Opinion
WWMCV116004058.
12-05-2012
STRATEGIC COMMERCIAL REALTY, INC. dba Rawson Mater v. CANTERBURY PLANNING AND ZONING COMMISSION.
Ernest J. Cotnoir, Maher and Cotnoir, Putnam, CT, for Strategic Commercial Realty, Inc. dba Rawson Mater.
UNPUBLISHED OPINION
Ernest J. Cotnoir, Maher and Cotnoir, Putnam, CT, for Strategic Commercial Realty, Inc. dba Rawson Mater.
RILEY, J.
The plaintiff has brought an appeal from the defendant zoning commission's denial of its request for a special exception to remove gravel from property located on Depot Road in Canterbury, CT. This appeal is brought pursuant to General Statutes § 8-8. This matter was heard by the court on July 12, 2012 and supplemental briefs were filed thereafter up to and including September 10, 2012 (# 116).
The relevant facts were recited in the plaintiff's brief (# 105) of December 5, 2011 and are essentially incorporated herein.
The plaintiff filed an application with the commission pursuant to §§ 18.5 and 13.1 et seq. of the Canterbury zoning regulations (the regulations) for a special exception to construct a bridge on and remove gravel from certain land located on Depot Road in said town owned by Kenneth Sigfridson and Laurie Sigfridson, on which the plaintiff holds an option. (Ex. 1.) The subject parcel contains approximately 20 acres of land and is located in the " rural district" zone. Id.
All references are to the Return of Record unless otherwise noted. The court would request that the individual exhibits be clearly marked by number and paginated or Bate stamped as it was exceedingly laborious for the court to locate the various citations to exhibits and pages in the Return of Record which is 287 pages in length.
The commission held a public hearing on the application which it opened on March 10, 2011, and continued to April 14, 2011, and then to May 12, 2011, when the hearing was closed. (Ex. 31, 32 and 33.) During the hearing the commission received evidence from the applicant, its experts, town staff and the public. The application called for the construction of an access road with a small bridge leading from Depot Road into the site to be used as a haul road for gravel removal from the proposed development. The site includes approximately 20 acres of land situated partly in the town of Canterbury and partly in the town of Lisbon; indeed, most of the land (approximately 18 acres) is situated in Lisbon. (Ex. 1; Ex. 31, p. 6-8.)
The application and plans called for the development to be completed in three phases; the first phase would include the construction of the haul road and bridge. (Ex. 1; Ex. 31, pp. 9-10.) All trucks exiting the facility would be required to turn left (west) onto Depot Road and proceed less than a thousand feet to Connecticut Route 169, where they would be required to turn right. No washing, crushing or screening activities would be conducted on the site. (Ex. 31, p. 11-12.) The total estimated amount of material to be removed is approximately 500, 000 cubic yards and the life of the project would some 6 to 12 years. (Ex. 31, p. 12-13.)
Construction of the road and bridge involved crossing a small wetlands and the application had been previously approved by the Canterbury inland wetlands commission. (Ex. 31, p. 5.)
Based on concerns raised by the public, and at the request of the commission, the applicant submitted a traffic report and reviewed the same during the next session of the public hearing. (Ex. 14 and 32.) The traffic report was submitted by Terence Chambers of KWP Associates, Inc., an expert recognized by the commission. (Ex. 32, p. 5.) The applicant's expert conducted manual traffic counts at the site and determined that during the peak hour 287 vehicles travelled over Route 169 (two of which turned onto Depot Road) and 14 travelled over the small portion of Depot Road to be used by the applicant's vehicles. (Ex. 14, Fig. No. 2; Ex. 32 p. 6-7.) Based on volume projections for removal of the full 500, 000 cubic yards over two phases of six years each, Chambers determined the proposal would create an additional 12 trucks or 24 trip ends per working day (gravel operations typically run only for nine months of the year). Chambers then combined the existing traffic with the traffic to be generated by the proposed activity to evaluate the effect of the development on the existing traffic patterns.
The impact on traffic volumes from the proposal would be one additional vehicle on Depot Road and one additional vehicle on Route 169, a total of two additional vehicles, in the peak hour. (Ex. 14, Fig. 3; Ex. 32, p. 8.) Based on these figures Chambers concluded there would be no or a negligible impact on traffic from the proposal and that the level or service of the roads would not be effected at all. (Ex. 32, p. 8-9.)
