St. Joseph's High School, Inc. v. Planning & Zoning Commission , 176 Conn. App. 570 ( 2017 )

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ST. JOSEPH’S HIGH SCHOOL, INC., ET AL.
v. PLANNING AND ZONING COMMISSION
OF THE TOWN OF TRUMBULL
(AC 38816)
Lavine, Sheldon and Pellegrino, Js.
Syllabus
The plaintiffs appealed to the trial court from the decision of the defendant
planning and zoning commission denying their application for a special
permit to install lighting on certain real property on which the plaintiff
school was situated. The school sought a special permit, pursuant to
the applicable town zoning regulation (Article II, § 1.2.4.4), to authorize
the installation of four light poles, seventy feet in height, to illuminate
the school’s primary athletic field. After the trial court granted the motion
to intervene filed by the defendant adjacent landowners, it rendered
judgment sustaining the appeal in part, concluding that the plaintiffs’
application met the technical requirements of § 1.2.4.4 (a) through (d)
of the zoning regulations, and that it satisfied each of the known and
definite standards therein. With respect to § 1.2.4.4 (e) of the regulations,
which provides that ‘‘[a]ll requirements of Article XV Special Permit/
Special Exception shall be satisfied,’’ the court found that because Arti-
cle XV contained no definite standards with which a prospective appli-
cant must comply, it could not serve as the sole basis for denying a
special permit application when all of the known and definite standards
in the regulation in question have been satisfied. The court thus
remanded the matter to the commission with direction to approve the
special permit as requested, subject to such conditions that would be
necessary to protect the public health, safety, convenience and property
values. Subsequently, the intervening defendants, on the granting of
certification, appealed to this court. Held:
1. The trial court applied an improper legal standard in reviewing the commis-
sion’s decision on the special permit application and determining that
the general standards contained in Article XV of the zoning regulations
could not serve as the sole basis for denying the special permit applica-
tion; a planning and zoning commission may deny a special permit
application on the basis of general standards set forth in the zoning
regulations, even when all technical requirements of the regulations
have been met, and, contrary to the plaintiffs’ claim, this court’s decision
in MacKenzie v. Planning & Zoning Commission (146 Conn. App. 406)
did not alter the ample body of appellate precedent regarding the ability
of a commission to append conditions to a special permit approval, or
its ability to predicate its decision on compliance with general standards
set forth in the zoning regulations.
2. The trial court improperly sustained the plaintiffs’ appeal in part from
the commission’s denial of their special permit application, as substantial
evidence existed in the record on which the commission, in its discretion,
could have relied in concluding that the school did not meet its burden
of demonstrating compliance with the general standards of Article XV
of the zoning regulations: on the basis of the testimony and evidence
in the record, the commission reasonably could have concluded, in its
discretion, that the school failed to demonstrate that the proposed use
would not adversely affect neighboring residential properties due to
nighttime noise emissions, in contravention of the regulations, that the
school’s proposal lacked buffers that would adequately shield neigh-
boring residential properties from noise and light emissions, as required
by the regulations, and that the school did not establish that its proposed
use adequately avoided nonresidential traffic through residential streets,
that pedestrian and vehicular traffic to and from and in the vicinity of
the use would not be hazardous or inconvenient to, or detrimental to the
character of, the abutting residential neighborhood, that, with respect
to access and parking, the design of the proposed use adequately pro-
tected the residential character of surrounding residential neighbor-
hoods or residential zones, or that the proposed use would not
exacerbate special problems of police protection inherent in the pro-
posed use; moreover, in exercising its discretion over whether the gen-
eral standards of Article XV sufficiently were met, the commission could
have concluded, on the record before it, that the school did not establish
that the proposed use would not adversely affect neighboring property
values, the character of the adjacent neighborhood, or the quality of
life of its residents.
Argued April 25—officially released September 19, 2017
Procedural History
Appeal from the decision by the defendant denying
the plaintiffs’ application for a special permit to install
certain lighting, brought to the Superior Court in the
judicial district of Fairfield, where the court, Bellis, J.,
granted the motion filed by Jeffrey W. Strouse et al. to
intervene as defendants; thereafter, the matter was tried
to the court, Radcliffe, J.; judgment sustaining the
appeal in part, from which the defendant Jeffrey W.
Strouse et al., on the granting of certification, appealed
to this court. Reversed; judgment directed.
Joel Z. Green, with whom, on the brief, was Linda
Pesce Laske, for the appellants (defendant Jeffrey W.
Strouse et al.).
Michael C. Jankovsky, for the appellees (plaintiffs).
Opinion
SHELDON, J. The intervening defendants Jeffrey W.
Strouse, Barbara M. Strouse, Mukesh H. Shah, Vibha-
vary M. Shah, Jai R. Singh, Sonali Singh, Dennis J. McEn-
iry, and Joanne McEniry appeal from the judgment of
the Superior Court sustaining in part the appeal of the
plaintiffs, St. Joseph’s High School, Inc. (school), and
the Bridgeport Roman Catholic Diocesan Corp. (dio-
cese), from the decision of the Planning and Zoning
Commission of the Town of Trumbull (commission)
denying the school’s request for a special permit pursu-
ant to Article II, § 1.2.4.4, of the Trumbull Zoning Regula-
tions (regulations).1 On appeal, the defendants contend
that the court improperly concluded that the commis-
sion could not deny that request on the basis of noncom-
pliance with general standards contained in the
regulations. They further submit that substantial evi-
dence in the record supports the commission’s decision.
We agree and, accordingly, reverse the judgment of the
Superior Court.2
At all relevant times, the diocese owned a parcel of
land located in the AA residential zone and known as
2320 Huntington Turnpike in Trumbull (property). For
more than half a century, the school has operated a
private secondary school on the property. Although cur-
rently 53.95 acres in size, the property originally was
significantly larger. Approximately two decades ago,
the diocese sold a sizeable portion of the property to
developers, on which neighboring residential homes
were constructed. The current owners of those adjacent
properties are among those affected by the proposed
special permit use at issue in this appeal.
Article II, § 1.2.4, of the regulations enumerates vari-
ous special permit uses in the AA residential zone.
Among such uses, as provided in § 1.2.4.4, are
‘‘[c]hurches and other places of worship, including par-
ish houses and Sunday School buildings; non-profit pri-
mary and secondary schools; and buildings housing
personnel affiliated with said churches and schools.’’
Pursuant to Article XVI, § 3, of the regulations, the
commission is authorized ‘‘after public notice and a
hearing, to amend, change, or repeal these Regulations
. . . .’’ At the behest of the school, the commission,
in August, 2014, exercised that authority by amending
§ 1.2.4.4 to permit the installation of lighting on athletic
fields for nonprofit secondary schools.3 Since it became
effective on September 10, 2014, that amendment has
provided, in relevant part: ‘‘Permanent and temporary
light poles for lighted athletic fields on non-profit sec-
ondary school property shall be permitted for school
related purposes only, provided: (a) The poles, lights
and structures supporting such poles do not exceed a
combined height of eighty (80) feet. (b) No such light
structure shall be within two hundred (200) feet of an
abutting residential property line. (c) Applicant shall
submit a photometric plan at the time of application.
(d) Lights must be shut off no later than 11:00 p.m. and
applicant shall install an automated control system to
ensure compliance. (e) All requirements of Article XV
Special Permit/Special Exception shall be satisfied.’’4
The commission, in enacting that amendment, formally
complied with all applicable procedural requirements.
See General Statutes § 8-3; Trumbull Zoning Regs., art.
XVI, § 3.
In accordance with § 1.2.4.4, as amended, the school
filed an application for a special permit5 to permit the
installation of four light poles, seventy feet in height,
to illuminate the school’s primary athletic field. In that
application, the school stated, in relevant part, that
‘‘[t]he fields and lights are well-buffered with mature
landscaping and there will be no negative impact on
the adjoining neighborhood.’’
On September 17, 2014, the commission held a public
hearing on the application. Attorney Raymond Rizio
appeared on behalf of the school and detailed how the
proposal complied with the technical requirements of
§ 1.2.4.4. He first noted that the light poles would be
ten feet shorter than the maximum height permitted
under § 1.2.4.4 (a), and would be at least 325 feet away
from abutting residential property lines, in compliance
with § 1.2.4.4 (b). Rizio also stated that the abutting
residential properties were ‘‘very well . . . buffered
with heavily wooded property.’’
Consistent with § 1.2.4.4 (c), the school submitted a
photometric plan to the commission. It also presented
expert testimony on the impact of the proposed lighting
by Mark Reynolds of Techline Sports Lighting, who
indicated that, although there would be ‘‘some light
spillage’’ around the athletic field, ‘‘when you get 100
feet away from that field, it’s going to be pretty much
down to nothing.’’ Rizio similarly remarked that ‘‘the
readings along the property lines basically measure
zero, over 95 percent of the property line is zero or 0.1,
which is one-tenth of a footcandle6 at the property lines.
And that’s not taking into account . . . all of the . . .
buffering that’s up there with regard to the trees.’’ (Foot-
note added.) The school’s proposal also included the
installation of an automated control system.
Rizio then noted certain general standards of Article
XV that govern special permit applications, stating:
‘‘[W]e believe that we will have no impact on the neigh-
borhood, we believe that we satisfy all of your special
permit standards, that the use is appropriate. . . . We
certainly are willing to put strong conditions on the
application to ensure there is going to be minimal
impact with regard to lights and activity on the prop-
erty.’’ Rizio also addressed the appropriateness of the
proposed use, stating that ‘‘this is . . . a high school.
[It] has athletic events. The athletic events need . . .
[lighting on] the field, during minimal times . . . . We
believe there is adequate buffering and controls. . . .
[W]e greatly exceed the required distances from resi-
dential properties. The property is already naturally
buffered . . . . [A]ll the light will be directed. The dis-
tances are more than adequate. We have given you a
photometric plan that shows there will be absolutely
no impact, light impact, on the neighboring properties.
So, appropriateness of the use, impact on neighboring
properties, we believe is absolutely minimal.’’
