Opinion
HHDCV146050892S
11-24-2015
James Whittemore v. Town of Simsbury Zoning Commission
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sheila A. Huddleston, J.
The plaintiff, James Whittemore, appeals from the decision of the defendant, Town of Simsbury Zoning Commission (commission), denying his application for a special exception for an accessory dwelling unit at his single-family home at 3 Whynwood Road in Simsbury. The plaintiff argues that the application met all the objective criteria for a special exception and that the refusal to grant the exception constituted an abuse of discretion. The commission did not state its reasons for denying the application. The commission argues that its denial was proper because use of the property as a rental unit had already had a detrimental effect on the character of the single-family neighborhood in which it was located. For the reasons stated below, the court concludes that the commission's decision is not supported by substantial evidence but by mere speculation about potential future occupancy of the unit. Accordingly, the appeal is sustained.
I
Facts and Procedural History
The following facts and procedural history are relevant to the disposition of the appeal. The plaintiff bought the subject property, consisting of 1.15 acres in an R-40 single-family residential zone, in 2007. The house at issue is a ranch-style house built on a slope with an upper level and a walkout basement. The basement had a finished area with a separate entrance when the plaintiff bought the property. The prior owner had obtained permits for the finished basement. Return of Record (ROR), Item C.5, Email dated January 27, 2014. The property has a two-car garage. The plaintiff added a gravel parking spot next to his garage to accommodate his truck, which did not fit in the garage.
Without obtaining a permit for an accessory dwelling unit, the plaintiff added an electric range in the basement. The record does not indicate that he made any structural changes to the exterior of the house. The addition of cooking facilities, however, made the finished basement an accessory dwelling unit. Id. The plaintiff then rented the accessory unit to a single woman. Sometime later, without the plaintiff's permission, the tenant's adult son moved in with his pit bull dog, and later, another adult son of the tenant also moved in. At some point, the town's zoning enforcement officer became aware of the illegal accessory unit. ROR, Item C.4, Memorandum dated January 22, 2014. The plaintiff then worked in cooperation with the zoning enforcement officer to legalize the unit by applying for " after the fact approval" of the accessory dwelling unit. Id. The plaintiff filed his application for a special exception on January 6, 2014, and paid an additional fee because he was seeking approval for an unpermitted existing use. He also commenced eviction proceedings against his tenant for nonpayment of rent.
A public hearing was held on the plaintiff's application on February 3, 2014. At the hearing, two neighbors spoke against the application and two other neighbors jointly sent a letter to the zoning commission opposing the application. Kevin Crimmins, who lived next door to the plaintiff, opposed the " use of this single family home as a multi-family residence." ROR, Item B.1, p. 13. Crimmins questioned whether a property owner could charge rent for an " in-law" apartment and was told by Commissioner Pomeroy that there was no restriction against charging rent. Id. Crimmins argued that the use should not be permitted because " [i]t's a single family residential area. People come to Simsbury to buy homes in single family residential areas and we don't expect to have you know, rental buildings next door." ROR, Item B.1, p. 19. He was concerned about the effect of the rental unit on property values in the neighborhood. He did not object to an " in-law apartment" but to the renting of the accessory unit to unrelated persons. Id. One board member commented that there were " quite a few of these in town. You would not know it." ROR, Item B.1, p. 14.
Lawrence Sparks of 4 Whynwood also spoke in opposition to the application. He recognized that the plaintiff was having difficulty with his tenants but felt that the situation had affected the character of the neighborhood and that he would not have wanted to buy a home in that neighborhood if the conditions had existed when he was buying a home. A member of the commission asked him whether he would feel differently if the plaintiff had rented out the entire house, and he said he would. He felt that a family occupying the entire house would create a " controllable" situation, whereas a basement apartment lent itself to a more " transient potential." ROR, Item B.1, pp. 22-23.
Another pair of neighbors, Ray and Daniella Montgomery, were not present at the hearing but sent a letter opposing the " independent use of the residence as income producing rental property." ROR, Item B.1, p. 25.
