Putnam Park Apartments, Inc. v. Planning & Zoning Commission

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PUTNAM PARK APARTMENTS, INC., ET AL. v.
PLANNING AND ZONING COMMISSION
OF THE TOWN OF GREENWICH
ET AL.
(AC 41696)
Alvord, Bright and Bear, Js.
Syllabus
The plaintiffs appealed to the trial court from the decision of the defendant
Planning and Zoning Commission of the Town of Greenwich approving
the applications of the defendant N Co. for a special permit and a site
plan to construct a new building on property owned by C and leased
to N Co., which abuts the plaintiffs’ properties. The trial court rendered
judgment dismissing the appeal, from which the plaintiffs, on granting
of certification, appealed to this court. They claimed, inter alia, that the
trial court improperly agreed with the commission’s interpretation of a
certain building zone regulation (§ 6-94 [b] [1]) to allow the commission
to permit a building closer than 100 feet from the plaintiffs’ property
lines if, after considering the proposed use and its specific location,
the commission found that the closer distance would not produce any
adverse impacts on the abutting properties. Specifically, the plaintiffs
claimed that § 6-94 (b) (1) allows the commission to locate a building
closer than 100 feet from their property lines only if that closer location
affirmatively will protect the plaintiffs from whatever adverse impacts
they would endure if the building were located 100 feet or more from
their property lines. Held:
1. The trial court properly determined that the commission’s construction
of § 6-94 (b) (1) of the regulations was proper; the plain language of
the regulation requires the commission to consider the particular use
and specific location of charitable institutions applying for a permit to
construct a building less than 100 feet from a neighboring property line,
the requirement in the regulation that the permit may not be issued
unless the lesser distance would protect the property owners from
adverse impacts requires the commission to find by substantial evidence
that there will be no adverse impacts on adjacent properties due to
the building being closer than 100 feet, and the plaintiffs’ construction
implied a decision-making process not set forth in the regulation.
2. There was substantial evidence in the record from which the commission
could have concluded that the proposed facility was in compliance with
certain building zone regulations (§§ 6-15 and 6-17), which required the
commission to take into account whether N Co.’s proposed facility
was in conformity with the plan of conservation and development; the
evidence demonstrated that N Co. has operated on C’s property for
approximately forty years, that it has been part of the residential neigh-
borhood during that time, that it currently operates out of facilities that
are not adequate to meet the needs of the community, and that it serves
an important function in the community, the proposed building, which
will be located on C’s property adjacent to where N Co. currently oper-
ates, is closer to the plaintiffs’ properties to protect natural resources,
including mature trees, and under N Co.’s proposal, exiting drainage
would be improved, new trees and vegetation will be planted, and the
proposed facility would complement existing buildings on the site and
have no adverse impact on the historical nature of the area.
3. The trial court and commission properly concluded the provision (§ 6-
95) of the building zone regulations governing accessory uses does not
apply to N Co.’s special permit application; the proposed building meets
a permitted use definition for special exceptions under a separate regula-
tion (§ 6-94), which addresses nonresidential uses, and it was illogical
to apply § 6-95 to § 6-94 uses such as N Co.’s proposed building.
Argued May 20—officially released September 24, 2019
Procedural History
Appeal from the decision by the named defendant
approving the applications by the defendant Neighbor
to Neighbor, Inc., to construct a new building on prop-
erty owned by defendant the Parish of Christ Church,
and for other relief, brought to the Superior Court in
the judicial district of Stamford-Norwalk and tried to
the court, Hon. Taggart D. Adams, judge trial referee;
judgment dismissing the appeal, from which the plain-
tiffs, on the granting of certification, appealed to this
court. Affirmed.
Stephen G. Walko, with whom, on the brief, was
Andrea C. Sisca, for the appellants (plaintiffs).
Evan J. Seeman, with whom were John K. Wetmore
and Edward V. O’Hanlan, for the appellees (named
defendant et al.).
Opinion
BRIGHT, J. The plaintiffs, Putnam Park Apartments,
Inc. (Putnam Park), and Putnam Hill Apartments, Inc.
