Opinion
No. CV 03 0522278S
November 22, 2005
MEMORANDUM OF DECISION
This appeal from the denial of a special exception application and site plan approval was brought on June 30, 2003 by the plaintiffs, Roger Toffolon, Trustee, the owner of the premises in question and the proposed lessee, Automatic Recovery Services, Inc. (ARSI), and named the Plainville Planning and Zoning Commission (the commission) as respondent.
Based upon the testimony of Roger Toffolon given at the hearing of October 14, 2005, aggrievement is found. See General Statutes § 8-8(a)(1).
The record shows as follows. The premises consists of 14.59 acres of land, located at 63 West Main Street in the town of Plainville and, except for one roadway, is zoned General Industrial (GI). Return of record (ROR), #1. Its present use is that of a contractor's yard associated with White Oak Construction Company. Id. The property is located near the center of the town, adjacent to the municipal offices, fire department, and library.
On March 25, 2003, Toffolon and ARSI applied for a special exception pursuant to § 502 of the Plainville zoning regulations, seeking to operate a "wholesale motor vehicle auction 1 day per week and related inventory accumulation and distribution activities M-F, 8 a.m. — 5 p.m. and Sat. 8 a.m. — 12 p.m." The plaintiffs' proposal continued: "A repairer's license from DMV is sought for transport operations and not for repair of the inventory. A junkyard license from DMV is not sought." Id. Also on March 25, 2003, the plaintiffs filed for site plan approval, making reference to the special exception application for the proposed use. ROR, #5.
Public hearings were conducted by the commission on the two applications on May 27, 2003, and June 10, 2003. Prior to the May 27th hearing, the town planner, Leonard K. Tundermann, prepared a memorandum dated May 22, 2003, discussing the application for a special exception. Tundermann first notes that the proposed use "is that of a wholesale motor vehicle auction of insurance-loss and charity-donated vehicles from inventory assembled and stored on the site formerly used by White Oak Construction Co." ROR, #9c.
Tundermann informed the commission that the application raised several questions under the zoning regulations. The first was the prohibition in a GI zone of junkyards and motor vehicle "junkyards." Plainville zoning regulations, § 550.5(25). The definition of "junk" includes: "Any . . . secondhand . . . [or] reclaimable material whether or not stored, for sale or in the process of being . . . disposed of. Such material may include, but is not limited to, inoperative motor vehicles . . ." A "junkyard" is defined as "any lot . . . used for the . . . storage . . . and/or disposal of junk." Tundermann concluded that the vehicles to be placed on the site constituted "junk" under the regulations of the town because they were secondhand material "in the process of being processed," which the regulations specifically stated "may include inoperable motor vehicles." He continued: "It does not matter that the automotive recovery service operation does not fall within the traditional operational context of an automotive junkyard, where inoperable vehicles are disassembled to sell parts to willing buyers. It is my opinion that the proposed automotive recovery service deals in junk as defined in Plainville's zoning regulations, and the site from which it would operate would qualify as a junkyard. As such, it would constitute a use prohibited in the [GI] zone."
Second, Tundermann assessed the alternative issue of a request for an exception under § 502 of the town's zoning regulations. Tundermann recommended that the commission find that the proposed use was defective under two of the § 502 criteria. The first defect was that the project was not "consistent with the orderly development of the Town, especially the downtown. A downtown should be a focus of pedestrian friendly businesses and housing, and the proposed use, in my judgment, will not contribute in any measure to enhancing that focus." The second defect was that the project did not meet the Plan of Conservation and Development (the Plan). ROR, #15. Chapter III, section C of the Plan recommended that the area of the central business district be reinforced as the "commercial, cultural and governmental core of the town." Development of the area should be of "high intensity, with a pedestrian orientation to the street." Zoning regulations should be revised to encourage high intensity "development of appropriate uses, including mixed uses of retail, office and multi-family residential." The properties [such as the one under review] zoned GI on the north side of West Main Street just west of the railroad tracks "should be considered as part of the Central Business District and zoned accordingly." Land north of the developed properties on West Main Street near the Pequabuck River should be studied for development potential and linked to the central business district development. The remaining land should be developed into a riverside park.
