DocketNumber: No. CV-99-0552227-S
Citation Numbers: 2001 Conn. Super. Ct. 6512
Judges: PURTILL, JUDGE TRIAL REFEREE.
Filed Date: 5/9/2001
Status: Non-Precedential
Modified Date: 4/18/2021
The defendant conducted a public hearing on the cluster and lot size amendments on June 17, 1999. The hearing on the lot size amendment was opened and closed on June 17, 1999. A hearing was opened on the cluster amendment and continued to July 8, 1999. On July 8, 1999, the defendant conducted public hearings on the Greenway and rezoning amendments and closed the hearing on the cluster amendment. The defendant deferred its deliberations on all four proposed amendments until its next meeting on July 29, 1999. On July 29, 1999, the defendant deliberated on all of the proposed amendments and voted unanimously for their approval. On August 11, 1999, notice of the defendant's decision was published in The NewLondon Day.
On August 25, 1999, the plaintiffs filed an administrative appeal challenging the validity of the amendments. The plaintiffs allege they sought to build a golf course on property affected by the amendments. The plaintiffs filed an application to amend the language of the zoning regulations to enable them to build the golf course; and the plaintiffs also filed a proposal to create a residential subdivision on the property, which were precluded by the passage of the amendments. The plaintiffs allege that the defendant knew of its plans and amended the zoning regulations to control the development of the property.
Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiffs appeal."Jolly, Inc. v. Zoning Board of Appeals,
To be statutorily aggrieved a party must meet the requirements of General Statutes §
The plaintiffs allege that they either own property or have a legal interest in properties which are directly affected by the amended zoning regulations. During the hearing, the plaintiffs called witness who testified that each of the plaintiffs, in their individual capacities, owned property or interest in property which is affected by the amended zoning regulations. As such, this court finds that the plaintiffs are aggrieved.
Timeliness and Service of Process
General Statutes §
The record contains an affidavit of publication attesting that notice of the defendant's decision was published on August 11, 1999 in the NewLondon Day. On August 26, 1999, the appeal was served on the town of East Lyme's town clerk and Paul Formica, the chairman of the zoning commission. Accordingly, the court finds that this appeal was commenced in a timely manner by service of process upon the parties.
1. WHETHER THE PUBLISHED NOTICE FOR THE REZONING AMENDMENT ADEQUATELY IDENTIFIED THE AFFECTED PROPERTIES.
The plaintiffs argue that the prehearing notice3 for the rezoning amendment was inadequate to confer the defendant with subject matter jurisdiction because it does not adequately describe the affected properties. Specifically, the plaintiffs argue that the published notice, which provided a listing of the properties by property map and parcel number and a metes and bounds description, was inadequate to describe the location of the affected properties. Additionally, the plaintiffs argue that the inclusion of the map and parcel numbers, in the notice, without indicating which maps were referred to, served to confuse the public and invalidate the notice.
The defendant argues that the description it published was more than adequate to describe the affected property because the properties were identified by both a metes and bounds description and by map and lot number. The defendant further argues that, even if the public would not have been able to determine the properties affected solely by the use of the map and lot numbers, the description of the property by its metes and bounds was sufficient to apprise the public of the area affected.
"Compliance with prescribed notice requirements is a prerequisite to a valid action by a [z]oning [commission] and failure to give proper notice constitutes a jurisdictional defect." Wright v. Zoning Board of Appeals, CT Page 6516
"There is no requirement that the published notice describe the proposed action in detail or with exactitude." Welles v. East Winsor,
Members of the general public, upon reading the notice for the rezoning amendment, would have been reasonably aware that the notice referred to a large area, the then existing RU-120 zone, described as Oswegatchie Hills. The description, in itself, might not be sufficient if it could not be assumed that all members of the general public were aware of the location of the RU-120 zone or if they had an interest in properties within the zone. The record indicates, however, that the area described as Oswagatchie Hills was well known in the community and it must be assumed that members of the general public would have recognized it and have been aware of its general location.
The notice sets forth two lists described as "property maps." Although this notice does not say it, testimony was introduced that the reference in the notice is to maps maintained by the tax assessor and the parcels are numbered parcels of real estate shown on these maps. Presumably, the list provided in the notice contains all of the parcels which would be affected by the change. CT Page 6517
With some justification, the plaintiffs criticize this method of describing the area to be rezoned. The notice does not indicate that the maps and parcels are maintained by the tax assessor or where a member of the general public could find them. Also, due to the scale and size of the maps, it would be almost impossible to put them together so as to create a single layout of the area to be rezoned. At trial, it was also pointed out that the maps are working documents with the assessor's office making frequent changes. There was testimony which suggested there were no active changes which affected the maps used to create the parcel listing. It must, however, be concluded that although some members of the public would, with a little effort, be able to determine what properties were affected by the proposal, the reference to the "property maps and parcels" was, itself, inadequate to warn the general public of the area to be rezoned.