(Putnam Hill), appeal from the judgment of the Superior
Court affirming the decision of the defendant Planning
and Zoning Commission of the Town of Greenwich
(commission), which had approved the special permit
and site plan applications of the defendant Neighbor
to Neighbor, Inc. (Neighbor), to construct a new build-
ing on property, owned by the defendant Parish of
Christ Church (Church) and leased to Neighbor, abut-
ting the plaintiffs’ properties.1 On appeal, the plaintiffs
claim that the court improperly (1) agreed with the
commission’s interpretation of § 6-94 (b) (1) of the
Greenwich building zone regulations (regulations), (2)
concluded that the commission properly found that the
record contained substantial evidence that Neighbor’s
proposal was consistent with §§ 6-15 and 6-17 of the
regulations, and (3) concluded that § 6-95 of the regula-
tions did not apply to Neighbor’s special permit applica-
tion. We affirm the judgment of the Superior Court.
The following facts, as revealed by the record, and
procedural history inform our review. Neighbor is a
charitable corporation that has provided clothing and
food to people in need within the Greenwich community
for approximately forty years. Neighbor operates out
of a 2300 square foot space in the basement of two
buildings on Church’s property, located at 248 East
Putnam Avenue. That space, however, is not handi-
capped accessible, and it does not meet the needs of
Neighbor and the people it serves. Because of the limita-
tions of the space at 248 East Putnam Avenue, Neighbor
has resorted to the use of approximately 600 square feet
of onsite storage containers. To address these issues,
Church and Neighbor reached an agreement whereby
Neighbor will lease a portion of Church’s property
located at 220 East Putnam Avenue in order to construct
a parking and loading area, and a new 6363 square foot
building, which will provide Neighbor with administra-
tive offices, a community room, and the necessary space
for clothing and food intake and distribution (pro-
posed facility).
The property at 220 East Putnam Avenue is a trapezoi-
dal shaped parcel consisting of 5.25 acres situated south
of East Putnam Avenue approximately where Park Ave-
nue and Park Place intersect with East Putnam Avenue
from the north. The property is in an R-20 zone. This
property also is the site of the Tomes-Higgins House, a
nineteenth century residence designed by Calvert Vaux,
and an associated carriage house, located in a setting
with mature trees in downtown Greenwich. Putnam
Hill’s property is located and abuts on the southern end
of 220 East Putnam Avenue’s eastern boundary, and
Putnam Park’s property is located and abuts 220 East
Putnam Avenue’s southern boundary. Putnam Hill and
Putnam Park are apartment complexes containing a
total of 397 individually owned apartments between
them. To the east of 220 East Putnam Avenue is 248
East Putnam Avenue, which is the location of Church’s
parish house, annex, and sanctuary, and is the location
out of which Neighbor currently operates.
On October 14, 2015, Neighbor filed a special permit
application and a preliminary site plan application with
the commission to permit the construction of the pro-
posed facility. During discussions, Neighbor and
Church informed the commission that there would be
no significant changes in Neighbor’s present programs.
After the submission of its preliminary application, the
commission held public hearings on December 8, 2015,
and February 2 and 23, 2016. The commission, there-
after, recognized that Neighbor’s current needs were
not being met, and it voted to have Neighbor submit a
final site plan and special permit applications for its
proposed facility. The commission noted that the pro-
posed Neighbor building would be situated 100 feet
from the rear (southern) property line and approxi-
mately thirty-eight feet from the eastern property line,2
and it set forth specific items that Neighbor needed to
address in its final application. Among those items were
the relocation of the rear parking area for the new
building, the hours of operation, the protection of all
existing mature trees on the property, additional buff-
ering from adjacent properties, and the outstanding
comments from other town departments and commis-
sions, as well as from the commission’s traffic consul-
tant, the BETA Group.
On May 27, 2016, Neighbor submitted its final site
plan and special permit applications. Following public
hearings held on September 8, 2016, and October 4,
2016, the commission voted, on October 18, 2016, to
grant Neighbor’s final site plan and special permit appli-
cations, with several conditions imposed. In a Novem-
ber 1, 2016 letter, the full decision of the commission,
detailing its findings and conditions of approval, was
sent to Neighbor’s attorney.3 The special permit certifi-
cate and the site plan approval certificate also were
issued on that day. By complaint dated November 8,
2016, the plaintiffs appealed to the Superior Court from
the commission’s decision to approve the site plan and
issue a special permit to Neighbor. On March 6, 2018,
the Superior Court, Hon. Taggart D. Adams, judge trial
referee, after determining that the plaintiffs properly
had established aggrievement, which is not challenged
on appeal to this court, concluded, in a thoughtful and
thorough memorandum of decision, that the commis-
sion properly had interpreted its regulations and that
there was substantial evidence in the record to support
the commission’s decision, and it dismissed the plain-
tiffs’ appeal. Following our granting of the plaintiffs’
petition for certification to appeal; see General Statutes
§ 8-8 (o); this appeal followed. Additional facts will be
set forth as necessary.