After reminding the commission that it previously
had approved the use of athletic fields on the property,
Rizio submitted that the proposal presently before the
commission was ‘‘a completely harmonious accessory
use [that] complements the current use of the athletic
fields.’’ With respect to traffic considerations and the
impact on residential properties, Rizio stated that ‘‘the
intensity of the operations involved’’ with respect to
‘‘both pedestrian and vehicular traffic to and from the
vicinity will not be hazardous. [There will be] no change
in traffic plans.’’7
Rizio acknowledged that, in granting a special permit,
the commission has the authority to place reasonable
restrictions on the proposed use. See General Statutes
§ 8-2 (a) (special permits may be subject ‘‘to conditions
necessary to protect the public health, safety, conven-
ience and property values’’); Carpenter v. Planning &
Zoning Commission, 176 Conn. 581, 594, 409 A.2d 1029(1979) (§ 8-2 ‘‘expressly’’ provides that ‘‘commissions
[are] authorized to impose conditions as a prerequisite
to certain uses of land’’). He then articulated nine ‘‘vol-
untary conditions’’ that the school believed were appro-
priate restrictions on the special permit use in question.8
Rizio concluded by noting that the school was propos-
ing those conditions to ‘‘make sure we conform not
only with the literal interpretation [of § 1.2.4.4], but
[also] the spirit of the regulation.’’9
During the public comment portion of the hearing,
the commission heard both support for and opposition
to the school’s proposal.10 The commission also
received written correspondence from seventeen addi-
tional members of the public, all of whom opposed
the proposal. The common thread running through the
comments of those who spoke in opposition was a
fervent belief that permitting major sporting events on
the property at nighttime would adversely affect prop-
erty values, public safety, the residential character of
their neighborhood, and the use and enjoyment of
their properties.
When public comment concluded, the school
responded to certain concerns raised therein. It volun-
teered two additional conditions of approval pertaining
to its proposed special permit use. First, it agreed not to
play any music when the proposed lights were utilized.
Second, the school agreed that use of ‘‘the press box
and the public announcement [system] at [night] games
would only occur during boys’ varsity football and boys’
varsity lacrosse . . . .’’ As to traffic concerns, Rizio
noted that ‘‘there’s no more games being added to the
[property]. There’s no more games at all being added
to [the school]. It’s the exact same games. And they are
both held at nonpeak hours.’’ He thus submitted that
‘‘[w]hether you have a Saturday football game or a Fri-
day night football game, both games’’ would have the
same impact on the neighborhood in terms of vehicular
and pedestrian traffic. Arguing that the school had ‘‘sati-
sfied all of the items required to achieve a special per-
mit’’ under § 1.2.4.4, Rizio asked the commission to
grant the application, subject to the conditions that the
school had proposed.
The commission then closed the public hearing and
began its deliberations on the school’s application.
Commissioner Fred Garrity spoke first, remarking that
he was ‘‘hard-pressed to find things that the applicant
did not do in this process or provide this evening.’’ He
also stated that ‘‘some of the neighbors will never be
happy if lights go up. It doesn’t matter what we would
do. The parking is going to overflow on busy days.
They will park in those neighborhoods on public streets,
which has occurred over time . . . whether we put the
lights up or not or allow it.’’ Garrity thus opined that
the school had met its obligations under § 1.2.4.4 and
encouraged his colleagues to consider conditions of
approval on its special permit application.
Commissioner Anthony Silber spoke next, reminding
the commission that it had ‘‘voted for this text amend-
ment unanimously.’’ One commissioner later asked
Attorney Vincent Marino, who was in attendance in
his capacity as town attorney, about the commission’s
ability to consider the proposal’s compliance with gen-
eral standards set forth in the regulations, such as the
detrimental effect on the quality of life of neighboring
property owners. In response, Marino reminded com-
mission members that, while amending § 1.2.4.4 ‘‘in
August, one of the concerns that [was] raised is
[whether] there were adequate protections through the
special permit process to vote in the negative should
the commission wish to vote in the negative because
they did not want to find themselves in a position where,
now that the regulation change was in place it was
just going to be an automatic thing. And we had [an]
extensive conversation on the special permit process
and specifically Article XV and the protections that are
afforded the special permit process through Article XV.’’
To accommodate the concerns of neighboring property
owners, Silber suggested adding a condition prohibiting
night games on Saturdays as well as Sundays.
Commissioner David W. Preusch then opined that
the central issue raised by the school’s application was
the impact of football games on the adjacent neighbor-
hood, stating: ‘‘I think what this boils [down to is] how
do they handle parking? And where do they park? . . .
[That] is the real problem here . . . . That we need to
address. And to me, it’s not a couple [of] soccer games,
it’s not a lacrosse game. . . . [W]hat this boils down
to is football games. So, [the] focus [is] on five occur-
rences in the fall. . . . So, we have four to five occa-
sions a year in the fall every other week or whatever
is the home [football] game. . . . I’m just wondering
if there is something we can do about these games. And
the problems that or issues that have been brought up,
which, to me, has everything to do with the parking.’’
In response, Silber noted that the school had proposed
several voluntary conditions ‘‘to try and mitigate’’ the
impact of the proposed use. He continued: ‘‘[M]aybe
there’s some more that we could do there. . . . I am
not sure what the right solution is, but I think for us it
is about trying to find ways to protect the people who
live on these streets and at the same time give the
school the lights because I think it is the right thing
to do.’’
Commissioner Richard C. Deecken then addressed
the proposal, prefacing his remarks with the observa-
tion that ‘‘[t]his is a most difficult application . . . .’’
Deecken noted that ‘‘what we have here is, we are
transferring the [load], we are transferring the intensity
from one time to another, and if we all agree that inten-
sity is no greater during a night game than it is during
a day game, then we are in agreement. . . . But again,
what I want to know and what I need to be convinced
on is, is the load being transferred from day to night
significant enough to warrant a negative vote?’’
Deecken also stated that, in his view, ‘‘the problem of
light still remains’’ because, ‘‘as we know, you can see
lights from a long distance,’’11 whether during games
or nightly practices. Silber then proposed restricting
lighting for practice sessions to 8 p.m. In response to
concerns voiced by neighboring property owners, Silber
also proposed a blanket prohibition against the use of
the lights on weekends. A motion then was made to
amend Garrity’s original motion ‘‘to limit practices to
8 p.m. and eliminate weekend lights, flatly.’’ That motion
was unanimously approved.
Discussion then turned to the number of night foot-
ball games that would be permitted each year. As Pre-
usch noted, ‘‘the varsity football games are the issue.
It’s not the soccer . . . . It’s not the lacrosse. It’s the
crowds. It’s the football games.’’ Silber responded that
the school was not increasing the number of football
games on the property, but simply ‘‘shifting the inten-
sity’’ from day to night. Preusch then noted that ‘‘we
are talking about the intensity of use here. And if we
can cut the intensity of the expansion of use in half,
that’s what I am talking about. I am talking about a
compromise.’’ After further discussion, Deecken moved
to amend the pending motion to limit the number of
varsity football games to a ‘‘[m]aximum of four games.
Period.’’ That motion was approved, with all commis-
sioners but Garrity voting in favor.
At that time, Marino raised ‘‘a point of order.’’ Marino
reminded commission members that a prerequisite to
the granting of a special permit was a specific finding
by the commission pursuant to Article XV, § 4.14 (1),
of the regulations,12 as to the impact of the proposed
use on surrounding residential neighborhoods. Marino
further explained that ‘‘you have to incorporate that
[finding] into your [primary] motion because it is
required by your regulation. . . . If you vote negatively
[on the primary motion] then it’s a negative finding
[and] if you vote affirmatively it’s a positive finding’’ as
to the impact on surrounding neighborhoods. In what
the transcript suggests was a chaotic part of delibera-
tions, commissioners expressed confusion as to the
mechanics of implementing such a finding while at the
same time discussing the merits thereof. At one point,
Silber explained to his colleagues that Marino ‘‘is saying
we have to say it explicitly. It’s got to be part of the
motion. . . . So, we are amending the motion to
include that passage.’’ When Anthony G. Chory, as chair-
man of the commission, ultimately called the question,
he stated, ‘‘all in favor to amend the motion?’’ That
motion to carried by a vote of three to two.13
Chory then called the motion to approve the school’s
special permit application, as amended several times.
Silber and Garrity voted in favor of the motion, while
Chory and Preusch voted against. Deecken abstained.
As a result, the motion failed by virtue of the tie vote.
The commission at that time articulated no reasons for
that decision. See Hall v. Planning & Zoning Board,
153 Conn. 574, 576, 219 A.2d 445 (1966) (‘‘[i]n such a
case [as a tie vote] the board, as a body, [can] give no
reason for its failure to act although the result [amounts]
to a rejection of the application’’). Rather, it immedi-
ately adjourned the meeting following the final vote.
Both the legal notice subsequently published by the
commission and the written notice sent to the school
confirmed that the application had been ‘‘denied’’ by
the commission.14
The plaintiffs filed a timely appeal of that decision
with the Superior Court, arguing that the school’s appli-
cation fully complied with all applicable special permit
requirements and that the commission’s decision was
not substantially supported by the record. The defend-
ants filed a motion to intervene as statutorily aggrieved
owners of abutting property, which the court granted.
Although the plaintiffs and the defendants subsequently
filed briefs on the substantive questions before the
court, the commission did not do so. Rather, the com-
mission filed a one sentence statement noting that it
‘‘takes no position in favor of the plaintiffs or the
intervening defendants in this administrative appeal.’’
The court held a hearing on October 19, 2015, at
which all counsel agreed that the school’s special permit
application satisfied the technical requirements of Arti-
cle II, § 1.2.4.4 (a) through (d). Accordingly, the focus
of the hearing was on compliance with § 1.2.4.4 (e),
which provides that ‘‘[a]ll requirements of Article XV
Special Permit/Special Exception shall be satisfied.’’
During the hearing, the court repeatedly asked coun-
sel to identify the ‘‘known and fixed’’ and ‘‘clear and
definite’’ standards contained in Article XV. In response,
all counsel acknowledged that no such specificity was
contained therein. Because Article II, § 1.2.4.4 (e), spe-
cifically provides that ‘‘[a]ll requirements of Article XV
. . . shall be satisfied,’’ the defendants’ counsel none-
theless argued that the commission could predicate its
decision on the general standards set forth in Article
XV. The court, however, distinguished that last subsec-
tion of § 1.2.4.4 from its predecessors, stating that ‘‘[i]f
there are general guidelines here [in Article XV], they
can be the subject of health, safety and welfare condi-
tions.’’ The court later expounded on that distinction
as follows: ‘‘An appeal could, I think, be sustained in
part, to the extent [that the plaintiffs] comply with [the
technical requirements of § 1.2.4.4 (a) through (d)] and
[with respect to § 1.2.4.4 (e)] the commission [could
be] told to impose conditions related to health, safety
and welfare that are site specific and protect the health,
safety, welfare and property values . . . .’’
