Opinion
No. CV 04 4000516S
November 1, 2005
MEMORANDUM OF DECISION
On July 20, 2004, the town of Killingworth planning and zoning commission approved the application of Regional School District # 17 for site approval with special exception to construct a 900-student middle school. This decision gave rise to three administrative appeals by individuals whose property abuts the school site: Webber v. Planning Zoning Commission, CV 04 4000516; Hine v. Planning Zoning Commission, CV 04 4000566; and Golembosky v. Planning Zoning Commission, CV 04 4000706. All three appeals, which rely on the same return of record, were consolidated by the court, Aurigemma, J., on December 22, 2004, and this court heard argument on all three appeals on June 6, 2005. This memorandum will address the first of those appeals to be filed, Webber v. Planning Zoning Commission.
The return of record was filed with the court in this case on December 20, 2004.
General Statutes § 8-8 provides the plaintiffs, Harold Webber and Mary Webber, the right to appeal the decision of the defendant Killingworth planning and zoning commission (commission) approving the application of the defendant Regional School District #17 (school district). Because, however, "[a]ppeals to the courts from administrative [agencies] exist only under statutory authority"; (internal quotation marks omitted) Brookridge District Ass'n. v. Planning Zoning Commission, 259 Conn. 607, 611, 793 A.2d 215 (2002); and "[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.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985), it is therefore necessary for this court to consider whether the plaintiffs have complied with those requirements of § 8-8 that implicate this court's subject matter jurisdiction before addressing the merits of their appeal.
Section 8-8(b) provides a right of appeal to the superior court for "any person aggrieved by any decision of a board" and subsection (a)(1) defines an "aggrieved person" to include "any person owning land that abuts . . . any portion of the land involved in the decision of the board." The plaintiffs allege that they are owners of property abutting the property that was the subject of the commission's July 20, 2004 decision. At the June 3, 2005 hearing, Harold Webber credibly testified as to his ownership of the property, and this court thus finds that the plaintiffs are aggrieved persons for the purposes of this appeal. Subsection (b) further requires that "[t]he 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." The record documents the publication of legal notice of the commission's July 20, 2004 decision in the Hartford Courant on August 3, 2004. (Return of Record (ROR) Items 32, 33 and 34.)
Subsection (f)(1) of § 8-8 provides in relevant part that "[f]or any appeal taken before October 1, 2004, process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality." Subsection (g) further directs that "[s]ervice of process shall also be made on each person who petitioned the board in the proceeding . . ." The marshal's return in the present case indicates that this appeal was commenced on August 13, 2004, with service of process upon Charles Martens, in his individual capacity, as well as in his capacity as chairman of the commission; Susan Adinolfo, Killingworth town clerk; and Gary Shettle in his capacity as director of finance and operations for Regional School District #17. The plaintiffs therefore have timely commenced this appeal with service upon the proper parties.
"When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity . . . [And] [i]n 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." (Citations omitted; internal quotation marks omitted.) Irwin v. Planning Zoning Commission, 244 Conn. 619, 627-28, 711 A.2d 675 (1998). "Although it is true that [a] zoning commission does not have discretion to deny a special permit when the proposal meets the standards, it does have discretion to determine whether the proposal meets the standards set forth in the [special permit] regulations." (Emphasis in original.) Id., 628.
"The terms `special exception' and `special permit' hold the same legal import and can be used interchangeably." Anastasi v. Zoning Commission, 163 Conn. 187, 190, 302 A.2d 258 (1972).
Similarly, "[i]n reviewing and approving site plans the commission acts in an administrative capacity"; Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 12, 544 A.2d 152 (1988); and has "no independent discretion beyond determining whether the plan complies with the applicable regulations . . . [and] is under a mandate to apply the requirements of the regulations as written." (Citation omitted; internal quotation marks omitted.) Id., 13. "The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995).