What follows next in the notice is a long detailed metes and bounds description of the area involved. The defendant's metes and bounds description relies on two elements, the number of the lots and parcels, found on the tax assessors maps, and monuments such as waterways and streets. As previously noted, while it cannot be assumed that the general public would be aware of the tax assessor's records, it must be concluded that the general public would be aware of the location of monuments such as the Niantic River and named streets.
The description of the perimeter of the proposed area of the zone change starts at the intersection of the Niantic River and the south line of parcel 37 of property map #32.1. The line then proceeds in a southerly direction, approximately 4,600 feet, along the river. The line then generally continues southerly, after detouring around a numbered lot, to a parcel 400 feet west of the terminous of Quarry Dock Road. It then continues southerly, parallel to the Oswagatchie Hills Road, to more lots. The line is then bounded by lots and parcels and proceeds northerly to Latimire Brook. It then goes around another lot, easterly, to Boston Post Road and around other lots to Caulkins Road. At Caulkins Road, the line proceeds southerly. Where Caulkins Road meets River Road, the line begins to follow River Road in a southerly direction to lot 37. From Lot 37, the line continues back to its beginning.
The description found in the notice is far from perfect, but it is adequate to apprise members of the general public of the property involved. A member of the general public, with little technical knowledge, would be able to discern from the notice that the area involved was Oswegatchie Hills, a designation of some significance in the community. The public would also be able to determine that the description described a large area bounded by the Niantic River, parallel with certain public streets and Latimire Brook. The court, therefore, CT Page 6518 determines that the published notice, for the rezoning amendment, is not inadequate for failing to apprise the public of the properties affected by amendment.
2. WHETHER THE PREHEARING NOTICES PUBLISHED BY THE DEFENDANT SUFFICIENTLY NOTIFIED THE PUBLIC OF THE NATURE AND CHARACTER OF THE PROPOSED AMENDMENTS.
The adequacy of the prehearing notice for the rezoning amendment.
The plaintiffs argue that the prehearing notice for the rezoning amendment was inadequate to notify the public of the nature and character of the amendment. Specifically, the plaintiffs argue that the notice failed to indicate where the general public could go to examine the proposed amendment and failed to set out the entire text of the amendment.
The defendant argues that the prehearing notice for the rezoning amendment was adequate to apprise the general public of the proposed changes to the zoning regulations because the notice contained two items: 1) a notice for the proposed Greenway amendment which contained the full text of the proposed rezoning amendment; and, 2) the notice for the rezoning amendment which indicated that the proposed amendment was to rezone the entire RU-120 zoning district to a RU-200 zone.
The Appellate Court has previously stated that the published notice for a proposed zoning amendment does not need not be exact. R.B. Kent Son,Inc. v. Planning Commission, supra,
As the defendant indicates, the prehearing notice served the dual purpose of advising the public of the proposed Greenway and rezoning amendments and advising the public that a hearing was scheduled for both amendments on July 8, 1999. Based on the text of the entire notice, the public would have known that a hearing was to be held on July 8, 1999 to determine whether the property described in the notice would be rezoned from three-acre to five-acre plots. The fact that the entire text of the proposed rezoning amendment was included in the first section of the notice, applying to the Greenway amendment, but not included in the second part of the notice, which refers specifically to the rezoning amendment, does not change the result. The public was given constructive notice of the text of the rezoning amendment. The court, therefore, determines that the notice for the rezoning amendment was sufficient to CT Page 6519 apprise the public of the nature and character of the proposed amendment.
The adequacy of the notice of the cluster and lot size amendments
The plaintiff claims that the prehearing notices for the cluster and lot size amendments are inadequate because they do not contain the entire text of the amendments. The defendant argues that the notices for the cluster and lot size amendments are adequate because they contain a detailed summary of the proposed changes and indicate where the public can go to examine the entire proposal to amend the regulations.
In Passero v. Zoning Commission,
Because the published notice for the cluster and lot size amendments included a statement that informed the public where the entire proposal for the amendments could be located, the court finds that the notice was adequate to apprise the public of the nature and character of the cluster and lot size amendments.
The adequacy of the notice for the Greenway amendment.