In its memorandum of decision, the court did pre-
cisely that. It noted that the record of the public hearing
‘‘unambiguously reveals that the applicant’s proposal
meets the [technical requirements] set forth in Article
II, § 1.2.4.4, subparagraphs (a) through (d).’’ The court
then turned its attention to Article XV of the regulations,
the requirements of which must be satisfied pursuant
to § 1.2.4.4 (e). It stated, in relevant part: ‘‘Article XV,
§ 4.14, deals with uses adjacent to or impacting residen-
tial areas. Although the section does not contain any
specific standards or requirements, it does provide a
guidepost for the commission, as it seeks to evaluate
conditions which should be adopted, before a special
permit application is approved. . . . A review of § 4.14
. . . demonstrates that certain ‘findings’ are required
of the commission, when considering a special permit
application which impacts a residential area. Because
every special permit application is site specific, the
nature and character of abutting properties must be
considered when evaluating a specific proposal. Condi-
tions imposed on a special permit may be designed to
limit the impact on surrounding properties, and may
be designed to preserve the residential character of a
community. However, since Article XV, § 4.14,15 con-
tains no definite standards with which a prospective
applicant must comply, it cannot serve as the sole basis
for denying a special permit application, where all of
the known and definite standards in the regulation in
question have been satisfied. To permit the denial of
an application on the basis such as a finding that it is
‘detrimental to the character of a residential district’ is
inconsistent with the administrative nature of the spe-
cial permit review. When reviewing a special permit, a
commission cannot act legislatively, or quasi-judicially.
. . . Because the application submitted by the [school]
satisfies each of the known and definite standards in the
regulation, the plaintiffs’ appeal must be sustained.’’16
(Citations omitted; footnote added.)
The court thus sustained the plaintiffs’ appeal in part,
concluding that the commission should have granted
the special permit due to the school’s compliance with
the technical requirements of § 1.2.4.4 (a) through (d).
The court remanded the matter to the commission with
direction ‘‘to approve the special permit as requested,
subject to such conditions as are necessary to protect
the public health, safety, convenience and property val-
ues.’’ The defendants thereafter filed a petition for certi-
fication to appeal pursuant to General Statutes § 8-8
(o), which this court granted.17
Preliminarily, we note that ‘‘[t]he function of a special
permit is to allow a property owner to use his property
in a manner expressly permitted under the zoning regu-
lations, subject to certain conditions necessary to pro-
tect the public health, safety, convenience, and
surrounding property values.’’ Whisper Wind Develop-
ment Corp. v. Planning & Zoning Commission, 32
Conn. App. 515, 525, 630 A.2d 108 (1993) (Dupont, C.
J., dissenting), aff’d, 229 Conn. 176, 640 A.2d 100 (1994).
‘‘The basic rationale for the special permit [is] . . . that
while certain [specially permitted] land uses may be
generally compatible with the uses permitted as of right
in particular zoning districts, their nature 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. Common specially
permitted uses, for example, are hospitals, churches
and schools in residential zones. These uses are not as
intrusive as commercial uses would be, yet they do
generate parking and traffic problems that, if not prop-
erly planned for, might undermine the residential char-
acter of the neighborhood. If authorized only upon the
granting of a special permit which may be issued after
the [zoning commission] is satisfied that parking and
traffic problems have been satisfactorily worked out,
land usage in the community can be more flexibly
arranged than if schools, churches and similar uses
had to be allowed anywhere within a particular zoning
district, or not at all.’’ (Internal quotation marks omit-
ted.) Barberino Realty & Development Corp. v. Plan-
ning & Zoning Commission, 222 Conn. 607, 612–13,
610 A.2d 1205 (1992). In reviewing a challenge to a
‘‘commission’s administrative decision, we . . . must
be mindful of the fact that the plaintiff, as the applicant,
bore the burden of persuading the commission that it
was entitled to the permits that it sought’’ under the
zoning regulations. (Internal quotation marks omitted.)
Loring v. Planning & Zoning Commission, 287 Conn.
746, 778, 950 A.2d 494 (2008) (Norcott, J., dissenting).
With that context in mind, we turn our attention to the
defendants’ claims.
I
We first address the defendants’ contention that the
court applied an improper legal standard in reviewing
the decision of the commission. That claim involves a
question of law, over which our review is plenary. See
Total Recycling Services of Connecticut, Inc. v. Con-
necticut Oil Recycling Services, LLC, 308 Conn. 312,
326, 63 A.3d 896 (2013).
There is no dispute that the school’s special permit
application complied with the technical requirements
of Article II, § 1.2.4.4 (a) through (d). Accordingly, the
only issue before the Superior Court was whether the
commission properly could predicate its decision on
compliance with general standards contained in Article
XV of the regulations, as required by Article II, § 1.2.4.4
(e). The court answered that query in the negative,
stating that those general standards ‘‘cannot serve as
the sole basis for denying a special permit application
. . . .’’ That determination, the defendants argue, con-
stitutes a departure from established law.
Accordingly, our analysis begins with an overview of
the pertinent land use jurisprudence of this state. More
than one half century ago, our Supreme Court recog-
nized that a zoning commission may deny a special
permit on the basis of general standards regarding pub-
lic health, safety, convenience and property values. In
Cameo Park Homes, Inc. v. Planning & Zoning Com-
mission, 150 Conn. 672, 675, 192 A.2d 886 (1963), the
plaintiff filed an application to construct an apartment
complex in a residential zone. Such construction was
permitted under the applicable zoning regulations as a
special permit use, which necessitated the approval of
the defendant commission. Id., 674. Following a public
hearing, the commission denied the plaintiff’s applica-
tion, finding, inter alia, that the proposed apartments
‘‘would affect the mode of living in the area by creating
problems of safety for children’’; that ‘‘the limitation of
privacy due to the increase of traffic would tend to
decrease the value of surrounding homes’’; and ‘‘that
the proposed use is not in harmony with the intent of
the commission which wrote the regulations.’’ Id., 676.
On appeal, our Supreme Court upheld the propriety of
the commission’s decision, stating, in relevant part, that
‘‘[t]he commission’s power to stipulate such restrictions
as appear to it to be reasonable and the minimum neces-
sary to protect property values in the district as a whole
and the public health, safety and welfare, necessarily
implies the power to withhold its approval of the pro-
posed use in its entirety if the commission finds that the
circumstances warrant that action.’’ (Internal quotation
marks omitted.) Id., 676–77. Similarly, in West Hartford
Methodist Church v. Zoning Board of Appeals, 143
Conn. 263, 269, 121 A.2d 640 (1956), the Supreme Court
upheld the denial of a special permit based on a general
standard requiring that the proposed activity ‘‘will not
substantially or permanently injure the use of neigh-
boring properties for residential purposes.’’
Despite—and arguably contrary to—that line of
authority, our Supreme Court decades ago also indi-
cated that ‘‘vague and undefined aesthetic considera-
tions alone are insufficient to support the invocation
of the police power, which is the source of all zoning
authority.’’ DeMaria v. Planning & Zoning Commis-
sion, 159 Conn. 534, 541, 271 A.2d 105 (1970); see also
Sonn v. Planning Commission, 172 Conn. 156, 163, 374
A.2d 159 (1976) (‘‘[t]he discretion of a commission must
be controlled by fixed standards applied to all cases of
a like nature’’); Powers v. Common Council, 154 Conn.
156, 161, 222 A.2d 337 (1966) (‘‘[a]lthough [§ 8-2] pro-
vides that the public health, safety, convenience and
property values may be considered in making a determi-
nation on a special permit, this is to be done in conjunc-
tion with, and not as an alternative to, the standards
which the zoning regulations themselves must pro-
vide’’).18 RK Development Corp. v. Norwalk, 156 Conn.
369, 242 A.2d 781 (1968), is illustrative. In that case, the
plaintiff sought approval of certain subdivision plans
by the common council. In denying that request, the
council indicated that it was concerned about ‘‘[t]he
safety for the sake of the children as well as the people
living up there; the welfare of the community and also
the health hazards.’’ (Internal quotation marks omitted.)
Id., 376. On appeal, the Supreme Court held that the
council’s determination was improper, stating in rele-
vant part: ‘‘The reason given by the council for its disap-
proval was vague, uncertain in meaning and provided
no information to the plaintiff [as to how] the plan
submitted failed to satisfy the requirements of the regu-
lations. . . . The council cannot, in utter disregard of
the regulations, disapprove the plan for a reason it
would not be required to apply to all applications for
planned residential developments as to which the same
reason obtained. It would amount to substitution of the
pure discretion of the council for a discretion controlled
by fixed standards applying to all cases of a like nature.’’
Id., 377.
Nevertheless, in a decision issued only six months
later, our Supreme Court again rejected a challenge to
a municipal land use agency’s decision on a special
permit application that was predicated on compliance
with general standards. Rocchi v. Zoning Board of
Appeals, 157 Conn. 106, 248 A.2d 922 (1968). In so doing,
it noted that ‘‘a prerequisite to granting the [special
permit was the determination] that the public welfare
and convenience would be substantially served and that
the appropriate use of neighboring property would not
be substantially or permanently injured. These criteria
are sufficient to pass constitutional muster.’’ Id., 113–14;
accord Barberino Realty & Development Corp. v. Plan-
ning & Zoning Commission, supra, 222 Conn. 619(rejecting claim that regulations requiring commission
to ‘‘take ‘adequate safeguards’ for the protection of
other properties and provide for ‘adequate’ traffic circu-
lation and parking’’ were void for vagueness).
Whatever conflict previously existed in our land use
jurisprudence on this issue was definitively resolved by
our appellate courts in an appeal concerning a partially
completed subdivision in Middlefield. In Whisper Wind
Development Corp. v. Planning & Zoning Commis-
sion, supra, 32 Conn. App. 516–17, the plaintiff devel-
oper sought a special permit to excavate and remove
sand and gravel from vacant subdivision parcels. In
denying that request, the defendant commission stated
that ‘‘[t]he proposed use would not be harmonious with
the existing development in the district and would be
detrimental to the orderly development of adjacent
properties and that [t]he location, size, nature and inten-
sity of the use would create a pedestrian and traffic
hazard and would conflict with the traffic characteris-
tics of the surrounding neighborhood.’’ (Internal quota-
tion marks omitted.) Id., 518. On appeal to this court,
the plaintiff claimed that such general standards ‘‘do
not provide an independent basis for denying special
permit applications.’’ Id., 519–20. Rather, the plaintiff
argued that those general standards ‘‘may be used solely
to place restrictions on an approved permit and may
not be used as an alternative to the standards contained
in the technical considerations section of the regula-
tions . . . . [T]he plaintiff argues that once the specific
requirements [of the applicable regulations] are met,
the [special] permit must be granted, subject to any
limitations that may be placed on that approval . . . .
Thus, according to the plaintiff, [the general standards
governing special permits] cannot serve as the sole
basis for denying a special permit application, but can
serve as the basis only for attaching conditions to the
proposed plan.’’ Id., 520. In short, the plaintiff’s position
in Whisper Wind Development Corp. was virtually iden-
tical to that articulated by the Superior Court in the
present case.
This court disagreed with the plaintiff’s contention.
