Opinion
No. LLI CV 06 4005391
January 17, 2008
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiffs, Laurence I. Tripp and Patricia W. Tripp, appeal the decisions of the defendant New Milford Zoning Commission, which approved defendant George Morrison's applications for change of zone, site plan and special permit.
II BACKGROUND
Defendant George Morrison (hereinafter "applicant") sought to construct four residential condominium units on the subject premises, which consists of an existing 4,100-square-foot house, containing two units, and a 1,520-square-foot barn located on 0.288 acres of land. (Return of Record [ROR] Exhibits 28-29.) Applicant proposed to accomplish this by, in addition to modifying the existing barn located on the subject premises, constructing an addition to the existing house which would add approximately 2,798 square feet of floor area. on a footprint of approximately 950 square feet. (ROR Exhibit 29.) On or about August 2, 2006, applicant filed an application for changes to the boundary of zoning districts to modify the subject premises zone from R-8-2 (two-family residence district) to TLD, pursuant to Chapter 90 of the zoning regulations. (ROR Exhibit 4.) In addition, on or about August 2, 2006, applicant filed a special permit application and an application for site plan review in connection with his proposed four-unit residential condominium development in the Town Landmark District, under section 090-030 of the Zoning Regulations (ROR Exhibit 2.) Included with these applications, along with other required documentation, was a request from applicant to waive the required traffic study (ROR Exhibit 2.)
Plaintiffs Laurence I. Tripp and Patricia W. Tripp are the owners of the real property located at 25 South Main Street in the Town of New Milford, which is located within a radius of 100 feet from the subject premises.
The applications were accepted for public hearing at the commission meeting of August 8, 2006.
A public hearing for both the proposed zone change and the special permit was noticed for and held on September 26, 2006. At the hearing, the applicant and members of the public were heard; and correspondence and other exhibits were entered into the record of the hearing. (ROR Exhibit 6.) The transcript of the hearing evidences that the New Milford planning commission, on mandatory referral from the zoning commission (see General Statutes § 8-3a), unanimously recommended approval of the zone change. (ROR Exhibit 6, pp. 3-4.)
At the public hearing, evidence was introduced that the house predates 1906. (ROR Exhibit 6, p. 4.)
A letter from the New Milford Trust for Historic Preservation recommending approval was read into the record. (ROR Exhibit 6, p. 2; ROR Exhibit 16.) Some residents spoke in favor of the change and others voiced concerns.
Subsequent to closure of the public hearing, the applications were discussed by the commission at its meetings of October 10th and October 24th. (ROR Exhibit 7.) The applications were approved at the October 24, 2006 meeting. (ROR Exhibit 7.)
The plaintiffs claiming aggrievement by the action of the commission, appealed to the Superior Court, and the appeal was tried to this court on October 10, 2007.
III JURISDICTION
General Statutes § 8-8 governs an appeal taken from a decision of a zoning commission. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
CT Page 895
A Aggrievement
The parties have stipulated to a finding of statutory aggrievement. See plaintiffs' exhibit 1.B Timeliness and Service of Process
General Statutes § 8-8(b) provides that "[an] appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." General Statutes § 8-8(f)(2) requires that "[f]or any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57." General Statutes § 52-57(b)(5) provides in relevant part: "Process in civil actions against the following-described classes of defendants shall be served as follows . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
A review of the record reveals that notice of the commission's decision was published in The News-Times on October 26, 2006. (ROR Exhibit 27.) The appeal was commenced by service of process on the defendants on November 8, 2006 and November 16, 2006 and in accordance with § 8-8(f)(2) (Marshal's Return). Thus, the appeal was timely and properly served.
IV SCOPE OF REVIEW
"In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to try the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003).
"In reviewing the actions of a [municipal zoning agency] we note that such a board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision . . . In an appeal from the decision of a zoning board, we therefore review the record to determine whether there is factual support for the board's decision, not for the contentions of the applicant." (Citations omitted; internal quotation marks omitted.) Pleasant View Farms Development, Inc., v. Zoning Board of Appeals, 218 Conn. 265, 269-70, 588 A.2d 1372 (1991).
"Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . [Constrained by a narrow scope of review] [n]either [the Appellate Court] nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 859-60, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005).
"Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . Since the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . the court must determine the correctness of the conclusions from the record on which they are based." (Citations omitted; internal quotation marks omitted.) Torsiello v. Zoning Board of Appeals, 3 Conn.App. 47, 49-50, 484 A.2d 483 (1984).
V DISCUSSION
The plaintiffs argue that the zoning commission failed to follow its own regulations when it approved the applicant's site plans and special permit applications. Specifically, they allege that the zoning commission ignored the mandatory rehabilitation requirements of Chapter 90 of the Zoning Regulations; its regulations in allowing the construction of parking spaces and structures within the building setback lines; in failing to find the proposed use, alterations and additions in harmony and compatible with the surrounding neighborhood; in failing to issue a resolution allowing the applicant to waive the traffic study; and lastly, in failing to make a finding that the total area of the site landscaping plus those areas left in a natural state equal to at least thirty percent of the total parcel area.