The report of Tundermann was accepted by the commission at its May 27, 2003 meeting. A public hearing commenced at which photographs, site maps and environmental and traffic studies were introduced by the plaintiffs. Opposition from interested parties was also received.
At the hearing an attorney for the plaintiffs commented on the town planner's observation that the proposed use was in violation of the town's plan of development. He stated: "I don't think necessarily that the application is applicable. The town plan of development . . . really talks about development along the street, and we don't contest that proposition that the development along West Main Street should be in the Central Commercial zone because that's really what's there now. Even the White Oak building is office space along West Main Street. Our site, or a majority of it, however, is not along the street. It's situated to the rear of the street front properties, so that's something different than what West Main Street offers. Section 1D at the bottom of page 5 talks about mixes of retail office and multifamily. To date, however, there has been no action taken by this Commission to revise the zoning regulations, and you can see that 10D talks about the zoning regulations being revised. So that's really not a ball that's in the applicant's court to deal with." ROR, #9e, p. 25.
The attorney also stated: "The biggest thing that I would propose to you, that even if this site were to be looked at, our entire site, the whole 15 acres, is a central commercial district, you'd have to have some type of street access that you don't have now. And it wouldn't be just a one-way street where the access comes in by the fire department to serve it. You'd have to have, to make it work, some type of a two-way access, in and out of this whole site in order to utilize it. It's a huge piece of property, it's 15 acres, so you'd need a street coming in and kind of circling around and coming out to do that. And to do that, what would you have to do? You'd inherently have to knock down part of the block somewhere to get back there . . . Does that make sense?" Id. at p. 26.
Finally the attorney concluded: "With regard to Subsection E in the middle of page 6, which talks about locating industrial and commercial development with demand for the land, I would say that there continues to be a very strong demand for industrial land in town. This land obviously abuts other industrial lands. From the aerial view you can see that it looks right into the steel plant to the north and it has railroads, you know, adjoining it on two sides. It would be very difficult to see residential development going in to that part of town, where it would be surrounded essentially on four sides by . . . other industrial or commercial development." Id. at p. 27.
The public hearing concluded on June 10, 2003. ROR, #10d. At this hearing, ARSI's traffic engineer indicated that the proposed truck use at the site was no more problematic than under White Oak's use of the premises. ARSI's attorney introduced photographs to show that the definition of "junk" under the regulations was flawed. The attorney claimed that there were many sites in town with a "junk" issue, not being addressed by the town. There was also no appropriate description of "inoperable motor vehicles" in the regulation.
The attorney also presented favorable comments from the mayor of a town in New Jersey where ARSI had a similar facility. Photographs of this facility were admitted as exhibits. The attorney made the point that the project would increase employment in town.
There were further neighborhood opposition statements received. In addition a member of the commission received a response from ARSI that when the automobiles are sold from the site, the titles will be marked "salvage."
The commission then considered the application for special exception. Commission member Conrad Ouellette moved for discussion purposes that the application be approved and the motion was seconded. Ouellette gave his views on the motion as follows: ". . . I realize that the people don't go in and buy parts. And it's not a salvage yard per se . . . but they buy the complete car . . . They salvage the good parts, and they junk the rest. It's a transfer of junk. If it looks like a duck, walks like a duck, smells like a duck, it's a duck . . . [T]he auction falls . . . and the automotive recovery business falls within Plainville's definition of junk. I don't think it's consistent with the Plan of Conservation and Development. I think that this proposal would stifle much of the opportunity of the future of the Town of Plainville." ROR, #10d, pages 24-25.