I
The plaintiffs first claim that the court erred in agree-
ing with the commission’s interpretation of § 6-94 (b)
(1) of the regulations. The plaintiffs argue: ‘‘In finding
that the [c]ommission correctly interpreted and prop-
erly applied [§] 6-94 (b) (1) [of the regulations], the . . .
[c]ourt necessarily interpreted [§] 6-94 (b) (1). Such
interpretation was contrary to the plain language of the
regulation and should be reversed.’’ We disagree.
‘‘Because the interpretation of the regulations pre-
sents a question of law, our review is plenary. . . .
Additionally, zoning regulations are local legislative
enactments . . . and, therefore, their interpretation is
governed by the same principles that apply to the con-
struction of statutes. . . . Ordinarily, [appellate courts
afford] deference to the construction of a statute
applied by the administrative agency empowered by
law to carry out the statute’s purposes. . . . Cases that
present pure questions of law, however, invoke a
broader standard of review than is ordinarily involved
in deciding whether, in light of the evidence, the agency
has acted unreasonably, arbitrarily, illegally or in abuse
of its discretion. . . . Furthermore, when [an] agency’s
determination of a question of law has not previously
been subject to judicial scrutiny . . . the agency is not
entitled to special deference. . . . [I]t is for the courts,
and not administrative agencies, to expound and apply
governing principles of law.’’ (Citation omitted; internal
quotation marks omitted.) Field Point Park Assn., Inc.
v. Planning & Zoning Commission, 103 Conn. App.
437, 439–40, 930 A.2d 45 (2007).
Section 6-94 (b) (1) of the regulations provides in
relevant part: ‘‘The following uses shall be permitted
in . . . R-20 . . . zones . . . when authorized by the
. . . [c]ommission by [s]pecial [p]ermit issued pursu-
ant to [§] 6-17 [of the regulations] . . . philanthropic
or charitable institutions not of a penal or correctional
nature . . . provided that any building so permitted
shall be located not less than one hundred (100) feet
from any street or lot line unless the [c]ommission
finds in consideration of the particular use and its
specific location that a lesser distance will protect
adjacent property owners from adverse impacts.’’
(Emphasis added.)
The plaintiffs argue: ‘‘There is no dispute between
the parties that . . . Neighbor is a qualified charitable
institution as contemplated by [§] 6-94 (b) (1). The sec-
ond part of [§] 6-94 (b) (1) [however] states that a special
permit may be issued, ‘provided that any building so
permitted shall be located not less than one hundred
(100) feet from any street or lot line unless the [c]om-
mission finds in consideration of the particular use and
its specific location that a lesser distance will protect
adjacent property owners from adverse impacts.’ It is
this limitation on the [c]ommission’s authority that the
[c]ommission, and subsequently the . . . [c]ourt, mis-
interpreted.’’ Specifically, the plaintiffs contend that the
language of § 6-94 (b) (1) ‘‘clearly required [d]efendant
Neighbor to identify any adverse impacts to [the]
[p]laintiffs’ properties arising from locating the building
100 feet or more from the abutting property lines, then
show that moving the building within the 100 foot set-
back will protect [the] [p]laintiffs from those adverse
impacts.’’
The plaintiffs construe § 6-94 (b) (1) to allow the
commission to locate a building closer than 100 feet
from their property lines only if that closer location
‘‘affirmatively will protect’’ the plaintiffs from whatever
adverse impacts they would endure if the building were
located 100 feet or more from their property lines. In
other words, unless moving the proposed building loca-
tion closer than 100 feet ‘‘affirmatively will protect’’
against adverse impacts on the plaintiffs created by
the farther location, the commission does not have the
authority to permit it; this would be true even if it would
be impossible for the applicant to build at a distance
of more than 100 feet and the closer location would
have no adverse impacts on the plaintiffs whatsoever.
