Opinion
No. CV 04 4000118 S
July 7, 2006
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiff, Worthington Pond Farm, LLC, appeals from the decisions of the defendant, the zoning commission of the town of Somers, denying the plaintiff's site plan application for a seasonal tent and approving, with modifications, its site plan applications for a covered dock and for a storage building.
II BACKGROUND
The plaintiff alleges that it owns property (Worthington property) located within the A-1 district in the town of Somers, and the commission admits this in its answer. (Complaint, ¶ 5; Defendant's Answer ¶ 5.) Pursuant to §§ 214-98(B)(17) and 214-98(D)(1) of the Somers zoning regulations, in order to use property located in the A-1 zone primarily for outdoor recreation, a landowner must apply for and obtain a special use permit. (Return of Record [ROR], Exhibit 18.) Pursuant to §§ 214-98(B)(20) and 214-98(D)(5), owners of land within the A-1 zone are prohibited from primarily using their property as a restaurant, tavern, or eating place with indoor seating. (ROR, Exhibit 18.)
The plaintiff alleges that on December 4, 2000, the Somers zoning commission approved its application for a special use permit for outdoor recreation on the Worthington property, with the condition that "[a]pproval is granted with the understanding that private parties and events, corporate meetings, and wedding parties are to remain an accessory and subordinate use to the primary use of outdoor recreation area." (Complaint, ¶ 6.) The commission admits this allegation in its answer. (Defendant's Answer, ¶ 5.)
On March 3, 2004, Dan Roulier, on behalf of the plaintiff, submitted to the zoning commission two separate site plan applications seeking approval to construct a covered dock and a storage building on the plaintiff's property. (ROR, Exhibits 1a and 1b.) Roulier presented the building and site plans to the zoning commission at a regular meeting on March 15, 2004. The plans included a temporary tent that would be set up from May through October of 2004 and a covered walkway that would lead from the tent area to portable bathrooms. (ROR, Exhibit 5a.) At the meeting, zoning enforcement officer Jim Taylor recommended that Roulier submit a separate application for the temporary tent as well as parking details. The zoning commission accepted the applications for the storage building and covered dock contingent upon the presentation of a statement of purpose, and referred the applications to the Somers planning commission. (ROR, Exhibit 5a.)
After the commission accepted his site plans, Roulier spoke about his future plans for the Worthington property. He said that he planned to offer charity events at the property and that most nonprofit organizations are allowed to use the premises at no charge. Events such as weddings and corporate meetings would help to pay the expenses necessary to continue improvements at the Worthington property. He discussed future plans to add an addition to the existing warming house and to add an additional nineteenth century barn as well as small cottages or cabins to house scouts or wedding party members. Taylor and the commission then spoke about reviewing and discussing the plaintiff's current special use permit. They stated that they would like to keep the lines of communication open for future discussions regarding the Worthington property. (ROR, Exhibit 5a.)
On March 18, 2004, the town of Somers received two statements of purpose from the plaintiff. One stated that the "use for the storage building and covered walkway is to store tables and chairs, garden tools, and farm supplies. The covered walkway is to keep people dry when waking from the tent to the covered rest room." (ROR, Exhibit 11c.) The other stated that "the use for the covered dock/boat house is for canoeing, fishing, and gathering for picnics in a special setting at Worthington Pond." (ROR, Exhibit 11b.) The second statement of purpose was amended on May 14, 2004 to add the following: "Also, it will be for other uses consistent with the special permit." (ROR, Exhibit 11a.)
On April 15, 2004, the plaintiff submitted a separate site plan application for a seasonal tent. (ROR, Exhibit 1c.) At the public hearing before the zoning commission on April 19, 2004, the plaintiff explained that the tent would be fifty feet by 100 feet and would contain a twenty-one foot by twenty-one foot dance floor, portable heaters and fans. Suspended lighting would be available. The use would be for weddings, corporate events and family parties. There would be seating capacity for about 260 people, with at least 133 parking spaces. (ROR, Exhibit 5b.) The zoning commission accepted the site plan application for the seasonal tent pending a review with the town attorney with respect to the development of the entire Worthington property and contingent upon the presentation of a statement of purpose. (ROR, Exhibit 5b.) The statement of purpose received on April 30, 2004 states that the "purpose of the tent is to hold outdoor events such as a fund-raiser for the newly formed Somer's Educational Foundation, the National Kidney Foundation's fortieth anniversary in Connecticut, or Baystate Children's Hospital Gala fund-raiser for the neo-natal clinic. We also expect to provide the tent for other major fund-raisers as well as weddings and corporate events." (ROR, Exhibit 11d.) The plaintiff added the following sentence on May 17, 2004: "The tent will be erected annually between May 1 and October 31 of each year." (ROR, Exhibit 11d.)
