Opinion
Nos. CV 02 0188593, CV 02 0188384
December 18, 2003
MEMORANDUM OF DECISION
The above-captioned cases, which were consolidated for trial because they involve the same piece of property in Stamford, are administrative or record appeals from a decision of the defendant, the Zoning Board of the city of Stamford (zoning board). This defendant granted applications by Starwood Buckingham, LLC, (Starwood), with its principal office in Haddonfield, New Jersey, as contract purchaser, and Leandro P. Rizzuto, as owner, both of whom are also defendants in these appeals, for a special exception and for site and architectural plans approvals to construct residential town houses with 195 units on property having an address of 77 Havemeyer Lane. The site contains approximately 19.8 acres and is located in the C-D Designed Commercial District zone, which permits residential dwellings, subject, however, to obtaining special exception and site plan approvals. On the site at the present time is a vacant commercial office building containing 117,562 square feet and with 180 parking spaces.
The Stamford Zoning Regulations also require that the zoning board refer the applications to the Planning Board. That board approved the applications in an unanimous vote on the basis that the proposal was consistent with the Stamford Master Plan of limiting office development to the central business district.
It should also be mentioned at this point that the primary basis upon which zoning authority is founded in Stamford is a special act as embodied within the Charter of the city of Stamford, rather than the state enabling legislation contained in Chapter 124 of the General Statutes. The Stamford Charter was enacted pursuant to a Special Act of the General Assembly in 1953, 26 Spec. Laws 1228, No. 619. Sheridan v. Planning Board, 159 Conn. 1, 4, 266 A.2d 396 (1969).
On February 11, 2002, the defendant agency granted the applications for a special exception and site plan approval by a vote of three to one. The zoning board noted in its decision that, according to the Planning Board, the project was consistent with the Town Plan of Development; that the plans had been reviewed and approved by the City Planner, the Engineering Bureau, the Fire Marshal and the Transportation Planner; that the proposed use conformed with the various requirements of the zone in which the property is located and the requirements as to site plans; and that the zoning board had considered the environmental intervention by the town of Greenwich, but believed that the residential project was "an improvement from an environmental perspective, compared to the existing commercial use." The zoning board imposed numerous conditions as authorized by General Statutes § 8-2(a). The conditions that are relevant to these appeal are number 2, which concerns new traffic signals at the intersection of Palmer Hill Road and Havemeyer Lane; number 3 pertaining to a peak traffic study; number 4, which involves "traffic calming" measures; number 5 regarding traffic signals at a nearby intersection of three streets; number 13 involving a parking plan; number 17 concerning access to Havemeyer Lane; and number 19(a) regarding changing the design of a number of units in the southwesterly corner of the site.
The flavor of the discussion by the members of the defendant zoning board is best captured by the remarks of its chairperson, Jackie Heftman, who said that: "the public needs to understand that the land is not vacant, that it is a developed office site with additional office expansion rights permitted by zoning, and that the current application is an important opportunity to convert the property to a residential use."
The plaintiffs, Ron Zussman and Tom Banca, appealed the decision to this court in accordance with General Statutes § 8-8(b). Zussman and Banca own 63 Palmer Hill Road and 74 Havemeyer Lane, respectively, which are across the street from the subject premises and "within a radius of one hundred feet of any portion of the land involved in the decision of the board."
General Statutes § 8-8(b) provides, in pertinent part, that any person "aggrieved" by a decision of an agency such as the defendant zoning board may take an appeal to the Superior Court in the judicial district in which the subject premises are located.
At a hearing held by this court on August 20, 2003, these two plaintiffs were determined to be "aggrieved" pursuant to General Statutes § 8-8(a)(1) because of the location of their properties. The town of Greenwich intervened in the Westover Park appeal for environmental purposes pursuant to General Statutes § 22a-19(a). The town of Greenwich appeal (CV 02 0188384) not only refers to environmental problems but also contends that the proposal will result in increased traffic congestions and dangers.