The Superior Court and the commission, on the other
hand, construed § 6-94 (b) (1) to allow the commission
to permit a building closer than 100 feet from the plain-
tiffs’ property lines if, after considering the proposed
use and its specific location, the commission finds that
the closer distance would not produce any adverse
impacts on the abutting properties. In other words, they
concluded that the commission has the authority, after
considering the specific proposed use and location of
the area for which the special permit is sought, to permit
a building closer than 100 feet from the property line
if there would be no adverse impacts on the plaintiffs
created by the closer location.4 We agree with the court
that the commission’s interpretation was correct.
Section 6-94 (b) (1) of the regulations specifically
requires the commission to consider ‘‘the particular use
and its specific location’’ when it considers whether
to permit a philanthropic or charitable institution to
construct a building less than 100 feet from a neigh-
boring property line, which, by its language, gives the
commission some amount of discretion to grant the
special permit after considering the use and location
of the proposed building. The regulation also provides,
however, that the commission may not permit such a
building unless that ‘‘lesser distance will protect adja-
cent property owners from adverse impacts.’’ We con-
strue that restriction to mean that the commission must
find, by substantial evidence, that there will be no
adverse impacts on the adjacent property due to the
building being closer than 100 feet.5 This conclusion
is based on the plain and straightforward wording of
the regulation.
By contrast, the plaintiffs have offered a convoluted
interpretation that implies a decision-making process
not set forth in the regulation. According to the plain-
tiffs, the commission first would have to determine
whether there were any adverse impacts on abutting
property owners from permitting the building anywhere
that was more than 100 feet from the lot line. Only if
there is a determination that such adverse impacts exist
could the commission then consider whether permitting
the building within 100 feet of the lot line would protect
the abutting owners from the adverse impacts they
would have experienced had the building been located
more than 100 feet from the lot line. Although the town
may have been able to adopt a regulation that provided
for such a process, it did not do so with its adoption
of § 6-94 (b) (1). We will not read into a regulation
words or limitations that are not there. See Red Hill
Coalition, Inc. v. Conservation Commission, 212
Conn. 710, 726, 563 A.2d 1339 (1989) (absent direction
from legislative body, court will not read into legislation
requirement that is not expressed therein); Point O’
Woods Assn., Inc. v. Zoning Board of Appeals, 178
Conn. 364, 366, 423 A.2d 90 (1979) (‘‘courts cannot, by
construction, read into statutes provisions which are
not clearly stated’’). Furthermore, we will adopt an
interpretation of a regulation or statute consistent with
its plain language over one that requires mental gymnas-
tics to reach a desired result. See Kobyluck Bros., LLC
v. Planning & Zoning Commission, 167 Conn. App.
383, 392, 142 A.3d 1236 (‘‘[b]ecause zoning regulations
are in derogation of common law property rights . . .
the regulation[s] cannot be construed beyond the fair
import of [their] language to include or exclude by
implication that which is not clearly within [their]
express terms . . . [and] doubtful language will be
construed against rather than in favor of a [restriction]’’
[citations omitted; internal quotation marks omitted]),
cert. denied, 323 Conn. 935, 151 A.3d 838 (2016). Accord-
ingly, we conclude that the court properly determined
that the commission’s construction of § 6-94 (b) (1)
was proper.
II
The plaintiffs also claim that the court improperly
concluded that the commission properly found that the
record contained substantial evidence that Neighbor’s
proposal is consistent with §§ 6-156 and 6-17 (d)7 of the
regulations. We are not persuaded.
‘‘General Statutes § 8-2 (a) provides in relevant part
that local zoning regulations may provide that certain
. . . uses of land are permitted only after obtaining a
special permit or special exception . . . subject to
standards set forth in the regulations and to conditions
necessary to protect the public health, safety, conve-
nience and property values. . . . A special permit
allows a property owner to use his property in a manner
expressly permitted by the local zoning regulations.
. . . The proposed use, however, must satisfy stan-
dards set forth in the zoning regulations themselves as
well as the conditions necessary to protect the public
health, safety, convenience and property values. . . .
An application for a special permit seeks 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.
. . . When ruling upon an application for a special per-
mit, a planning and zoning board acts in an administra-
tive capacity. . . . [Its] function . . . [is] to decide
within prescribed limits and consistent with the exer-
cise of [its] legal discretion, whether a particular section
of the zoning regulations applies to a given situation
and the manner in which it does apply. . . . Review of
a special permit application is inherently fact-specific,
requiring an examination of the particular circum-
stances of the precise site for which the special permit
is sought and the characteristics of the specific neigh-
borhood in which the proposed facility would be built.’’