On April 8, 2004 and May 27, 2004, the Somers planning commission voted to recommend approval of the storage building, covered dock and seasonal tent applications and return the applications to the zoning commission. (ROR, Exhibits 6b and 6c.)
On May 17, 2004, Marion Richard, Kenneth Prior and Michelle Prior, three residents owning land adjacent to the premises, submitted separate petitions to the zoning commission to intervene in the proceedings pursuant to General Statutes § 22a-19. (ROR, Exhibits 10a, 10b and 10c.) At its May 17, 2004 meeting, the commission voted to defer action on the site plans until its June 7, 2004 meting so that it could review and act on the § 22a-19 petitions. (ROR, Exhibit 5d.) At the June 7 meeting, the commission voted to grant partial intervenor status to the petitioners. (ROR, Exhibit 9a, pp. 18-19.) After discussing the site plan applications, the commission also voted to continue the matter to a special meeting scheduled for June 21, 2004. (ROR, Exhibit 9a, p. 63.) The June 21 meeting was then rescheduled for June 28, 2004. (ROR, Exhibit 9b, p. 2.) On June 28, 2004, the commission voted to deny the intervenors' petitions because it found that they did not provide evidence of unreasonable environmental harm posed by the plaintiff's site plans. (ROR, Exhibit 9b, pp. 83-92.) It then voted to modify and approve the site plan application for the storage building without the covered walkway, to modify and approve the site plan application for a covered dock without the cover, and to deny the site plan application for the tent. (ROR, Exhibit 7a.)
General Statutes § 22a-19(a) provides: "In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law . . . any person . . . may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state."
The plaintiff commenced this appeal to the Superior Court by service of process on the defendants on July 15, 2004. (Marshal's Return.) The plaintiff filed a brief in support of its appeal on November 29, 2004. The commission filed its brief in opposition on February 18, 2005. The intervenors filed a brief in opposition to the plaintiff's complaint on February 24, 2005. The plaintiff filed a reply brief in response to the commission's and intervenors' briefs on May 12, 2005. The appeal was heard on March 24, 2006.
III JURISDICTION
General Statutes § 8-8 regulates appeals from a municipal zoning commission to the Superior Court. "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).
A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." (Internal quotation marks omitted.) Staouton v. Planning Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004). General Statutes 8-8(a)(1) provides, in part, that an "`aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
The plaintiff alleges that it is statutorily aggrieved because it owns the property that is the subject of this appeal. From the facts stipulated to at the time of trial, the court finds the plaintiff to be aggrieved.
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)(1) further provides 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."
Notice of the decisions was published in the Journal Inquirer on July 3, 2004. (ROR, Exhibit 7b.) On July 15, 2004, the marshal served a copy of process upon the commission chairman, the town clerk and the three intervenors. (Marshal's Return.) Accordingly, the court finds that the appeal is timely and that service was made upon the proper parties.
C The Intervenors
On June 7, 2004, the commission partially granted the petitions of Marion Richard, Kenneth Prior and Michelle Prior (the intervenors), neighbors of the plaintiff to intervene in the site plan review proceedings pursuant to General Statutes § 22a-19. (ROR, Exhibit 9a, pp. 18-19.) Section 22a-19 allows any person to "intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." The plaintiff has named these three individuals as defendants in this appeal.
On October 13, 2004, the intervenors filed a motion for permission to file a cross appeal seeking a declaratory judgment as to the validity of the commission's December 4, 2000 approval of the plaintiff's special use permit application for outdoor recreation. The court, Scholl, J., denied this motion on November 17, 2004.
