American Institute for Neuro-Integrative development, Inc. v. Town Plan & Zoning Commission

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AMERICAN INSTITUTE FOR NEURO-INTEGRATIVE
DEVELOPMENT, INC. v. TOWN PLAN AND
ZONING COMMISSION OF THE
TOWN OF FAIRFIELD
(AC 40102)
Keller, Moll and Lavery, Js.
Syllabus
The plaintiff appealed to the trial court from the decision by the defendant
Town Plan and Zoning Commission of the Town of Fairfield (commis-
sion) denying its application for a special exception to use a portion of
a former high school building it owned, which was located in a residential
zone, to provide educational, vocational and other services to individuals
with severe learning disabilities. The trial court rendered judgment dis-
missing the appeal, from which the plaintiff, on the granting of certifica-
tion, appealed to this court. Held:
1. The commission’s conclusion that the plaintiff had not satisfied certain
traffic related requirements under the town zoning regulations was
improper, as the commission’s ground for denying the special exception
application was not supported by the record: the plaintiff presented
testimony from an expert witness concluding that the roads could ade-
quately accommodate the anticipated additional traffic generated, and
although neighbors disagreed with the analysis of the plaintiff’s expert,
their comments concerning the adequacy of the streets to accommodate
traffic and prospective hazards or congestion addressed matters of pro-
fessional expertise, the neighbors did not purport to have the training
or skills needed to properly assess traffic impact, nor did they offer an
expert’s opinion on their behalf, and their comments, thus, amounted
to generalized concerns about hypothetical effects of increased traffic;
moreover, the commission’s conclusion essentially turned on public
testimony regarding the mere potential for adverse effects to the neigh-
borhood, which did not constitute substantial evidence.
2. The commission’s other stated reason for denying the plaintiff’s applica-
tion, namely, that the plaintiff did not demonstrate that the proposed
offices for charitable institutions would be nonprofit entities, was not
supported by the record; in making its application, the plaintiff agreed
to be bound by a condition that it would lease the office spaces only
to nonprofit charitable corporations, that use was consistent with the
zoning regulations, and, therefore, despite that express agreement and
the absence of evidence that the proposed use would not be a permitted
use, the commission’s denial of the plaintiff’s application on the basis
of a concern that a for-profit entity might operate on the property was
based on speculation.
Argued December 5, 2018—officially released April 23, 2019
Procedural History
Appeal from the decision of the defendant denying
the plaintiff’s request for a special exception, brought
to the Superior Court in the judicial district of Fairfield
and tried to the court, Hon Richard P. Gilardi, judge
trial referee; judgment dismissing the appeal; thereafter,
the court denied the plaintiff’s motion to reargue, and
the plaintiff, on the granting of certification, appealed
to this court. Reversed; judgment directed.
Michael T. Bologna, with whom was William J. Fitzpa-
trick, for the appellant (plaintiff).
Stanton H. Lesser, for the appellee (defendant).
Opinion
LAVERY, J. The plaintiff, American Institute for
Neuro-Integrative Development, Inc., appeals from the
judgment of the trial court dismissing its appeal from
the decision of the defendant, the Town Plan & Zoning
Commission of the Town of Fairfield (commission), in
which the commission denied the plaintiff’s request for
a special exception pursuant to § 27.0 of the Fairfield
Zoning Regulations (regulations). On appeal, the plain-
tiff claims that the trial court erred when it concluded
that the commission properly denied the plaintiff’s spe-
cial exception application on the basis of (1) concerns
about increased off-site traffic, and (2) the plaintiff’s
inability to identify specific tenants that would occupy
the proposed office spaces. We reverse the judgment
of the trial court.
The record reveals the following facts. The plaintiff,
a Connecticut 501 (c) (3) nonprofit corporation, owns
an approximately 11.7 acre parcel of land at 309 Bar-
berry Road in the Southport section of Fairfield. The
property is located in a AA residential zone and is solely
accessible by a private driveway off the Barberry Road
cul-de-sac. The property contains two buildings: a for-
mer parochial elementary school, which the plaintiff
now occupies; and the former Christ the King prepara-
tory high school, which currently stands vacant but
previously had hosted 132 students and ten faculty and
staff adults.
In the former elementary school building, the plaintiff
operates its Giant Steps School (Giant Steps), a private
school that provides educational and therapeutic ser-
vices for students with complex neurobiological based
learning and developmental disorders. Giant Steps is
approved by the Connecticut Department of Education
to serve up to forty students between two and sixteen
years of age.
The plaintiff wishes to use the former high school
building for its proposed project, Next Steps. Next Steps
would provide continued educational, vocational, and
other services to Giant Steps graduates with severe
learning disabilities, as well as to similarly situated
adults, who otherwise would be ineligible for many
programs after reaching twenty-one years of age.