(Citations omitted; internal quotation marks omitted.)
Meriden v. Planning & Zoning Commission, 146 Conn.
App. 240, 244–45, 77 A.3d 859 (2013).
‘‘In reviewing a decision of a zoning board, a
reviewing court is bound by the substantial evidence
rule . . . . If [the reviewing] 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 agency’s decision must be sustained if an
examination of the record discloses evidence that sup-
ports any one of the reasons given. . . .
‘‘This so-called substantial evidence rule is similar
to the sufficiency of the evidence standard applied in
judicial review of jury verdicts, and evidence is suffi-
cient to sustain an agency finding if it affords a substan-
tial basis of fact from which the fact in issue can be
reasonably inferred. . . . [I]t must be enough to justify,
if the trial were to a jury, a refusal to direct a verdict
when the conclusion sought to be drawn from it is one
of fact for the jury. . . . The substantial evidence rule
is a compromise between opposing theories of broad
or de novo review and restricted review or complete
abstention. It is broad enough and capable of sufficient
flexibility in its application to enable the reviewing
court to correct whatever ascertainable abuses may
arise in administrative adjudication. On the other hand,
it is review of such breadth as is entirely consistent with
effective administration. . . . The corollary to this rule
is that absent substantial evidence in the record, a court
may not affirm the decision of the board.’’ (Citation
omitted; internal quotation marks omitted.) Id., 246–47.
Section 6-15 of the regulations sets forth the commis-
sion’s standards for site plan review. See footnote 6 of
this opinion. Section 6-17 (d) sets forth the standards
to be considered when the commission acts on a special
permit application. See footnote 7 of this opinion. The
plaintiffs argue that Neighbor provided no evidence
to the commission that the proposed facility met the
standards contained in § 6-17 (d) or in § 6-15 (a) (1),
(3), or (4) of the regulations. We consider each of
these standards.
Sections 6-15 (a) (1) and 6-17 (d) (1) require that
the commission take into account whether Neighbor’s
proposed facility is in conformity with the plan of con-
servation and development (plan). The plan states that
it is ‘‘an advisory document . . . [that] contains the
recommendations for [t]own agencies, boards and
departments.’’ ‘‘Implementation of the [p]lan is an ongo-
ing process,’’ with some recommendations taking until
‘‘the end of the planning period or beyond.’’ The specific
portions of the plan that the plaintiffs raise in their brief
are set forth in the goals synopsis section of the plan.
Specifically, the plaintiffs cite to three of the goals, as
to which, they claim, there is no evidence of compli-
ance. The first goal cited by the plaintiffs is that the town
‘‘[b]e and remain primarily a well-maintained residential
community for all of our current and future residents.’’
The second goal cited is that the town ‘‘[p]rotect and
enhance well-defined neighborhoods and village cen-
ters,’’ and the third goal cited is that the town ‘‘[p]rotect
and enhance water and land natural resources, pervious
surfaces, open space, parklands, recreational facilities
and areas in an environmentally sensitive manner.’’ The
defendants, on the other hand, argue that there was
substantial evidence that the proposed facility is in
accord with the plan, but, even if there was not substan-
tial evidence that the proposal meets each goal of the
plan, the plan is only an advisory document. We con-
clude that there was substantial evidence that the pro-
posed facility is in keeping with the plan.
The evidence demonstrates that Neighbor has oper-
ated on Church’s property for approximately forty
years, and that it has been part of this residential neigh-
borhood during that time. It also currently operates out
of facilities that are not adequate to meet the needs of
the Greenwich community that Neighbor serves, includ-
ing that the current facility is too small and not handi-
capped accessible. The proposed facility will be located
on Church property, adjacent to where Neighbor cur-
rently operates. Although not cited by the plaintiffs,
the plan also includes a goal to ‘‘provide and support
facilities and services to meet community needs.’’ The
plan document explains: ‘‘Greenwich has many varied
private organizations that provide services and commu-
nity facilities for the [t]own. These organizations con-
tribute to the overall quality of life in Greenwich and
their efforts should be supported.’’
Another goal of the plan is to ‘‘preserve the natural
landscape to protect resources . . . .’’ The proposed
facility is closer to the plaintiffs’ properties to protect
the natural resources, including the mature trees, and
the historical site located on 220 East Putnam Avenue.