A) The Chapter 90 Rehabilitation Guidelines are Discretionary
"In order to determine whether a statute's provisions are mandatory [the Supreme Court] [has] traditionally looked beyond the use of the word shall and examined the statue's essential purpose." (Internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 465, 692 A.2d 742 (1997). "The test to be applied in determining whether a statute is mandatory or discretionary is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be discretionary, especially where the requirement is stated in affirmative terms unaccompanied by negative words . . . Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply . . . A reliable guide in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision." (Citations omitted; internal quotation marks omitted.) Lauer v. Zoning Commission, 246 Conn. 251, 262, 716 A.2d 840 (1998).
It is important to analyze the precise statutory language at issue in the present appeal. The sections cited by the plaintiffs in this appeal are found in Chapter 90 of the Town of New Milford Zoning Regulations, and are categorized as "guidelines" — not rules or regulations. § 090-040(2)(A) provides in relevant part that "[e]very reasonable effort shall be made to provide a compatible use for a property, which requires minimal alteration of the building, structure or site and its environment, or to use a property for its originally intended purpose." (ROR Exhibit 1, p. 70) § 090-040(2)(I) provides that "(c]ontemporary design for alternations and additions to existing properties shall not be discouraged when such alterations and additions do not destroy significant historical, architectural or cultural material, and such design is compatible with the size, scale, material and character of the property, neighborhood or environment." (ROR Exhibit 1, p. 71.) § 090-040(2)(J) provides that "[w]henever possible, new additions or alterations to structures shall be done in such a manner that if such additions or alterations were to be removed in the future, the essential form and integrity of the structure would be unimpaired." (ROR Exhibit 1, p. 71.) Finally, § 090-030 provides in relevant part that "[t]he Zoning Commission may permit any use . . . in a Town Landmark District which would be permitted in any Residential Zone (including Multi-Family Residential Zone) . . . provided that the Commission finds that such a use would be beneficial to and consistent with the orderly development of the town." (ROR Exhibit 1, p. 69.)
In the present case, it is important to note that the applicable sections contain no language suggesting that any failure to comply precisely with these sections will have any effect on the validity of the applications. These rules providing direction without the possibility of invalidation based on noncompliance appear to be precise examples of discretionary guidelines. Therefore, there is no support to the argument that the defendant's actions taken were arbitrary, capricious or without legal effect because the defendant was not required to invalidate the application based on alleged noncompliance with the guidelines. Simply stated, the alleged failure to comply with the Chapter 90 guidelines for rehabilitation does not mandate that this court sustain the appeal and remand this matter back to the defendant for new deliberations where the guidelines are just that — discretionary.
Finally, the record indicates that, in approving the application, the defendant stated on the record "that the subject property conforms to the requirements of the Zoning Regulations, will not exert a detrimental effect on the development of the district as the proposed improvements conform with the character of the Town Landmark District, and the Plan of Conservation and Development, and shall not have any adverse effect on the value of the nearby properties." (Supp ROR Exhibit 33, p. 3.) Thus, there exists evidence in the record to support the proposition that the zoning regulations were considered by the defendant in making its determination. This court concludes that the Chapter 90 guidelines were not mandatory in nature; consequently, there is no merit to the plaintiffs' first claim on appeal.
B) The commission did not ignore its regulations concerning parking spaces and structures within setback lines.
The plaintiffs' next argument is that the defendant ignored the language of § 135-060(2) of the zoning regulations in allowing the applicant to construct parking spaces and structures within the building setback lines. The complaint appears to be that some of the parking spaces appear in the rear setback of the building. The court finds that there is no merit to this claim. § 135-060(2) provides: "The required off-street parking facility shall be back of the front setback lines or building lines as now or hereafter established. Where the required parking space is provided by garage or other covered space or by roof parking, the location of such garage, other covered space or roof parking shall be in conformity with the Zoning Regulations relating to the zone and class of building involved." It is clear from a reading of § 135-060(2) that the regulation deals with front setbacks. As correctly noted by the defendants, the regulation at issue makes no mention of parking within side yard setbacks. As such, any claim that the defendants ignored § 135-060(2) is without merit and is inapplicable to the facts of the present case.
C) The commission did find that the proposed use, alterations and additions were in harmony and compatible with the surrounding neighborhood pursuant to § 180-040(2) of the zoning regulations.Section 180-040 of the zoning regulations concerns standards for review of special permit applications, and provides in relevant part: "The proposed use and the proposed buildings and structures shall conform to following standards: (2) Neighborhood. The site plan and architectural plans shall be of a character as to harmonize with the neighborhood, to accomplish a transition in character between areas of unlike character, to protect property values and to preserve and enhance the appearance and beauty of the community." The plaintiffs argue that the defendants simply failed to consider § 180-040(2) in approving the applicant's special permit application. This contention is without support.