The plaintiffs challenge the adequacy of the notice for the Greenway amendment arguing that the notice is inadequate because it does not contain the full text of the zoning regulation, which would be altered by the amendment, or indicate where the public could examine the unaltered regulation. The defendant argues that the notice for the Greenway amendment was adequate because it set out the entire text of the proposed changes and, therefore, there was no requirement that the notice indicate where the preamended regulation could be found.
This court has found no case law to suggest that a zoning commission is required to set out the entire text of an existing regulation, in its published notice, prior to a hearing regarding an amendment to a zoning regulation. The prehearing notice for the Greenway amendments sets out the entire text of the proposed changes and indicates where the general public can go and look at detailed copies of the proposal. As such, the court finds that the prehearing notice for the Greenway amendment is adequate. CT Page 6520
3. WHETHER THE DEFENDANT'S DECISION IS INVALID BECAUSE IT WAS RENDERED WITH UNNECESSARY HASTE.
The plaintiffs argue, without citing any authority, that the zoning commission acted with unnecessary haste in making its decision. The plaintiffs argue that this unnecessary haste is revealed by the procedural errors the defendant made in the prehearing notices and in its notice of decision. As this court is not required to assess any of the plaintiffs' arguments which are unsupported by legal authority; Mullen Mahon, Inc.v. Mobilmed Support Services. LLC,
4. WHETHER THE NOTICE OF PUBLICATION OF THE HEARING. WHICH WAS NOT HELD. DEPRIVED THE DEFENDANT OF SUBJECT MATTER JURISDICTION TO APPROVE THE AMENDMENTS.
The defendant initially attempted to hold a hearing on the Greenway and rezoning proposals on June 17, 1999. In the notice for this hearing, the defendant included reference to the proposed amendments, a metes and bounds description of the affected properties and the map and lot numbers of the properties. Prior to this scheduled hearing, the defendant discovered that there was a defect in the notice because the map and lot numbers were inaccurate. The defendant then decided not to hold the first hearing. On June 25, 1999, and July 5, 1999, the defendant published a corrected notice and later held a hearing on the Greenway and rezoning amendments on July 8, 1999.
The plaintiffs argue that because the wrong properties were listed in the initial prehearing notice the corrected prehearing notice could not confer subject matter jurisdiction on the defendant. The plaintiffs contend that the second notice was not sufficient to cure any public confusion about which properties were affected by the amendments. The plaintiffs also maintain that because the defendant published notice that a hearing would be held on the Greenway and rezoning amendments on June 17, 1999, and a hearing was not held, this action served to further confuse the public. The defendant counters that the second notice conferred subject matter jurisdiction upon it to vote to approve the Greenway and rezoning amendments because the second notice was a valid notice, which cured any defect in the initial notice.
In Lauver v. Planning Zoning Commission,
The plaintiffs also argue that the defendant's failure to hold a hearing on the Greenway and rezoning amendments after it gave the initial invalid notice invalidates the subsequent hearings the defendant held after publishing a valid notice. The court finds this argument unavailing. Similar to Lauver, after publishing a defective notice, the defendant had jurisdiction to decide on the proposed amendments, after it published a valid notice.
Absent a showing of prejudice or confusion, resulting from the first published notice, the defendant was only required to satisfy the requirements of General Statutes §
5. WHETHER THE NOTICE OF DECISION WAS ADEQUATE TO APPRISE THE PUBLIC THAT IT HAD FIFTEEN DAYS TO APPEAL.
The plaintiffs argue that the notice of decision, filed by the defendant on August 11, 1999, was insufficient to adequately apprise the public and affected property owners of the changes in the zoning regulations.5 The defendant argues that its published notice of decision is adequate because all a posthearing notice is required to do is alert the public that a change in regulations has been made and that the appeals period has begun to run. The defendant argues that the published notice of decision was sufficient to give the public the required notice.
When reviewing the adequacy of a notice of decision, the court is to be "mindful of the purpose such notice is meant to serve. The right of appeal, if it is to have any value, must necessarily contemplate that the person who is to exercise the right be given the opportunity of knowing CT Page 6522 that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appealable issue. Until the prospective appellant has either actual or constructive notice that a decision has been reached, the right of appeal is meaningless." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, supra,
"It is not essential that a notice of decision expressly state every consideration that might be relevant to any party who might want to appeal the board's decision. It is only necessary to provide notice adequate to ensure a reasonable opportunity within the applicable time constraints to obtain the information required to form an opinion whether or not to appeal." Id., 282. "There is no requirement that the published notice describe the proposed action in detail or with exactitude." Wellesv. East Windsor, supra,
As this court has determined that the property description used in the prehearing notice for the rezoning was valid and the same description was used in the notice of decision, the court finds that the property affected by the amendments was adequately described in the notice of decision. A review of the notice also reveals that the public was adequately apprised of the actual changes made by the passage of the Greenway, rezoning, cluster and lot size amendments. Although, this court finds that the notice of decision does not disclose which section of the zoning regulations was amended by the Greenway amendment, the notice is sufficient to apprise an interested member of the public whether an appealable issue exists. This court, therefore, concludes that the notice of decision was adequate to apprise the public of the decision to approve the amendments and apprise the public the appeals period had begun.
