to expand church building and offsite parking because notice did not indicate location of offsite parking); but see Lauver v. Planning & Zoning Commission, supra, 60 Conn.App. 515 ("The applicant should not have been penalized for the commission’s failure to give proper notice of the public hearing on the matter ... The matter should be remanded to the commission so that it may give proper notice and conduct a public hearing to consider [the applicant’s] amended application" [citation omitted]).
The post-hearing notices also did not reference the sale of alcohol referring only to a "new casino" and a "new commercial recreational use (casino) and site improvements." (ROR, Items 5-6.) Consequently, the town’s taxpayers did not have sufficient information to form an opinion as to whether the issue was appealable. See Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 281, 487 A.2d 559 (1985) ("The right of appeal, if it is to have any value, must necessarily contemplate that the person who is to exercise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appealable issue. Until the prospective appellant has either actual or constructive notice that a decision has been reached, the right of appeal is meaningless" [internal quotation marks omitted]).
B
As to excavation, the plaintiff argues that the defendant needed a separate special permit for the grading and excavation work on the property under § 814.2. The commission and the defendant again counter that a separate special permit was unnecessary as § 504.3 provides that all proposed uses be approved as part of the GDP special permit.
Section 814.2 provides: "The following earth removal or filling is permitted in any zone provided no condition is created that is dangerous or damages the surrounding land:
a. Excavation and removal of less than 100 cubic yards of material from any lot of record, or
b. Necessary foundation and trench excavation only in connection with work on the premises for which a Building Permit has been issued.
c. The filling of soil up to a maximum of 100 cubic yards provided that such filling operation does not exceed a year in duration, is graded such that the final grades are in harmony with the existing grades, and is covered with loam or other material that will support plant life.
"Except as provided above, the excavation, removal, grading, displacement, or filling of sand, gravel, stone, loam, dirt or other earth product is permitted only as a Special Use Permit upon written permission of the Planning and Zoning Commission." (ROR, Item 23, p. 105.)
Generally, certain subsections of 504.3 address the concerns that § 814.2 was likely designed to prevent, i.e., the creation of dangerous conditions or of damage to the surrounding land. (ROR, Item 23, pp. 45, 105.) Yet, the specifics for earth removal that are "minimum standards" set forth in § 814.3 covering twenty different considerations are missing from § 504.3. (ROR, Item 23, pp. 105-06.)
Specifically, subsection (c) provides that "[t]here will be no adverse effects on existing uses in the area"; subsection (d) provides that "[t]he general welfare of the community will be served"; and subsection (e) provides that "[t]here will be no adverse impacts on the capacity of present and proposed utilities, streets, drainage systems, sidewalks and other infrastructure." (ROR, Item 23, p. 45.)
"Administrative regulations must have adequate, fixed and sufficient standards to guide the agency in their application, to avoid decisions which allow the agency to interpret and apply the regulations in more than one manner according to the arbitrary choice of the agency on an application by application basis. The discretion of an administrative agency must be controlled by fixed standards applying to all cases of a like nature." (Footnote omitted.) R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015) § 22.3, p. 698.
"Although § 8-2 of the General Statutes provides that the public health, safety, convenience and property values may be considered in making a determination on a special permit, this is to be done in conjunction with, and not as an alternative to, the standards which the zoning regulations themselves must provide ... In the complete absence of standards, the power to grant a special permit which is provided for in § 8-2 of the General Statutes, cannot be exercised." (Citations omitted.) Powers v. Common Council, 154 Conn. 156, 161, 222 A.2d 337 (1966).
"It is not sufficient that the zoning regulations allow a particular use with a special permit. The zoning regulations must also contain conditions governing approval of a special permit ... The conditions must contain some standards ... but the regulation does not have to be precise ... The regulations may contain general standards applying to uses in general and the specific use applied for even though the standards are limited, as they can be supplemented by conditions based on General Statutes § 8-2." (Footnotes omitted.) 9 R. Fuller, supra, § 5.2, pp. 194-95.
In the present case, approximately 50 to 100 trucks would be required per day for 4 months to remove the 73, 000 cubic yards. (ROR, Item 7, p. 5; Item 17, p. 5.) Section 504.8(b) requires compliance with site plan standards in § § 900.2 and 900.3. Section 900.3(e), in relevant part, provides: "The Commission may require the submission of additional information as is deemed necessary to make a reasonable review of the application with regard to:
soil conditions- including locations and depth of rock ledge, ground water conditions, and other such information;
a soils-engineering investigation- including a report addressing the nature, distribution, and strength of existing soils and conclusions and recommendations for grading procedures and design criteria for corrective measures ..." (ROR, Item 23, p. 111.)