On October 24, 2006, a resolution of approval pertaining to the applicant's special permit and site plan application was issued. The commission stated: "In granting the above special permit and site plan application, the Zoning Commission of the Town of New Milford wishes to state upon its record that after reviewing and considering the record evidence, it is the Commission's judgment that the subject project conforms to the requirements of the Zoning Regulations, will not exert a detrimental effect on the development of the district as the proposed improvements conform with the character of the Town Landmark District, and the Plan of Conservation and Development, and shall not have any adverse effect on the value of the nearby properties." (Emphasis added.) (ROR Exhibit 33, p. 3.) "When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
A review of the record indicates that the assigned grounds in the present case are reasonably supported by the record. There is no dispute in the present case that the applicant's proposal was contested. To be sure, the October 24, 2006 discussions on the site plan and special permit applications indicate that several issues were raised and discussed by commission members on both sides of the vote. ROR Exhibit 8 is the transcript of the commission's October 24, 2006 meeting. The transcript indicates that the commission considered and discussed extensively, among other things, traffic, landscaping, the size of the addition, and conformity with the neighborhood. See also ROR Exhibit 16 (letter from the New Milford Trust for Historic Preservation stating that, subject to certain conditions, "this is a very worthwhile historic rehabilitation project which will relate to and enhance the historic landscape of the neighborhood"). An administrative agency is not required to state all of its determinations on the record, so long as the record provides an adequate basis for the agency's determination. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588, 628 A.2d 1286 (1993). Here, as previously stated, the record provides an adequate basis for the commission's decision, evinces that the commission seriously discussed and debated the relevant issues, and this court will not substitute its judgment for that of the zoning commission.
D)
CT Page 901
The failure of the commission to formally waive a traffic study requirement is not fatal to the commission s decisions.
The court next considers whether the failure of the defendant to formally waive the traffic study requirement constituted arbitrary or illegal action, or was an abuse of the commission's discretion. Pursuant to § 180-030, "[a]n application for a special permit shall be submitted in writing to the Commission and shall also be accompanied by the following . . . 2) Traffic impact analysis, prepared by a recognized traffic engineer, indicating the expected average daily vehicular trips . . . and the effect upon the level of service of the streets providing access to the lot." Pursuant to § 180-030(3), "[t]he Commission, upon written request by the applicant, may by resolution waive the required submission of that part of the information specified under Subsection . . . 2 if the Commission finds that the information is not necessary to decide on the application." (ROR Exhibit 1, p. 174-75.) In the present case, it is undisputed that the applicant completed a request to waive form requesting that the traffic study be waived. (ROR Exhibit 2.) It is equally true, however, that a review of the record indicates that the defendant never, by resolution, waived the required submission of the traffic impact analysis.Traffic study requirements substantially similar to the requirement at issue in the present case have recently been analyzed by our Supreme Court. In Pansy Road, LLC v. Town Plan Zoning Commission, 283 Conn. 369, 926 A.2d 1029 (2007), our Supreme Court considered "whether a planning commission has the legal authority to deny a subdivision application because of off-site traffic congestion." Id., 374. In holding that the commission did not have such authority, the court reasoned that in reviewing the application, a planning commission acts in an administrative capacity and "has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance." (Internal quotation marks omitted.) Id. Although Pansy Road, LLC involved a subdivision application and not a site plan application, it is important to note that the court relied heavily on its previous decision in TLC Development, Inc. v. Planning Zoning Commission, 215 Conn. 527, 528, 577 A.2d 288 (1990), an appeal arising from the denial of a site plan application. Pansy Road, LLC v. Town Plan Zoning Commission, supra, 283 Conn. 376.
In TLC Development, Inc. v. Planning Zoning Commission, supra, 215 Conn. 527, our Supreme Court held that "in light of the terms of the applicable zoning regulations the impact of offsite traffic was not an appropriate reason for denying such an application." CT Page 902 Id., 528. The court reasoned that the applicable zoning regulations did not provide for traffic considerations to constitute a permissible basis for the denial of a site plan application. Id., 532. The court also noted that the result "comports with our earlier stated proposition: `The 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.'" (Emphasis added.) Id., 532-33, quoting Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 443, 418 A.2d 82 (1979). Thus, while the TLC court seems to base its decision, in part, on the fact that the zoning regulations do not allow the commission to deny a site plan application based on traffic considerations, it is also clear that the conclusive presumption established by regulations that allow such uses in the district precludes the commission from denying an application because of offsite traffic considerations.