The intervenors also filed on October 13, 2004 a motion to intervene as additional party defendants so that their arguments would not be limited to issues related to the environment. They alleged that they are statutorily aggrieved pursuant to General Statutes 8-8(a)(1) by virtue of their ownership of land that either abuts or is located within 100 feet of the land involved in the decision of the commission. The court, Scholl, J., granted this motion on November 15, 2004. At the time of trial, the parties stipulated that the intervenors own property that is located within 100 feet of the land involved in the decisions of the commission. Accordingly, the court finds the intervenors to be aggrieved.
In their brief, the intervenors argue that the zoning commission did not have jurisdiction to consider the three site plan applications because the plaintiff was required by the Somers zoning regulations to submit an application to modify its December 4, 2000 special use permit along with its site plan applications. They assert that the court, therefore, should set aside the decisions of the commission to the extent that the commission approved, with modifications, the applications for the covered dock and the storage building. In the alternative, the intervenors argue that the court should dismiss the plaintiff's appeal and uphold the decisions of the commission denying the application for the seasonal tent and modifying the applications for the covered dock and the storage building.
This court will not consider the claim by the intervenors that the court should set aside the approvals of the dock and the storage building because these issues were not raised in the plaintiff's appeal. See Manter v. Manter, 185 Conn. 502, 506, 441 A.2d 146 (1981) ("The intervenor's posture is derivative; he assumes his role only by virtue of an action already shaped by the original parties. He must, therefore, take his controversy as he finds it and may not use his own claims to restyle or resucitate their action."); R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d.Ed. 1999) § 27.12, p. 60 ("where intervention is allowed, the intervening party cannot expand the issues beyond those in the original action"). Thus, the court will consider only the intervenors' arguments in support of dismissing the appeal.
IV SCOPE OF REVIEW
"In 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). A zoning commission similarly acts in an administrative capacity when ruling upon an action for a special permit. Heithaus v. Planning Zoning Commission, 258 Conn. 205, 217, 779 A.2d 750 (2001). "It is the board's responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts . . .
"An adverse decision by the board may be appealed to the Superior Court under General Statutes § 8-8(b). The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Citations omitted; internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 468-70, 778 A.2d 61 (2001). "[T]he appealing aggrieved party [must] marshal the evidence in the record, and . . . establish that the decision was not reasonably supported by the record." (Internal quotation marks omitted.) JPI Partners, LLC v. Planning Zoning Board, 259 Conn. 675, 688, 791 A.2d 552 (2002).
V DISCUSSION
Although the plaintiff alleges several grounds for appeal, it has briefed only three of them. "Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided." Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 109 n. 3, 682 A.2d 1073, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996).
A The plaintiff argues that the commission improperly considered the use of the property in denying and modifying the plaintiff's site plans. The transcripts of the zoning meetings reveal that the commission based its decisions to deny the site plan application for the tent and to modify the site plan applications for the covered dock and the storage building on the plaintiff's proposed use of the property. For example, just before the commission voted to deny the site plan for the seasonal tent, commission member Marie Burnette stated: "I'll make a motion that we deny the tent due to the . . . increase of the intensity of the use on the property . . . And it is not an outdoor recreation facility." (ROR, Exhibit 9b, p. 83.) The plaintiff maintains that the commission, acting in its administrative capacity, has no discretion to deny a site plan unless it does not comply with requirements already set forth in zoning regulations and further maintains that its site plans were in conformity with the technical requirements for site plans in the Somers zoning regulations. The plaintiff further argues that the commission improperly used the site plan applications as an opportunity to revisit its December 4, 2000 approval of the plaintiff's application for a special use permit for outdoor recreation.Relying on Barberino Realty Development Corp. v. Planning Zoning Commission, 222 Conn. 607, 610 A.2d 1205 (1992), the commission and the intervenors counter that, where a site plan application is related to a previously approved special use permit, the commission is entitled to require that the site plan application conform to the criteria set forth in the regulations pertaining to special use permits.
Barberino involved "a zoning regulation that require[d] a site plan showing the specific project proposed to be submitted with an application for a special permit. The principal issue presented [was] whether, after approval of such a permit and site plan, a subsequent revision to the site plan must conform to the zoning regulations governing approval of such a special permit." Barberino Realty Development Corp. v. Planning Zoning Commission, supra, at 608. The plaintiff in Barberino submitted a site plan along with its application for a special permit to construct seventy units of elderly housing. The commission granted the special permit, but the plaintiff never commenced construction on the project as designed and approved. Ten years later, the plaintiff filed an application for approval for a revised site plan, which proposed the development of what was basically the same site that the plaintiff had been given a special permit to develop. "Instead of the original proposal of thirteen small scale buildings to accommodate the seventy dwelling units of elderly housing, however, the revised site plan proposed a single two and one-half story building containing seventy units." Id., 609-10.