While vague, this section does minimally provide standards for the grading. In its presentation to the commission, the defendant’s engineer, Fuss and O’Neill, discussed aspects of the grading operation. (ROR, Item 17, pp. 5-6.) Other than a brief mention of the number of truck trips and scheduling, there was little discussion during the special permit public hearing of the specific items covered by § 814.3; (ROR, Item 21, pp. 65-67); as well as in the site plan discussion of June 27, 2018. (ROR, Item 22, p. 9.) Laurie Whitten, the town planner, indicated in her memorandum to the board on June 21, 2018, that "[o]verall, the proposed development meets or exceeds the design standards as set forth in the GDP." (ROR, Item 16, p. 4.) Why the commission has not chosen to incorporate the specific standards of § 814.3 into its GDP process is unknown, but the site plan requirements of § 900.3(e) minimally suffice. See Powers v. Common Council, supra, 154 Conn. 161.
In MacKenzie, a zoning commission enacted regulations that allowed it to waive certain special permit setback requirements. Id., 424. The MacKenzie court held that "there is nothing contained within the General Statutes authorizing the commission to adopt regulations empowering itself to vary the application of the regulations when acting on a special [permit] request." Id., 428. The court further observed, "The proposition that ... the commission [properly may exercise] the power to vary the requirements of the [town’s design business district] zone on a ‘case-by-case basis’ reflects a fundamental misunderstanding of the role of the variance power within a municipality. The variance power exists to permit what is prohibited in a particular zone ... In simple terms, the zoning commission acts as a land use legislature in enacting zoning requirements ... By contrast, the zoning board of appeals is the court of equity of the zoning process." (Citations omitted; internal quotation marks omitted.) Id., 428-29. Additionally, General Statutes § 8-2(a), in relevant part, provides that "regulations shall be uniform for each class or type of building or kind of buildings, structures or use of land throughout each district ..." "The obvious purpose of the requirement of uniformity in the regulations is to assure property owners that there shall be no improper discrimination, all owners of the same class and in the same district being treated alike with provision for relief in cases of exceptional difficulty or unusual hardship by action of the zoning board of appeals." Veseskis v. Zoning Commission, 168 Conn. 358, 360, 362 A.2d 538 (1975); see also Sonn v. Planning Commission, 172 Conn. 156, 162, 374 A.2d 159 (1976) ("Vague regulations which contain meaningless standards lead to ambiguous interpretations in determining the approval or disapproval of different subdivisions. Adequate, fixed and sufficient standards of guidance for the commission must be delineated in its regulations so as to avoid decisions, affecting the rights of property owners, which would otherwise be a purely arbitrary choice of the commission; such a delegation of arbitrary power is invalid"). Nevertheless, the plaintiff did not argue that the regulations lacked specificity or could otherwise be waived during the administrative proceedings, in its appeal or in its initial brief. "[T]o allow a court to set aside an agency’s determination upon a ground not theretofore presented ... deprives the [agency] of an opportunity to consider the matter, make its ruling, and state the reasons for its action." (Internal quotation marks omitted.) Patty v. Planning & Zoning Commission, 188 Conn.App. 115, 120-21, 203 A.3d 1248, cert. denied, 331 Conn . 925, 207 A.3d 28 (2019). Suffice it to say, the HIZ regulations seem at best hastily and poorly drafted and with only the casino use in mind. The sale of alcohol and grading regulations previously discussed are examples as is the 17, 368 square feet of signage allowed under § 504.6. The zone is much larger than the casino property. The special permit process of the HIZ is curious. In a sense, the commission has adopted a hybrid of both a floating zone regime and a planned development district, but with only minimal standards. See Sheridan v. Planning Board, 159 Conn. 1, 16-17, 266 A.2d 396 (1969) ("While the concept of a floating zone is similar to the established power of a zoning board to grant special exceptions, the two types of regulation may be distinguished. The special exception is the product of administrative action, while the floating zone is the product of legislative action ... Further, if a landowner meets the conditions set forth for a special exception, the board is bound to grant one, but in the case of a floating zone discretion is maintained and additional limitations may be imposed- more control is retained by the zoning board because it is acting legislatively ... Thus, a floating zone provides more control over changes than does the granting