The commission closed the hearing on February 3, 2015, but voted to table the decision on the application until the next meeting to see what happened with the plaintiff's efforts to evict his tenant. ROR, Item B.1, pp. 40-43. The plaintiff subsequently consented to a thirty-day extension of the decision period. The commission took up the application again at its meeting on April 21, 2014. The commission was informed that the plaintiff had succeeded in evicting the troublesome tenant. ROR, Item B.2, p. 2. A board member observed that the application did in fact meet the requirements of the regulation. Id. Commissioner Pomeroy then commented that there was significant neighborhood opposition to the application. Id., p. 3. After minimal discussion, the commission voted unanimously not to approve the application. Id., p. 6. The plaintiff took a timely appeal.
The appeal was heard before this court on March 18, 2015. The plaintiff testified to establish aggrievement and counsel presented oral argument. The court subsequently directed the parties to file supplemental briefs to address two legal issues. The supplemental briefs were filed on July 31, 2015, and have been duly considered by the court.
The court directed the parties to address the following questions:
II
Relevant Zoning Regulations
Several portions of Simsbury's zoning regulations are relevant to this appeal. First, article three provides in relevant part that " No building, structure, or land shall hereafter be used or occupied . . . unless in conformity with all of the regulations herein specified for the district in which it is located." ROR, Item A, Art. 3, Sec. 1.a. Article seven provides in a preamble: " The following uses are declared to possess such special characteristics that each must be considered as an individual case. They may be permitted as a special exception in any zone after a public hearing, subject to conditions and modifications as determined by the Commission. In evaluating the uses, the Commission shall apply the standards set forth in Section C of this article." ROR, Item A, Art. 7, Sec. C.9.a.
Section C.9 of article seven addresses special exceptions for accessory dwelling units. It states that the purpose of the section is to implement the 2007 Plan of Development " by providing and preserving housing for all the population while at the same time preserving the appearance and character of the Town's neighborhoods by permitting, by special exception, the creation of a single accessory dwelling unit incidental and subordinate to an existing specific conditions for accessory dwelling units, including eligibility for conversion, maximum size, occupancy, entrances, driveways, parking, compliance with other regulations, water and sewers." It also sets out specific conditions for the application itself. ROR, Item A, Sec. C.9.b., pp. 59-60. The plaintiff's application satisfied these objective conditions except that the application sought to legalize an existing accessory use rather than to obtain permission for a proposed use.
Although there is no general prohibition on renting out any property in Simsbury, Section 7.C.9.b.3 requires that an owner of a property with an accessory dwelling unit must reside in either the primary or the accessory dwelling unit. ROR, Item A, p. 59.
Section C.10 of the zoning regulations sets out the standards to be applied by the commission in considering a proposed use. Among the standards are the following:
a. The need for the proposed use in the proposed location.
b. The existing and future character of the neighborhood in which the use is to be located.
. . .
e. Traffic circulation within the site, amount, location, and access to parking, traffic load or possible circulation problems on existing streets . . .
h. Safeguards to protect adjacent property and the neighborhood in general from detriment.ROR, Item A, pp. 60-61.
III
Standard of Review
" In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of witnesses and the determination of issues of fact are matters solely within the province of the [commission] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004).
" General Statutes § 8-2(a) provides in relevant part that local zoning regulations may provide that certain . . . uses of land are permitted only after obtaining a special permit or special exception . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values . . . The terms special permit and special exception are interchangeable . . . A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values . . . When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity . . . [Its] function . . . [is] 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 . . . We have observed that the nature of special [permits] is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site . . . Review of a special permit application is inherently fact-specific, requiring an examination of the particular circumstances of the precise site for which the special permit is sought and the characteristics of the specific neighborhood in which the proposed facility would be built . . .
" Our Supreme Court has concluded that general considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit. Also, [it has] stated that before the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns . . . would adversely impact the surrounding neighborhood . . . 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 . . . trial court ha[s] to 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." (Citations omitted; internal quotation marks omitted.) Meriden v. Planning & Zoning Commission, 146 Conn.App. 240, 244-46, 77 A.3d 859 (2013).