Commission member Glenn Petit spoke next. He stated as follows: "I think that we can talk about whether junk or not junk forever, and if we get 8 attorneys, we can get 4 to go on each side. So I don't find that as the most compelling argument. But I think we gotta go by Section 502, and the . . . general consideration of standards, the 12 specific items that we're suppose to consider . . . And the first one is, the proposed use and location are consistent with the orderly development of the town. And I don't believe that this operation would fit that. Also, number 10 . . . is, is it consistent with the policies, goals and objectives of the Town Plan of Development. And as I think it's clearly stated, even though the applicant doesn't agree with this . . . that Chapter 3, Section C, the continued economic viability of the central business district . . . [Did the Plan of Development say] that land behind the Central Commercial should become Central Commercial once White Oak ceased to exist [?] Now whether that would actually happen, you know, I'm not sure . . . but that's what our Plan of Conservation and Development calls for, so I believe that we should be consistent with that, so in that case I would have to vote . . . against approving this application for those . . . because 2 of the 12 specific items we're suppose to consider cannot be met." ROR, #10d, page 24.
He later added: "And I think that there's a way to find access to it eventually, whether it will happen in the next 5, 10, or 20 years. I don't know, but I think that if we allow this it's never gonna happen, there's no place else for the Town of Plainville to develop." ROR, #10d, page 25.
Peter Saucier was next to speak. He stated: "Well I agree with Glenn basically on everything, and I would also like to add that the Pequabuck River being an issue with Conservation, I would vote against it." Id.
Commissioner George Reinwald commented, making several points. First, he commended ARSI in general and sought their interest in a portion of the town other than the central business district. Next, he had a concern with the traffic that would be generated. Finally, he noted that "wrecked vehicles, inoperative vehicles to me, would be considered junk." Id.
Commissioner Dolly Chamberlin "[went] along with what Commissioner Reinwald said," but recognized that the "junk" issue "could be argued back and forth." She concluded: "And along with all the other things that the town is supposedly doing with beautifying the downtown, I think it would be detrimental to it." Id., pages 25-26.
Commissioner Gary Eisenhauer then stated that he agreed "with what everybody else said, and I do have a problem with the traffic in town also." Id., page 26. Last to speak was Commission Chairman William Davison. He stated that the exception could only be granted if it met the regulations. ARSI had stated that some of the automobiles would be sold for scrap value. "This to me is recycling. They would have salvage titles. And sometimes . . . the salvage doesn't agree with the definition that we have here [of junk], but most of it fits into our definition of what is a junk and what is a junkyard. Now, I've been around enough salvage yards to know that when they move them with a forklift, they're not too good a shape. Okay, now this to me would constitute junk [Referring to the photographs of other sites], [f]rankly some of them we need zoning enforcement, if it's that bad. But based on our regulations, and what they presented here, I consider what they're doing is junk and it's a junkyard. And I also agree with my colleagues that it does not agree with the Plan of Conservation and Development, the items they mention." Id.
Based upon this discussion the motion was defeated unanimously and a similar motion to approve the site plan modification was denied as moot. The plaintiffs have filed a declaratory judgment action from these final decisions as well as the administrative appeal now under consideration. The declaratory judgment action, Toffolon v. Town of Plainville, Superior Court, judicial district of New Britain, Docket No. CV 05 4003294, alleges that based on the proposed activities in the GI zone, the special exception application and the site plan modification were not required by the zoning regulations. It is further alleged that the town planner and the commission erred in advising the plaintiffs to the contrary. This civil action is still pending, and it was agreed at oral argument in the administrative appeal that the court need not resolve this issue.
At a separate proceeding before the town zoning board of appeals, the plaintiffs' application for a certificate to conduct an auction at the site was approved by that board.