Noting cases such as Cameo Park Homes, Inc. v. Plan-
ning & Zoning Commission, supra, 150 Conn. 672, the
court observed that ‘‘[o]n more than one occasion, our
Supreme Court has held that standards set forth in the
zoning regulations for the grant of a special permit
may be general in nature.’’ (Internal quotation marks
omitted.) Whisper Wind Development Corp. v. Plan-
ning & Zoning Commission, supra, 32 Conn. App. 521–
22. The court emphasized that ‘‘[i]t is well settled that
in granting a special permit, an applicant must satisf[y]
all conditions imposed by the regulations.’’ (Emphasis
omitted; internal quotation marks omitted.) Id., 521.
Because the regulations at issue contained both techni-
cal requirements and general standards, the court held
that the failure to comply with either constituted a valid
basis on which the commission could deny a special
permit. As it stated, ‘‘the plaintiff’s claim that the general
health, safety and welfare requirements contained in
the regulations must be considered only for the purpose
of placing conditions on a special permit and may not
be considered in determining whether to deny or grant
the permit must fail.’’ Id., 522.
Significantly, Whisper Wind Development Corp.
included a dissenting opinion. Relying principally on
DeMaria v. Planning & Zoning Commission, supra,
159 Conn. 541, the dissent submitted that ‘‘[a] special
permit may be denied only for failure to meet specific
standards in the regulations, and not for vague or gen-
eral reasons.’’ Whisper Wind Development Corp. v.
Planning & Zoning Commission, supra, 32 Conn. App.
526 (Dupont, C. J., dissenting). Because it was undis-
puted that the plaintiff had complied with all technical
requirements of the regulations, the dissent stated that
‘‘[t]he commission could have imposed more stringent
conditions, but I do not believe, given the language of
the regulation and the nature of the use, that it could
deny the permit altogether.’’ Id., 527. The dissent also
expressed concern that reliance on general standards
could lead to arbitrary decisionmaking, stating that ‘‘[a]
zoning authority should not be able to insulate a denial
of a special permit from reversal by an appellate court
simply by stating a subjective conclusion such as the
use is not in harmony with existing development or that
the use would be detrimental because of an increase
in traffic congestion.’’ Id., 529.
Our Supreme Court subsequently granted the Whis-
per Wind Development Corp. plaintiff’s petition for cer-
tification to appeal. The certified question before the
court was as follows: ‘‘Was the Appellate Court correct
in concluding that the trial court properly determined
that the plaintiff’s failure to meet the general health,
safety and welfare requirements set forth in the town’s
zoning regulations provided an adequate basis for the
defendant’s denial of a special permit application, even
though the plaintiff’s application complied with all of
the technical requirements of the regulations applicable
to special permits?’’ Whisper Wind Development Corp.
v. Planning & Zoning Commission, 227 Conn. 929, 632
A.2d 706 (1993).
In a per curiam decision, a unanimous Supreme Court
first noted that the Appellate Court majority had
‘‘agreed with the defendant’s contention that, in the case
of a special permit, zoning regulations may authorize
a planning and zoning commission to deny an applica-
tion on the basis of enumerated general considerations
such as public health, safety and welfare.’’ Whisper
Wind Development Corp. v. Planning & Zoning Com-
mission, 229 Conn. 176, 177, 640 A.2d 100 (1994). It
then concluded that ‘‘the judgment of the Appellate
Court must be affirmed,’’ stating that ‘‘[t]he issue on
which we granted certification was properly resolved
in the thoughtful and comprehensive majority opinion
of the Appellate Court.’’ Id.Four years later, the Supreme Court expounded on
the discretion of a commission with respect to such
general standards. It stated: ‘‘We previously have recog-
nized that the special permit process is, in fact, discre-
tionary. In Whisper Wind Development Corp. v.
Planning & Zoning Commission, [supra, 229 Conn.
177], we 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, we have 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, such as parking or traffic
congestion, would adversely impact the surrounding
neighborhood. . . . Connecticut courts have never
held that a zoning commission lacks the ability to exer-
cise discretion to determine whether the general stan-
dards 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.’’ (Citation omitted; emphasis omitted;
internal quotation marks omitted.) Irwin v. Planning &
Zoning Commission, 244 Conn. 619, 626–27, 711 A.2d
675 (1998). The court further noted that ‘‘[a]lthough
it is true that the zoning commission does not have
discretion to deny a special permit when the proposal
meets the standards, it does have discretion to deter-
mine whether the proposal meets the standards set forth
in the regulations. If, during the exercise of its discre-
tion, the zoning commission decides that all of the stan-
dards enumerated in the special permit regulations are
met, then it can no longer deny the application. The
converse is, however, equally true. Thus, the zoning
commission can exercise its discretion during the
review of the proposed special [permit], as it applies
the regulations to the specific application before it.’’
(Emphasis in original.) Id., 628.
More recently, the Supreme Court has affirmed a
commission’s decision to deny a special permit on the
basis of the general standard that ‘‘the proposed use
was not in harmony with the general character of the
neighborhood . . . .’’ Cambodian Buddhist Society of
Connecticut, Inc. v. Planning & Zoning Commission,
285 Conn. 381, 436, 941 A.2d 868 (2008); accord Meriden
v. Planning & Zoning Commission, 146 Conn. App.
240, 248–49, 77 A.3d 859 (2013) (upholding denial of
special permit on basis of general standard regarding
intensification of use); Children’s School, Inc. v. Zoning
Board of Appeals, 66 Conn. App. 615, 626–31, 785 A.2d
607 (noting that board may ‘‘grant or deny applications
for special [permits] based on . . . ‘general’ considera-
tions’’ and concluding that substantial evidence sup-
ported a denial predicated thereon), cert. denied, 259
Conn. 903, 789 A.2d 990 (2001); Connecticut Health
Facilities, Inc. v. Zoning Board of Appeals, 29 Conn.
App. 1, 11, 613 A.2d 1358 (1992) (upholding denial of
special permit on basis of general standards regarding
public safety, traffic, and property values). There thus
is no doubt that, under Connecticut law, a zoning com-
mission may deny a special permit application on the
basis of general standards set forth in the zoning regula-
tions, even when all technical requirements of the regu-
lations are met.
The plaintiffs nevertheless suggest that MacKenzie
v. Planning & Zoning Commission, 146 Conn. App.
406, 77 A.3d 904 (2013), a recent decision of this court,
altered the legal landscape with respect to such deci-
sionmaking. For two distinct reasons, they are
mistaken.
As a procedural matter, it is well established that this
court, as an intermediate appellate tribunal, ‘‘is not at
liberty to discard, modify, reconsider, reevaluate or
overrule’’ the precedent of our Supreme Court. Verrillo
v. Zoning Board of Appeals, 155 Conn. App. 657, 714,
111 A.3d 473 (2015). Furthermore, ‘‘it is axiomatic that
one panel of [the Appellate Court] cannot overrule the
precedent established by a previous panel’s holding.’’
(Internal quotation marks omitted.) Samuel v. Hart-
ford, 154 Conn. App. 138, 144, 105 A.3d 333 (2014). As
we often have stated, ‘‘this court’s policy dictates that
one panel should not, on its own, reverse the ruling of
a previous panel. The reversal may be accomplished
only if the appeal is heard en banc.’’ (Internal quotation
marks omitted.) Boccanfuso v. Conner, 89 Conn. App.
260, 285 n.20, 873 A.2d 208, cert. denied, 275 Conn. 905,
882 A.2d 668 (2005). The contention that MacKenzie
overruled or otherwise modified an ample body of
Supreme Court and Appellate Court precedent govern-
ing the denial of special permits on the basis of general
standards necessarily assumes that the court contra-
vened those fundamental principles of judicial restraint.
We decline to make that assumption.
As a substantive matter, the plaintiffs’ claim is untena-
ble. MacKenzie involved a combined application that
sought both a zone change and a special permit from
the defendant commission. MacKenzie v. Planning &
Zoning Commission, supra, 146 Conn. App. 409. The
application was unique, in that with respect to the spe-
cial permit request, the applicant presented the commis-
sion with two alternative proposals. The applicant’s
original plan would require the commission to ‘‘ ‘waive
or vary’ ’’ certain requirements set forth in the zoning
regulations that plainly applied to the proposed use.
Id., 412. The ‘‘alternate plan,’’ by contrast, fully complied
with ‘‘every standard that [was] set forth in the regula-
tions.’’ (Internal quotation marks omitted.) Id., 413. Fol-
lowing a public hearing, the commission granted the
special permit in accordance with the applicant’s origi-
nal plan. In so doing, the commission waived certain
setback and landscaping buffer requirements contained
in the regulations that governed the proposal. Id.,411–19.
On appeal, the question addressed by this court was
whether ‘‘the commission lacked the authority to vary
those requirements.’’ Id., 420. In answering that ques-
tion, this court first reviewed relevant statutory and
case law authority, concluding that ‘‘there is nothing
contained within the General Statutes authorizing the
commission to adopt regulations empowering itself to
vary the application of the regulations when acting on
a special [permit] request.’’ Id., 428. The court further
observed that ‘‘[t]he proposition that . . . the commis-
sion [properly may exercise] the power to vary the
requirements of the [town’s design business district]
zone on a case-by-case basis reflects a fundamental
misunderstanding of the role of the variance power
within a municipality. The variance power exists to
permit what is prohibited in a particular zone. . . . In
simple terms, the zoning commission acts as a land use
legislature in enacting zoning requirements. . . . By
contrast, the zoning board of appeals is the court of
equity of the zoning process . . . . [Z]oning commis-
sions and zoning boards of appeal are, by design and
by statute, independent branches of a municipality’s
land use department. Tellingly, the defendant has not
presented this court with any precedent, nor have we
discovered any, in which a zoning commission’s deci-
sion to wield the variance power on a case-by-case basis
within a given district has been upheld . . . .’’ (Cita-
tions omitted; footnote omitted; internal quotation
marks omitted.) Id., 428–30.
To be sure, MacKenzie also addressed the uniformity
requirement of § 8-2.19 Its discussion thereof must be
considered in light of the bedrock precept that a zoning
commission cannot grant a special permit unless the
application satisfies all applicable requirements con-
tained in the zoning regulations. See, e.g., Heithaus v.
Planning & Zoning Commission, 258 Conn. 205, 215,
779 A.2d 750 (2001) (to obtain special permit, proposed
use must satisfy standards set forth in zoning regula-
tions); Weigel v. Planning & Zoning Commission, 160
Conn. 239, 246, 278 A.2d 766 (1971) (‘‘[t]o justify the
grant of the special permit, it must appear from the
record before the commission that the manner in which
the applicant proposes to use his property satisfies all
conditions imposed by the regulations’’); Whisper Wind
Development Corp. v. Planning & Zoning Commis-
sion, supra, 32 Conn. App. 521 (‘‘[i]t is well settled’’
that applicant must satisfy all conditions imposed by
regulations to obtain special permit); R. Fuller, 9A Con-
necticut Practice Series: Land Use Law and Practice
(4th Ed. 2015) § 33:4, p. 278 (‘‘[f]or a special permit to
be granted it must appear from the record before the
agency that the application met all conditions imposed
by the regulations’’). MacKenzie did not alter that fun-
damental precept; in fact, it expressly adhered to it.