of special exceptions, as noted above, with no greater likelihood of creating incompatible uses, and with no less forewarning than precedes the granting of a special exception" [citations omitted]); see also Campion v. Board of Aldermen, 278 Conn. 500, 518, 899 A.2d 542 (2006) ("[A] floating zone differs from a planned development district in certain respects. We conclude, however, that these differences are largely procedural in nature ... Planned development districts ... combine into a single step the approval of a zoning map amendment and a general development plan for the district"). Section 103.1 of the regulations states that the name of the zone is the "Highway Interchange Floating Zone"; (ROR, Item 23, p. 10); but the commission and the defendant argue that it is not a floating zone. Adding to the confusion, the commission has called this an overlay zone. (ROR, Item 23, p. 52.) While related to a floating zone, an overlay zone and a floating zone are not exactly alike. They both "float" over a particular area, but an overlay zone does not change the underlying zoning. See Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 219, 779 A.2d 750 (2001) ("We recognize that, in some respects, an historic overlay zone resembles a floating zone. For example, it generally can "float around" a town and land on historic properties"). Section 504 suggests that the "Highway Interchange Floating Zone" has landed on a specific area and, thus, it is neither a floating zone or an overlay zone. While the commission could have adopted either a floating zone or a planned development district with the legal authority to attach conditions to it legislatively, it did not. It adopted the special permit review process. Yet, and importantly, it seems as if the commission treated the special permit process here as subject to a legislative review process since the special permit regulations of § 504 allow almost complete discretion with a lack of meaningful standards. There is far too much confusion with the zoning construct here. Before another application is filed for development in the HIZ, the commission should review its standards. This issue alludes to a larger problem with the HIZ regulations. During oral argument before the court on June 11, 2019, this court requested further briefing on whether the HIZ regulations lack specificity- and by inference, uniformity- or could be waived such that the court’s holding in MacKenzie v. Planning & Zoning Commission, 146 Conn.App. 406, 77 A.3d 904 (2013), would apply. As previously noted, the parties filed additional briefs and the court heard further argument.
C
The plaintiff next argues that signs giving notice of the public hearing should have been posted on each of the five former lots that constitute the subject property under § 900.1(g). The defendant concedes that only three signs were posted, one facing Bridge Street, one facing Prospect Hill Road and one facing the former Walmart property, which was evidently to the south of the subject property. (ROR, Item 32.) The commission and the defendant assert that the posting of the three signs gave adequate notice and substantially complied with the regulation.
Among other things, General Statutes § 8-7d(a) allows for supplemental notice in addition to publication. Specifically, the statute, in relevant part, provides that a "commission, board or agency may, by regulation, provide for additional notice. Such regulations shall include provisions that the notice be mailed to persons who own land that is adjacent to the land that is the subject of the hearing or be provided by posting a sign on the land that is the subject of the hearing, or both ..." Section 900.1(g) of the regulations, in relevant part, provides that "[o]n any application for a Special Permit ... the applicant shall: post a sign or signs on the premises which is the subject of the application ... [and] locate and maintain the signage so as to be visible and readable from the street or highway upon which property has frontage for the full time of the required posting ..." (ROR, Item 23, p. 110.)
The plaintiff cites to Wright v. Zoning Board of Appeals, 174 Conn. 488, 491, 391 A.2d 146 (1978), in support of its argument that the commission’s action was invalid because only three signs were posted. In Wright, it was undisputed that a sign was not posted. Id. The court held, "The posting of a sign on the premises required by ... the ... regulations is complementary to, and not in derogation of, the statutory notice ... Such regulations are generally adopted by a municipality as a practical and necessary means of giving effective notice of the pending zoning application to as many affected, aggrieved and potentially aggrieved persons as possible. When such notice is required by a municipal ordinance duly adopted, compliance with that ordinance is required." Id. In the present case, three signs were posted, but not on the small portions that were once other lots.