The administrative appeal was brought from the final decision of the commission, and assumed that the special exception and the modified site plan were required to be sought from the commission. The issues raised were as follows. First, the plaintiffs claim that the commission's use of the plan of conservation and development to reject the applications was erroneous. Secondly, it is claimed that the commission did not form a consensus that the proposed use was that of a junkyard, and prohibited by the regulations. Third, assuming that one of the reasons given by the commission was that "junk" was stored on the property, the plaintiffs claim that the definition of junk in the zoning regulations is too vague. Finally the plaintiffs claim that the reasons given by the commission lack substantial evidence.
The court must turn to the record created by the commission to resolve these issues. It is clear from the portions of the record as quoted above that the commission never formally stated its reasons for the rejection of the special exception or the site plan. "When a commission states its reasons in support of its decision on the record, the court goes no further, but if the commission has not articulated its reasons, the court must search the entire record to find a basis for the commission's decision." (Citations, quotation marks, and brackets omitted.) Azzarito v. Planning Zoning Commission, 79 Conn.App. 614, 618, 830 A.2d 827, cert. denied, 266 Conn. 924, 835 A.2d 471 (2003). The court, on finding the reasons given, must search the record as a whole "to determine whether the evidence supports the [commission's] decision . . ." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 209 (1995).
While relied upon by the plaintiffs, the court rejects the application of RYA Corp. v. Planning Zoning Commission, 87 Conn.App. 658, 867 A.2d 97 (2005) to the facts of this case. In RYA, while no formal findings of fact had been issued by the commission, each commissioner voted against the motion because of one concern, a "safety factor." Here in contrast, there was no official statement of reasons issued and the commissioners spoke of multiple reasons for their votes. See Harris v. Zoning Commission, 259 Conn. 402, 422, 788 A.2d 1239 (2002) (where no formal, official, collective statement was given by the commission).
"The rule of law and applicable standard of review are as follows. When ruling upon an application for a special [permit], a planning and zoning board acts in an administrative capacity . . . Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The [Appellate Court and] 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 . . ." (Internal quotation marks omitted.) Smith Brothers Woodland Management, LLC v. Planning Zoning Commission, 88 Conn.App. 79, 84, 868 A.2d 749 (2005).
It is apparent from the search of the record, as indicated above, that a reason given for the denial of the application for special exception was the failure to satisfy one of the criteria of zoning regulation § 502(10): Commission members found the proposed use inconsistent "with the policies, goals and objectives of the Town Plan of Development." The applicants claim that the commission members erred in denying the applications by referring to the town plan of conservation and development.
While it is true that in Smith v. Zoning Board of Appeals, 227 Conn. 71, 88, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S.Ct. 1190, 127 L.Ed.2d 540 (1994), the Connecticut Supreme Court summarized the basic role of a plan of development as that of an "interpretive tool," subsequent cases have modified this limit when the plan of development is specifically enumerated in the regulations. In Irwin v. Planning Zoning Commission, 244 Conn. 619, 711 A.2d 675 (1998), the court stated: "In Smith, we acknowledged that `[b]ecause the overall objectives contained in the town plan must be implemented by the enactment of specific regulations, the plan itself can operate only as an interpretive tool.' . . . In that case, we agreed with the Appellate Court that the board incorrectly had denied the plaintiff's subdivision on the ground that it was inconsistent with the town plan . . . In the present case, however, the zoning commission had broader discretion to make its determination about the plaintiff's special exception application than it would have had with a subdivision application. Moreover, the plaintiff's application was denied due to noncompliance with the special exception regulations, which refer to the plan of development, not because it did not comply with the plan of development. Indeed, the plan of development was used only as an aid for interpreting the standards in the regulations." (Citations omitted, emphasis in original.) Id. 631.
But see Smith Brothers Woodland Management, supra, 88 Conn.App. 88, where the future land use plan could only operate as an interpretive tool when the proposed use was permitted under the regulations. There, where the regulations did not reference the plan, the court noted: "Nothing in the plan affects our understanding of the meaning of the regulations discussed [above]." Id. The court found that in such a situation, "[t]o the extent that the regulations lead to results inconsistent with the future land use plan, the regulations should be amended to bring them into conformity with the plan." Id.