The applicant's expert also conducted sight line analyses of the intersections involved and conducted a records search to compile an accident history. Chambers concluded that the average width of Depot Road is 18.3 feet which is typical of local roads in the area. He also concluded that the sight lines on Depot Road from the proposed haul road complied with the Connecticut Department of Transportation (CDOT) guidelines for new roads. The sight lines from Depot Road to Route 169 were also adequate though slightly under the CDOT guidelines. These conclusions were also supported by the results of the accident history which Chambers conducted. (Ex. 14, Appendix C; Ex. 32, p. 17-18.) Based on his findings Chambers concluded that the proposed development would not have a significant impact on traffic. (Ex. 32, pp. 13-14 and 17-18.)
The Department of Transportation has no guidelines for existing roads and does not require existing roads to comply with new construction requirements.
The applicant also retained a licensed appraiser to prepare a report regarding the possible impact of the proposed activity on property values in the area adjacent to the same. Mr. Robert G. Stewart, principal of Stewart Appraisal Services, prepared the report and testified to the same before the commission. (Ex. 20.) In preparing his findings, Stewart concentrated his attention on the entrance to the haul road from Depot Road and the effect on property values, if any, on the surrounding properties due to the development of the property or from the traffic accessing it. (Ex. 33, p. 5.) Mr. Stewart began by determining the values of the residences in the area and then compared sales in areas located near gravel operations of the same size proposed or larger. Based on his investigation, Stewart concluded that the proposed " project, if approved, will not have any impact on the surrounding property values." The public hearing was closed on May 12, 2011.
On July 14, 2011, the commission concluded its deliberations on the application. Commissioner Moriarty made a motion to approve the application with conditions. Among the conditions (which were intended to be " integral to the approval") was a requirement that Depot Road itself be upgraded all the way to Route 169 " to the standards and specifications of the Town of Canterbury." (Ex. 27; Ex. 35, p. 5.) The approval was also conditioned upon the applicant working " within the State of Connecticut right-of-way as allowed by the State of Connecticut to improve the sight line to the standards and specifications of the town engineer and zoning enforcement officer." (Id. at 6.)
The commission's deliberations on the application centered around the condition of Depot Road and its safety given the increased traffic generated by the proposal use.
The commission then voted 4 to 2 against approval, the chair voting with the majority. (Ex. 27.)
On July 19, 2011, the commission published notice of its decision in The Norwich Bulletin and this appeal followed. (Ex. 29.)
In addition to the issues raised by the defendant in its deliberations, the issues of aggrievement and standing were hotly contested at the July 12, 2012 hearing, which led to the court's granting of permission to the filing of supplemental briefs. These issues essentially revolve around the specific ownership of the property in question and the existence of contractual obligations between various entities of the plaintiff's side of this case. The facts necessary for an understanding of these issues as gleamed from the record and the parties' briefs, are as follows:
On October 3, 2008, well prior to the submittal of the application for special exception, the plaintiff had entered into a contract to purchase the subject property. (Pl. Trial Exhibit # 1.) That contract was signed on behalf of the plaintiff by its president, Jeffrey Rawson and by Kenneth Sigfridson as seller. The contract was specifically contingent on plaintiff applying for and obtaining a special exception to remove gravel from the property and specified a time line for the filing of the application and for the closing of title, based on the granting of the application. The purchase price was $1,000,000 and the plaintiff made a non-refundable deposit of $10,000 towards the same.
The contract and terms thereof were negotiated for the plaintiff directly by Jeffrey Rawson, acting in his capacity as president. (Trial Testimony, July 12, 2012.) Rawson testified that during all the negotiations he dealt directly with Kenneth Sigfridson who engaged in the same as the owner. Sigfridson was the owner of the property prior to its conveyance to Pheasant Farm, LLC by quit claim deed dated October 9, 2006. (Pl. Trial Exhibit # 2.) The transfer to the limited liability company was for no consideration. As time passed without obtainment of a special permit, the agreement to sell was subsequently extended by additional, separate writings of the parties all signed by Rawson and Sigfridson. (Pl. Trial Exhibit # 1 .)