The task for this court in this appeal is, therefore, to determine whether the plaintiffs have met their burden to prove that the commission abused its discretion in concluding that the school district's application for site approval with special exception met the standards set forth in the town's zoning regulations. Although the plaintiffs allege that the commission's decision was arbitrary, capricious and contrary to the law and the town zoning regulations for numerous reasons, their brief focuses on three arguments. First, they claim that the school district's application failed to comply with §§ 120C and 120C.5 of the zoning regulations. This argument is based on notations made on the maps submitted by the district indicating the existence of an uncertainty regarding the exact location of portions of the property line between the plaintiffs' property and that of the school board. As a result of this uncertainty, the plaintiffs contend that the school district has failed to comply with the requirement in subsection (1) of § 120C of the zoning regulations, which requires that each application for a special exception shall contain or be accompanied by "[a] description by metes and bounds or courses and distances, of the land to which such application relates . . ." This boundary uncertainty, according to the plaintiffs, also causes the application to fail to meet the requirement of § 120C(4) that an application contain "[a] complete and comprehensive statement and site plan describing the proposed use and all improvements relating thereto . . ." They also argue that the plan submitted by the district fails to show "important information on the abutting properties so that the Commission could knowledgeably assess the impact on surrounding property as required by § 120C5."
The plaintiffs refer to these notations of an uncertainty as "qualifying notices" or "qualifying language."
The plaintiffs contend that the commission attempted to repair the deficiencies in the school district's site plan by conditioning its approval on the filing of a corrected map. The plaintiffs further argue that the filing of a corrected map would constitute the receipt of information outside the public record, since neither they nor the public would be apprised of the facts being presented to the commission by means of a new map.
The second argument propounded by the plaintiffs centers on the enrollment capacity of the proposed school. The plaintiffs contend the defendant school district has, on the record, represented that the proposed building site contains 46.7 buildable acres; therefore, under the applicable zoning regulations, the school's enrollment would be limited to no more than 900 students. They argue that § 61A.2(P) of the zoning regulations would require at least 50 buildable acres if the school enrollment was 901 or more. Thus they argue that the application is not in compliance with the regulation becanse the proposed school that is the subject of this appeal is described, throughout the record, as a school with a maximum capacity of 1200 students and that "[i]t is a matter of common sense that if a school has a capacity for students above the 901 student threshold, that the regulations call for compliance with enrollment capacity." (Brief of Appellant Plaintiffs, Pleading #116, p. 11.)
The plaintiffs' third argument is that the commission chairman, Charles Martens, received materials from representatives of the applicant after the close of the public hearing. They therefore argue that their due process rights were violated by the consideration of information provided by the applicant outside the record.
A previous ruling on the plaintiffs' motion for a restraining order/injunction in this case bears on the consideration of the merits of their appeal. In denying their motion, this court considered the effects of the boundary "dispute" that the plaintiffs continue to argue necessarily results in the failure of the school district's application to meet the requirements of the Killingworth zoning regulations, specifically § 120C(1) and (4) and § 120C.5. In denying the Webbers' motion, this court noted: "Because the Planning and Zoning Commission may not, by law, resolve boundary disputes, a contention conceded by the defendants, and because the A-2 Survey clearly indicates the surveyor's conclusion that the boundary between the plaintiffs' property and the northern portion of the proposed site is `uncertain,' the plaintiffs argue that the Commission's approvals cannot stand. To prevail on this issue, however, the plaintiffs must be able to show that the boundary dispute is likely to have an effect on the correctness of the Commission's actions. The Webbers' property is approximately one acre in size, and the surveyor's notes suggest only some uncertainty as to the precise location of one of four boundaries of the plaintiff's land. There is absolutely nothing to suggest that the dimension of the boundary `dispute,' assuming that it results in a larger, rather than a smaller, lot for the plaintiffs, could possibly amount to the more than one and one half acres that would reduce the site's buildable acreage below the 45 acres required for a school of the size contemplated by the School District." (Memorandum of Decision, Docket Item No. #115, January 14, 2005.)
Section 120 of he Killingworth zoning regulations governs the special exception procedure. Section 120C provides in relevant part that "[e]ach application form shall contain or be accompanied by, in writing: (1) A description, by metes and bounds or courses and distances, of the land to which such application relates . . . (4) A complete and comprehensive statement and site plan, describing the proposed use and all improvements relating thereto, which shall clearly disclose the following information . . . The location and character of all topographic features, including grades, elevations, and streams and all buildings, driveways, sidewalks, roadways sewage disposal systems and water supply systems, and drainage within the area outside and within 300 feet of each boundary line of the lot of the proposed use . . ."