Although the hearing on these appeals was held on August 20, 2003, a supplemental return of record was filed by the town of Greenwich on September 16, 2003.
In addition to the two plaintiffs already mentioned, the town of Greenwich intervened for environmental purposes as authorized by General Statutes § 22a-19. Additionally, Westover Park, Inc. and Stop 77 Havemeyer, an unincorporated association, also appealed. A discussion among counsel and the court took place regarding these two organizations and it was agreed that since the two individual plaintiffs were aggrieved for the taking of these appeals, it was unnecessary to determine the status of these entities. In this regard, see Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 496, 400 A.2d 726 (1978).
In accordance with General Statutes § 8-8(g), the plaintiffs set forth in their complaint and also in their memoranda the reasons for their appeal. Their main objection to the decision of the defendant agency is that while imposing certain conditions on its approval of the special exception and site plan, the agency improperly delegated implementation of these conditions to other persons and agencies.
The plaintiffs also claim that the notice of the hearing did not comply with the requirements of General Statutes § 8-3(h). Two separate notices were sent out and the latter simply corrected a description of the subject premises in the first notice by deleting reference to a small sliver of land, about a thousand square feet, owned by Rizzuto but located in Greenwich and not involved in the applications to or the decision of the zoning board. Otherwise, the notice complied with the statute in question as, for example, the Greenwich Town Clerk acknowledged receipt of certified notice of the applications and hearing, and the plaintiffs, including officials of the town of Greenwich, appeared and were heard at the public hearing conducted by the agency.
The plaintiffs also argue that Starwood Buckingham, LLC, had neither filed a certificate of trade name with the city of Stamford nor registered as a foreign corporation with the Secretary of the State. This corporation was not doing business under an assumed name and, furthermore, as an existing corporation, was authorized, as a contract purchaser and agent for the owner Rizzuto, to apply to a municipal agency for zoning approvals. Michel v. Planning Zoning Commission, 28 Conn. App. 314, 323-25, 612 A.2d 778, cert. denied, 223 Conn. 923, 614 A.2d 823 (1992). See also General Statutes § 33-920(b)(1).
The plaintiffs challenge several conditions of approval. The first is number two which is that the applicant/defendant Starwood is obliged to install a new traffic signal at the intersection of Palmer Hill Road and Havemeyer Lane, or to contribute $95,000 to said project. Condition number three refers to the obligation of Starwood to conduct a study of peak traffic after the project is 75% occupied in accordance with the direction of the city's Director of Operations. Condition number four is that Starwood is to contribute $5,000 to "traffic calming" improvements for streets in the town of Greenwich "affected by current `cut-through' traffic concerns." Condition number 5 involves installing equipment necessary to "coordinate the existing traffic signals at the nearby intersection of Palmer Hill Road, Westover Road and Stillwater Road," or paying $25,000 to the city for the same purpose, subject to review by the city's Director of Operations. Another condition is that Starwood was "encouraged" to change the two access driveways on Havemeyer Lane to one two-way driveway, subject to approval by the staff of the zoning board, the Traffic Engineer and also the Director of Operations. Objection was also made to condition #13 which required that the applicant Buckingham submit a "parking management plan" for residents and visitors to be approved by the "Land Use Staff." Another challenged condition is #19(a) which provides that as to 24 units in the southwest portion of the subject premises, they are to be redesigned "to create more variety," subject to approval of the zoning board staff.