Notably, our supreme court has already had the opportunity to comment on the special exception provision at issue in this matter. In A. Aiudi Sons, LLC v. Planning Zoning Commission, 267 Conn. 192, 837 A.2d 748 (2004), the court stated: "Section 502 mandates, for any type of approval, that the commission find that the proposed use complies with twelve standards enumerated therein . . . It follows therefore, that when the commission determines that a use proposed in connection with an application for a special exception fails to satisfy one of the foregoing standards or other standards enumerated in § 502, it may deny the application." (Emphasis added.) Id. 207-08. The court concluded: "Therefore, because we have determined that the plaintiff's application qualifies as one for special exception, and because § 502 of the regulations, which sets forth the standards for special exceptions, expressly requires that a proposed use not impair the public health, safety or the general welfare, and that it be in harmony with the surrounding properties, the commission properly could have considered those factors in denying the plaintiff's application." Id. Here, as in Aiudi, the commission also denied the application because it failed to meet the public welfare considerations of § 502(1). Additionally, the commission found that it failed to meet the plan of development under § 502(10). It logically follows that if the commission may deny the application under § 502(1), it may also deny the application under § 502(10).
In reaching this conclusion, the court in Aiudi relied upon both Irwin v. Planning Zoning Commission, supra, 244 Conn. 627 (1993), and also Whisper Wind Development Corp. v. Planning Zoning Commission, 229 Conn. 176, 177, 640 A.2d 100 (1994).
The court concludes that when the specific regulations that govern the granting of a special exception require the applicant to satisfy the town plan of development, the commission has the authority to deny the application for failure to meet the plan of development. In such an instance, the plan of development is more than just a guide to the commission's actions; it is a regulatory prerequisite to obtaining a special exception. On the other hand, if the regulations omit mention of the plan of development and the applied-for use is allowed under the regulations, the commission may not deny an application for special exception for failure to meet the plan of development. Here, the commission was specifically required to consider the plan of development and was not prohibited from denying the application for failure to meet the terms of the regulation. Contrary to the plaintiffs' contention, the plan of development was appropriately cited as a ground to deny the application.
The plaintiffs, both at the public hearing and in this court, claimed that because the plan of development had not actually been implemented by changing the zone to commercial, the commission was erroneously denying the special exception application without first making the zoning changes recommended in the plan of development. The plaintiffs confuse the zoning function of the commission with its planning function. The decision to enact a change of zone and the timing of that enactment is a zoning function, while the decision on the "most desirable uses of the land" is a planning function. Brennick v. Planning Zoning Commission, 41 Conn.Sup. 593, 595, 597 A.2d 346 (1991); Levinsky v. Zoning Commission, 144 Conn. 117, 123-24, 127 A.2d 822 (1956). As discussed supra, the commission, pursuant to § 502(10), had to consider the ultimate goals of the plan of development in approving the special exemption, whether the zoning change had been completed or not.
The plaintiffs also point out that the town zoning board of appeals (ZBA), in a separate proceeding, granted a certificate of approval for the auction of automobiles on the property pursuant to General Statutes § 14-54. The plaintiffs argue that the incongruous results of the commission in the face of the ZBA determination is evidence that the commission used improper criteria when it denied the plaintiffs' application. "To grant a certificate of approval before the proposed use meets the zoning requirements serves only to produce [an] anomalous situation . . . [t]he issuance of a certificate of approval for a location which is not favorably zoned only obscures the rights of an applicant [before the commission] and serves no useful purpose." Clark Heating Oils, Inc. v. Zoning Board of Appeals, 159 Conn. 234, 241, 268 A.2d 381 (1970). In other words, the decision of the commission is not affected by any actions taken by the ZBA in issuing the certificate, and cannot be seen as relevant for the purposes of this appeal. See also Herrup v. Hartford, 140 Conn. 622, 627-28, 103 A.2d 199 (1954); Silver Lane Pickle Co. v. Zoning Board of Appeals, 143 Conn. 316, 319, 122 A.2d 218 (1956).