In Sorrow v. Zacchera, Superior Court, judicial district of Hartford, Docket No. CV 98-0580072-S (December 23, 1998, Teller, J.) (24 Conn.L.Rptr. 19, 21), the court analyzed the placement of a sign which did not specifically meet the requirements of posting on a public street. It held, "Substantial compliance with a statute or regulation is such compliance with the essential requirements of the statute or regulation as is sufficient to assure its objectives. What constitutes substantial compliance is a matter depending on the facts of each particular case." (Internal quotation marks omitted.) Id., 21-22, citing Deangelis v. Inlands Wetlands & Watercourses Commission, Superior Court, judicial district of Waterbury, Docket No. CV 96-0132755-S (May 16, 1997, Pellegrino, J.); see also Connecticut Resource Recovery Authority v. Planning & Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 95-0068880-S (August 23, 1996, Walsh, J.) (concluding that posting of sign on adjacent city property with commission’s permission was sufficient because subject property was on private road and sign would not have been visible from public street), appeal dismissed, 46 Conn.App. 563, 699 A.2d 314, cert. denied, 243 Conn. 935, 702 A.2d 640, rev’d on other grounds, 46 Conn.App. 566, 700 A.2d 67, cert. denied, 243 Conn. 936, 702 A.2d 640 (1997); see also Lauer v. Zoning Commission, 220 Conn. 455, 464-65, 600 A.2d 310 (1991) (concluding "that [General Statutes] § 8-3h provides for personal notice to adjoining municipalities and is, therefore, not subject matter jurisdictional"); cf. Qualey v. Planning & Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV-05-4004572-S (May 25, 2006, Schuman, J.) (41 Conn.L.Rptr. 432, 433-34) ("[I]t is not necessarily true that the lack of personal notice, and the concomitant absence from a hearing, deprives an adjacent owner of fundamental fairness. Indeed, an automatic reversal rule for such technical violations might well deprive a municipal commission of fundamental fairness. If nothing consequential happens at the hearing, and subsequent hearings cure the initial omission, then there is no reason to invalidate a commission’s final action. The better approach under the fundamental fairness rule is to determine whether the owner has been prejudiced or harmed by the commission’s failure to provide personal notice or other noncompliance with its own regulations").
In the present case, the issue is whether the defendant’s failure to place signs on each of the smaller former lots constitutes noncompliance with the regulation. It is clear from the development plans that all five former lots either had frontage on Bridge Street or on Prospect Hill Road. (ROR, Item 11, Sheet VB-01.) Additionally, the smaller lots, 93, 113, 115 and 119 Prospect Hill Road, make up less than two acres or 6.5 percent of the area of the subject parcel. (ROR, Item 11, Sheet VB-01.) Moreover, the smaller lots are surrounded by the former area of 105 Prospect Hill. (ROR, Item 11, Sheet VB-01.) Furthermore, they all have frontage on Prospect Hill Road and only constituted less than one-quarter of the total frontage on Prospect Hill Road. (ROR, Item 11, Sheet VB-01.) Hence, if one were viewing the property from Prospect Hill Road, it would seem like the property was one lot running southerly from Bridge Street.
The former 105 Prospect Hill Road was 26.708 acres; 113 Prospect Hill Road was 0.344 of an acre; 115 and 119 Prospect Hill Road were both 0.517 of an acre; and 93 Prospect Hill Road was 0.489 of an acre. (ROR, Item 11, Sheet VB-01.)
Given these specific facts, the posting of five signs- with three virtually right next to each other on Prospect Hill Road- was not required. The posted signs on Prospect Hill Road and other roads "upon which property has frontage"; (ROR, Item 32); substantially met the requirements of § 900.1(g) and were not insufficient. Furthermore, there is no claim that the published notice was deficient or that the signs were deficient. Indeed, the notices stated, "THESE PREMISES WILL BE THE SUBJECT OF A PUBLIC HEARING. FOR INFORMATION, CALL THE EAST WINDSOR PLANNING AND ZONING OFFICE. 860-623-6030." (ROR, Item 32.) Therefore, all affected parties were provided the opportunity to learn more about the proposed development and to be heard on the application. See Slagle v. Zoning Board of Appeals, 144 Conn. 690, 693, 137 A.2d 542 (1957) ("[The published notice] referred to everything upon which the board proposed to act and to which the attention of the public was invited. No one could be misled by the notice, and all affected persons were apprised of the change sought ... The situation would be far different had the notice ... failed to state the scope of the subject matter for consideration at the public hearing ... All interested persons seeing the advertisement would have little difficulty in determining whether the proposed variance would affect them. The notice referred to the proposed use of the property and the possible erection of a commercial building containing stores and offices. It could leave no doubt in the mind of any reasonable person as to the possible effect on his own property" [citations omitted; internal quotation marks omitted]). Hence, this court holds that the commission did not violate § 900.1(g) because the defendant posted only three signs instead of five.