On July 10, 2011, Rawson, on behalf of the plaintiff, and Sigfridson, on behalf of Pheasant Farm, LLC, executed an assumption agreement. (Pl. Trial Exhibit # 1.) The agreement recites that although Sigfridson entered into the original purchase and sale agreement with the plaintiff without reference to Pheasant Farm, the limited liability company was the actual record owner of the premises. By the agreement, the limited liability company assumes all rights and obligations of the original contract and any and all amendments thereto and extensions thereof as though they had originally been executed on behalf of the limited liability company. The application lists the property owners as Kenneth Sigfridson and Laurie Sigfridson, with the name of Pheasant Farm, LLC handwritten above their names.
DISCUSSION
The defendant has argued that the plaintiff lacks standing and is not aggrieved because its purchase agreement is not signed by the actual owner of the property which is the subject of its application. The owner of the property is Pheasant Farm, LLC (Pheasant Farm), while the plaintiff's purchase agreement is with Kenneth Sigfridson, with no reference to Pheasant Farm. Sigfridson, however, is a member of Pheasant Farm. Furthermore, he was the owner of the property prior to its transfer to Pheasant Farm.
Jeffrey Rawson, who negotiated the plaintiff's agreement with Sigfridson, described him as Pheasant Farm's principal in his testimony before the court on July 12, 2012.
" [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538, 833 A.2d 883 (2003). " [P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." (Internal quotation marks omitted.) Stauton v. Planning & Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004).
" Standing ... is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538, 833 A.2d 883 (2003).
" Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 207, 994 A.2d 106 (2010) " The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the [challenged action] ... Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected." Id. It is the plaintiff's burden to demonstrate that he is the proper party to invoke the court's jurisdiction. Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S.Ct. 659, 163 L.Ed.2d 526 (2005).
In the present case, statutory standing is provided by General Statutes § 8-8. In relevant part, § 8-8(b) states that " any person aggrieved by an decision of a board, including a decision to approve or deny ... a special permit or special exception ... may take an appeal to the superior court ..." Section 8-8(a)(1) also states that an aggrieved person means " a person aggrieved by a decision of a board, " and that " [i]n the case of a decision by a ... combined planning and zoning commission or zoning board of appeals, ‘ aggrieved person’ includes any person owning land that abuts or in within a radius of one hundred feet of any portion of the land involved in the decision of the board." Here, the plaintiff does not fall into this specifically delineated definition of an aggrieved person because it does not own the land itself or any of the surrounding property, therefore it must satisfy the requirements of classical aggrievement.
Regarding the first requirement of classical aggrievement, the Supreme Court " has not set forth a precise standard that defines the required interest ... Rather, [it has] held that the extent to which a party with an interest in the property other than that of an owner is aggrieved depends upon the circumstances of each case, because the concept of standing is a practical and functional one designed to ensure that only those parties with a substantial and legitimate interest can appeal an order." (Internal quotation marks omitted.) Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 666, 899 A.2d 26 (2006). " The general rule, which applies in the absence of a specific provision to the contrary, is that one who has contracted to purchase property has standing to apply for a special exception or a variance governing its use." Shulman v. Zoning Board of Appeals, 154 Conn. 426, 431, 226 A.2d 380 (1967).
The appellate courts of Connecticut have found aggrievement even in the absence of a definite legal interest. In DiBonaventura v. Zoning Board of Appeals of Thompson, 24 Conn.App. 369, 588 A.2d 244, cert. denied, 285 Conn. 381, 593 A.2d 129 (1991), one of the plaintiffs applied for zoning approval of a used car dealership on property owned by his parents. Id., at 370-71. The parents were not listed as applicants but did sign the application to show their consent to the use. Id. Both the father and the son testified at the hearing that they would continue the operation of a used car dealership already on the property, with the son managing it and the parents allowing the use of the land. Id., at 372. The board denied the application and the son and father appealed the decision. Id. The Superior Court held that neither were aggrieved by the board's decision, specifically noting that the son was not aggrieved because he had no legally enforceable interest in the property. Id., at 373. The Appellate Court reversed the lower court's decision, holding that the informal agreement between the parents and the son had created a sufficient enough interest in the property for the son to show aggrievement. Id., at 376-77. The court noted that while, strictly speaking, there was no legally enforceable interest in the subject property, the interest was " readily distinguished from a general interest, such as is the concern of all members of the community as a whole." Id., at 376. The Supreme Court later discussed DiBonaventura, noting: " DiBonaventura is instructive inasmuch as it stands for the proposition that a landowner and a nonowner developer need not have a written, legally enforceable agreement when other facts, such as the existence of a credible, oral agreement, establish that the developer has a specific, personal stake in the property." Moutinho v. Planning & Zoning Commission, supra, 278 Conn. at 668-69, 899 A.2d 26.