The plaintiff in Barberino argued that "review of the application for a revised site plan is confined to the regulations governing site plans because, once the special permit is granted, elderly housing is a permitted use on that site." Id., 612. The Supreme Court disagreed, explaining: "When considering an application for a special permit, the commission is called upon to make a decision as to whether a particular application for elderly housing would be compatible with the particular zoning district, under the circumstances then existing. That determination can only be made after a thorough examination of the specific site plan submitted . . .
"Consequently, any application to revise such a site plan must be evaluated in light of the conditions set out in the special permit regulations. To conclude otherwise would not only thwart the purpose of a specially permitted use, but also the general purposes of zoning, which include the protection of the public health, safety and welfare, the regulation of the density of the population, the location and use of buildings and the limitation of development of certain classes or kinds of buildings, structures or uses of land . . . Moreover, a contrary holding would render a zoning commission helpless if a developer first obtained a special permit on the basis of a site plan that was particularly well suited to the neighborhood, but then decided to substitute for that site plan one that eradicated the very features that motivated the commission to grant the special permit." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 614-15.
In the instant case, the plaintiff argues that Barberino is distinguishable from this case for two reasons. First, it notes that it did not submit a full, detailed site plan along with its special use permit application in 2000. Instead, it submitted a "conceptual schematic." Second, the plaintiff argues that the 2004 plans did not "materially alter" or "substantially change" the plaintiff's plan and contained only minor adjustments to the "conceptual schematic." Because of these two factors, the plaintiff argues that the commission was not lulled into one expectation as to how the site would be developed only to be given an entirely different site plan many years later, as the commission in Barberino was.
The materials the plaintiff submitted along with its special use permit application in 2000 are not in the record.
Section 214-102(C)(1) of the Somers zoning regulations requires an applicant for a special use permit to submit all of the information required for a site plan. (ROR, Exhibit 18.) Even if the documents submitted in 2000 were more conceptual in nature and less detailed than the site plans submitted in Barberino, the transcripts of the zoning meetings suggest that the site plans submitted in 2004 were different from the plan submitted in 2000. For example, commission member Anita Calder stated: "I just found on the original Commission that issued the special permit, but I read the minutes over a million times and it seems to me that when the applicant presented his vision, it was for passive . . . it implied passive recreation. It implied conservation. There was no water, no electricity, no lights. And it's been tweaked, to use your word, to now where it's a business." (ROR, Exhibit 9b, p. 43.) Commission chairman Peter Klein stated: "This Commission felt, in two thousand, that the largest population that we'd ever see on that property would be a hundred people. That's why we granted it." (ROR, Exhibit 9b, p. 48.) The court therefore finds that the rationale of Barberino applies to the present case and that the commission could properly consider the regulations pertaining to special use permits when deciding whether to grant the plaintiff's site plan applications.
Section 214-102(E)(1) of the Somers zoning regulations states that in deciding upon an application for a special use permit, the commission shall consider "[t]he size and intensity of the proposed use and the impact of such use on neighboring property." (ROR, Exhibit 18.) As discussed above, the court finds that the commission did not act illegally by considering the uses of the property that were the subject of the site plans because the commission could properly consider the regulations pertaining to special use permits in deciding whether to approve the site plans and because use is listed by the regulations as a factor to be considered when deciding upon an application for a special use permit. Accordingly, the appeal is not sustained on the ground that the commission improperly considered the use of the property in denying and modifying the plaintiff's site plans.
The intervenors also argue that decisions of the commission should be upheld because the special use permit issued in 2000 was ultra vires and void ab initio. Because the court finds the commission's actions to be valid under the rationale of Barberino, the court does not address this alternative argument.
The commission and intervenors argue that the plaintiff has failed to demonstrate that commission member Burnette did not acquaint herself sufficiently with the issues raised, arguments and evidence presented at the commission meeting that she missed. The intervenors further argue that the case law cited by the plaintiff only applies to public hearings and not regular meetings of a zoning commission.