The second issue raised by the plaintiffs is that, while commission members relied on the prohibition of "junkyard" activities in this zone under regulation § 550.5(25), there was no consensus by the commission to deny the application on this ground. The plaintiffs contend, based on the debate quoted above, that at most only three members out of seven relied upon the "junkyard" prohibition, and cannot be deemed as a rationale of the board by this court.
The commission reads the record of its meeting of June 10, 2003, to indicate that there were at least four votes in favor of finding the application should be granted on the basis of a proposed junkyard in the zone.
The court differs with the plaintiffs' contention on this point. As previously set forth, had the commission stated its reasons, then the court must review the reasons to see if "even one of the stated reasons is sufficient to support [the decision]." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 209, 658 A.2d 559. The court must determine if the commission stated "a collective, official reason for its actions." Id. When the court finds that the commission has not made such a collective statement, then it must "search the record as a whole to determine whether the evidence supports the [commission's] decision . . ." Id. Where the process of searching the record takes place, it may be that the commission members individually state reasons different or inconsistent with one another for the denial of the special exception. Harris v. Zoning Commission, 259 Comm. 402, 422, 788 A.2d 1239 (2002). The court, however, may rely on the commission members' full discussion to infer a basis of decision. Id. 423. Accordingly, even if a majority of the commission did not agree on the "junkyard" issue, the court need not establish a clear consensus in order to properly infer the "junkyard" rationale from the record.
The plaintiffs next argue that if the commission's decision was based upon the definition of "junk" and the prohibition on a "junkyard" contained in § 550.5, these regulations are unconstitutionally void for vagueness. "[T]he burden of showing that regulations are unconstitutionally vague rests with the [plaintiffs] . . . Moreover, the [plaintiffs are] required to show that the regulation complained of is impermissibly vague as applied to the facts of the particular case." (Citations omitted.) Barberino Realty Development Corp. v. Planning Zoning Commission, 222 Conn. 607, 620, 610 A.2d 1205 (1992); Felsman v. Zoning Commission, 31 Conn.App. 674, 681, 626 A.2d 825 (1993).
Here the plaintiffs claim that the phrase "stor[age] . . . of . . . inoperable motor vehicles" in the definition of "junk" is overly broad and does not apply to the proposed ARSI business operation. Our supreme court has held that the storage of inoperable motor vehicles on a premises constitutes a junkyard. See Gebrian v. Bristol Redevelopment Agency, 171 Conn. 565, 569, 370 A.2d 1055 (1976). Moreover, the case of Board of County Commissioners v. Thompson, 177 Colo. 277, 493 P.2d 1358 (Colo. 1972) is directly on point. In Thompson, the defendant was a hobbyist who had collected numerous automobiles on his premises. The defendant's property was located in a zone that prohibited "junk yards," defined to include "[a] . . . parcel of land . . . used for . . . storage . . . of vehicles . . ." The defendant challenged a complaint for violating the zone code by attacking the zoning regulation as unreasonable and unconstitutionally vague. The court rejected this contention as follows: "Appellants argue that the definition of a junk yard, particularly that includes the collection and storage of automobiles, is an unreasonable classification and is therefore invalid. That the definition of "junk yard" in the resolution may embody a broader concept than ordinarily embraced within the term, does not per se invalidate the classification. The board . . . has a wide prerogative . . . in classifying and regulating uses of land for trade, industry, recreation and other purposes, and it is not the function of the courts to determine how uses shall be defined or what uses shall be permitted in various districts under comprehensive zoning regulations. We cannot say as a matter of law that the definition of a junk yard, as contained in the resolution under consideration . . . was so illogical, arbitrary and unreasonable as to be constitutionally void." Id. 1361.