The plan sets forth various methods to help accomplish
the goal of preserving the natural landscape, one of
which is to address flooding and storm water manage-
ment. The evidence before the commission was that
the existing storm water basin in this area is prone to
flooding, which will be remedied as part of Neighbor’s
proposal. Furthermore, additional trees and vegetation
will be planted, including along the property lines that
abut the plaintiffs’ properties. On the basis of the evi-
dence before the commission, we conclude that there
was substantial evidence that the proposed facility was
in keeping with the plan.
Section 6-15 (3) of the regulations requires that the
commission take into account whether the proposed
facility protects the ‘‘environmental quality and the
preservation and enhancement of the property values,’’
and it sets forth seven different aspects of the site plan
that the commission must evaluate to determine the
conformity of a site plan to this standard. Specifically,
this subsection requires that the commission evaluate
the following: ‘‘(a) Adequacy of open spaces, screening
and buffering between similar and dissimilar uses to
assure light, air, privacy and freedom from nuisance or
other disturbance . . . (b) [t]he location, height and
materials of walls, fences, hedges and plantings so as
to ensure harmony with adjacent development, screen
parking and loading areas, and conceal storage areas,
utility installations and other such features, all in con-
formity with the requirements of [§] 6-176 of the building
zone regulations; (c) [t]he prevention of dust and ero-
sion through the planting of ground cover or installation
of other surfaces; (d) [t]he preservation of natural attri-
butes and major features of the site such as wetlands,
highly erodible areas, historic structures, major trees
and scenic views both from the site and onto or over
the site; (e) [t]he conformity of exterior lighting to the
requirements of [§§] 6-151 to 6-153 of the [b]uilding
[z]one [r]egulations; (f) [t]he design and arrangement
of buildings and accessory facilities and the installation
of proper shielding so as to minimize noise levels at the
property boundary; and (g) [t]he provision of adequate
storm and surface water drainage facilities to properly
drain the site while minimizing downstream flooding,
yet not adversely affect water quality as defined by the
State Department of Environmental Protection.’’ The
plaintiffs contend that there was no evidence of compli-
ance with this standard. Our review of the record
reveals otherwise.
Neighbor’s proposal addressed each of the aspects
set forth in § 6-15 (a) (3), including: significant screen-
ing, buffering, planting of trees, and hiring a licensed
arborist to oversee the area during construction; pre-
serving mature trees on site; preserving the historic
nature of the area surrounding the Tomes-Higgins
House on site; redesigning the proposed building to
address the concerns of the historic district commis-
sion; addressing the lighting of the site, including ensur-
ing that outside lighting is on a timing mechanism;
requiring strict adherence to the town’s noise ordi-
nance; restricting delivery times and times of operation;
and implementing a storm water management plan that
improves existing drainage.
The plaintiffs also contend that there is no evidence
that the proposed facility will comply with § 6-15 (a) (4),
which requires the commission to consider the building
design, the neighborhood appearance, and the overall
site design, to ensure that the proposal is in harmony
with existing buildings and the natural terrain and vege-
tation in the neighborhood. They also contend that there
is no evidence that the proposal will comply with § 6-
17 (d) (11), which, similar to § 6-15 (a) (4), requires
the commission to consider whether the proposal will
materially adversely affect residential uses in the neigh-
borhood or be detrimental to the neighborhood or its
essential characteristics.
There was evidence submitted to the commission
from Neighbor’s architect, who opined that the pro-
posed facility would complement existing buildings on
the site. There also was evidence that the town’s historic
district commission initially did not like the original
building design that was proposed, so Neighbor
changed the design, which then was approved by the
state’s Historic Preservation Office. There was evidence
that in the immediate vicinity of 220 East Putnam Ave-
nue are several religious, civic, and nonprofit institu-
tions, including Temple Sholom, the local YWCA, the
Junior League, and Putnam Cottage, along with a private
office building called The Columns. Additionally, there
was evidence that the mature trees will remain on site
and new trees and vegetation will be planted.
There also was evidence that there would be no
adverse impact to the historic nature of the area sur-
rounding the Tomes-Higgins House, and that existing
drainage will be improved in the area. Further evidence
showed that Neighbor has been operating in this area
for approximately forty years, that it is a part of this
neighborhood, and that it serves an important function,
which the plaintiffs do not dispute. Accordingly, we
conclude that there was substantial evidence from
which the commission could conclude that the pro-
posed facility was in compliance with these specific
portions of §§ 6-15 and 6-17 (d) of the regulations.