General Statutes § 8-3c(b) provides that " [w]henever a commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision." The commission did not do so in this case. Nevertheless, our Supreme Court has held that the trial court must search the record to determine the basis for decisions by such commissions. See Graff v. Zoning Board of Appeals, 277 Conn. 645, 670, 894 A.2d 285 (2006). A commission's failure to state its reasons " renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission's decision . . . [I]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld." (Emphasis in original; internal quotation marks omitted.) Id.
A commission cannot deny a special exception if the regulation and statutes are satisfied. Irwin v. Planning & Zoning Commission, 244 Conn. 619, 628, 711 A.2d 675 (1998) (" [a] zoning commission does not have discretion to deny a special permit when the proposal meets the [applicable] standards"). On the other hand, " Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process . . . If the special permit process were purely ministerial there would be no need to mandate a public hearing." (Emphasis in original; internal quotation marks omitted.) Id., 627.
IV
Aggrievement
The plaintiff was the owner of the property at issue at the time of his application, at the time of the commission hearing, and at the time of the hearing of his appeal before this court. The denial of the special permit prevents him from putting the property to the economic use he intended, and, indeed, requires him to remove elements of a kitchen he has previously built. The plaintiff has established that he is aggrieved by the commission's decision.
V
Analysis
The plaintiff maintains that his application met all zoning requirements and the commission should therefore have granted his special permit. The commission argues that it justifiably exercised its discretion in refusing to approve the application because it failed to satisfy the standards set forth in the regulations. Because the commission did not state the reasons for its action, the court has searched the record to determine the basis for the commission's decision. It appears that the commission denied the application because the plaintiff's neighbors believed that the prior use of the unit as a rental unit had been detrimental to the character of the neighborhood. The court must now determine whether the character of a neighborhood is a proper consideration in the review of the special permit application, and, if so, whether there was substantial evidence in the record supporting the commission's denial of the plaintiff's application on this ground. See Municipal Funding, LLC v. Zoning Board of Appeals, supra, 270 Conn. 454.
The commission's initial brief emphasized the illegal nature of the plaintiff's existing use of the property and appeared to argue that the commission could justifiably deny the application because of that prior illegal use. In its supplemental brief, however, the commission acknowledged that it would be improper to deny the application merely because the plaintiff sought to legalize a prior unpermitted use. See note 1,
It is well established that a zoning commission may consider such general characteristics as the " character" of the community if the local regulations specifically contain such a standard. See Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 436-40, 941 A.2d 868 (2008) (affirming denial of special permit to temple on ground, inter alia, that substantial evidence supported conclusion that temple was not in harmony with general character of neighborhood); Whisper Wind Development Corporation v. Planning & Zoning Commission, 32 Conn.App. 515, 519-22, 630 A.2d 108 (1993) (" standards set forth in the zoning regulations for the grant of a special permit may be general in nature" [internal quotation marks omitted]), aff'd, 229 Conn. 176, 640 A.2d 100 (1994). To do so, however, there must be substantial evidence in the record to support the conclusion. In this case, the evidence that was presented was not substantial for three reasons. First, the two neighbors who complained about the plaintiff's former tenant did not point to any conduct that was not already permitted, as of right, in the neighborhood. Second, by the time the commission actually voted, the plaintiff had evicted the tenant, and any concerns that a future tenant would be similarly troublesome were purely speculative. Third, no one who spoke against the application opposed an " in-law" apartment, but only opposed the use of such an apartment as a rental property for " strangers" --a use that was not prohibited by the regulations.