See MacKenzie v. Planning & Zoning Commission,
supra, 146 Conn. App. 438 (stating that ‘‘[t]o justify the
grant of the special permit, it must appear from the
record before the commission that the manner in which
the applicant proposes to use his property satisfies all
conditions imposed by the regulations’’ [internal quota-
tion marks omitted]). MacKenzie ultimately held that
when a special permit application fails to satisfy certain
requirements imposed by the zoning regulations, a com-
mission lacks authority to ‘‘vary or waive’’ those require-
ments. Id., 435.
MacKenzie further explained that the issue of a com-
mission’s ability to vary such requirements is fundamen-
tally different from the issue of its authority to place
greater restrictions on a special permit use through the
imposition of conditions of approval, which originates
in § 8-2.20 Id., 434–35. The defendant in MacKenzie
attempted to ‘‘turn this precept on its head, thereby
granting a commission the power, in acting on such a
special [permit] application, not only to impose greater
restrictions on a parcel, but also to vary or waive
existing restrictions—such as minimum setback and
landscaped buffer requirements—applicable to all other
properties within the district in contravention of the
uniformity rule.’’ Id., 435. This court declined to so rule.
Id. Contrary to the plaintiffs’ contention, MacKenzie
did not alter the ample body of appellate authority
regarding the ability of a commission to append condi-
tions to a special permit approval, or its ability to predi-
cate its decision on compliance with general standards
set forth in the zoning regulations. Instead, it held that
when a commission grants a special permit application
that does not satisfy the applicable requirements of
the zoning regulations, it ‘‘runs afoul of the uniformity
requirement of [§] 8-2.’’ Id., 431. For that reason, the
plaintiffs’ reliance on that precedent in the present case
is unavailing.
Under Connecticut law, a zoning commission may
deny a special permit application due to noncompliance
with general standards contained in the zoning regula-
tions. We, therefore, agree with the defendants that the
court applied an improper legal standard in reviewing
the commission’s decision on the school’s special per-
mit application.
II
The question, then, is whether the record before us
supports a finding of noncompliance with the general
standards of Article XV.21 We agree with the defendants
that substantial evidence exists in the record on which
the commission, in its discretion, could have relied in
concluding that the school did not meet its burden of
demonstrating compliance therewith.
A
Legal Standard
At the outset, we note that special permits, ‘‘although
expressly permitted by local regulations, must satisfy
. . . standards set forth in the zoning regulations . . . .
[I]f not properly planned for, [special permit uses] might
undermine the residential character of the neighbor-
hood. . . . [T]he goal of an application for a special
[permit] is to seek permission to vary the use of a
particular piece of property from that for which it is
zoned, without offending the uses permitted as of right
in the particular zoning district.’’ (Internal quotation
marks omitted.) Municipal Funding, LLC v. Zoning
Board of Appeals, 270 Conn. 447, 453–54, 853 A.2d
511 (2004).
As our Supreme Court has emphasized, a zoning com-
mission’s decisionmaking on a special permit applica-
tion involves the exercise of discretion. ‘‘Although it is
true that the zoning commission does not have discre-
tion 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 regulations. If, during the exercise of its discretion,
the zoning commission decides that all of the standards
enumerated in the special permit regulations are met,
then it can no longer deny the application. The converse
is, however, equally true. Thus, the zoning commission
can exercise its discretion during the review of the
proposed special [permit], as it applies the regulations
to the specific application before it.’’ (Emphasis in origi-
nal.) Irwin v. Planning & Zoning Commission, supra,
244 Conn. 628. The exercise of that discretion ‘‘is inher-
ently fact-specific, requiring an examination of the par-
ticular circumstances of the precise site for which the
special permit is sought and the characteristics of the
specific neighborhood in which the proposed [use]
would [be made].’’ Municipal Funding, LLC v. Zoning
Board of Appeals, supra, 270 Conn. 457.
Judicial review of zoning commission determinations
is governed by the substantial evidence standard, under
which ‘‘[c]onclusions reached by [the] commission
must be upheld by the trial court if they are reasonably
supported by the record. The credibility of the wit-
nesses and the determination of issues of fact are mat-
ters 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 deci-
sion reached. . . . If a trial court finds that there is
substantial evidence to support a zoning board’s find-
ings, it cannot substitute its judgment for that of the
board. . . . If there is conflicting evidence in support
of the zoning commission’s stated rationale, the
reviewing court . . . cannot substitute its judgment as
to the weight of the evidence for that of the commission.
. . . The [commission’s] decision must be sustained if
an examination of the record discloses evidence that
supports any one of the reasons given.’’ (Internal quota-
tion marks omitted.) Cambodian Buddhist Society of
Connecticut, Inc. v. Planning & Zoning Commission,
supra, 285 Conn. 427.
The substantial evidence standard is one that ‘‘is
highly deferential and permits less judicial scrutiny than
a clearly erroneous or weight of the evidence standard
of review.’’ (Internal quotation marks omitted.) Sams
v. Dept. of Environmental Protection, 308 Conn. 359,
374, 63 A.3d 953 (2013); accord Dickinson v. Zurko,
527 U.S. 150, 153, 119 S. Ct. 1816, 144 L. Ed. 2d 143(1999) (clearly erroneous standard stricter than sub-
stantial evidence standard); Brunswick v. Statewide
Grievance Committee, 103 Conn. App. 601, 612, 931
A.2d 319 (‘‘[t]he substantial evidence standard is even
more deferential’’ than clearly erroneous standard),
cert. denied, 284 Conn. 929, 934 A.2d 244 (2007). In that
vein, our Supreme Court has described the substantial
evidence standard as ‘‘an important limitation on the
power of the courts to overturn a decision of an adminis-
trative agency . . . and to provide a more restrictive
standard of review than standards embodying review
of weight of the evidence or clearly erroneous action.’’
(Internal quotation marks omitted.) Property Group,
Inc. v. Planning & Zoning Commission, 226 Conn. 684,
697–98, 628 A.2d 1277 (1993).
In an appeal from a decision of a zoning commission,
the ‘‘burden of overthrowing the decision . . . rest[s]
squarely upon’’ the appellant. Verney v. Planning &
Zoning Board of Appeals, 151 Conn. 578, 580, 200 A.2d
714 (1964); see also Blaker v. Planning & Zoning Com-
mission, 212 Conn. 471, 478, 562 A.2d 1093 (1989) (party
challenging action of zoning commission bears burden
of proving that commission acted improperly). To meet
its burden, an appellant ‘‘must establish that substantial
evidence does not exist in the record as a whole to
support the agency’s decision.’’ Samperi v. Inland Wet-
lands Agency, 226 Conn. 579, 587, 628 A.2d 1286 (1993).
Due to its tie vote, the commission did not state any
collective reasons for its decision. In such instances,
‘‘we are obligated to search the entire record to ascer-
tain whether the evidence reveals any proper basis for
the [commission’s] decision . . . .’’ Verrillo v. Zoning
Board of Appeals, supra, 155 Conn. App. 676. As the
Supreme Court has explained, a ‘‘reviewing court . . .
must search the record of the hearings before [the]
commission to determine if there is an adequate basis
for its decision. . . . [P]ublic policy reasons make it
practical and fair to have a [reviewing] court on appeal
search the record of a local land use body . . . com-
posed of laymen whose procedural expertise may not
always comply with the multitudinous statutory man-
dates under which they operate.’’ (Citations omitted;
internal quotation marks omitted.) Samperi v. Inland
Wetlands Agency, supra, 226 Conn. 588–89.
The parties agree, and the record plainly indicates,
that the technical requirements of Article II, § 1.2.4.4,
of the regulations do not furnish a basis for denying
the school’s special permit application. Our task, then,
is to review the record in search of substantial evidence
to support a discretionary determination that the school
had failed to meet its burden of establishing compliance
with any of the general standards set forth in Article
XV of the regulations.
B
Evidence in Record
1
Noise
We first consider the general standards regarding
noise emissions. Article XV, § 4.12, sets forth various
standards regarding the appropriateness of the pro-
posed use. Among other things, it requires the applicant
to demonstrate, and the commission to find, that the
proposed special permit use ‘‘will not hinder or discour-
age the appropriate . . . use of adjacent land and
buildings’’ and will not produce ‘‘the emission of noise
. . . without adequate buffering or controls . . . .’’
During the public comment portion of the public hear-
ing, many neighboring property owners spoke in oppo-
sition to the school’s proposal. A chief complaint
concerned the issue of noise, with many speakers shar-
ing their firsthand experiences with the commission.22
Neighboring property owners also were concerned that
noise from nighttime sporting events will make it diffi-
cult for their children or grandchildren to go to sleep.
Several residents indicated that they were willing to
tolerate the noise generated by major sporting events
on the property during daytime hours. At the same
time, they strongly opposed shifting those events to
nighttime hours.23
With respect to the school’s proposal to shift many
of its major sporting events from daytime to nighttime,
another abutting property owner, Jeffrey W. Strouse,
submitted that the noise described previously by many
of his neighbors ‘‘will unequivocally erase the peaceful
environment and the natural surroundings that we
invested in when we made the decision to live here.
. . . It doesn’t matter how tall these lights are . . .
with the lights and the night games comes the noise
. . . .’’ Jeffrey W. Strouse implored the commission to
remember that the matter before it pertained to the
backyards of residential neighbors, stating: ‘‘[W]ho here
among us would want that in her backyard? And when
I say backyard, again, just to emphasize this. This is
not over the hill, across the pond and past grandma’s
house. This is in my backyard.’’
In addition to that testimony during the public com-
ment portion of the hearing, the commission received
written letters from seventeen other neighboring resi-
dential property owners, all of whom expressed the
concern that ‘‘nightly practices and football games at
[the school] will lead to sound . . . pollution . . . and
an overall deterioration of our quality of life . . . .’’
During the rebuttal portion of the public hearing,
Rizio proposed two additional conditions regarding ‘‘the
noise issue.’’ First, the school agreed to a condition
prohibiting any music to be played ‘‘while the lights
[are] on . . . .’’ Second, the school agreed to a restric-
tion that ‘‘the press box and the public announcement
[system] at [night] games would only occur during boys’
varsity football and boys’ varsity lacrosse . . . .’’ The
question, then, becomes whether those additional con-
ditions or others adequately addressed the noise prob-
lems detailed at length by neighboring property owners,
sufficient to warrant a finding of compliance with § 4.12.