Section 61A.2.(P) of the zoning regulations provides at subsection (a) that "[a]ny school with an enrollment of one hundred (100) students or fewer will have a minimum buildable lot size of five (5) acres equivalent. The minimum buildable lot size for any school with an enrollment in excess of one hundred (100) students shall increase by five (5) acres equivalent for every additional one hundred (100) students, or portions thereof, enrolled." Thus, the minimum buildable lot size for a school with 900 students would be 45 acres.
Upon reexamining the record, this court finds no additional evidence to cause it to reverse its earlier thinking about the significance of the boundary dispute. Remarks at the public hearing indicate that the commission was fully aware of the dispute. For example, an unidentified individual speaking on behalf of the school district stated: "We do have an issue with the Webbers. The School District believes that it's not an issue. We will submit right now for your record a building application filed by Mr. Webber for an addition to his house where it clearly specifies what the boundary of his property is. We tried to work with the Webbers to get them to formalize the property lines. They've refused, they've refused to do so. We understand that . . . But I think the Webber situation is one, while unfortunate from our standpoint, it's pretty clear. You've heard testimony you've heard people say why would anybody buy a piece of property not get title insurance and not get a survey. We got a survey. We got title insurance. The Webbers on the [other] hand bought their piece of property under exactly the same circumstances and as far as we can tell, they don't have a survey. So we feel very comfortable with the property lines." (ROR, Item 37, Transcript of July 6, 2005 Commission Public Hearing. pp. 101-02.) At the commission meeting on July 20, 2005, prior to the vote on the application, commission secretary John Speicher spoke to the boundary issue: "There's been a lot of talk about this boundary situation and I think the only way we can deal with that is the same way we did on Pond Meadow Road. And that is do we have an A2 Survey. Beyond that it becomes a civil matter but I think we should mention not necessarily I think I'd like it on the minutes that this is what we have done in the past. And that as long as there is an A2 Survey even if it's in dispute, our regulations are met with that survey and the boundary difference would be determined by others than us. It's a civil matter." (ROR, Item 38, Transcript of July 20, 2005 commission meeting.)
Item 25 in the return of record is a copy of an application for a building permit filed by the plaintiffs with the town of Killingworth, which contains a site plan drawing showing the boundary lines of the plaintiff's property.
Although the school district does not dispute that the surveys submitted with its application call attention to an uncertainty and need to clarify the location of the property lines between the north parcel of the district's property and that of the plaintiffs,' this court is not persuaded by the plaintiffs' argument that this boundary dispute required the commission to conclude that the school district's application failed to comply with the applicable regulations. Given the commission's acknowledgment of its past handling of boundary disputes, as outlined above, the court is hardly convinced that the commission's treatment of the boundary uncertainty in the present action amounted to an abuse of the commission's discretion in determining whether the school district had complied with §§ 120C and 120C.5 of the zoning regulations.
The plaintiffs' second argument involving enrollment capacity is, again, an issue that this court spoke to in ruling on the plaintiffs' prior motion. This court stated that "although the defendant school district sought approval for a site plan that would accommodate a school that might eventually have a capacity of up to 1300 students, the application itself quite clearly is for a school for 900 students . . . The plaintiffs argue that the court should consider the ultimate capacity of the school in determining whether the proposed school violated the buildable acreage limitations of the regulations. They offer no support whatever, however, for the position, in light of the fact that the proposal as presented is specifically for no more than 900 students." (Memorandum of Decision, Docket Item No. 115, January 14, 2005.)