The Supreme Court in Moutinho v. Planning & Zoning Commission held that an applicant who had entered into an oral agreement for a long-term lease on the subject property was aggrieved when that application was denied. In coming to this conclusion, the court relied on DiBonaventura and a Massachusetts Supreme Court opinion, Marinelli v. Board of Appeal, 275 Mass. 169, 175 N.E. 479 (1931). In quoting Marinelli, the Moutinho court stated that in that case, " [e]ven though the agreement between the railroad corporation and the fuel company was oral and hence not enforceable at law, there is no reason why their purpose to execute an obligation of honor and fair dealing should not be respected ... The fuel company, having no title to the land, nevertheless had such interest therein in view of the attitude of the railroad corporation as entitled it ... to consideration by the respondent board." Moutinho v. Planning & Zoning Commission, supra, 278 Conn. at 669, 899 A.2d 26. According to Moutinho, the Marinelli court went on to find that " although the oral agreement was not enforceable between the parties, it established a sufficient link between the fuel company and the property to confer subject matter jurisdiction for purposes of the zoning appeal." Id., at 669, 899 A.2d 26. Following Marinelli and DiBonaventura, the Supreme Court ruled: " When the evidence establishes the existence of an oral agreement and the intent of the parties to abide by that agreement, a substantial and legitimate interest in the property exists." (Internal quotation marks omitted.) Id., at 669-70, 899 A.2d 26. Therefore, in Connecticut, it is not always necessary for an agreement to be enforceable at law to give rise to standing and aggrievement for appeal, so long as the appealing party has a substantial and legitimate interest in the property as issue.
In the present case, the plaintiff has entered into an agreement to purchase the subject property. This agreement was signed by Kenneth Sigfridson. Although he was not the record owner of the property at the time of the agreement, Sigfridson is a member of Pheasant Farm, who was the record owner, and was the owner of the property prior to its transfer to Pheasant Farm. Jeffrey Rawson, acting as president for the plaintiff, negotiated the agreement with Sigfridson, who held himself out as the owner of the property throughout negotiations. Furthermore, Pheasant Farm, through Sigfridson, has signed an assumption agreement for the original contract between the plaintiff and Sigfridson, although this occurred after the plaintiff submitted its application to the defendant. There is no evidence that the plaintiff, Sigfridson, or Pheasant Farm doubt the enforceability of the agreement between them. Thus, the evidence demonstrates that while the plaintiff may not have had an agreement strictly enforceable at law, the intent of the parties was to abide by the agreement and the plaintiff had a substantial and legitimate interest in the property at the time of its application and appeal.
The defendant points to D.S. Associates v. Planning & Zoning Commission, 27 Conn.App. 508, 607 A.2d 455 (1992), and Goldfeld v. Planning & Zoning Commission, 3 Conn.App. 172, 486 A.2d 646 (1985), as support for their argument that the plaintiff lacks standing and aggrievement. Both decisions are inapplicable to the circumstances at issue here. In D.S. Associates, the court addressed whether the plaintiff had standing to bring his application before the commission in the first place. The court found that while he may have been aggrieved by the commission's decision, he nonetheless lacked standing to bring the original application. D.S. Associates v. Planning & Zoning Commission, supra, 27 Conn.App. at 511, 607 A.2d 455. The court based its conclusion on the fact that in the relevant jurisdiction the regulations required that applications like the plaintiff's be filed by the record owner, which the plaintiff was not. Id. In that case, the plaintiff was a partnership while the record owner was a corporation. Id., at 512, 607 A.2d 455. While both shared the same shareholders, the court found that both were separate legal entities. Id. Therefore, the plaintiff was not allowed by regulation to bring the application. Id. In the present case, the regulations do not require that the record owner be the one to file a special exception application. They only require that " [a]pplications for approval of a Special Exception shall be filed with the Secretary or Chairman of the Town of Canterbury Planning and Zoning Commission" in a certain time frame. Canterbury Zoning Regs., § 13.2. Thus, the circumstances of D.S. Associates do not exist here.
