Opinion
CV166056597S
11-08-2016
Kent C. Wahlberg v. Zoning Commission of the Town of Stratford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Dale W. Radcliffe, J.
FACTS
The Defendant, Christ Episcopal Church, is the owner of property known as 1969, 1995 and 2019 Main Street, Stratford. In September of 2015, Christ Episcopal Church submitted a special case application to the Stratford Zoning Commission, seeking approval of a forty-four (44) unit apartment complex on its property.
Special case approval was sought, pursuant to Section 7.10 of the Stratford Zoning Regulations, the provision which allows for a Transit-Oriented Development Overlay District. Section 7.10.5 mandates Special Case approval, before the provisions of the overlay district can be utilized. The section reads:
Any application seeking to develop utilizing the provisions of the TOD Overlay District shall be subject to Special Case approval from the Zoning Commission, pursuant to the requirements of Section 20 of these regulations and the relevant provisions of the TOD Overlay District as contained in subsections 6, 7 and 8 of these regulations . . .
On September 29, 2015, the Stratford Zoning Commission approved the Special Case application, subject to several stipulations:
1. Twelve (12) parking spaces shall be eliminated in the central area, and making that an expanded green space.
2. Details of fencing to be installed to buffer adjoining properties.
3. Details on lighting to be provided, with no lighting in the rear of units to interfere with neighboring properties.
4. Details on landscaping to adequately buffer the adjoining residences.
5. Comments by the Town Engineer be adhered to.
The Stratford Zoning Regulations require final plans to be submitted to the Zoning Commission, following Special Case approval. Section 20.3 of the Regulations reads:
Within six months of the date of approval as a Special Case, final plans shall be submitted to the Zoning Commission for approval, prior to Zoning Compliance being given to the building permit. In the event that final plans are not submitted within said six months, and no extension having been granted by the Zoning Commission, the area shall revert back to its original status.
Notice of the Special Case approval was published by the Zoning Commission on October 6, 2015. No appeal of that decision was commenced following publication.
In March of 2016, within the period provided by Section 20.3, Christ Episcopal Church submitted final plans for the forty-four (44) unit project to the Stratford Zoning Commission. (ROR 3.) The Zoning Commission reviewed the plans, at its March 14, 2016 meeting. (ROR 2.)
The plans were explained by Planning and Zoning Administrator Jay Habansky, who noted the elimination of twelve (12) parking spaces, the creation of green space, and the fencing, lighting, landscaping and buffer features of the plans. It was also noted, that the comments of the Town Engineer had been satisfied. (ROR 1, p. 1.) The Zoning Commission unanimously approved the plans, and Christ Episcopal Church, through its attorney, was notified of the vote. (ROR 2.)
The Plaintiff, Kent C. Wahlberg, . brought this appeal, and service of process was made on March 29, 2016.
The Stratford Zoning Commission did not publish notice of its March 14, 2016 decision approving the final plans, in a newspaper having a general circulation in the community, within fifteen (15) days.
However, pursuant to Section 8-3(g)(1) of the General Statutes, Christ Episcopal Church, on April 6, 2016, published notice of the approval in The Connecticut Post . (Supplemental ROR.)
Section 8-3(g)(1), Connecticut General Statute--" . . . In any case in which such notice is not published within the fifteen-day period after a decision has been rendered, the person who submitted such plan may provide for the publication of notice within ten days thereafter. The provisions of this subsection shall apply to all zoning commissions or other final zoning authority of each municipality whether or not such municipality has adopted the provisions of this chapter . . ."
AGGRIEVEMENT
The Plaintiff, Kent C. Wahlberg, is the owner of property known as 1949 Main Street, Stratford. (Ex. 1.) The parties agree, that he has owned the property at all times during the pendency of this appeal.
Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal. Jolly, Inc. v. Zoning Bd. of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996); Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991). The question of aggrievement is one of fact, which must be determined by the trial court. Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93, 558 A.2d 646 (1989).
Aggrievement falls into two basic categories--statutory aggrievement, and classical aggrievement. At trial, the Plaintiff limited his claim of aggrievement to statutory aggrievement.
Statutory aggrievement exists by legislative fiat, which gives standing to appeal by virtue of a particular statute, rather than through an analysis of the facts of a particular case. Weill v. Lieberman, 195 Conn. 123, 124-25, 486 A.2d 634 (1986); Pierce v. Zoning Board of Appeals, 7 Conn.App. 632, 635-36, 509 A.2d 1085 (1986).
Section 8-8(a)(1) of the General Statutes defines " aggrieved person" for purposes of an appeal from a decision of a municipal land use agency. The statute reads:
(1) . . ." Aggrieved person" . . . includes any person owning land which abuts, or is within a radius of one hundred feet from any portion of the land involved in the decision of the board.