Under Connecticut law, that determination is a matter
left to the discretion of the commission. Irwin v. Plan-
ning & Zoning Commission, supra, 244 Conn. 628(commission has discretion to determine whether pro-
posal satisfies standards set forth in regulations). The
task of balancing significant interests of purely local
concern is one best decided by the local land use author-
ity. As noted decades ago, ‘‘[t]he history of zoning legis-
lation indicates a clear intent on the part of the General
Assembly that, subject to certain underlying principles,
the solution of zoning questions is for the local agen-
cies.’’ Couch v. Zoning Commission, 141 Conn. 349,
359, 106 A.2d 173 (1954); see also Kutcher v. Town
Planning Commission, 138 Conn. 705, 709, 88 A.2d 538(1952) (reviewing court ‘‘is powerless to replace the
discretion of the commission with its own’’). For that
reason, ‘‘[i]t is well settled that a court, in reviewing
the actions of [a zoning commission], is not permitted
to substitute its judgment for that of the [commission]
or to make factual determinations on its own.’’ (Internal
quotation marks omitted.) R & R Pool & Patio, Inc. v.
Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d
61 (2001).
On appeal, judicial review is confined to the question
of whether the commission abused its discretion in
finding that an applicant failed to demonstrate compli-
ance with the requirements of applicable zoning regula-
tions. When there is evidence in the record to
substantiate the commission’s determination, the deter-
mination must stand. See Rural Water Co. v. Zoning
Board of Appeals, 287 Conn. 282, 294, 947 A.2d 944(2008) (agency’s decision must be sustained if examina-
tion of record discloses evidence that supports any
reason given).
The record in the present case contains substantial
evidence on which the commission could have relied
in finding that the school failed to demonstrate that the
proposed use would not adversely affect neighboring
residential properties due to nighttime noise emissions,
in contravention of § 4.12 of the regulations. We cannot
say that the commission abused its discretion in denying
the application on that basis.
2
Adequate Buffers
We next address the mandate of Article XV, § 5.4, of
the regulations that applicants provide all-season visual
buffers between the proposed use and adjacent residen-
tial properties. Section 4.12 similarly requires a showing
that the proposed use will not produce ‘‘the emission of
noise, light . . . or other offensive emissions without
adequate buffering or controls . . . .’’
At the September 17, 2014 public hearing, Rizio told
the commission that the abutting residential properties
were ‘‘very well . . . buffered with heavily wooded
property.’’ As multiple neighboring property owners
noted during the public comment portion of that hear-
ing, however, that wooded buffer is temporary in
nature.24 Jai R. Singh, another abutting property owner,
also noted that ‘‘lights can be seen from a far distance.
. . . [E]ven if your house is not bordering [the school],
even if you live quite far away, you will see these lights
every night.’’25 Moreover, we already have recounted
the testimony regarding the impact of noise emissions
on neighboring property owners.26
On the basis of that testimonial and photographic
evidence, the commission in its discretion reasonably
could have concluded that the school’s proposal lacked
‘‘all-season’’ buffers that would adequately contain
noise and light emissions from neighboring residential
properties, as required by §§ 4.12 and 5.4 of the regu-
lations.
3
Special Problems Inherent in Proposed Use
Article XV contains a general standard regarding
‘‘special problems of . . . police protection inherent in
the proposed use . . . .’’ Trumbull Zoning Regs., art.
XV, § 4.12. ‘‘[T]he avoidance of non-residential traffic
through residential streets’’ is another general standard
set forth in § 4.12. Also relevant to this issue are the
standards set forth in § 4.14 (1), which require the com-
mission to find that the proposed use ‘‘shall be such
that both pedestrian and vehicular traffic to and from
and in the vicinity of the use will not be hazardous or
inconvenient to, or detrimental to the character of the
said residential district or conflict with the traffic char-
acteristics of the neighborhood. . . . Access, parking
. . . shall be designed so as to protect the residential
character of surrounding residential neighborhoods or
residential zones.’’
At the public hearing, multiple residential property
owners raised concerns about the detrimental impact
that moving the school’s major sporting events from
daytime to nighttime would have on their neighbor-
hood. The commission heard testimony from many
members of the public detailing the parking and traffic
issues that frequently arise when major sporting events
such as football games are held on the property.27
Related to those traffic and parking concerns is the
problem of loitering and disruptive behavior within the
residential neighborhood, which transpires on a regular
basis when major sporting events are held on the prop-
erty. Multiple neighbors shared their personal experi-
ence with youths loitering in the neighborhood
following such events at the school.28 Another neigh-
boring property owner told the commission that those
parking, traffic, and loitering problems all present safety
issues.29 During his rebuttal on behalf of the school,
Rizio acknowledged that ‘‘loitering is a police issue
. . . .’’
As our Supreme Court has explained, ‘‘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, such as parking or traffic
congestion, would adversely impact the surrounding
neighborhood.’’ Barberino Realty & Development Corp.
v. Planning & Zoning Commission, supra, 222 Conn.
613. In light of the testimony elicited at the public hear-
ing, the commission, in its discretion, reasonably could
have concluded that the school had not established (1)
that its proposed use adequately avoided nonresidential
traffic through residential streets, as required by Article
XV, § 4.12; (2) that nighttime pedestrian and vehicular
traffic to and from and in the vicinity of the use ‘‘will
not be hazardous or inconvenient to, or detrimental to
the character’’ of the abutting residential neighborhood,
as required by § 4.14; (3) that, with respect to access
and parking, the design of the proposed use adequately
protected the residential character of surrounding resi-
dential neighborhoods or residential zones, as required
by § 4.14; and/or (4) that the proposed use would not
exacerbate ‘‘special problems of . . . police protection
inherent in the proposed use,’’ as required by § 4.12.
4
Quality of Life, Character of Neighborhood
And Property Values
Article XV also contains several provisions related
generally to the character of nearby residential neigh-
borhoods and the quality of life therein. In setting forth
standards as to the appropriateness of a proposed use
on a given property, § 4.12 requires the commission
to find, inter alia, that the proposed use ‘‘will not be
detrimental to the orderly development of adjacent
properties’’ and will preserve ‘‘the character of the
neighborhood . . . .’’ Section 4.13 similarly requires
the commission, in acting on a special permit applica-
tion, to consider whether the design of the proposed
use will adversely ‘‘impact the character or quality of
life on adjoining properties, in the neighborhood
. . . .’’ Section 4.14 (1), in turn, requires a finding by
the commission as to whether ‘‘[a]ccess, parking . . .
lighting . . . and landscaping [are] designed so as to
protect the residential character of surrounding resi-
dential neighborhoods . . . .’’
Article XV also requires the commission to make
findings with respect to the impact of the proposed use
on neighboring property values. Pursuant to § 4.12, the
commission must find that the proposed use ‘‘will not
hinder or discourage the appropriate development and
use of adjacent land and buildings or impair the value
thereof . . . .’’ Section 4.12 further requires the com-
mission to evaluate ‘‘the overall impact on neighbor-
hood property values . . . .’’ Section 4.13 likewise
provides that the design of the proposed use ‘‘shall not
be detrimental to property values in the neighborhood
. . . .’’ Last, § 4.14 (3) requires the commission to find
that the proposed use ‘‘will not hinder or discourage
the appropriate . . . use of adjacent land . . . or
impair the value thereof.’’
We have already detailed numerous issues raised by
neighboring property owners at the public hearing
regarding the impact of noise and light emissions, inade-
quate buffering, traffic, parking, and special problems
inherent in the school’s proposed use stemming from
the influx of pedestrian and vehicular traffic in their
neighborhood during major sporting events at the
school. That evidence all bears directly on the quality
of life, character of neighborhood, and property value
standards contained in Article XV.
In addition, the commission heard testimony specifi-
cally addressing the character of the abutting residential
neighborhood and the quality of life of its residents.30
Helga Beloin, who stated that she lives across the street
from the Shahs, explained to commission members how
the proposed use would adversely affect the quality of
life for nearby residents. She recounted her firsthand
experience with noise emissions, parking problems, loi-
tering, and disruptive behavior in the neighborhood on
days when major sporting events are held at the school.
Although she tolerated such activity during the daytime,
she explained why allowing that activity at night would
harm her and other neighbors, stating that when the
evening ‘‘rolls around, it’s over. . . . [W]e’re all getting
ready for bed . . . it’s quiet [and] we can do it . . . .
We retired for the night, went to bed, started our new
day, you know, refreshed from a good night’s sleep.
And now that’s going to be impossible.’’
Adverse impact on property values was also a signifi-
cant concern of abutting property owners.31 During his
rebuttal, Rizio stated that ‘‘there was no evidence at all
put forth with regard to housing, depreciation of hous-
ing values.’’ It nonetheless remained the burden of his
client, as the applicant requesting a special permit, to
demonstrate to the satisfaction of the commission that
its application fully complied with the general standards
contained in Article XV, including those concerning the
impact on property values. Loring v. Planning & Zon-
ing Commission, supra, 287 Conn. 778 (Norcott, J.,
dissenting). During the public hearing, the school pro-
vided no evidence whatsoever on that issue, only Rizio’s
bald assertion that the proposed use ‘‘will have no
impact on the neighborhood . . . .’’ Moreover, the
commission heard ample testimony about the adverse
impact that moving major sporting events at the school
from daytime to nighttime would have on the adjacent
residential area. In addition, several neighbors opined
that the proposed use would detrimentally affect their
property values, the character of their neighborhood,
and their quality of life. The commission, as arbiter of
credibility, was ‘‘entitled to credit the testimony and
evidence adduced during the [public hearing] in arriving
at its ultimate conclusion’’ as to compliance with the
requirements of the regulations. Children’s School, Inc.
v. Zoning Board of Appeals, supra, 66 Conn. App. 630;
see also Hayes Family Ltd. Partnership v. Town Plan &
Zoning Commission, 115 Conn. App. 655, 662, 974 A.2d
61 (denial of special permit upheld when ‘‘evidence was
presented that the plaintiffs’ proposal would directly
impact neighboring residential properties not only by
way of increased noise and traffic, but also in that it
would adversely affect their property values’’), cert.
denied, 293 Conn. 919, 979 A.2d 489 (2009). In exercising
its discretion over whether the general standards of
Article XV sufficiently were met, the commission could
have concluded, on the record before it, that the school
had not established that the proposed use would not
adversely affect neighboring property values, the char-
acter of the adjacent neighborhood, or the quality of
life of its residents.
C
Conclusion
Under the substantial evidence standard that governs
challenges to commission determinations, the commis-
sion’s decision ‘‘must be sustained if an examination
of the record discloses evidence that supports any one
of the reasons given.’’ (Internal quotation marks omit-
ted.) Rural Water Co. v. Zoning Board of Appeals,
supra, 287 Conn. 294. ‘‘The question is not whether [a
reviewing court] would have reached the same conclu-
sion but whether the record before the [commission]
supports the decision reached.’’ Burnham v. Plan-
ning & Zoning Commission, 189 Conn. 261, 265, 455
A.2d 339 (1983). A zoning commission has discretion
to determine whether a proposal satisfies the require-
ments for a special permit; Irwin v. Planning & Zoning
Commission, supra, 244 Conn. 628; and judicial review
is confined to the question of whether the commission
abused its discretion in finding that an applicant failed
to demonstrate compliance therewith. In the present
case, testimonial and documentary evidence exists in
the record on which the commission could have found
that the school did not demonstrate compliance with
the general standards of Article XV in multiple respects.