The defendant also cites Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 280, 492 A.2d 180 (1985), as finding that a limited partnership is a " legal person." This, the defendant claims, supports their argument that Sigfridson is a separate legal person from Pheasant Farm, the limited liability corporation he is a member of and record owner of the property. Therefore, the defendant argues, the plaintiff's agreement with Sigfridson to purchase the subject property is invalid, granting the plaintiff no interest for aggrievement. This analysis, however, ignores the fact that no parties to the agreement question its enforceability and that the Supreme Court's Moutinho decision suggests that though an agreement may not be legally enforceable, there can still be aggrievement if the appellant has a substantial and legitimate interest in the property.
In Goldfeld, the court considered the principal that " the appellant must sustain his interest in the property involved throughout the course of his appeal." Goldfeld v. Planning & Zoning Commission, supra, 3 Conn.App. at 177, 486 A.2d 646. The court found that because the plaintiff's option contract had expired for a period during his appeal, the plaintiff lacked aggrievement to bring the appeal. Id. In the present case, the plaintiff reinstated its agreement on February 1, 2011, because it had expired previously. The defendant received the plaintiff's application on February 9, 2011. This reinstated agreement is set to expire on June 30, 2013. Therefore, there has been no period during the plaintiff's appeal during which its interest had expired and Goldfeld is not applicable.
The plaintiff has argued that the court should sustain its appeal because the defendant's decision is not supported by substantial evidence and the defendant supported its decision with improper concerns. Specifically it argues that the defendant improperly relied on a finding that the special exception would have an adverse impact on the surrounding roads without finding that the impact would be significantly greater than the impact permitted uses in the same area would have.
The terms " special permit" and " special exception" have the same legal import and can be used interchangeably. Felsman v. Zoning Commission, 31 Conn.App. 674, 677, 626 A.2d 825 (1993). " A special [exception] allows a property owner to use his property in a manner expressly permitted by local zoning regulations ... The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values ... An application for a special permit seeks permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district." (Internal quotation marks omitted.) Kilburn v. Plan & Zoning Commission, 113 Conn.App. 621, 627-28, 967 A.2d 131 (2009).
" When ruling upon an application for a special [exception], a planning and zoning board acts in an administrative capacity ... Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The ... trial court [must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts ... In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal ... Although a zoning commission or board possesses the discretion to determine whether a proposal meets the standards established in the regulations, it lacks the discretion to deny a special permit if a proposal satisfies the regulations and statutes." (Internal quotation marks omitted.) Id., at 626-27, 967 A.2d 131.
" [C]ourts are not to substitute their judgment for that of the board, and ... the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing ... The trial court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board's] findings ... [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred ... Where the board states its reasons on the record we look no further ... More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons." Id., at 627, 967 A.2d 131.
" [T]he 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." (Internal quotation marks omitted.) Pansy Road, LLC v. Town Plan & Zoning Commission, 283 Conn. 369, 376, 926 A.2d 1029 (2007). " In contrast, when a use is not allowed as of right, but only by special exception, the zoning commission is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood ... Thus, there is no presumption that a specially permitted use, or the traffic that it will generate, necessarily is compatible with any particular neighborhood within the zoning district." (Citations omitted; internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 432-33, 941 A.2d 868 (2008).
In Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, the plaintiff appealed from the commission's denial of their application for special exception to construct a religious temple. Id., at 384, 941 A.2d 868. On appeal, the Supreme Court found there was not substantial evidence supporting the commission's finding of unacceptable traffic congestion and hazards. Id., at 436, 941 A.2d 868. In coming to this conclusion, the court focused on the contemplated traffic congestion and hazards and how they compared to traffic congestion and hazards that would accompany other permitted uses on the same plot. Id., at 434-36, 941 A.2d 868. In undertaking this analysis, the court noted that " if a special permitted use would have a significantly greater impact on traffic congestion in the area than a use permitted as of right, the additional congestion may provide a basis for denying the permit." Id., at 434, 941 A.2d 868. The court went on to note that " the significance of the impact should not be measured merely by the number of additional vehicles but by the effect that the increase in vehicles will have on the existing use of the roads ... In making this determination, the commission may rely on statements of neighborhood residents about the nature of the existing roads in the area and the existing volume of traffic, and its own knowledge of these conditions." Id. Therefore, following this decision, the implication is that to be a basis for denial of a special exception application, there must be a finding that a given impact will be significantly greater than the impact from permitted uses in the same area.