On June 16, 2015, pursuant to § 27.0 of the regula-
tions, the plaintiff applied to the commission for a spe-
cial exception, requesting permission to use part of
the former high school building for Next Steps. The
application proposed designating six rooms in the build-
ing to host nonprofit agencies that would agree to pro-
vide vocational training opportunities to these young
adults with severe learning disabilities. Section 27.0 of
the regulations governs the granting of special excep-
tions. Section 5.1.4 of the regulations specifically enu-
merates the various special exception uses in all
residential districts. As provided in the regulations, such
permitted uses, subject to the securing of a special
exception pursuant to § 27.0 of the regulations, include,
inter alia, ‘‘schools’’ and ‘‘charitable institutions,’’ pro-
vided they are ‘‘not conducted as a business, or for
profit . . . .’’ Fairfield Zoning Regs., § 5.1.4 (d).
On July 14, 2015, the commission held a public hear-
ing on the plaintiff’s application. Attorney William Fitz-
patrick appeared on behalf of the plaintiff and offered
presentations from, inter alia, engineers and the founder
and executive director of Giant Steps, Kathy Roberts,
detailing how the plaintiff’s proposal complied with the
technical requirements of the applicable regulations.
The commission reconvened on July 28, 2015, for public
comment, during which time it heard both support for
and opposition to the plaintiff’s application. A common
thread among the neighbors who appeared in opposi-
tion to the application was concern about possible
adverse effects caused by the anticipated increased traf-
fic volume in the neighborhood.
On August 25, 2015, the commission voted five to
two to deny the plaintiff’s application. On August 28,
2015, notice of this decision was published in the Fair-
field Citizen.1 The plaintiff, thereafter, timely appealed
to the Superior Court, claiming that the commission’s
decision lacked support in the record.2 Following an
April 21, 2016 hearing, the court dismissed the plaintiff’s
appeal, concluding that the commission properly
denied the plaintiff’s application. Subsequently, the
plaintiff filed a petition for certification to appeal pursu-
ant to General Statutes § 8-8 (o) and Practice Book
§ 81-1, which this court granted. Additional facts and
procedural history will be set forth as needed.
As a preliminary matter, we consider whether the
commission has provided a collective statement setting
forth its reasons for denial. ‘‘Where a zoning agency
has stated its reasons for its actions, the court should
determine only whether the assigned grounds are rea-
sonably supported by the record and whether they are
pertinent to the considerations which the authority was
required to apply under the zoning regulations. . . .
The principle that a court should confine its review to
the reasons given by a zoning agency does not apply
to any utterances, however incomplete, by the members
of the agency subsequent to their vote. It applies where
the agency has rendered a formal, official, collective
statement of reasons for its action. . . .
‘‘[F]ailure of the zoning agency to give such reasons
requires the court to search the entire record to find a
basis for the commission’s decision.’’ (Citations omit-
ted; internal quotation marks omitted.) Protect Ham-
den/North Haven from Excessive Traffic & Pollution,
Inc. v. Planning & Zoning Commission, 220 Conn. 527,
544, 600 A.2d 757 (1991). ‘‘The search is conducted
against the backdrop of the particular regulation under
which the plaintiff sought approval of its application.’’
Smith-Groh, Inc. v. Planning & Zoning Commission,
78 Conn. App. 216, 227, 826 A.2d 249 (2003).
In the present case, the notice of the commission’s
decision, published in the August 28, 2015 edition of
the Fairfield Citizen, states: ‘‘309 Barberry Road Special
Exception application of the American Institute for
Neuro [Integrative] Development Inc., to establish a
school and offices for charitable institutions in an
existing building. DENIED.’’ The reasons for the denial
are not set forth in the published notice. On that same
date, a clerk for the commission, however, wrote the
plaintiff’s counsel a letter providing the following three
purported reasons for the commission’s denial: ‘‘(1) In
accordance with [§] 27.4.1 of the [regulations] it has
not been demonstrated that the location, type, character
and size of use will be in harmony with and conform
to appropriate and orderly development of the neigh-
borhood, and will not hinder or discourage appropriate
development and use of adjacent property or impact
its value. (2) In accordance with [§] 27.4.3 of the [regula-
tions] it has not been demonstrated that the streets
serving the proposed use shall be adequate to carry
prospective traffic and that provisions for entering or
leaving the site have been made to avoid hazard or
congestion. (3) It has not been demonstrated that the
proposed use is a permitted use in that there is no
evidence that the proposed offices for charitable institu-
tions will be [nonprofit] entities nor has [it] been demon-
strated that the proposed use is a compliant
education facility.’’3
Although our case law directs that we not rely on a
letter that was not adopted by the commission to evince
the commission’s collective decision; see Smith-Groh,
Inc. v. Planning & Zoning Commission, supra, 78
Conn. App. 224–26 (concluding that letter to applicant’s
attorney from town planner, purporting to state reasons
for commission’s denial of application for site plan
approval and special permit, was not collective state-
ment of commission’s decision, given that commission
had not adopted letter, and stating that ‘‘[a]lthough the
reasons outlined in the letter were discussed by the
commission during either the public hearing or the spe-
cial meeting, the planner could not speak for the com-
mission’’); because the parties in the present case agree
that the letter properly sets forth the reasons for the
commission’s decision and do not claim that the August
28, 2015 letter should not be considered, we will, for
purposes of this case, consider the reasons set forth in
the letter.