The plaintiff has submitted no evidence to support its claim other than noting that the minutes and transcripts of later meetings contain no direct evidence that Burnette familiarized herself with the issues and evidence presented at the April 19, 2004 meeting, i.e., she did not state on the record whether or not she listened to a recording of the meeting. The plaintiff must do more than point to an absence of evidence in the record regarding whether or not the absent commission member became sufficiently informed in order to satisfy its burden of proof. See OG v. Zoning Board of Appeals, 4 Conn.App. 205, 207, 493 A.2d 275 (1985) (upholding finding that plaintiff did not satisfy burden of proof where plaintiff submitted no evidence as to whether two zoning board members sufficiently acquainted themselves and the record was silent on this issue). Accordingly, even if Burnette was required to become sufficiently informed so as to be able to make an informed judgment, the appeal is not sustained on this ground because the plaintiff has not met its burden of proof.
C
The plaintiff finally argues that commission chairman Klein demonstrated a bias toward the plaintiff and that he was predisposed to vote for a denial and/or modification of its site plan applications. The commission and intervenors argue that there is no evidence of any predisposition and, even if there was, the plaintiff waived this claim by not objecting to Klein's participation prior to the vote.
"[T]here is a presumption . . . that administrative board members acting in an adjudicative capacity are not biased . . . To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable . . . The plaintiff has the burden of establishing a disqualifying interest." (Citations omitted; internal quotation marks omitted.) OG Industries, Inc. v. Planning Zoning Commission, 232 Conn 419, 429-30, 655 A.2d 1121 (1995).
"The law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities. It would be strange, indeed, if this were true." (Internal quotation marks omitted.) Ghent v. Zoning Commission, 220 Conn. 584, 594, 220 Conn. 584 (1991). "[T]he human mind . . . is no blank piece of paper . . . Interests, points of view, preferences, are the essence of living . . . An `open mind,' in the sense of a mind containing no preconceptions whatever, would be a mind incapable of learning anything, [and] would be that of an utterly emotionless human being . . .
"Local governments, therefore, would be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a zoning official. Such a policy would not only discourage but might even prevent capable men and women from serving as members of the various zoning authorities. Of course, courts should scrutinize the circumstances with great care and should condemn anything which indicates the likelihood of corruption or favoritism . . .
"The decisive question, therefore, must be whether [the commission member] actually had made up [his mind] prior to the . . . hearing, regardless of any arguments that might have been advanced at the hearing . . . This issue involves a question of fact . . ." (Citations omitted; internal quotation marks omitted.) Cioffoletti v. Planning Zoning Commission, 209 Conn. 544, 555, 552 A.2d 796 (1989), overruled on other grounds, Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 582, 715 A.2d 46 (1998).
The plaintiff claims that the record reflects Klein's predisposition because: (1) the minutes reveal that he stated that he had serious concerns about the site plan applications at the April 19, 2004 meeting; (2) the minutes note that, at the May 17, 2004 meeting, Klein asked for verification that the commission has the right to modify a site plan if the commission feels it is necessary; and (3) Klein inappropriately referred to the transcript of the 2000 special permit approval.
The plaintiff did not question Klein or anyone else at the hearing in order to develop its claim of bias and predisposition. See Cioffoletti v. Planning Zoning Commission, supra 209 Conn. 556; Woodburn v. Conservation Commission, 37 Conn.App. 166, 175-76, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995). The comments in the record upon which the plaintiff relies to demonstrate bias "were all made during the hearings or in the discussion preceding the vote upon the application. They do not, therefore, indicate any predisposition that would have disqualified [him] before the hearing." Cioffoletti v. Planning Zoning Commission, supra 209 Conn. 556; see also Woodburn v. Conservation Commission, supra, 37 Conn.App. 176. The plaintiff's claim that Klein demonstrated bias by inappropriately referring to the transcript of the discussions in 2000 regarding the plaintiff's application for a special use permit has no merit because, as is discussed above, it was proper for the commission to review the special use permit application when deciding upon the plaintiff's site plans. The plaintiff's appeal, therefore, is not sustained on the ground of predisposition or bias.
VI CONCLUSION
For the reasons set forth above, the plaintiff's appeal is dismissed.