Additionally, § 504.4 provides that contiguous parcels will be considered as one lot for the purposes of integrated development. (ROR, Item 23, p. 46.)
D
The plaintiff also argues that the development agreement constituted contract zoning. Specifically, it asserts that "the enormous financial incentives offered by [the defendant] colored the processing of the applications at every stage of the proceeding in favor of approval." The commission and the defendant counter that the development agreement is not illegal contract zoning essentially because the contract was between the town and the defendant and not the commission and the defendant. They further argue that the agreement did not guarantee zoning approval or involve rezoning.
"Illegal contract zoning is said to 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 citation marks omitted.) Rando v. Town of North Attleborough, 44 Mass.App.Ct. 603, 607, 692 N.E.2d 544, 547 (1998).
Contract zoning occurs when "an agreement is entered between the ultimate zoning authority and the zoning applicant/property owners which purports to determine contractually how the property in question will be zoned, in derogation of the legal prerequisites for the grant of the desired zone. Absent valid legislative authorization, it is impermissible because it allows a property owner to obtain a special privilege not available to others ... disrupts the comprehensive nature of the zoning plan, and, most importantly, impermissibly derogates the exercise of the municipality’s powers." (Citation omitted.) Mayor & Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 547, 814 A.2d 469, 488 (2002). "[W]ith respect to contract zoning, the principal concern is that, by individually contracting with a zoning authority, an applicant may be able to gain some favor not available to all other applicants and, therefore, bypass the municipality’s established process for gaining approval for a change in zone." Campion v. Board of Aldermen, 278 Conn. 500, 532, 899 A.2d 542 (2006).
In Campion, the Supreme Court reversed the decision of the Appellate Court. In the Appellate Court’s decision, it noted that "the partnership entered into a bargaining session with the zoning board of appeals, and the resulting stipulation gave the partnership precisely what it had been denied- the use of the parking lot at the convalescent home on the condition that the partnership apply for a planned development district. On its face, that appears to be an example of contract zoning." Campion v. Board of Alderman, 85 Conn.App. 820, 849, 859 A.2d 586 (2004), rev’d, 278 Conn . 500, 899 A.2d 542 (2006).
The plaintiff acknowledges that the defendant did not contract directly with the commission. Indeed, § 6(a)(i) of the agreement states, "The Town agrees, at its cost and expense ... [t]o support the Company’s efforts to obtain from appropriate local, state and federal bodies and agencies, all such permits, licenses and approvals (including zoning approvals) as may be necessary or reasonably desired by the Company to authorize the development and operation of the Property for the Intended Use, including without limitation the Authorizing Legislation. Without limiting the generality of the foregoing, the Town shall, to the extent permitted under applicable law ... informally advise the Company and actively cooperate with and publically support the Company’s efforts to obtain all necessary permits, licenses and approvals in connection with carrying out the Intended Use of the Property." (ROR, Item 1.) As previously discussed, the town agreed to assist with the zoning process, among other things, in exchange for compensation of $3 million before the casino opened and for each year after the casino opened along with other benefits. See footnote 2 of this memorandum of decision and accompanying text. Nevertheless, § 5 of the agreement states, in relevant part, that the defendant "will comply with applicable municipal laws, ordinances and regulations ... regarding the use and development of the property." (ROR, Item 1.) Thus, notwithstanding the promised financial benefits to the town, the defendant was still obligated to comply with all applicable zoning regulations. See Olson v. Avon, 143 Conn. 448, 454, 123 A.2d 279 (1956) ("[w]e conclude that the provisions of the zoning enabling act as it now stands make it abundantly clear that the legislative intent is to vest the power both to enact and to change zoning regulations and zone boundaries exclusively in the zoning commissions of the respective towns and that whatever a zoning commission may do in this regard is in no way subject to the control of a town meeting").
The initial zone change action, which is generally the product of contract zoning, was not challenged by any entity, including the plaintiff. This is not an example of contract zoning where an applicant is granted a zone change in exchange for some exaction. While there is consideration to the town by virtue of the legislative action, it arguably benefits both the town and the defendant. Nevertheless, without more, this court cannot find that the plaintiff has proven that the agreement constitutes contract zoning.