The Thompson court continued: "Appellants next contend the definition of "junk yard" is too indefinite and vague to be enforced. We disagree. The activities included in the definition are set forth in the disjunctive. The use of the land for any one of them — collecting, dismantling, storage, salvaging, or demolition of vehicles — constitutes the maintenance of a junk yard within the meaning of the definition. In our view, the definition is sufficient to guide landowners in the use of their lands." Id. See also Board of County Commissioners v. Echternacht, 194 Colo. 311, 572 P.2d 143, 145 (1977) (the storage of excavation equipment was properly classified as "junk" under an identical regulation and was not void for vagueness). The court concludes, based on Thompson and the evidence of record, that the use of the term "inoperable motor vehicles" was sufficiently clear and that the regulation was not vague.
The plaintiffs failed to sustain their burden that the use of the term "inoperable" was vague under the facts of this case. The record shows that the automobiles to be brought to the site were, under the dictionary definition of inoperable, "not fit . . . or desirable to use."
The plaintiffs, by introducing several photographs into the record, also claim that the commission erroneously made a finding that their operation was a junkyard without taking action against various other persons who were storing inoperable vehicles on their properties. This argument has not been accepted in Connecticut. "Mere laxity in the administration of the law, no matter how long continued, is not and cannot be held to be a denial of the equal protection of the law. To establish arbitrary discrimination inimical to constitutional equality, there must be something more, something which in effect amounts to an intentional violation of the essential principle of practical uniformity. 16 Am.Jur.2d, Constitutional Law, § 541 . . ." (Citations omitted.) Bianco v. Town of Darien, 157 Conn. 548, 559-60, 254 A.2d 898 (1969). See also Town of Chaplin v. Balkus, 189 Conn. 445, 448, 456 A.2d 286 (1983) (plaintiff must show a pattern of discrimination "consciously practiced by the municipality"). The evidence of possible other violations of the zoning regulations as illustrated by the plaintiffs' photographs are insufficient to meet the test set forth in Bianco.
The final issue is the plaintiffs' claim that the commission failed to meet the established rule that the reasons appearing in the record be supported by "substantial evidence." Azzarito v. Planning Zoning Commission, supra, 79 Conn.App. 618. The court must find that the commission's decision "affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury . . . [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands Watercourse Agency, 203 Conn. 525, 543, 525 A.2d 940 (1987).
The court concludes that there is substantial evidence to support the reasons given by the commission members for their action in denying the applications. First, as regards the plan of development, the members received evidence of the town "beautification commission" study. ROR, #9e, pages 9 and 11. The commission also heard that the proposed use was adjacent to a number of municipal buildings, ROR, #9e, page 38, and would discourage downtown commercial development. ROR, #9e, page 35.
While the plaintiffs provided a traffic study, there was also evidence that the proposed operation from the plaintiffs would be trucks and car carriers transporting vehicles on a daily basis through the downtown. ROR, #9e, pages 8-9. The traffic study provided accident information, but only since the close of the construction business in 2000. ROR, #15, page 5. The traffic study also noted that the property's east driveway had only 280 feet of sight line distance to the east, due to on-street parking and the curvature of the road, and that Connecticut DOT regulations require 400 feet of sight line distance. ROR, #15, pages 5-6. The commission accepted a photograph of the east driveway as an exhibit. ROR, #10c(32).
As indicated above, there was substantial evidence regarding "inoperable motor vehicles." An opponent of the applications submitted an advertisement by ARSI seeking drivers "to transport insurance salvage vehicles." ROR, #10c(37). Also submitted into evidence were copies of ARSI's internet web page offering inoperative vehicles, and describing its business as an auto salvage auction business. ROR, #10c(38). ARSI's executive, Lyons, also testified that the motor vehicles to be auctioned on the premises contained the designation "salvaged" on their motor vehicle title. ROR, #10d, page 10.
Since the court agrees with the commission regarding the issues raised, the plaintiffs' appeal is hereby dismissed. So ordered.