The standard of review by this court in connection with special exceptions and permits was set forth in Irwin v. Planning Zoning Commission, 244 Conn. 619, 711 A.2d 675 (1998). The Supreme Court made the following points: (1) `The special permit process is `discretionary' and not purely ministerial," id., 626-27; (2) general considerations including "public health, safety and welfare" may be considered, as well as whether there will be "parking or traffic congestion" adversely affecting the neighborhood, id., 627 (internal quotation marks omitted); (3) the issue for the trial court is to determine whether the defendant agency "correctly interpreted" the regulations and applied the relevant section to the facts "with reasonable discretion," id., 627-28; (4) in ruling on a special exception/permit, the agency is acting in an administrative capacity and is "endowed with a liberal discretion," id., 628; (5) the only issue for the court to decide is whether the agency action was "unreasonable, arbitrary or illegal," id., 628; (6) although if the application meets all the standards the agency must grant the application, the agency has the discretion "to determine whether the proposal meets the standards set forth in the regulations," id., 628 (emphasis in original); (7) the agency must not construe the regulations "beyond the fair import of their language," id., 629; (8) if the agency states the reasons for its action, the court's task is to "simply" determine "whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations," id., 629 (internal quotation marks omitted); (9) the court cannot substitute its judgment for that of the agency with respect to "factual questions," or the weight of the evidence "[i]f there is conflicting evidence in support of the zoning commission's stated rationale," id., 629 (internal quotation marks omitted); and (10) the decision of the agency is to be affirmed "if an examination of the record discloses evidence that supports any one of the reasons given," id., 629 (internal quotation marks omitted).
The Appellate Court in Municipal Funding LLC v. Zoning Board of Appeals, 74 Conn. App. 155, 810 A.2d 312 (2002), reaffirmed last year the applicability of Irwin to the resolution of special exception appeals. Furthermore, "the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons." (Internal quotation marks omitted.) Id. It is also axiomatic that in an administrative appeal, the plaintiff has the burden of proving that "substantial evidence does not exist in the record as a whole to support the agency's decision." Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587, 628 A.2d 1286 (1993).
In the C-D Designed Commercial District, residential dwellings are permitted as special exceptions. The regulations further provide that the proposed site must be contiguous on all sides with residentially zoned districts. Also, there are density, height, floor area ratios, lot coverage and a requirement for a percentage of below market rate dwellings.
Article V, section 19-3.2 of the Stamford Zoning Regulations (regulations) provides as follows:
a. Special Exceptions shall be granted by the reviewing board only upon a finding that the proposed use or structure or the proposed extension or alteration of an existing use or structure is in accord with the public convenience and welfare after taking into account, where appropriate: (1) the location and nature of the proposed site including its size and configuration, the proposed size, scale and arrangement of structures, drives and parking areas and the proximity of existing dwellings and other structures; (2) the nature and intensity of the proposed use in relation to its site and the surrounding area. Operations in connection with special exception uses shall not be injurious to the neighborhood, shall be in harmony with the general purpose and intent of these Regulations, and shall not be more objectionable to nearby properties by reason of noise, fumes, vibration, artificial lighting or other potential disturbances to the health, safety or peaceful enjoyment of property than the public necessity demands; (3) the resulting traffic patterns, the adequacy of existing streets to accommodate the traffic associated with the proposed use, the adequacy of proposed off-street parking and loading, and the extent to which proposed driveways may cause a safety hazard, or traffic nuisance; (4) the nature of the surrounding area and the extent to which the proposed use or feature might impair its present and future development; and (5) the Master Plan of the City of Stamford and all statements of the purpose and intent of these regulations.
With respect to site plans filed in accordance with General Statutes § 8-3(g), as recently noted in Barbieri v. Planning Zoning Commission, 80 Conn. App. 169 (2003), "[a] zoning commission's authority in ruling on a site plan is limited In ruling upon a site plan application, the planning commission acts in its ministerial capacity, rather than its quasi-judicial or legislative capacity. It is given no independent discretion beyond determining whether the plan complies with the applicable regulations." (Internal quotation marks omitted; citations omitted.) Id., 172. In the C-D Designed Commercial District, Section 5 provides that site plans are to comply with Article III, Section 7.2 of the regulations. This section indicates that such plan should provide for "safe, adequate and convenient vehicular traffic circulation, operation, parking and loading, and pedestrian circulation, both within and without the site," and also for the "protection of environmental quality, landscaping of open space and harmony with existing development."