We now set forth general principles governing special
permit or special exception review procedures. At the
outset, we note that the terms ‘‘special exception’’ and
‘‘[s]pecial permit’’ are interchangeable. (Internal quota-
tion marks omitted.) Beckish v. Planning & Zoning
Commission, 162 Conn. 11, 15, 291 A.2d 208 (1971).
‘‘[T]he function of a special [exception] is to allow a
property owner to use his property in a manner
expressly permitted under the zoning regulations, sub-
ject to certain conditions necessary to protect the public
health, safety, convenience, and surrounding property
values. . . . The basic rationale for the special [excep-
tion] [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 hos-
pitals, 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 properly planned for, might undermine the resi-
dential character of the neighborhood. If authorized
only upon the granting of a special [exception] which
may be issued after the [zoning commission] is satisfied
that parking and traffic problems have been satisfacto-
rily 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 partic-
ular zoning district, or not at all.’’ (Citation omitted;
internal quotation marks omitted.) St. Joseph’s High
School, Inc. v. Planning & Zoning Commission, 176
Conn. App. 570, 585–86, 170 A.3d 73 (2017).
‘‘When ruling upon an application for a special permit,
a planning and zoning board acts in an administrative
capacity. . . . Generally it is the function of a zoning
board or commission to decide within prescribed limits
and consistent with the exercise of [its] legal discretion,
whether a particular section of the zoning regulations
applies to a given situation and the manner in which it
does apply. The [Appellate Court and] trial court . . .
decide whether the board correctly interpreted the sec-
tion [of the regulations] and applied it with reasonable
discretion to the facts. . . . In applying the law to the
facts of a particular case, the board is endowed with
a liberal discretion, and its action is subject to review
by the courts only to determine whether it was unrea-
sonable, arbitrary or illegal. . . .
‘‘Although . . . the zoning commission does not
have discretion to deny a special [exception] 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 [exception]
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 exception,
as it applies the regulations to the specific application
before it.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Irwin v. Planning &
Zoning Commission, 244 Conn. 619, 627–28, 711 A.2d
675 (1998).
‘‘In reviewing a challenge to a commission’s adminis-
trative decision, we . . . must be mindful of the fact
that . . . the applicant . . . bore the burden of per-
suading the commission that it was entitled to the per-
mits that it sought under the zoning regulations.’’
(Internal quotation marks omitted.) St. Joseph’s High
School, Inc. v. Planning & Zoning Commission, supra,
176 Conn. App. 586. ‘‘[T]he reviewing court must sustain
the agency’s determination if an examination of the
record discloses evidence that supports any one of the
reasons given. . . . The evidence, however, to support
any such reason must be substantial; [t]he credibility
of witnesses and the determination of factual issues
are matters within the province of the administrative
agency. . . . 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 sufficient to sustain an agency finding if it affords a
substantial basis of fact from which the fact in issue
can be reasonably inferred. . . . The reviewing court
must take into account [that there is] contradictory
evidence in the record . . . but the possibility of draw-
ing two inconsistent conclusions from the evidence
does not prevent an administrative agency’s finding
from being supported by substantial evidence . . . .
Evidence of general environmental impacts, mere
speculation, or general concerns do not qualify as sub-
stantial evidence.’’ (Emphasis in original; internal quo-
tation marks omitted.) AvalonBay Communities, Inc.
v. Inland Wetlands & Watercourses Agency, 130 Conn.
App. 69, 75, 23 A.3d 37, cert. denied, 303 Conn. 908, 32
A.3d 961, 962 (2011). With this context in mind, we turn
our attention to the plaintiff’s claims.4
I
The plaintiff first challenges the court’s conclusion
that the commission’s denial could be upheld on the
basis of the neighbors’ general traffic concerns. The
plaintiff contends that § 27.4.3 of the regulations sets
forth specific requirements, which the plaintiff main-
tains it has satisfied. In comparison, the plaintiff con-
tends that the neighbors’ concerns were too generalized
to support the commission’s purported reasons for
denial under § 27.4.3. We agree.
‘‘[W]hen a landowner has submitted an application
for a permitted use, the zoning commission may con-
sider off-site traffic conditions only for the limited pur-
pose of reviewing the internal traffic circulation on
the site and determining whether the location of the
proposed [roads and driveways] would minimize any
negative impact of additional traffic to the existing traf-
fic . . . . This is because [t]he designation of a particu-
lar use of property as a permitted use establishes a
conclusive presumption that such use does not
adversely affect the district and precludes further
inquiry into its effect on traffic, municipal services,
property values, or the general harmony of the district.