The first neighbor who opposed the application, Kevin Crimmins, objected that the plaintiff had added a gravel parking spot next to his garage to accommodate his own truck. ROR, Item B.1, p 15. Hiram Peck, the town's director of planning, commented that additions of such a parking space were " fairly common." ROR, Item B.1, p 14. Crimmins objected that there were two tenant cars on the plaintiff's property, one in the garage and one in the driveway. ROR, Item B.1, p. 15. This use does not appear to be prohibited. The regulation governing accessory dwelling units requires the provision of " at least one off-street parking space dedicated to the accessory dwelling unit." ROR, Item A, Zoning Regs., article seven, C.9.b.6., p. 59. This implies, though it does not expressly state, that more than one off-street parking space would be permitted for the use of occupants of the accessory dwelling unit. The court has not found any regulation violated by the presence of four vehicles on a single-family property, and indeed, as the plaintiff has argued, it is not uncommon to have two parents living in a single-family home with two children of driving age, each of whom may have his or her own vehicle. The court has found nothing that would prohibit each such resident from keeping a vehicle on the property, assuming the size of the property is sufficient. No claim has been made here that the parking on the plaintiff's property during the period in which he rented the accessory unit violated any regulation.
Crimmins also opposed the application, as did three other neighbors, out of concerns " about the impact on property values, the inability to control who comes and goes, the ability of the landlord to control who comes and goes, and the influences that come in." ROR, Item B.1, p. 19. He continued: " An in-law apartment is one thing. Everyone understands an in-law apartment. I don't think anyone generally would object to an in-law apartment. Sure, yeah, you can have crazy family members too, but it's a different situation than strangers who move in, later bring others, later bring dogs, bring extra cars. There's comings and goings in the middle of the night. It's disruptive to people's lives and it's detrimental to people's property values." ROR, Item B.1, p. 19-20.
The concerns and complaints voiced by Crimmins, however, apply generally to one's inability to choose one's neighbors. He did not provide any specific example of " comings and goings in the middle of the night, " which can occur in any neighborhood. He did not complain of excessive noise or light, but only of a general increase in activity. He also complained about the presence of a dog, but from the evidence, it appears that there was only one dog on the premises, clearly within the six dogs permitted by the zoning regulations. See ROR, Item A, article seven, section B.6.b, p. 55.
The commission argues that it was entitled to consider the past experience with the tenant who had occupied the property as substantial evidence that the accessory dwelling unit was disruptive to the neighborhood. For the reasons stated in the paragraphs above, the court does not agree that the complaints about the number of people, cars, and dog present on the property--all of which were within the limits permitted as of right for a single-family dwelling--is " substantial" evidence that an accessory dwelling unit would be disruptive to the character of the single-family neighborhood. Even if it did provide some evidence that a particular tenant had been " disruptive, " moreover, that tenant had been evicted before the commission voted. Concerns that a future tenant would be similarly disruptive to neighbors are pure speculation.
All of the neighbors who opposed the application expressly objected to the fact that the accessory dwelling unit would be occupied by a tenant rather than by the owner or a family member of the owner. Yet the regulations expressly require only that the owner of the property live either in the principal dwelling or in the accessory dwelling unit and do not prohibit the rental of the unit. ROR, Item A, article seven, section C.9.b.3, p. 59. The opposing neighbors appeared to believe that having a tenant is inherently a less stable situation than having a family member occupy an accessory unit. Such a generalized concern, however, does not rise to the level of " substantial" evidence. " A mere worry is not substantial evidence." Lord Family of Windsor, LLC v. Inland Wetlands & Watercourses Commission, 103 Conn.App. 354, 365, 928 A.2d 1237 (2007), aff'd, 288 Conn. 669, 954 A.2d 133 (2008). It is not a question of the credibility of the individuals who opposed the application; it is, rather, whether the comments they made and the fears they expressed rise to the level of substantial evidence sufficient to support the commission's denial. See id., 364.
There are, of course, cases in which anecdotal evidence of past use has been substantial and has supported a denial of a special permit on the ground that the proposed use was inconsistent with the character of the neighborhood. For instance, in Cambodian Society of Connecticut, neighbors opposed the construction of a Buddhist temple on a ten-acre parcel in a farming and residential zone. Use of property for places of religious worship was permitted by special exception in the zone. At the public hearing on the application, neighboring residents complained that, in the years since the society had purchased the property, it had held day-long and weekend events involving crowds of up to 500 people and 150 cars. Outdoor speakers had been used to amplify " pop" music that could be heard a half mile away. More than 1200 residents from the surrounding area had expressed concern over the number of people who would be using the proposed temple. The Supreme Court held that the evidence in the record supported a finding that the proposed use was not consistent with the character of the neighborhood. Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. at 436-40. The record in this case, however, does not contain substantial evidence.