It should be noted that the agreement was authorized by the legislature which created Connecticut’s zoning scheme and its varied application through a myriad of special acts. See Sullivan v. Town Council, 143 Conn. 280, 282-83, 121 A.2d 630 (1956) ("The power to adopt and administer zoning regulations was conferred by the General Assembly for the first time in this state in 1921 by special act applicable only to the city of New Haven. 18 Spec. Laws 1045. Two years later a general statute gave the power to zone to Bridgeport, Norwalk, Waterbury, Stamford, Fairfield, Greenwich, Enfield and West Hartford. Public Acts 1923, c. 279. In 1925 a general enabling act made zoning powers available to cities and towns which chose, by action of their legislative bodies, to exercise such powers. Public Acts 1925, c. 242; see General Statutes, c. 43. In spite of this early legislation bestowing broad zoning powers upon municipalities, many cities and towns have sought and obtained zoning powers by special enactments of the General Assembly applicable only to them. Consequently, two bodies of legislation pertaining to zoning have developed over the years: the one, contained in the General Statutes; the other, conferred by special act and relevant only to the particular city or town in whose behalf the legislation was adopted. These two bodies of statute law differ in many respects, including the right to, and the procedure for, an appeal to the courts from a decision of a local zoning agency").
The plaintiff’s claim here is not dissimilar to the claim apparently made in Campion, and the court’s decision therein is instructive. "The plaintiffs suggest that, as applied in this case, § 65 of the New Haven zoning ordinance facilitated contract zoning because the DelMonaco partnership and the board of zoning appeals had entered into a stipulation to settle a zoning appeal involving a request for a special exception to expand parking at the catering facility, with the understanding that a planned development district application subsequently would be filed. The implication that there was some type of nefarious connection between the settlement of the DelMonaco partnership’s zoning appeal, with its decision to file an application for a planned development district, ignores the facts that the application was subject to a total of five public hearings before the commission and the board of aldermen, that the commission issued a detailed report with its recommendations, and that the commission’s report imposed several conditions for approval of the application. Additionally, the board of aldermen properly considered and made further modifications to the commission’s recommendation before approving the application and also made all of the findings required by § 65 of the New Haven zoning ordinance. In short, rather than suggesting any impropriety or that the DelMonaco partnership obtained special privilege not available to others, the record reflects that all of the usual procedures required to create a new zone pursuant to § 65 were followed as part of the DelMonaco’s application process. "The plaintiffs repeatedly have insinuated, both in their brief and at oral argument before this court, that the board of aldermen’s granting of the DelMonaco partnership’s application for a planned development district was the result of political lobbying, improper negotiation, and corruption that allowed the partnership to curry favor with the city’s legislative body. There is no support for these allegations in the record. The mere possibility that § 65 of the New Haven zoning ordinance could be misused in a particular case does not mean, in the absence of any evidence to the contrary, that it was misused in this case, or that authority for the ordinance is not present in the city’s enabling legislation. The plaintiffs’ claim is based on nothing more than unsupported conjecture and innuendo." Campion v. Board of Aldermen, supra, 278 Conn. 532-33.
E
Connected to the contract zoning issue, the plaintiff argues that the agreement led to an unfair hearing process and withholding of information from the commission. Specifically, the plaintiff asserts that the commission "could not consider the [defendant’s] application on par with other land use applications" as the town stood to benefit financially because of the agreement. It points to Whitten’s actions- her correspondence; (ROR, Item 25; Item 38); her confidential review of the defendant’s application; (ROR, Item 27; Item 29); her notification to the defendant’s counsel about presumed opponents’ review of the applications; (ROR, Item 41); her delays in providing the traffic study to the police chief; (ROR, Item 30); in asking the police chief and the fire chief to comment as to traffic; (ROR, Item 35); and in providing the police chief’s comments to the commission; (ROR, Item 21, pp. 73-74); and her encouragement to the commission to close the public hearing on the site plan application on June 19, 2018; (ROR, Item 21, p. 74)- as evidence of her "obligation" to approve the application. In arguing that the commission’s consideration of traffic was limited, the plaintiff also points to concerns by Joseph Ouellette, the commission’s chair and a traffic engineer working for the state department of transportation, about traffic safety set forth in his January 13, 2017 letter to Whitten- long before the applications were filed. (ROR, Item 24.)