. . . [Our Supreme Court] has limited the application
of these principles, however, to site plan approvals and
subdivision applications that involve uses that are per-
mitted as of right within the zoning district. . . .
‘‘In contrast, when a use is not allowed as of right,
but only by special exception, the zoning commission
is required to judge whether any concerns, such as
parking or traffic congestion, would adversely impact
the surrounding neighborhood. . . . The reason for
this requirement is that, although such uses are not as
intrusive as commercial uses . . . they do generate
parking and traffic problems that, if not properly
planned for, might undermine the residential character
of the neighborhood. . . . Thus, there is no presump-
tion that a specially permitted use, or the traffic that it
will generate, necessarily is compatible with any partic-
ular neighborhood within the zoning district.’’ (Cita-
tions omitted; emphasis omitted; internal quotation
marks omitted.) Cambodian Buddhist Society of Con-
necticut, Inc. v. Planning & Zoning Commission, 285
Conn. 381, 431–33, 941 A.2d 868 (2008).
In the present case, the commission specified that the
plaintiff’s special exception application did not comply
with certain requirements set forth in § 27.4.3 of the
regulations.5 The letter stating the commission’s rea-
sons for denial indicated that the plaintiff had not dem-
onstrated that ‘‘the streets serving the proposed use
shall be adequate to carry prospective traffic and that
provisions for entering or leaving the site have been
made to avoid undue hazard or congestion.’’ Accord-
ingly, we will review the record as to the adequacy of
the streets to carry the prospective Next Steps traffic
and will further determine whether the record supports
a conclusion that prospective traffic will result in
‘‘undue hazard . . . or congestion’’; Fairfield Zoning
Regs., § 27.4.3; as these concerns are central to the
commission’s stated reason for denial under § 27.4.3 of
the regulations.
The mere fact that a proposal will generate increased
traffic volume is not, in itself, an indication that such
traffic will result in ‘‘undue hazard . . . or congestion’’;
to determine whether the proposal will result in ‘‘undue
hazard . . . or congestion,’’ we review the record as
to the proposal’s projected impact on traffic conditions.
See CMB Capital Appreciation, LLC v. Planning &
Zoning Commission, 124 Conn. App. 379, 399, 4 A.3d
1256 (2010) (‘‘while traffic problems and related safety
concerns can be a valid reason for a denial . . . there
must be more than a traffic increase, and either traffic
congestion or an unsafe road design at or near the
entrances and exits from the site’’ [internal quotation
marks omitted]), cert. granted on other grounds, 299
Conn. 925, 11 A.3d 150 (2011) (appeal withdrawn Sep-
tember 15, 2011); see also Daughters of St. Paul, Inc.
v. Zoning Board of Appeals, 17 Conn. App. 53, 69, 549
A.2d 1076 (1988) (projected additional twenty vehicles
per day not sufficient evidence of detrimental traffic
congestion). As our Supreme Court has explained:
‘‘[T]he significance of the impact should not be mea-
sured merely by the number of additional vehicles but
by the effect that the increase in vehicles will have on
the existing use of the roads. An increase of 100 vehicles
per hour may have a negligible impact at one time or
location and a ruinous impact at another time or loca-
tion. In making this determination, the commission may
rely on statements of neighborhood residents about the
nature of the existing roads in the area and the existing
volume of traffic, and its own knowledge of these condi-
tions.’’ Cambodian Buddhist Society of Connecticut,
Inc. v. Planning & Zoning Commission, supra, 285
Conn. 434.6
‘‘[Our Supreme Court has] permitted a commission
composed of experts to rely on its own expertise within
the area of its professional competence; Jaffe v. State
Department of Health, 135 Conn. 339, 349–50, 64 A.2d
330 (1949); but in that case [the court] recognized as
well that expert testimony may be required when the
question involved goes beyond the ordinary knowledge
and expertise of the trier of fact.’’ (Internal quotation
marks omitted.) Feinson v. Conservation Commission,
180 Conn. 421, 428, 429 A.2d 910 (1980). ‘‘If an adminis-
trative agency chooses to rely on its own judgment, it
has a responsibility to reveal publicly its special knowl-
edge and experience, to give notice of the material
facts that are critical to its decision, so that a person
adversely affected thereby has an opportunity for rebut-
tal at an appropriate stage in the administrative pro-
ceedings.’’ Id., 428–29. Although ‘‘an administrative
agency is not required to believe any of the witnesses,
including expert witnesses . . . it must not disregard
the only expert evidence available on the issue when
the commission members lack their own expertise or
knowledge.’’ (Citation omitted.) Tanner v. Conserva-
tion Commission, 15 Conn. App. 336, 341, 544 A.2d
258 (1988).