The Plaintiff is the owner of 1949 Main Street, Stratford, which abuts the property which Christ Episcopal Church seeks to develop, by building a forty-four (44) unit apartment complex.
It is therefore found that Kent C. Wahlberg is statutorily aggrieved by the decision of the Stratford Zoning Commission which generated this appeal.
Because no evidence was produced at trial which would support a finding of classical aggrievement, and because statutory aggrievement has been established, the issue of classical aggrievement will not be considered.
STANDARD OF REVIEW
A special permit, or special case as it is designated in the Stratford Zoning Regulations, allows a property owner to use his property in a manner which is expressly permitted by the zoning regulations. A.P.& W. Holding Corporation v. Planning & Zoning Commission, 167 Conn. 182, 185, 355 A.2d 91 (1984); Kobyluck v. Planning & Zoning Commission, 84 Conn.App. 160, 169-70, 852 A.2d 826 (2004). A special permit (special case) must be obtained, because the nature of the use is such that the exact location and operation must be regulated, due to unique conditions, including traffic problems and neighborhood uses. Barberino Realty & Dev. Corp. v. Planning & Zoning Com., 222 Conn. 607, 612, 610 A.2d 1205 (1992).
When ruling upon an application for a special permit, a zoning commission sits in an administrative capacity, rather than in a legislative or quasi-judicial capacity. Irwin v. Planning & Zoning Commission, 244 Conn. 244 Conn. 619, 627, 711 A.2d 675 (1988); Farina v. Zoning Board of Appeals, 157 Conn. 420, 422, 254 A.2d 492 (1969). The Commission has no independent discretion beyond determining whether the application, as presented, satisfies the standards set forth in the regulations. Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn.App. 533, 537, 738 A.2d 1157 (1999).
In September of 2015, the Stratford Zoning Commission approved Christ Episcopal Church's Special Case application. No appeal from that approval was taken. Therefore, the merits of that decision are not before the court, and the Special Case, as approved, cannot be collaterally attacked in this proceeding. Special permits (special case) run with the land, and are not personal to the applicant.
Section 8-3d, Connecticut General Statute-" No variance, special permit or special exception . . . shall be effective until a copy thereof . . . containing a description of the premises to which it applies . . . and stating the owner of record is recorded on the land records of the town in which the premises are located. The Town Clerk shall index the same in the grantor's index under the name of the then record owner and the record owner shall pay for such recording."
Therefore, the only question before the Zoning Commission in March of 2016, and the only issue before this court, relates to the plans submitted in March of 2016, and approved by the Stratford Zoning Commission on March 14, 2016. (ROR 1; ROR 3.)
In applying the law to the facts of a particular case, a reviewing court is called upon to determine whether the challenged action was unreasonable, arbitrary or illegal. Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). Conclusions reached by the commission must be upheld, if supported by substantial evidence in the record. Substantial evidence is enough evidence to justify, if the trial were to a jury, the refusal to direct a verdict, where the conclusion to be drawn is on of fact. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 541, 525 A.2d 940 (1987). The possibility of drawing two inconsistent conclusions does not prevent a decision from being supported by substantial evidence. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588, 628 A.2d 1286 (1993).
On factual issues, a reviewing court cannot substitute its judgment for that of the municipal zoning agency. Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 380, 401, 610 A.2d 620 (1999).
Where a municipal land use agency has stated collective reasons for its decision, a court should not go beyond the collective reasons of the agency, but should decide whether any reason is supported by substantial evidence. Gibbons v. Historic District Commission, 285 Conn. 755, 770-71, 941 A.2d 917 (2008). However, where, as here, the commission has given no collective reasons in support of its decision, that fact is not fatal. The court must search the record to determine whether it provides a basis for the decision reached. Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 178 Conn. 657, 661-62, 425 A.2d 100 (1979).
NOTICE BY PUBLICATION ON APRIL 6, 2016, CURED FAILURE OF THE STRATFORD ZONING COMMISSION TO PUBLISH NOTICE OF ITS MARCH 14, 2016 ACTION
The Plaintiff claims that the failure of the Stratford Zoning Commission to publish a notice of its decision, as required by statute, deprives the court of jurisdiction. This claim, in light of the notice of publication contained in the Supplemental Return of Record, is not well taken.
The Plaintiff correctly argues that the failure of a municipal land use body to provide the notice mandated by the General Statutes implicates subject matter jurisdiction. Akin v. Norwalk, 163 Conn. 68, 72, 301 A.2d 258 (1972); Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 386-88, 311 A.2d 77 (1972); Cocivi v. Planning & Zoning Commission, 20 Conn.App. 705, 707, 570 A.2d 226 (1990).