Although the plaintiffs direct the court's attention to a number of record items that indicate that the school's capacity is 1030 students with a maximum capacity of 1200 students, the record is also replete with references to the fact that the school district's application was for a 900-student school. Moreover, in a response to a question raised at the public hearing on July 6, 2005, the commission addressed this argument. The question posed to the commission by a member of the public was: "[I]f the school is going to hold 1200 eventually or more as stated in the flyer, shouldn't the zone regulations or buildable land support that future number, which I think from my perspective and again it's only an opinion but I think it's stated in the flyer that it's going to get to be 1200 students or more." (ROR, Item 37, Transcript of July 6, 2005 Commission Public Hearing, p. 52.) Marten's replied: "The answer to your question is that presently this application is for a school of 900 and the site will support that number according to our regulations. It won't support 1200. Mathematically the answer right now would be no. But that is not the application. Okay, I can elaborate a little. Three things could happen. One you could add more . . . Two you could go and get a variance to permit a higher number of students. Or three it's possible the zoning regulations will be changed in the future. Those are really the three alternatives. But you can't go over that 900 students with the current zoning regulations. This school is over designed which is a very cost effective way of protecting yourself down the road. And as you heard the systems are designed to provide over capacity buffer. It is a school that is being applied for that serves 900 students." (ROR, Item 37, Transcript of July 6, 2005 Commission Public Hearing, pp. 52-53.) If, when determining the application's compliance with the regulations, the commission had considered the maximum building capacity, rather than the 900-student school asked for in the application, its conclusion would have been impermissibly based on speculation in violation of its "mandate to apply the requirements of the regulations as written." Norwich v. Norwalk Wilbert Vault Co., supra. Similarly, this court would have to resort to speculation if it were to sustain the plaintiffs' appeal on the ground that the school had a potential maximum capacity of 1200 students and the commission abused its discretion in approving an application for a 900-student school.
The plaintiffs' third and final argument is that the commission received materials after the public hearing and that these materials were considered by Martens in violation of the plaintiffs' due process rights. Specifically, the plaintiffs point to a letter from Ray Gradwell, the project manager of the school district's site engineering firm, to Martens; (ROR, Item 49); and a July 19, 2004 letter from Thomas Harty, a representative of Nathan L. Jacobson Associates, Inc., an engineering firm, to Martens. (ROR, Item 29.)
The plaintiffs allege in their complaint that Nathan L. Jacobson Associates, Inc. is the town's engineer. (Plaintiffs' complaint ¶ 7(i).) At the public hearing, Ray Gradwell testified that Nathan Jacobson Associates was an engineering firm hired by the town to review the site plan. (ROR, Item 37, p. 21.)
Harty's letter states, however, that he does not address Gradwell's July 12, 2004 letter to Martens or the revised plans attached thereto, which he notes were not received prior to the close of the public hearing, "because it is our understanding that the commission cannot legally consider this information." (ROR, Item 29.) Despite this statement, the plaintiffs contend that "[w]e cannot assume that the Chairman ignored, or can ignore the materials." (Brief of Appellant Plaintiffs, Pleading #116, p. 13.)
Record Item 39 is titled "Remarks by Chairman Martens, Receipt of Correspondence, July 20, 2004 Killingworth Planning Zoning Meeting." That record item indicates acknowledgment of the receipt of Gradwell's letter at the meeting to which Martens comments: "I'm not putting that into the record." Also, in the minutes of the commission's July 20, 2004 meeting, Martens reviews Harty's letter and the fact that comments received after the public hearing could not be considered. Furthermore, Martens testified at the June 6, 2005 hearing before this court that while Gradwell's June 12, 2004 letter was logged and included in the commission's minutes as having been received after the public hearing, he did not read it, nor could it have been considered by the commission since it was referred to Nathan L. Jacobson Associates, Inc.
In Hine v. Planning Zoning Commission, Docket No. CV 04 400566, this court granted the plaintiffs' "motion for permission to introduce evidence outside the record of appeal," (Pleading #109) relative to their intent to call Martens to provide testimony concerning his receipt of materials from the applicant after the public hearing was closed.
Taking into consideration the references in the record regarding the handling of the materials challenged by the plaintiffs and the testimony of Martens, this court is not persuaded that the commission considered any of these materials in deciding the school district's application. Thus, the plaintiffs have not been deprived of any due process rights.
None of the arguments raised by the plaintiffs are sufficient to demonstrate that the commission acted unreasonably, arbitrarily, or illegally in approving the school district's application for site approval with special exception to construct a 900-student middle school. The commission's decision is therefore affirmed, and the plaintiffs' appeal is dismissed.