"Thus, TLC and Beit Havurah serve to illuminate two propositions with respect to the role of traffic considerations in weighing site plan applications. First, the language of a given zoning regulation may, by its textual content, limit the scope of the use of traffic considerations. Second, once a zoning authority establishes that a particular use within a zone is permitted, e.g., an office building or a church, a conclusive presumption arises that such a use in general, does not adversely affect the traffic within the zone. Neither of these tenets, however, precludes an examination into the special traffic consequences of a given site plan when the applicable zoning regulations permit it." Friedman v. Planning Zoning Commission, 222 Conn. 262, 266, 608 A.2d 1178 (1992).
In Pansy Road, LLC, the court reiterated and clarified prior holdings in Friedman v. Planning Zoning Commission, supra, 222 Conn. 262, and Sowin Associates v. Planning Zoning Commission, 23 Conn.App. 370, 580 A.2d 91, cert. denied, 216 Conn. 832, 583 A.2d 131 (1990), stating "that traffic considerations can play only a limited role in the review of subdivision and site plan applications." Pansy Road, LLC v. Town Plan Zoning Commission, supra, 283 Conn. 379. The court explained that this limited role could include addressing traffic flow within the site and assisting in locating entrances and exits from the site, but could not provide a basis for denial of an application. Id., 380. Clearly, "a land use agency cannot deny an application for a permitted use because of off-site traffic considerations." Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 73 Conn.App. 442, 470, 807 A.2d 1089 (2002).
In the present case, it appears to be undisputed that the defendant specifically found that the proposal conformed to the zoning regulations and plan of conservation and development. See ROR exhibit 26. Similarly, the plaintiffs have not taken exception to the argument that the proposed application was for a permitted use. In the present case, the Town Landmark District provides as permitted uses "any use or combination of uses in a Town Landmark District which would be permitted in any Residential Zone (including the Multi-Residential Zone) . . ." It is undisputed that the special permit application and site plan application sought "multi-family residential use for residential condominiums . . ." (ROR Exhibit 2.) "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.) Trumbull Falls v. Planning Zoning Commission, 97 Conn.App. 17, 21, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006). By granting the special permit application the commission impliedly held that the proposed use was a use permitted as of right under the applicable zoning regulations. See ROR 26, 27. As in TLC, the regulations in the present case allowed such uses as the applicant sought. Because the zoning of the property is consistent with the proposed use, "[w]e therefore must begin with the conclusive presumption established in TLC Development, Inc., that this proposed use does not adversely affect traffic within the zone, and the defendant therefore cannot deny the application because of existing off-site traffic congestion." Pansy Road, LLC v. Town Plan Zoning Commission, supra, 283 Conn. 379.
Consequently, while the defendant could have — and did — consider traffic congestion, it could not have denied the application for failure to submit a traffic study based both on the fact that the applicable regulations did not provide that failure to submit a traffic study could result in denial of an application, and that the use in the present case was a permitted use as of right. Furthermore, as with other regulations and requirements found in the New Milford Zoning Regulations, there is no language expressly invalidating a special permit application for failure to submit a traffic study. As a final note, no case has been cited by the parties, and independent research has not revealed any law for the proposition that the defendant was bound or required to deny the application at issue for failure to submit a traffic study.
E) The commission did impliedly find that the total open and landscaped area is at least thirty percent of the total parcel area.
The plaintiffs appear to argue in their final point that the commission did not require that the total area of the site landscaping equaled at least thirty percent of the total parcel area, as required by § 130-020(10) of the zoning regulations. The plaintiffs' claim is without merit. ROR 30 is a proposed layout and landscape plan dated September 26, 2006. It was before the commission when they discussed, voted, and approved the project at issue. The plaintiffs have not specifically alleged that the open and landscaped area is less than thirty percent of the total lot area, only that the defendant did not make such a finding on the record. The court notes again that the commission stated on the record that "that the subject property conforms to the requirements of the Zoning Regulations." (Supp. ROR Exhibit 33, p. 3.) Implicit in the general approval is a finding that the open and landscaped area met the requirements of § 130-020 of the zoning regulations. Additionally, the plaintiffs have not claimed any harm as a result of this alleged inaction.The plaintiffs have not briefed this argument with any case law, and have not directed the court to any documents in the return of record which would indicate that the total open and landscaped area is, in fact, less than thirty percent of the total lot area. The plaintiffs only appear to allege that the defendant failed to make this finding, but do not go so far as to state that, in fact, the landscaped area was not thirty percent. "[The court is] not required to review issues that have been improperly presented . . . through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Kelib v. Connecticut Housing Finance Authority, 100 Conn.App. 351, 353, 918 A.2d 288 (2007). Consequently, because this issue has not been briefed with any analysis, this court holds that the issue has been abandoned. See id.
VI CONCLUSION
For the foregoing reasons, the plaintiffs' appeal is dismissed.