III
The plaintiffs’ final claim is that the court and the
commission improperly concluded that § 6-95 of the
regulations does not apply to Neighbor’s special permit
application. They argue that Neighbor applied to con-
struct a second building at 220 East Putnam Avenue,
which is in an R-20 zone, and, therefore, § 6-95 applies
because the proposed building necessarily would be an
accessory structure to the Tomes-Higgins House, which
already is located on the property. According to the
plaintiffs: ‘‘The record does not contain any evidence
that allowing . . . Neighbor’s proposal, in addition to
the already existing Tomes-Higgins House and carriage
house on the property, is permissible under the regula-
tions in an R-20 zone, which allows only uses that are
customary and secondary to a single family dwelling.’’
The defendants argue that the proposed building is not
an accessory structure, but, rather, a second principal
structure, and, therefore, § 6-95 does not apply. Addi-
tionally, the defendants argue that pursuant to the plain
language of § 6-95, that regulation applies only to the
principal uses set forth in § 6-93, which do not include
the uses at 220 East Putnam Avenue. We agree that § 6-
95 does not apply to Neighbor’s proposed building.
As set forth in part I of this opinion, the interpretation
of a zoning regulation is a question of law, to which
we apply plenary review. Field Point Park Assn., Inc.
v. Planning & Zoning Commission, supra, 103 Conn.
App. 439.
Section 6-95 of the regulations provides in relevant
part: ‘‘(a) Customary uses incident to the principal
uses in [§] 6-93 shall be permitted in RA-4, RA-2, RA-
1, R-20 and R-12 zones and R-7 zone (by the cross
reference in [§] 6-97 (b) (1) to RA-4 zones permitted
uses) and R-6 zone (by the cross reference in [§] 6-98
(b) (1) to R7 zones permitted uses).’’ (Emphasis added.)
Section 6-93 of the regulations provides: ‘‘(a) The
following principal uses are permitted in RA-4, RA-2,
RA-1, R-20 and R-12 Zones and all other principal uses
are expressly excluded: (1) Detached single family
dwellings, one (1) per lot. (2) Streets, parks, play-
grounds, public school grounds and Town buildings
and uses.’’
Section 6-95 (a) specifically states that it applies to
the principal uses set forth in § 6-93. Section 6-93 lists
several principal uses, none of which include the uses
currently at or proposed at 220 East Putnam Avenue.
Neighbor’s proposed building is only permitted because
it meets one of the permitted use definitions for special
exceptions in § 6-94. Section 6-95 makes no reference
to special permitted uses under § 6-94. This is not sur-
prising given that the examples of permitted accessory
buildings listed in § 6-95 (a) (2) (a) includes ‘‘[p]rivate
garages, barns, sheds, shelters, silos, and other struc-
tures customarily accessory to residential estates,
farms or resident uses . . . .’’ (Emphasis added.) The
permitted special exceptions under § 6-94 are excep-
tions expressly because they are unquestionably not
residential. Thus, based on the clear language of the
regulations, it is illogical to apply § 6-95 to § 6-94 uses
such as Neighbor’s proposed building.8 Therefore, we
conclude that § 6-95 does not apply to those additional
uses permitted by special exception or special permit
under § 6-94.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Church and the commission each have adopted the brief of Neighbor
and have elected not to file their own briefs.
2
As a result of preliminary discussions with the commission, Neighbor
had agreed previously to move the building ten feet north; and slightly more
than 100 feet from the southern boundary line.
3
The letter specifically stated that its contents had been reviewed by
members of the commission and that the letter reflected the commission’s
October 18, 2016 decision.
4
When asked during oral argument what adverse impacts the plaintiffs
believed were created by the closer location, the plaintiffs’ attorney refer-
enced one resident of Putnam Park who had stated that there would be
asphalt where green grass used to be and his view of the Tomes-Higgins
House would become obstructed.