Although the police chief, Edward DeMarco, was provided the traffic report on May 30, 2018; (ROR, Item 30); he was not asked about providing comments until the day of the public hearing on June 13, 2018. (ROR, Item 35.) He provided some preliminary comments to Whitten on June 14, 2018. (ROR, Item 39.) DeMarco, in relevant part, commented, "Let me start by saying that this casino traffic or impact study was done by a company hired and paid for by the proposed project owners. After a brief review it was noticed that the traffic data is not newer than 2015. Minimally, they claim traffic counts that are already in conflict with the newest 2018 data currently being done by the company representing the Town of East Windsor’s best interest in the Route 5 Study. A simple review of their (Casino) traffic report and our current route 5 traffic report shows vastly different counts, pass through traffic for route 5 and 140, crash numbers, and turn data. These complex numbers and the size of the data alone will take sometime to digest. In fact, some of the Fuss & O’Neil traffic report uses or relies on data that was done for the Calamar project, and it’s still listed on the bottom of the pages. "If the objective is to represent the very best interest and safety of our community- then it needs to be compared to our current route 5 traffic reporting happening right now, and maybe even getting input from them. The casino traffic report insinuates little to no impact and assumes that everyone will use exit 45. Well, we learned from the Super Wal-Mart report, that at the time, assumed exit use and lane usage, and that was very wrong- resulting in large part for what we deal with every day on the corridor. As we currently see- stops, congestion, and delay- on the highway (I-91) and on our own route 5. We are seeing higher than average traffic crash numbers and traffic counts as described in our last route 5 study meeting- compared to the casino traffic report. After just a brief review of the casino traffic report versus our current route 5 study, to assume little to no impact is suspect. The numbers are concerning. "Simply, we need time and are slowed down by the above issues, most importantly the next LTA meeting. To move too rapidly would not be wise for our Town. This time would allow us to study and reply during the week of July 16th through the 20th, at the earliest. On a side note I personally still believe that several of the route 5 and 140 intersections should be mandated to have CCTV cameras with direct feed to the EWPD in order to anticipate, monitor, respond, and properly handle traffic related issues. I see no mention of this or its potential impact. With that said, we remain committed to the safety of our community and the commuters through East Windsor. I have copied the Chairmen of the LTA in order to facilitate a proposed meeting or reply for July." (ROR, Item 39.) While it was alluded to that DeMarco had concerns; (ROR, Item 20, pp. 62-63, 65; Item 21, p. 6); it does not appear from the record that these specific comments were shared. (ROR Item 21, pp. 7, 69, 74; Item 22.)
A public hearing was held on the special permit, but not on the site plan application which was when the commission discussed and considered traffic. (ROR, Items 20-22.)
The commission and the defendant counter that East Windsor’s position is not unlike that of West Hartford in the development of Blue Back Square. In Sadler v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV-04-4001119-S (April 22, 2005, Booth, J.), a similar challenge was made against the town and its various commissions in approving the land use applications. The plaintiffs argued that bias was "evidenced by the existence of the ‘Master Agreement, ’ consisting of 400 pages concerning ‘zoning issues, construction, architectural and design concepts, and land conveyances that was negotiated over an extended period before the various zoning applications were even filed.’ ... They argue that such a document could not have been produced without the ‘express or implicit imprimatur of the [municipal defendants] and the [t]own staff.’" Id. In rejecting this argument, the court held that the record did not support the plaintiffs’ claims of bias or predetermination and that the plaintiffs had not sustained their burden to prove bias citing to O&G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429-30, 655 A.2d 1121 (1995).
In O&G Industries, the court held, "To overcome the presumption, the plaintiff ... must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable ... The plaintiff has the burden of establishing a disqualifying interest." (Citations omitted; internal quotation marks omitted.) Id.
Additionally, General Statutes § 8-11, in relevant part, provides that "[n]o member of any zoning commission or board ... shall participate in the hearing or decision of the board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense ..." "Section 8-11 of the General Statutes clearly requires that a member of the zoning commission or board shall disqualify himself when the decision of the zoning authority could inure to his benefit, and forbids a member of a zoning commission or board of appeals from participating in any matter in which he has a personal interest in the outcome. A personal interest has been defined as an interest in either the subject matter or a relationship with the parties before the zoning authority impairing the impartiality expected to characterize each member of the zoning authority. A personal interest can take the form of favoritism toward one party or hostility toward the opposing party; it is a personal bias or prejudice which imperils the open-mindedness and sense of fairness which a zoning official in our state is required to possess ... The decision as to whether a particular interest is sufficient to disqualify is necessarily a factual one and depends on the circumstances of the particular case." (Footnote omitted; internal quotation marks omitted.) Thorne v. Zoning Commission, 178 Conn. 198, 204-05, 423 A.2d 861 (1979).