In connection with the environmental intervention by the town of Greenwich, the town alleges that the proposal fails to provide proper drainage and run-off and will increase flooding, including over municipal property. The intervenor submitted testimony and various other documents to this effect. On the other hand, the zoning board had before it a report to the contrary by its expert, Redniss Mead, Inc., as well as a report from the city's Engineering Department, both of which stated that the Starwood proposal would ameliorate any drainage problems, including treatment, for the first time, of run-off. In asking the court to reverse the zoning board in this respect, the plaintiffs and the intervenor, in effect, are asking the court to evaluate which testimony and reports are more accurate, more credible, more professional. That is not the court's function as mentioned previously. Our role is limited to determining whether there was substantial evidence in the record to justify the zoning board's decision. The report of the Redniss Mead Company regarding drainage supplies that evidence.
As to the plaintiffs' appeals, they do not appear to argue that the zoning board could not reasonably have determined that the Starwood proposal complies with the requirements for a special exception as permitted by the C-D Designed Commercial District. For example, the defendant zoning board had an abundance of documentation regarding traffic, including a report from Adler Consulting and the city's Transportation Planner. Both reports agreed that the proposal would generate less traffic than the existing commercial building if it was in use. Obviously, the defendant board credited that testimony. In the light of that testimony and reports, the zoning board attached conditions regarding a traffic signal at Palmer Hill Road and Havemeyer Lane, synchronizing traffic signals at the three-way intersections of Palmer Hill Road, Westover Road and Stillwater Road, and the "calming" of traffic in nearby Greenwich streets.
Furthermore, the plaintiffs do not appear to argue that the site plan does not comply with the regulations. Rather they take exception to the implementation of the conditions imposed by the zoning board.
For the reasons stated above, neither the plaintiffs nor the intervenor municipality have sustained their burden of proof that the record does not contain substantial evidence to support the defendant zoning board's approval of the special exception and site plan for the project and, in this regard, the appeal of the plaintiffs, including the intervenor, is rejected. On the other hand, the court agrees with the appeal of the plaintiffs in the one limited respect that the conditions imposed by the zoning board on its approval of Starwood's applications require modification, including deletion of the alternatives in some cases of making a cash payment to the city instead of actual construction.
It makes little sense to simply sustain the appeal of the plaintiffs on this one narrow ground in light of the defendant zoning board's very thorough review and approval of these applications. As the plaintiffs have not sustained their burden of proof, except with regard to the zoning board's delegation of its authority, the decision and approval of the applications is accepted in all other respects.
It makes the most sense under these circumstances to modify the defendant zoning board's conditions, as authorized by General Statutes § 8-8(k) which, as currently written require approval by the zoning board's staff or the city's director of operations of the various improvements and driveways. If the defendant Starwood wishes to pursue these applications, a revised site plan should be submitted, but to the defendant zoning board itself. Section 19.3.2.c of the regulations requires that changes in plans requires "further approval" of the defendant board. Only the issues of intersection improvements, traffic signals, driveway access, traffic "calming," a parking plan and a revision of the units in the southwest part of the subject property should be scheduled for a public hearing in order that the plaintiffs and members of the public have the opportunity to contest whether the revised plans are responsive to the conditions imposed by the defendant zoning board. In other words, the defendant zoning board imposed conditions on its approvals. These conditions should be incorporated in an amended plan to demonstrate exactly what Starwood intends to do in response to the conditions, including whether any required approvals from the city of Stamford for off-site improvements have been obtained.
This court will retain jurisdiction over these appeals in the event that the parties hereto wish to contest the propriety of the zoning board's rulings on any such changes in the plans.
So Ordered.
Dated at Stamford, Connecticut, this 18th day of December 2003.
WILLIAM B. LEWIS, JUDGE.