The defendant cites Whisper Wind Development Corp. v. Planning & Zoning Commission, 32 Conn.App. 515, 630 A.2d 108 (1993), aff'd, 229 Conn. 176, 640 A.2d 100 (1994), as support for upholding its decision. As the defendant points out, the Appellate Court in that case decided that a commission's " general considerations alone" were enough to deny a special exception permit. Id., at 520-21, 630 A.2d 108. The court did not, however, address the specific issue of a special exception's impact versus a permitted use's impact, and whether the special exception must have a substantially greater impact than a permitted use to be a consideration in denial of an application. Nothing in the decision suggests that the Supreme Court's finding in Cambodian Buddhist Society would not similarly apply to the general considerations allowed under Whisper Wind. On the issue relevant here, Cambodian Buddhist Society is applicable, Whisper Wind is not.
The area the subject property is located in allows for agricultural and forestry uses as of right. Canterbury Zoning Regs., § 5.2.3. In the present case, the defendant discussed at length its concerns over the effect the gravel operation would have on the safety and condition of the surrounding roads. Aside from the occasional comment about the presence of agricultural activities in the same area, however, there was no discussion of the impact permitted uses would have on these roads or whether the gravel operation's impact would be significantly greater than a similar agricultural or forestry operation at the same location.
In its final argument, the plaintiff states that since the defendant acted outside of its authority in denying its application, the court should grant their original application submitted to the defendant without the road improvement and sight line improvement conditions offered for approval in a motion the defendant eventually denied. The plaintiff is referring to a motion that was offered before the defendant for approval of the application with various conditions. The defendant voted down this motion before approving the motion to deny the plaintiff's application, which led to this appeal.
" Generally, when the court finds the action of an administrative agency to be illegal, it should go no further than to sustain the appeal ... For the court to go further and direct what action should be taken by the zoning authority would be an impermissible judicial usurpation of the administrative functions of the authority ... When it appears, however, that the zoning authority could reasonably reach only one conclusion, the court may direct the authority to do that which the conclusion requires." Jersey v. Zoning Board of Appeals, 101 Conn.App. 350, 361, 921 A.2d 683 (2007). Here, the defendant failed to address the impact permitted uses would have in the same area as the requested special exception and whether the special exception would have a substantially greater impact warranting denial. If, after considering those impacts, the defendant concludes that the application must be denied, the conditions at issue would not be imposed. Therefore there is not sufficient evidence to find that the defendant could reasonably reach only one conclusion.
Furthermore, in arguing that the denied motion should be approved without the conditions it finds offensive, the plaintiff is attempting to have the court address a hypothetical approval with hypothetical conditions not directly before the court on this appeal. " In light of the rationale of the ripeness requirement, to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements ... we must be satisfied that the case before the court does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire ... Our Supreme Court has consistently held that our courts may not render advisory opinions ... Such an opinion is one of advice and not of judgment as there are no parties whose rights are adjudicated, and it is not binding on anyone ... Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable ... The general rule is that a case is justiciable if it is capable of resolution on the merits by judicial action ... If an issue is not yet ripe for adjudication, this court lacks subject matter jurisdiction to afford it consideration." (Citations omitted; internal quotation marks omitted.) State v. Campbell, 84 Conn.App. 648, 650, 854 A.2d 814, 650, cert. denied, 271 Conn. 940, 861 A.2d 515 (2004).
CONCLUSION
Based upon the foregoing analysis, the court makes the following findings:
1. The plaintiff has established standing and aggrievement for purposes of this administrative appeal.
2. The defendant failed to establish, in denying the plaintiff's request for a special permit, that the impact of the projected activities pursuant to the special permit, would be significantly greater and more adverse than the impact of permitted uses in the same area.
3. It is not clear from the record that the defendant denied the plaintiff's application based upon road and sight-line improvements which were beyond its authority to consider.
4. The court cannot and will not issue an advisory opinion regarding conditions which the defendant may attach to any approval.
THEREFORE
The court hereby SUSTAINS the plaintiff's appeal and remands this matter to the defendant, Canterbury Planning and Zoning Commission, for further action consistent with this opinion.
SO ORDERED.