This court’s decision in Gevers v. Planning & Zoning
Commission, 94 Conn. App. 478, 486, 892 A.2d 979
(2006), is instructive. In that case, the plaintiffs claimed,
inter alia, that the trial court ‘‘improperly concluded
that substantial evidence supported the commission’s
finding that the proposed use would not unduly impair
pedestrian safety . . . .’’ Id., 480. In support of their
special exception application, the applicants offered an
expert traffic study that concluded that ‘‘the introduc-
tion of traffic generated by [the project] will not disrupt
the continuity of traffic flow on the adjacent roadway
system. Roadway conditions remain virtually
unchanged with the addition of the site-generated traf-
fic.’’ (Internal quotation marks omitted.) Id., 484. An
expert further opined at public hearings on the prospec-
tive impact on traffic and pedestrian safety, stating that
the project was ‘‘going to have a very small impact on
the roadway network,’’ and that he did not observe any
people walking or ‘‘riding of bicycles’’ during his time
studying the area. (Internal quotation marks omitted.)
Id. Those opposed to the proposal ‘‘presented no traffic
studies or expert testimony regarding the issue of
pedestrian safety.’’ Id., 485–86. On appeal from that
commission’s decision granting the special exception,
the plaintiffs did not refer this court ‘‘to any evidence
in the record that contradict[ed] the aforementioned
[expert] evidence . . . .’’ Id., 486. Accordingly, this
court concluded that ‘‘[u]nless presented with evidence
that undermines either the credibility or the ultimate
conclusions of an expert, the commission must credit
expert testimony.’’ Id., citing Kaufman v. Zoning Com-
mission, 232 Conn. 122, 156–57, 653 A.2d 798 (1995).
In the present case, the plaintiff’s expert traffic engi-
neer, Michael Galante, was the only expert to address
any prospective traffic impact.7 First, Galante estimated
that Next Steps would generate the following two-way
traffic volumes: for office staff, seven vehicles around
9 a.m. and six vehicles around 5 p.m.;8 for students,
twenty-one vehicles between 10 a.m. and 2 p.m.; and
for staff, thirty-six vehicles between 9:30 a.m. and 2:30
p.m.9 Galante further noted that around 2 p.m. on week-
days, the time period he described as the ‘‘worst case’’
in terms of traffic volume, both Next Steps and Giant
Steps would be dismissing students at the same time.
During that time, the schools would generate a two-
way traffic volume of 131 vehicles around the Barberry
Road and Mill Hill Road intersection.
Galante’s traffic impact study did not solely focus on
the percentage of increased traffic volume; he addition-
ally assessed vehicle delay and the streets’ levels of
service.10 ‘‘Traffic engineers have standards for level of
service to measure traffic congestion with Service Level
A as negligible traffic and Service Level F as serious
congestion for signalized and unsignalized intersec-
tions. These levels measure the quality of flow of vehi-
cles and delay at intersections . . . . For signalized
intersections, Level A has a stopped delay per vehicle
of less than five seconds.’’ R. Fuller, 9B Connecticut
Practice Series: Land Use Law and Practice (4th Ed.
2015) § 49:15, p. 148. Referencing these standards,
Galante indicated that traffic delay would be ‘‘at most
[0.5] seconds per vehicle during [peak] time period[s],’’
such that the level of service for these roads would
remain at level A, which Galante described as ‘‘the best
condition from a traffic perspective . . . .’’
One commissioner observed: ‘‘[The plaintiff’s pro-
posal] was an example, at least statistically, of one of
the least in terms of total impact when you look at the
statistical traffic report. . . . [T]he use of the school
is small enough that the true [everyday] impact [does
not] . . . [rise] to the level of real safety issue.’’ As to
safety, there were no reported accidents in the neigh-
borhood between the years 2011 and 2013,11 and, given
such minimal impact on traffic conditions, Galante indi-
cated that he did not have cause for concern as to
potential for increased accidents under the plaintiff’s
proposal. Accordingly, Galante concluded that the
roads adequately could accommodate the anticipated
additional traffic generated by Next Steps without
changing the level of service, and also indicated that
‘‘from a traffic engineering perspective the road’s not
considered congested. It can handle the additional
traffic.’’
Neighbors disagreed with the plaintiff’s expert analy-
sis on the basis of their daily experiences with traffic
in the neighborhood. Several neighbors indicated that
they regularly observe heavy traffic volume12 and unsafe
drivers in the neighborhood.13 The neighbors surmised
that Next Steps traffic might both result in traffic con-
gestion and further aggravate the unsafe traffic condi-
tions that they claimed to experience.14
Connecticut courts have held that public testimony
is not to be considered substantial evidence when ‘‘it
is not supported by anything other than speculation
and conjecture on the part of those objecting to the
[party’s] proposed activities.’’ Martland v. Zoning Com-
mission, 114 Conn. App. 655, 665–66, 971 A.2d 53
(2009), citing Bethlehem Christian Fellowship, Inc. v.