Finally, the opposition to this application turned on the plaintiff's intention to rent the accessory dwelling unit to " strangers." But the commission was charged with determining the appropriateness of use of the property for an accessory dwelling unit, not the appropriateness of a particular user. Who would occupy an approved unit could easily change over time, whether the initial occupant was a relative or a tenant. The regulations required only that the owner live in either the principal dwelling or the accessory dwelling unit. In the circumstances of this case, a decision based on the potential user of the property, rather than its use, is arbitrary.
During the discussion of the application, one board member commented: " I know a residence that was built for an in-law apartment, the in-law died, and the party rents it to just that same situation you're saying. You know, a young married couple lives in there with a car in the driveway." ROR, Item B.1, pp. 32-33.
Such owner-occupancy requirements have been upheld by courts as serving valid objectives, such as aiding occupying homeowners to retain and maintain their properties while answering the need for affordable rental accommodations " without disturbing the single-family-residence character of the affected districts."
The commission argues that its denial of the application did not infringe upon the plaintiff's right to rent his property and thus does not implicate the public policy issues discussed in Gangemi v. Zoning Board of Appeals, supra, 255 Conn. 143. The court agrees that the issue presented here is not the same as that involved in Gangemi . In that case, the Supreme Court invalidated a condition of owner occupancy imposed by a variance because no other property in town was subject to such a requirement. In its analysis, the Supreme Court observed that " it is undisputable that the right of property owners to rent their real estate is one of the bundle of rights that, taken together, constitute the essence of ownership of property." Id., 151. In this case, as the commission argues, the zoning regulations do not prevent the plaintiff from renting his entire home, if he did not wish to live there, or from renting rooms within his home if he were willing to share a kitchen with his tenants. It is also true that the plaintiff was not entitled to a two-family house in an R-40 zone unless he met the standards expressed in the zoning regulations. Those standards, however, impose only one requirement regarding owner occupancy, and the plaintiff met that standard. Gangemi, while distinguishable, is not entirely irrelevant to the issue presented here. The regulations at issue here do not prohibit the rental of accessory dwelling units, and the record indicates that other such units in the town are in fact rented. The commission here denied the application because neighbors opposed the use of an accessory unit by a " stranger" rather than a family member. It was not the increase in the number of residents or the density of the use that engendered the opposition. Such opposition was not consistent with the regulations here and was not consistent with the strong public policy expressed in Gangemi, that restrictions on the alienation of property should not be upheld unless they serve a legal and useful purpose. No such purpose was shown here.
In sum, the record does not contain substantial evidence that permitting the accessory dwelling unit sought here would change the character of the neighborhood. Accordingly, the plaintiff's appeal is sustained.
1. If the court concludes that the commission denied the special permit application because of neighborhood opposition to the presence of a rental unit in the neighborhood, would a denial for that reason violate public policy as expressed in Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 763 A.2d 1011 (2001)? 2. Could the commission properly deny the application merely because it sought to legalize a preexisting unpermitted use?In their respective supplemental briefs, each party agreed that it would be improper for the commission to deny the application solely on the ground that it was a preexisting unpermitted use. See Rusciano v. Zoning Board, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-05-4006713-S(March 5, 2008, Tobin, J.). The commission argued, nevertheless, that it could properly consider complaints about the preexisting use in relation to the character of the neighborhood. The parties disagreed as to the significance of Gangemi .
supra . Accordingly, the court does not consider the prior unpermitted use to be a valid ground upon which the denial could have been based.
Kasper v. Town of Brookhaven, 142 A.D.2d 213, 220, 535 N.Y.S.2d 621 (1988).