"Local governments would ... be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a zoning official. If this were so, it would not only discourage but might even prevent capable men and women from serving as members of the various zoning authorities. Of course, courts should scrutinize the circumstances with great care and should condemn anything which indicates the likelihood of corruption or favoritism. They must, however, also be mindful that to abrogate a municipal action on the basis that some remote and nebulous interest may be present would be to deprive unjustifiably a municipality, in many important instances, of the services of its duly elected or appointed officials." (Internal quotation marks omitted.) Furtney v. Zoning Commission, 159 Conn. 585, 593-94, 271 A.2d 319 (1970). "The law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities. It would be strange, indeed, if this were true." Id., 594. "Where it appears that an honest judgment has been reasonably and fairly exercised after a full hearing, courts should be cautious about disturbing the decision of the local authority." (Internal quotation marks omitted.) Id., 599.
In the present case, the plaintiff challenges the collective fairness of the commission because of the financial benefit to the town based upon the alleged actions mostly of Whitten. Whitten was, however, not a member of the commission. The plaintiff points to no evidence of a member’s particular bias other than Ouellette’s email of January 2017, concerning traffic. Notwithstanding the plaintiff’s argument that information was withheld concerning the traffic issues, the record indicates that Ouellette and the commission discussed these issues at length. (ROR, Item 20, pp. 53-60; Item 21, pp. 43-54.) Indeed, the commission exhaustively discussed traffic at its June 27, 2018 meeting. (ROR, Item 22.)
As part of its discussion, the commission brought up a sidewalk to be put in on the plaintiff’s side of the street. (ROR, Item 22.) The commission made the defendant’s maintenance of the sidewalk a condition of approval of the site plan; (ROR, Item 19, p. 3); but it can be inferred from the transcript that the plaintiff was concerned about the enforceability of such a condition in the long term even though the defendant expressed its willingness to be subject to the condition. (ROR, Item 22.) It is noted that the condition and its enforceability have not been asserted or argued by the plaintiff.
Ultimately, the question is whether the record contains sufficient evidence to support the commission’s decision despite a failure to provide DeMarco’s concerns to the commission. It should be noted that the defendant attempted to have the hearing continued to review and discuss DeMarco’s comments. (ROR, Item 20, p. 65; Item 21, pp. 6-8.) Yet, the commission discussed DeMarco’s primary concern which was the traffic counts; (ROR, Item 20, pp. 55-60; Item 21, pp.12-16, 36-38, 43-44, 64); and apparently concluded that it had sufficient information.
The commission and the defendant argue in their brief that the commission, not the police chief, is obligated to make decisions on traffic. While that may be true, it is strange that a land use commission would not seek advice from its internal experts on such a complex development as presented here.
The commission’s decision reflects such traffic considerations. Specifically, the commission, in relevant part, required:
20. That a raised island divider be provided on Route 140 between Route 5 and the casino right in/out drive.
21. I-91 northbound off ramp (Exit 45) at Route 140 to be restriped to maximize the length of the dual right turn lanes.
22. I-91 northbound off ramp (Exit 44) at Route 5 and Newberry Road be restriped to provide a left turn lane, a shared left turn and through lane, and two (2) right turn lanes.
23. Conditions #20 to 22 are subject to [office of the state traffic administration] approval. Should these modifications be denied, the Applicant will be required to seek a modification of the Site Plan." (ROR, Item 19, p. 3.)
Further, Whitten and Leonard Norton, the town engineer, stated that all of the regulations had been met. (ROR, Items 14-15.) While the plaintiff raises concerns about Whitten’s pre-filing review of the applications, § 504.8(a) of the regulations provides for such pre-filing review for all applications. Specifically, the regulation, in relevant part, provides that "[a]pplicants are encouraged to initiate a pre-application conference with the Commission to discuss the conceptual aspects of the proposed development and to prepare and present a conceptual plan, for informal consideration by the Commission ..." (ROR, Item 23, p. 48.) Hence, there is nothing about this claim that suggests unfairness. In sum, it appears the commission exercised its honest judgment reasonably and fairly after a full hearing. Thus, the plaintiff has not sustained its burden to prove that there was an unfair hearing process or that there was not substantial evidence to support the commission’s decision with respect to traffic.
Accordingly, the plaintiff’s appeal is sustained. Specifically, the court holds that the commission abused its discretion in granting the special permit as to the sale of alcohol and did not have jurisdiction to consider the sale of alcohol based upon defective notice.