Planning & Zoning Commission, 73 Conn. App. 442,
463, 807 A.2d 1089, cert. denied, 262 Conn. 928, 814
A.2d 379 (2002). In Martland, this court concluded that
generalized concerns of two laypersons who opposed
the plaintiffs’ proposed activities were ‘‘not substantial
because [their concerns were] not supported by any-
thing other than speculation and conjecture . . . [as
neither layperson] indicated any type of expertise that
would buttress their lay opinion . . . .’’ (Citation omit-
ted.) Martland v. Zoning Commission, supra, 665–66.
In the present case, the neighbors’ remarks as to
prospective traffic impact suffer from the same defi-
ciency. While the commission could take into consider-
ation the neighbors’ concerns and observations as to
current road conditions, the neighbors’ remarks as to
the adequacy of the streets to accommodate traffic and
prospective hazards or congestion addressed matters
of professional expertise. See Gevers v. Planning &
Zoning Commission, supra, 94 Conn. App. 485–86
(plaintiffs offered no expert traffic analysis rebutting
expert conclusions regarding pedestrian safety and traf-
fic impact). The neighbors did not purport to have the
training or skills needed to properly assess traffic
impact, nor did they offer an expert’s opinion on their
behalf. Accordingly, their comments amounted to gen-
eralized concerns about hypothetical effects of
increased traffic.
To the extent the commission relied on the neighbors’
remarks, the commission’s conclusion under § 27.4.3
of the regulations essentially turned on the mere poten-
tial for adverse effects. The mere possibility of an
adverse outcome, without more, typically does not con-
stitute substantial evidence. See AvalonBay Communi-
ties, Inc. v. Inland Wetlands & Watercourses Agency,
supra, 130 Conn. App. 88–89 (concluding mere ‘‘poten-
tial’’ adverse effect not substantial evidence [internal
quotation marks omitted]). Thus, we conclude that the
commission’s assigned ground for denial under § 27.4.3
of the regulations is not reasonably supported by the
record.15 Therefore, the commission’s conclusion that
the plaintiff had not satisfied certain traffic related
requirements under § 27.4.3 of the regulations was
improper.
II
Mindful that ‘‘[t]he reviewing court must sustain the
agency’s determination if an examination of the record
discloses evidence that supports any one of the reasons
given’’; (internal quotation marks omitted) AvalonBay
Communities, Inc. v. Inland Wetlands & Watercourses
Agency, supra, 130 Conn. App. 75; we now address
the propriety of the commission’s remaining reason for
denial. Specifically, the commission concluded: ‘‘It has
not been demonstrated that the proposed use is a per-
mitted use in that there is no evidence that the proposed
offices for charitable institutions will be [nonprofit]
entities . . . .’’ The plaintiff contends that this stated
reason for denial is unavailing because it, in effect,
requires the plaintiff to identify prospective users,
whereas, to satisfy § 5.1.4 (d) of the regulations, the
plaintiff need only identify the prospective use. We
agree with the plaintiff.
The plaintiff aptly notes that § 5.1.4 of the regulations
sets forth no requirements as to the identity of the
user. In its special exception application, the plaintiff
proposed using the vacant Christ the King preparatory
school building as a ‘‘[c]ompanion [s]chool (Next Steps)
[f]or [y]oung [a]dults’’ and as ‘‘[o]ffices for [nonprofit]
[c]orporations.’’16 At hearings before the commission,
the plaintiff represented that the proposed office use
would be permitted as a ‘‘charitable [institution]’’ pursu-
ant to § 5.1.4 of the regulations. It further suggested
that the commission ‘‘should make it a condition of
approval . . . that [the occupants] be demonstrated to
be [501 (c) (3) nonprofit corporations].’’
During public comment, neighbors expressed con-
cern that the nonprofits might operate in a business-
like capacity and that a prospective occupant might
itself be a for-profit entity.17 Echoing such concerns, a
commissioner suggested that the plaintiff’s inability to
identify office occupants meant it did not commit to
host only nonprofits: ‘‘The proposal is to provide leased
space to . . . [nonprofits]. We don’t know what those
are going to be, we don’t know what business they are
going to be involved in, but they’re not going to be
charities. There was no commitment that they were
going to be charities. Charities can be [for-profit] enter-
prises.’’ Such concern was reflected in the third reason
for denial provided in the initial letter to Fitzpatrick,
which read: ‘‘It has not been demonstrated that the
proposed use is a permitted use in that there is no
evidence that the proposed offices for charitable institu-
tions will be [nonprofit] entities . . . .’’ That conclu-
sion is baseless.
In making its application, the plaintiff has agreed to
be bound by a condition that it would lease the office
spaces only to 501 (c) (3) nonprofit corporations. This
use is consistent with the plain language of § 5.1.4 (d)
of the regulations. Despite the plaintiff’s express
agreement, and the absence of evidence that the pro-
posed use would not be a permitted use, the commis-
sion denied the application on the basis of a concern
that a for-profit entity might operate in the building.