The Superior Court, therefore, improperly sustained the
plaintiffs’ appeal in part.
The judgment is reversed and the case is remanded
with direction to dismiss the plaintiffs’ appeal.
In this opinion the other judges concurred.
1
Although the commission was named as a defendant in this action and
participated in the proceeding below, it has not appealed from the judgment
of the Superior Court. We therefore refer to the intervening defendants as
the defendants in this opinion.
2
‘‘In hearing appeals from decisions of a planning and zoning commission,
the Superior Court acts as an appellate body.’’ North Haven Holdings Ltd.
Partnership v. Planning & Zoning Commission, 146 Conn. App. 316, 319
n.2, 77 A.3d 866 (2013).
3
It is undisputed that the plaintiffs have the only ‘‘non-profit secondary
school property’’ in Trumbull to which that amendment could apply.
4
Article XV, § 4, sets forth various ‘‘Criteria for Decision.’’ To grant a
special permit thereunder, the commission must find that the special permit
application conforms ‘‘in all respects with these [r]egulations . . . .’’
(Emphasis added.) Trumbull Zoning Regs., art. XV, § 4.2.
5
‘‘[I]n the land use context, the terms ‘special exception’ and ‘special
permit’ have ‘the same meaning and can be used interchangeably.’ Beckish
v. Planning & Zoning Commission, 162 Conn. 11, 15, 291 A.2d 208 (1971).’’
MacKenzie v. Planning & Zoning Commission, 146 Conn. App. 406, 410
n.4, 77 A.3d 904 (2013). For purposes of clarity, we use the term ‘‘special
permit’’ throughout this opinion.
6
‘‘A footcandle is a unit for measuring illumination and equals the amount
of direct light thrown by a candle on a square foot of surface located 1 foot
away.’’ State v. Hutch, 30 Wn. App. 28, 30 n.1, 631 P.2d 1014, review denied,
96 Wn. 2d 1011 (1981).
7
Apart from Rizio’s comments to the commission, the school did not
furnish any documentary or testimonial evidence on the impact of the pro-
posed use with respect to vehicular and pedestrian traffic in neighboring
residential areas.
8
Rizio stated: ‘‘[O]ne would be, lights will only be used for [school] related
events. . . . Two. The athletic field may not be rented to any outside ven-
dors. . . . Three. The light system installed must contain automatic function
that shuts the lights off. We will agree to a [shutoff time of] 10 p.m. for
games, 9 p.m. for practices, Monday [through] Friday, [and] we would go
to 8 p.m. on Saturday. There shall be no lights on Sunday. [Four.] The lights
may only be used during the following times of the year: March 15 [through]
June 15 and August 15 [through] December 15. . . . [Five.] [W]e . . . agree
that the lights [shall] be dimmed to 50 percent of capacity for practice. [Six.]
The approval shall only be for four light poles [to be located at] four very
specific locations for one athletic field. . . . [Seven.] [T]he light system
. . . may not be used to light any other field on the [school] campus. [Eight.]
Light shields shall be installed on all light fixtures to ensure the same. . . .
[Nine.] [W]e would agree that there would be no more than three games
per week in which the lights would be lit to a [full] game . . . light capacity.’’
9
The commission also heard from the town planner, Jamie Bratt. Although
she remarked that ‘‘the application does meet the special permit require-
ments . . . as was stated by the applicant,’’ it is unclear whether she was
referring to all special permit requirements or only the technical require-
ments of § 1.2.4.4. Bratt elaborated no further and did not discuss the general
standards of Article XV in any manner.
10
Six individuals spoke in support of the application, including two football
coaches and one longtime faculty member at the school. Twelve members
of the public spoke in opposition.
11
During the public hearing, the commission received photographic evi-
dence of illuminated lights at a nearby high school football field. Those
photographs depicted the visibility of that lighting from various distances.
12
Article XV, § 4.14 (1), of the regulations provides in relevant part: ‘‘The
location and size of such [special permit] use, and the nature and intensity
of operations involved in or conducted in connection therewith, shall be
such that both pedestrian and vehicular traffic to and from and in the vicinity
of the use will not be hazardous or inconvenient to, or detrimental to
the character of the said residential district or conflict with the traffic
characteristics of the neighborhood. . . . Access, parking, service areas,
lighting, signs and landscaping shall be designed so as to protect the residen-
tial character of surrounding residential neighborhoods or residential
zones.’’
13
The plaintiffs claim that the commission at that time made an indepen-
dent finding, in accordance with § 4.14 (1), that the school’s proposed use
would ‘‘not be hazardous or inconvenient to, or detrimental to the character
of the said residential district or conflict with the traffic characteristics of
the neighborhood . . . .’’ Having allegedly made such a finding, the plaintiffs
maintain that the commission ‘‘could not legally deny the application,’’ ren-
dering the denial thereof ‘‘clearly arbitrary and illegal . . . .’’
That claim was presented to, and rejected by, the Superior Court. In its
memorandum of decision, the court found that Robert’s Rules of Order
governed the commission’s proceedings. The court further found, pursuant
to those rules, that the motion in question ‘‘carried the status of a subsidiary
motion, which had the effect of amending the main motion. It was not a
separate main motion.’’ Following this court’s granting of the defendants’
petition for certification to appeal, the plaintiffs filed a cross appeal, in
which they sought to raise the present issue. In response, the defendants
moved to dismiss that cross appeal in light of the undisputed fact that ‘‘the
plaintiffs did not file, and the Appellate Court did not grant, any petition or
cross petition for certification.’’ By order dated March 16, 2016, this court
granted that motion and dismissed the plaintiffs’ cross appeal. That issue,
therefore, is not properly before this court.
14
It is well established that ‘‘the failure of an application to garner enough
votes for its approval amounts to a rejection of the application.’’ Merlo v.
Planning & Zoning Commission, 196 Conn. 676, 683, 495 A.2d 268 (1985).
That precept applies equally to a tie vote among members of the land use
agency. As our Supreme Court has explained, ‘‘[u]nder common law or
parliamentary law, an affirmative resolution or action which is the subject
of a tie vote fails of adoption.’’ (Internal quotation marks omitted.) Huck v.
Inland Wetlands & Watercourses Agency, 203 Conn. 525, 533 n.8, 525 A.2d
940 (1987); see also Lupinacci v. Planning & Zoning Commission, 153
Conn. 694, 696, 220 A.2d 274 (1966) (tie vote on zoning application ‘‘amounted
to a denial’’); Smith-Groh, Inc. v. Planning & Zoning Commission, 78 Conn.
App. 216, 222–24, 826 A.2d 249 (2003) (rejecting claim that tie vote with
one abstention did not constitute denial of special permit application). Con-
sistent with that precedent, we construe the commission’s decision on the
school’s application as a denial thereof.
15
In responding to the plaintiffs’ administrative appeal before the Superior
Court, the defendants alleged that the commission properly could have
predicated its decision on noncompliance with several sections of Article
XV. Their July 16, 2015 brief to the court discussed § 4.11 (‘‘Public Health and
Safety’’), § 4.12 (‘‘Appropriateness of Use’’), § 4.13 (‘‘Architectural Character,
Historic Preservation, Site Design’’), § 4.14 (‘‘Uses In, Adjacent to, or
Impacting Residential Areas’’), § 5.2 (‘‘Lighting’’), and § 5.4 (‘‘Landscaping
and Screening’’) of Article XV. In its memorandum of decision, however,
the Superior Court focused exclusively on § 4.14.
16
Because the court found that the general standards set forth in Article
XV could not furnish a basis for denying a special permit application, it did
not address the question of whether substantial evidence existed to support
the denial of the school’s application thereunder.
17
As it did in the proceeding before the Superior Court, the commission
has taken no position on the merits of this appeal and has not filed an
appellate brief.
18
Notably, although DeMaria involves a special permit application; DeMa-
ria v. Planning & Zoning Commission, supra, 159 Conn. 537; most cases
in this line of authority do not. See, e.g., Kosinski v. Lawlor, 177 Conn. 420,
423, 418 A.2d 66 (1979) (site plan approval); Sonn v. Planning Commission,
supra, 172 Conn. 157 (subdivision plan approval); RK Development Corp.
v. Norwalk, supra, 156 Conn. 371 (application to common council for
approval of residential development plan); Powers v. Common Council,
supra, 154 Conn. 158 (application to common council for designation of
property as multiple housing project area).
19
General Statutes § 8-2 (a) provides, in relevant part: ‘‘The zoning commis-
sion of each city, town or borough is authorized to regulate, within the
limits of such municipality, the height, number of stories and size of buildings
and other structures; the percentage of the area of the lot that may be
occupied; the size of yards, courts and other open spaces; the density of
population and the location and use of buildings, structures and land for
trade, industry, residence or other purposes. . . . All such regulations shall
be uniform for each class or kind of buildings, structures or use of land
throughout each district, but the regulations in one district may differ from
those in another district . . . .’’
20
General Statutes § 8-2 (a) provides, in relevant part, that a commission
may grant a special permit ‘‘subject to standards set forth in the regulations
and to conditions necessary to protect the public health, safety, convenience
and property values. . . .’’
In Summ v. Zoning Commission, 150 Conn. 79, 86, 186 A.2d 160 (1962),
our Supreme Court discussed the 1959 revision of § 8-2, noting that ‘‘the
legislature added the provision authorizing the adoption by a zoning commis-
sion of regulations which would allow a use subject to standards set forth
in the regulations and under special conditions, after the obtaining of a
special permit. The power of local zoning authorities was thus broadened,
and they were allowed to impose certain standards and conditions on the
use of property when the public interest required it.’’
21
We acknowledge that in the proceeding before it, the Superior Court
did not address this question. Nevertheless, we are mindful that ‘‘[b]ecause
[a zoning] appeal to the [Superior Court] is based solely on the record, the
scope of the trial court’s review of the [commission’s] decision and the
scope of our review of that decision are the same.’’ (Internal quotation
marks omitted.) River Bend Associates, Inc. v. Zoning Commission, 271
Conn. 1, 26–27 n.15, 856 A.2d 973 (2004). It would serve no useful purpose,
therefore, to remand the matter to the Superior Court, particularly when
the parties have briefed and argued the issue in this appeal.