The Stratford Zoning Commission did not publish notice of its March 14, 2016 approval of the plans submitted by Christ Episcopal Church. However, the Church, as the party which submitted the plans to the Zoning Commission for its approval, was permitted to supplement the record, in order to demonstrate that publication of the decision was accomplished, pursuant to Section 8-3(g)(1) of the General Statutes.
On April 6, 2016, a notice was published in the legal notices of The Connecticut Post, stating:
In accordance with the provisions of the State Enabling Act and Title 8, Chapter 24 of the General Statutes, Christ Episcopal Church (the applicant) hereby gives notice that the following action was taken by the Stratford Zoning Commission on March 14, 2016: Re: 1969, 1995 and 2019 Main Street, Stratford, Connecticut. The Commission voted to approve Final Plans pursuant to section 20.3 of the zoning regulations relating to the commission's prior approval of Christ Episcopal Church's special case application under sections 7.10 and 20 of the zoning regulations in order to construct a 44 unit residence apartment development located in an RS-4 district, and a Transit-Oriented Development Overlay District.Section 8-3(g)(1), along with companion statutes regarding changes in zoning regulations or boundaries, special permits, appeals to the zoning board of appeals, variances, subdivisions and wetlands applications, allow an applicant an additional ten (10) days within which to publish a legal notice, if a municipal zoning authority has not fulfilled its statutory obligation to publish notice of a decision. Fuller, Robert A., Connecticut Land Use Law and Practice (3rd Ed., 2007), Vol. 9B, Section 46.4, p. 20: Public Act 89-365, sections 10-16. An applicant who elects to publish notice after the initial fifteen (15) day period has expired, is able to cure a defect of notice, thereby avoiding the Draconian result of voiding a zoning agency decision which is otherwise valid. Wilson v. Planning & Zoning Commission, 260 Conn. 399, 404 n.6, 796 A.2d 1187 (2002).
The result of these clearly remedial provisions enables an applicant who has obtained approval from a municipal land use board of commission, to safeguard that approval where either a defect in the notice or the absence of a notice by publication exists, through no fault of the applicant.
The April 6, 2016 publication by the Defendant, Christ Episcopal Church, satisfies the statutory notice requirement, concerning the Zoning Commission's March 14, 2016 approval.
The Plaintiff, however, claims that the April 6, 2016 publication is ineffective as to him, because he brought suit seeking to overturn the action prior to the date on which publication occurred. This claim, although innovative and ingenious, will not avail him.
The notice required by statute is notice to the public of a decision rendered, and is separate and distinct from notice to a particular individual or property owner. Wright v. Zoning Board of Appeals, 174 Conn. 488, 491, 391 A.2d 146 (1978).
The Plaintiff cites no authority for his claim that the April 6 publication is not applicable to him, because he choose to institute litigation prior to that date. Furthermore, any such rule is contrary to the redial purpose of the provisions permitting publication by an applicant, as a safeguard against any failure of proper notice.
SUBSTANTIAL EVIDENCE SUPPORTS THE COMMISSION'S APPROVAL OF THE PLANS
The Plaintiff contends that the Stratford Zoning Commission's March 14, 2016 decision to approve the plans submitted by Grace Episcopal Church is not supported by substantial evidence in the record.
This claim is easily refuted.
Both the minutes of the March 14, 2016 meeting (ROR 1) and the plans submitted and discussed by the Commission (ROR 3), establish that each of the stipulations voted by the Zoning Commission when it approved the Special Case application in September of 2015 has been satisfied.
Twelve (12) parking spaces were eliminated in the plans submitted (ROR 3), and additional green space was created. Fencing, lighting and landscaping issues were also addressed by the Zoning Commission (ROR 1), and the details are reflected in the plans and specifications (ROR 3).
The minutes (ROR 1) further reflect that the comments of the Town Engineer have been satisfied.
Notwithstanding the Plaintiff's invitation, the court declines to revisit issues concerning the Special Case approval voted on September 29, 2015. A June 20, 2016 hearing concerning a motion to dismiss was held, at which time all parties to this action acknowledged that the Special Case approval was not before the court, and " that ship has sailed."
Substantial evidence supports the Zoning Commission's unanimous approval of March 14, 2016, and the Plaintiff has provided nothing which would in any way undercut the decision reached.
CONCLUSION
The appeal of the plaintiff, Kent C. Wahlberg, is DISMISSED.
Furthermore, it should be noted that any time limitations concerning the issuance of permits by the Town of Stratford is tolled, during the time this appeal is pending. Bochanis v. Sweeney, 148 Conn.App. 616, 633, 86 A.3d 486 (2014); Dean-Moss Family Ltd. Partnership v. Five Mile River Works, Inc., 130 Conn.App. 363, 375, 23 A.3d 745 (2014); Fromer v. Two Hundred Post Associates, 32 Conn.App. 799, 810, 631 A.2d 347 (1993).