Unless and until such event occurs, the commission’s
denial improperly was based on mere speculation. See
AvalonBay Communities, Inc. v. Inland Wetlands &
Watercourses Agency, supra, 130 Conn. App. 75, 78.
The commission had before it no substantial evidence
to support its decision to deny the plaintiff’s application.
Consequently, the only reasonable conclusion for the
commission was to grant the application with reason-
able conditions. See Fanotto v. Inland Wetlands Com-
mission, 108 Conn. App. 235, 244–45, 947 A.2d 422
(2008), appeal dismissed, 293 Conn. 745, 980 A.2d
296 (2009).
The judgment is reversed and the case is remanded
with direction to render judgment sustaining the plain-
tiff’s appeal and directing the commission to approve
the plaintiff’s special exception application with reason-
able conditions.
In this opinion the other judges concurred.
1
General Statutes § 8-3c (b) provides in relevant part that ‘‘[n]otice of the
decision of the commission shall be published in a newspaper having a
substantial circulation in the municipality and addressed by certified mail
to the person who requested or applied for a special permit or special
exception . . . .’’
2
The plaintiff also claimed that the commission’s denial was in violation
of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et
seq. (2006). The court dismissed this claim, and the plaintiff did not appeal
from that aspect of the court’s decision. Therefore, we do not discuss the
ADA claim in further detail.
3
On October 1, 2015, after the plaintiff had filed its appeal to the Superior
Court, however, a clerk for the commission then sent Fitzpatrick a new
letter, containing the same first two reasons for denial, but modifying the
third reason to state: ‘‘(3) It has not been demonstrated that the proposed
use is a permitted use in that there is no evidence that the proposed [non-
profit] entities will be charitable institutions nor has it been demonstrated
that the proposed use is a compliant educational facility.’’ For purposes of
the present appeal, this change is minor and does not bear on our decision.
Unaware of any precedent that would permit the commission to modify its
decision after the applicant has appealed to the Superior Court, we will
disregard the October 1, 2015 letter.
4
Before the Superior Court, the plaintiff noted that the letter to the plain-
tiff’s counsel indicated, as the first reason for denial: ‘‘In accordance with
[§] 27.4.1 of [the regulations] it has not been demonstrated that the location,
type, character and size of the use will be in harmony with and conform to
appropriate and orderly development of the neighborhood, and will not
hinder or discourage appropriate development and use of adjacent property
or impact its value.’’ The plaintiff argued that there was not a basis in the
record to support this conclusion; the commission agreed. Before this court
the commission expressly declined to argue on that point. Accordingly, we
do not review it.
Additionally, as part of the third reason for denial, both letters to Fitzpa-
trick indicated in relevant part: ‘‘It has not been demonstrated that the
proposed use is a permitted use in that there is no evidence that . . . the
proposed use is a compliant educational facility.’’ Before this court, the
commission conceded that this reason could not constitute an adequate
basis for denial, in that Next Steps would qualify as a ‘‘[school]’’ pursuant
to § 5.1.4 (d) of the regulations. Accordingly, to the extent that the commis-
sion may have based its denial on concerns that Next Steps would not be
considered ‘‘a compliant educational facility,’’ we conclude that this basis
for the commission’s denial also has been abandoned.
5
Section 27.4.3 of the regulations provides: ‘‘[T]he streets serving the
proposed use shall be adequate to carry prospective traffic, provision shall
be made for entering and leaving the property without creating undue hazard
to traffic or congestion and adequate off-street parking and loading shall
be provided on the same lot in accordance with [§] 28.0 of [the regula-
tions] . . . .’’
6
In Cambodian Buddhist Society of Connecticut, Inc. v. Planning &
Zoning Commission, supra, 285 Conn. 446, our Supreme Court ultimately
affirmed the trial court’s denial of the application on grounds other than
traffic related concerns, stating: ‘‘In summary, we conclude that the trial
court correctly determined that the record did not contain substantial evi-
dence to support the commission’s conclusion that the [plaintiff’s] applica-
tion for a special exception should be denied because . . . the temple
would create unacceptable traffic congestion and hazards. . . . We further
conclude, however, that the record contained substantial evidence to sup-
port the commission’s denial of the [plaintiff’s] application on the grounds
that the level of activity at the proposed temple would not be in harmony
with the general character of the neighborhood, that the temple would
substantially impair neighboring property values, and that the proposed
septic wastewater and water supply systems would create a health or
safety hazard.’’
7
Additionally, Philip Teso, an engineer, discussed plans to expand the
existing access drive and to renovate the existing parking lot to accommo-
date teachers and nonprofit office staff.
8
The commission inquired as to how Galante arrived at seven total vehicles
for office staff even though the plaintiff’s application contemplated four
office staff for six offices, i.e., a total of twenty-four staff. Galante responded
that he was only considering traffic conditions during a one hour time period
and that staff would not all arrive and depart at the same time. Accordingly,
he did not factor in all twenty-four staff at a given time but instead used
standardized traffic volume estimates based on office square footage, per
the Trip Generation handbook. See footnote 9 of this opinion.