22
As but one example, Lawrence Ganum, who also lives near the school,
stated that ‘‘we are talking quality of life, we are talking about a massive
expansion of use, at night, of this facility. . . . [I]f you were in my yard or
you were sitting outside having a cup of coffee with me, we’d be listening
to hooting and hollering and screaming and the loud music and the loud-
speakers.’’ On the basis of his experience with daytime football games,
Ganum stated that allowing such games at night would have ‘‘a massive
impact on a very quiet, peaceful and comfortable [neighborhood].’’
23
For example, Helga Beloin, who stated that she lives across the street
from the Shahs, informed the commission that the music currently played
at sporting events on the property is so loud that ‘‘[i]t actually cuts down
on [television] watching because [my children] can’t watch [television] with
the [noise] blaring at the school. . . . But we know that it comes [to] an
end. Around 7-8 [p.m.] we know the activity at [the school] stops, so, you
know it’s okay. . . . We hear the noise. . . . But once again, 7:30 [p.m.]
rolls around, it’s over.’’
In their appellate brief, the plaintiffs describe the testimony of neighboring
property owners during the public hearing as ‘‘speculative complaints
. . . .’’ We disagree with that characterization. That testimony was predi-
cated on firsthand experience with major sporting events held at the school,
in some cases over the course of many years. As this court has observed,
‘‘the aim of the public hearing is to obtain any and all information relevant
to the inquiry on hand, so as to facilitate the rendering of an informed
decision by the board.’’ Komondy v. Zoning Board of Appeals, 127 Conn.
App. 669, 681, 16 A.3d 741 (2011). Testimony, such as Beloin’s statement
that the noise from school sporting events is so loud that her family cannot
hear the television inside their home, bears directly on the question of
how the school’s proposed use would impact the surrounding residential
neighborhood. The commission alone is empowered to accept or reject such
testimony. See Children’s School, Inc. v. Zoning Board of Appeals, supra,
66 Conn. App. 630 (zoning board entitled to credit testimony offered at
public hearing); Pelliccione v. Planning & Zoning Commission, 64 Conn.
App. 320, 331, 780 A.2d 185 (‘‘the commission, as the judge of credibility,
is not required to believe any witness’’ [internal quotation marks omitted]),
cert. denied, 258 Conn. 915, 782 A.2d 1245 (2001).
Furthermore, the commission, as the trier of fact in this municipal land
use proceeding, was free to draw reasonable inferences from the testimonial
and documentary evidence submitted during the public hearing. See, e.g.,
Cockerham v. Zoning Board of Appeals, 146 Conn. App. 355, 368, 77 A.3d
204 (2013) (municipal land use agency entitled to credit testimony at public
hearing and draw reasonable inferences therefrom), cert. denied, 311 Conn.
919, 85 A.3d 653, 654 (2014); Hayes Family Ltd. Partnership v. Town Plan &
Zoning Commission, 115 Conn. App. 655, 661, 974 A.2d 61 (evidence suffi-
cient to sustain commission’s finding ‘‘if it affords a substantial basis of fact
from which the fact in issue can be reasonably inferred’’ [internal quotation
marks omitted]), cert. denied, 293 Conn. 919, 979 A.2d 489 (2009); Raczkow-
ski v. Zoning Commission, 53 Conn. App. 636, 645, 733 A.2d 862 (upholding
determination of zoning commission based on inference reasonably drawn
from evidence in record), cert. denied, 250 Conn. 921, 738 A.2d 658 (1999).
It often is said that jurors, in weighing the evidence, are not expected to
leave their common sense at the courtroom door. State v. Martinez, 319
Conn. 712, 735, 127 A.3d 164 (2015). That precept applies equally to members
of municipal land use agencies. See Huck v. Inland Wetlands & Watercourses
Agency, supra, 203 Conn. 537 n.9 (‘‘common sense maintains a proper place
in a judicial or administrative proceeding’’).
On the ample testimony adduced at the public hearing on the noise issues
experienced by neighboring property owners on a regular basis, the commis-
sion, as a matter of both reasonable inference and common sense, could
in its discretion conclude that moving those sporting events from daytime
to nighttime hours would have an adverse impact on the adjacent neighbor-
hood and its residents.
24
Jeffrey W. Strouse, whose property abuts the school’s property,
remarked, ‘‘[a]s autumn comes, the trees lose their leaves . . . . A buffer
can only be as good as the leaves buffering the property. No leaves, no
buffer. Guess what? The leaves [on these trees] are gone in the fall. . . .
[T]here is no buffer there when the leaves fall . . . .’’ Joanne McEniry
provided the commission with a photograph of her backyard, which borders
the property. She explained that she did so to show the commission ‘‘[w]hat
the buffer actually looks like for [six] months of the year. Which is pretty
sparse. . . . Leaves actually do come off the trees in the fall.’’
25
Jai R. Singh provided the commission with handouts that included photo-
graphs of a nearby high school football field illuminated at night. They
included a photograph taken from a distance of approximately 700 feet, and
another ‘‘about 1200 feet from the lights, which is basically [one quarter]
of a mile.’’ In those photographs, the lights are plainly visible. Lars Jorgenson,
who also lives near the school, similarly remarked that ‘‘talking in these
minute technicalities over [a footcandle] . . . really masks what [the pro-
posed use] does to the neighbors of this property. And that is, if you look
out the window, you are going to see those lights.’’
26
In addition, multiple residents reminded the commission that, although
the plaintiffs originally had a much larger parcel of land, they had made the
tactical decision to sell a sizeable portion of it to developers, on which many
homes are now located. As Joanne McEniry noted, the ‘‘school property is
surrounded by our homes. Unfortunately, when the [diocese] decided to
sell off a good chunk of their property to people who developed our homes,
they did not have the foresight to envision these [proposed uses], their
athletic program.’’ Jeffrey W. Strouse, an abutting property owner whose
family members had graduated from the school, stated: ‘‘I wish, I really
wish, for [the school’s] sake, that it would have been a different story for
them. I wish that before the [diocese] had decided to sell off its land . . .
[that] they would have first considered, how much space are we going to
need one day? But for whatever reason, they sold more than they should.
And what they are left with is a very limited space and a field that sits right
on top of people’s properties, with a buffer that’s only good in the summer
when these lights won’t even be on anyway.’’
27
As Michael Love, who also lives near the school, told the commission,
‘‘I can tell you right now, when there’s a big [school] event, parking overflows
into our neighborhood. People park there intentionally because there is only
one exit to get out of [the school], so they can walk over to their car, they
can go away much faster than people exiting the parking lots, which probably
aren’t big enough in the first place. Parking is really the result also of all
of the traffic that is going to be there. More people are going to come to
these games. It’s going to increase traffic in our neighborhood. I can tell
you right now, people zipping through our winding roads don’t obey the
speed limits and they don’t obey the stop signs. It’s terrible what they do
to our neighborhoods.’’
In his initial presentation, Rizio acknowledged that one impetus for the
school’s proposal was to enable more people to attend sporting events on
the property. Joe Dzurenda, a school employee, also confirmed that ‘‘a
football game where we have an abundance [of attendees] . . . does create
excessive traffic . . . .’’
28
Helga Beloin, who stated that she lives across the street from the Shahs,
shared with the commission her firsthand knowledge of ‘‘the activity that
goes on at the end of the cul-de-sac’’ on her street, which abuts the school’s
property. She explained that ‘‘kids are kids, they get together at the end of
the cul-de-sac, make a party. . . . [W]ith more nighttime games, it will
promote more of this partying atmosphere. And you will have more kids
hanging out at the corner or on the cul-de-sac. We’ve woken up to garbage,
broken glass, empty beer cans, garbage in the cul-de-sac that, on occasion
we have had to pick up; at various times, we have taken turns, the neighbors
who have had to pick up. And we do it. I haven’t called the police like other
people have because it didn’t happen so often that I felt like I needed to.
But I’m afraid with the lights on a Friday night or Saturday night, [I] will.
There’s also a lot of traffic with the kids, you know, hanging out longer on
the corner, with their blaring music. They will park there and will talk and
they laugh and so forth and so on.’’
Vibhavary M. Shah told the commission that ‘‘so many kids [already]
hang out on the cul-de-sac’’ during major sporting events that, on multiple
occasions, she has been forced to call ‘‘the cops to get rid of those kids
. . . .’’
In his remarks, Jeffrey W. Strouse noted that he ‘‘met recently one of my
neighbors who . . . is an older woman, and her house sits just near the
field. She echoed a lot of the same things you heard tonight about the noise
and the woods and the loitering. She finds herself . . . actually going out
to clean up their cans the morning after. I can only imagine how much more
time she will be spending cleaning out her beautiful woods after these
nighttime games.’’
29
As Karen Draper, a neighbor of the Shahs, stated, ‘‘I’m concerned about
the proposal . . . . I’m concerned for the safety of my children. I have
[three] children, [ages nine, seven, and three]. This will affect the enjoyment
of my property, it will increase the amount of loitering at the end of [the
street] . . . and will add a considerable amount of traffic. The traffic does
not stop, nor do the students abide by the . . . stop signs and speed limits.
This [proposal] places an unnecessary burden on my neighborhood . . . .’’
30
As Lawrence Ganum, who also lives near the school, told commission
members, his family ‘‘moved here for a reason, for a certain quality of
life,’’ and, after noting the problems of noise emissions and loitering in his
neighborhood, stated that the proposed use would have ‘‘a massive impact
on a very quiet, peaceful and comfortable neighborhood.’’
Karen Draper, a neighbor of the Shahs, testified that the proposed use
‘‘will affect the enjoyment of my property, it will increase the amount of
loitering at the end of [her street], and will add a considerable amount of
traffic.’’ Jeffrey W. Strouse stated that he and his neighbors were ‘‘just trying
to protect the value of our land and the quality of our lives.’’ Alluding to
the various conditions of approval proposed by the school, Robert Haymond,
another resident, stated: ‘‘I’d just like to ask, why limit the days of the week?
Why turn down the lights? Why agree to turn them off early?’’ Haymond
then answered his own question: ‘‘[T]he reason is, because they affect
the community.’’
31
In his remarks, another resident who lives near the school, whom the
record identifies only as S. Edelman, opined that the proposed use would
cause ‘‘major housing depreciation . . . . [There are] about [six to seven]
houses; they are exposed to [the school]. Those [six to seven] houses, they
also have neighbors, they have houses across the street. You bring the price
of one house down, exponentially, the whole neighborhood will go down.
People, when they [consider purchasing a home] nowadays, they look at
what’s the house [values] on each of the lanes. They don’t pay attention
that this house has a flaw in terms of being exposed, they look at that one
price and the whole neighborhood will come down.’’ On a similar note,
Jeffrey W. Strouse reminded the commission that a principal purpose of
the regulations, memorialized in the preamble thereto, was ‘‘to preserve and
protect’’ property values. Trumbull Zoning Regs., art. I, § 1. In his view,
the school’s application was likely to damage the value of neighboring
residential properties.