5
The commission observed that the proposed building would be 100 feet
from the rear property line and 38.8 feet from the eastern property line, but
that this would have no adverse impacts on the plaintiffs because the only
part of the plaintiffs’ facilities less than 100 feet from the proposed building
would be the caretaker’s office at Putnam Hill, which, according to the
commission, has people coming and going throughout the day. The commis-
sion also found that the closer distance was acceptable, in part, because
moving the building to the west would require the elimination of mature
trees that are part of the landscape environment of the neighborhood, and
that the proposed landscaping between 220 East Putnam Avenue and the
plaintiffs’ properties would work to screen any potential impacts of the
proposed facility. The commission, in the exercise of caution, also placed
a number of restrictions on the proposed Neighbor facility, including the
hours of operation, the number and schedule of deliveries, the hours of
lighting for the building and the exterior, no night time meetings or activities,
the times of trash pickup and no change in the current location of the
dumpster, and compliance with municipal noise regulations.
6
Section 6-15 of the regulations, titled ‘‘standards,’’ provides in relevant
part: ‘‘(a) The [p]lanning and [z]oning [c]ommission may approve applica-
tions for preliminary site plans or deny applications for preliminary site
plans according to the standards set forth in this [r]egulation. Alternatively,
as a condition of approval, the [c]ommission may require such modifications
of the proposed plans as it deems necessary to comply with [r]egulations.
In determining whether to approve application for preliminary site plans,
deny such applications, or approve such application with modifications, the
[p]lanning and [z]oning [c]ommission shall take into consideration the public
health, safety and general welfare and the comfort and convenience of the
general public, taking into account whether the applicant has satisfied the
following specific objectives:
‘‘(1) Conformity of all proposals with the [p]lan of [d]evelopment. . . .
‘‘(3) The protection of environmental quality and the preservation and
enhancement of property values. At least the following aspects of the site
plan shall be evaluated to determine the conformity of a site plan to this
standard:
‘‘(a) Adequacy of open spaces, screening and buffering between similar
and dissimilar uses to assure light, air, privacy and freedom from nuisance
or other disturbance.
‘‘(b) The location, height and materials of walls, fences, hedges and plant-
ings so as to ensure harmony with adjacent development, screen parking
and loading areas, and conceal storage areas, utility installations and other
such features, all in conformity with the requirements of [§] 6-176 of the
[b]uilding [z]one [r]egulations;
‘‘(c) The prevention of dust and erosion through the planting of ground
cover or installation of other surfaces;
‘‘(d) The preservation of natural attributes and major features of the site
such as wetlands, highly erodible areas, historic structures, major trees and
scenic views both from the site and onto or over the site;
‘‘(e) The conformity of exterior lighting to the requirements of [§§] 6-151
to 6-153 of the [b]uilding [z]one [r]egulations;
‘‘(f) The design and arrangement of buildings and accessory facilities and
the installation of proper shielding so as to minimize noise levels at the
property boundary;
‘‘(g) The provision of adequate storm and surface water drainage facilities
to properly drain the site while minimizing downstream flooding, yet not
adversely affect water quality as defined by the State Department of Environ-
mental Protection.
‘‘(4) A high quality of building design, neighborhood appearance, and
overall site design. At least the following aspects of the site plan shall be
evaluated to determine the conformity of a site plan to this standard:
‘‘(a) A design in harmony with existing and/or proposed neighborhood
appearance, as shown by the exterior appearance of the buildings, their
location on the site, and their relationship to the natural terrain and vegeta-
tion and to other buildings in the immediate area. . . .’’
7
Section 6-17 (d) of the regulations provides in relevant part: ‘‘In reviewing
special permits, the [p]lanning and [z]oning [c]ommission shall consider all
the standards contained in [§] 6-15 (a). In granting any special permit the
[c]ommission shall consider in each case whether the proposed use will:
‘‘(1) Be in accordance with the [p]lan of [d]evelopment. . . .
‘‘(11) Will not materially adversely affect residential uses, nor be detrimen-
tal to a neighborhood or its residents, nor alter a neighborhood’s essential
characteristics. . . .’’
8
Even if § 6-95 did apply, we agree with the defendants that Neighbor’s
proposed building is not an accessory use or building. Section 6-5 (a) (6)
of the regulations, which sets forth the common definitions used in the
regulations, provides: ‘‘Building Accessory or Accessory Use shall mean, in
a residential zone, any accessory building or use which is subordinate and
customarily incidental to the principal building or use on the same lot.
In a commercial zone, shall mean any accessory building, including shipping
containers or other structure customarily incidental to the principal building
or use on the same lot.’’ (Emphasis added.) In no way is Neighbor’s proposed
building subordinate and incidental to the Tomes-Higgins House and its
associated carriage house.