9
The source of this information was: ‘‘(1) ‘Trip Generation,’ 9th Edition,
published by the Institute of Transportation Engineers (ITE), 2012 using
General Office Building, Code #710 average rates. The weekday afternoon
peak hour rates were used for the weekday [midafternoon] school departures
peak hour, to be conservative. (2) Student’s site traffic generation for the
Next Steps program was developed based on discussions with the [plaintiff].
The program will accommodate up to [twenty-five] students, with [twenty-
five] staff to assist each individual. (3) There will be [thirty-six] staff members
on site every day. This includes [twenty-five] teachers, cafe´ and health care
staff. It accounts for [five] staff from Giant Steps also working at Next Steps.’’
10
Accordingly, although the precise number of additional vehicles
remained a point of contention from both the perspectives of the commission
and of several neighbors who appeared in opposition to the proposal, Galante
maintained that factoring in additional vehicles would not alter his overall
street capacity analysis.
11
Galante’s traffic impact analysis report indicated: ‘‘Accident data was
obtained from the Fairfield Police Department for a period beginning January
1, 2011 through December 31, 2013 for Barberry Road and Juniper Lane.
For the intersection of Barberry Road at Mill Hill Road, there were no
reported accidents. There were no reported accidents for the section of
Barberry Road between Mill Hill Road and Juniper Lane East. There were
no reported accidents for the intersection of Barberry Road at Juniper Lane
East. There were no reported accidents for the section of Barberry Road
between Juniper Lane East and West. There were no reported accidents for
the intersection of Barberry Road at Juniper Lane West. There were no
reported accidents for the section of Barberry Road between Juniper Lane
West and School Access Drive. There were no reported accidents for the
section Juniper Lane between Barberry Road North and South.’’
12
For example, one neighbor commented that ‘‘[r]ight now the streets
and single driveway are not adequate for the traffic that’s there. . . . Right
now the residents on the street have a hard time getting out of their driveways
because there’s so much traffic going by they can’t go out.’’
13
One neighbor observed: ‘‘We already have a current problem with the
traffic . . . . There are cars speeding . . . around the corners. As you may
or may not know, it’s not a straight shot. It is a circle with some tough
corners, it’s very hard to see. . . . I live right around that bend and getting
out of my driveway is incredibly tough. Numerous occasions I’ve been almost
clipped. I’ve had people riding my tail down the street as slow as I go with
my blinker on swerving not to hit me as I turn as best I can into my driveway.’’
Another neighbor accounted: ‘‘Currently there always seems to be a very
high volume of traffic throughout the day. There are times that the traffic
is so heavy that I have actually had to get out of my car or have my son
get out of the car and stop the traffic and ask them, please, let me get
into my driveway so that I can park and get home because the cars just
kept coming.’’
14
For example, one neighbor specified: ‘‘The traffic is my biggest concern
right now. And, again, we already have a problem.’’ Other neighbors opined
that increased traffic volume would lead to increased traffic parked on the
street, which would then result in traffic congestion. One neighbor suggested:
‘‘[With increased traffic volume] the more people need to find places to
park their cars the more likely that those cars are going to be parked on
the road. . . . If people park on either side you’re suddenly going to be
faced with the inability to bring traffic in both directions.’’ Another neighbor
observed: ‘‘I will confirm that everything you’ve heard about the traffic
congestion is absolutely true. . . . We have on street parking already and
many times there is only one lane going through . . . .’’
15
Our conclusion on this point is instructive as to the requirement under
§ 27.4.3 of the regulations, as provided in the commission’s reason for denial,
that ‘‘provision shall be made for entering and leaving the property without
creating undue hazard to traffic or congestion . . . .’’ (Emphasis added.)
The commission’s conclusion on this point is baseless given that the record
does not support a finding that the proposal will result in undue hazard or
traffic congestion.
16
During argument before the Superior Court, the plaintiff indicated that
the regulations permit a ‘‘charitable [institution]’’ to operate in Residence
AA zoning, provided that such institutions are nonprofit. The plaintiff
acknowledged that its initial application for a special exception described
the proposed occupants as ‘‘nonprofits’’ but maintained that it made clear to
the commission that each office would operate as a ‘‘charitable [institution].’’
17
One neighbor expressed concern that a nonprofit is a type of business
that would be ‘‘operating in our residential neighborhood.’’ The neighbors
commonly referred to the proposed nonprofits as ‘‘businesses,’’ with one
such neighbor suggesting the neighborhood would have ‘‘businesses moving
into a residential area. I’m sure right now it’s part of the school, however,
that’s not to say that one day those businesses couldn’t expand. . . . It
could become this big thing they could have. Who knows what you can do.’’