6. WHETHER THE DEFENDANT'S REFUSAL TO ALLOW THE PLAINTIFFS A THIRTY DAY CONTINUANCE INVALIDATES THE DEFENDANT'S DECISION TO AMEND THE REGULATIONS.
The plaintiffs argue, without citing any authority, that their due process rights were violated when the defendant, at the hearing on the Greenway amendment, failed to grant them a thirty day continuance, so they could gather more information on the overall impact of the proposed amendment and the effect of the restricted uses allowed by the amendment on the value of the affected properties.6 The defendant argues that its denial of the continuance did not deprive the plaintiffs of their CT Page 6523 right to be heard, and there is no legal authority holding that a commission must grant a continuance to allow a party to gather more information on the effects of a proposed amendment to the zoning regulations. The defendant further argues that because the plaintiffs have failed to identify what additional information they would have submitted after the continuance, the plaintiffs have failed to show they were prejudiced by the denial of the continuance.
The court recognizes that when a commission is acting in its legislative capacity it has much broader discretion than when it is acting as an administrative board. Central Bank for Saving v. Planning Zoning Commission,
In the present case, during the hearing, the plaintiffs requested "that [the hearing] be continued for thirty days to give [Landmark] an opportunity to respond effectively to what we've heard tonight given the complexity of the proposal particularly with respect to the project which involves the various interplay of the regulations between this and the next two public hearings." Commissioner Formica stated: "Let me share my thoughts with the Commission. . . . This particular public hearing is to amend Section 2A, which [are] the uses allowed in [the RU-120] zone. I don't know that [the plaintiffs] can come forward, or any other developers that can come forward, in the next thirty to sixty or fifteen days, and perhaps really change their level of opposition based on what they have heard this evening. They are either opposed to more limited uses or not. . . . [I] don't know as I'm in favor of continuing the public hearing unless the majority of the people of the public have more to add or have other items to say. We've asked the public a few times as to whether there are more people who would like to speak for or against. . . ." Commissioner Bulmer then added: "We have listened to two and a half hours of testimony on this particular subject. I can't believe that [the plaintiffs'] or anybody else here tonight has any more to this than we know already. I just can't see continuing this hearing any further. I can see we don't vote on it. But, I think CT Page 6524 we should close this." The defendant then voted to close the public meeting on the amendment.
Therefore, the record reveals that the defendant denied the plaintiffs' request for a continuance because members of the public had nothing to add and the defendant believed it had all the information it needed to make a decision. The plaintiffs have failed to submit any evidence that the denial of the continuance prejudiced them and the court finds that the defendant's reasons for the denial of the continuance do not rise to the level of a gross abuse of discretion. The court, therefore, finds that the plaintiff received a full opportunity to be heard and the denial of the plaintiffs' continuance request did not violate the plaintiffs' due process rights.
7. WHETHER THE DEFENDANT'S APPROVAL OF THE AMENDMENTS WAS ARBITRARY. CAPRICIOUS, OR AN ABUSE OF ITS DISCRETION
"The enactment of zoning ordinances is a legislative function, which the court may not disturb unless the commission acted arbitrarily or illegally." Northeast Parking, Inc. v. Planning Zoning Commission,
"Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations. . . . The [decision] must be sustained if even one of the stated reasons is sufficient to support it. . . . [This] applies where the agency has rendered a formal, official, collective statement of reasons for its action." (Brackets in original.) Bloom v. Zoning Board ofAppeals,
During the July 29, 1999 special meetings on the amendments, prior to the vote on each of the amendments, the defendant stated that the reason7 for the approval of each of the amendments was because their passage: 1) conformed to the East Lyme Plan of Development; and, 2) is in keeping with the authority granted to the Commission in General Statutes §
A review of the defendant's statement of reasons for the approval of the amendments reveals that the defendant did not articulate any ground that was "pertinent to the considerations the authority was required to apply pursuant to the zoning regulations." Giarrantano v. Zoning Board ofAppeals,
In Paige v. Town Plan Zoning Commission,
"Courts will not interfere with . . . local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion. . . . Within these broad parameters, [t]he test of the action of the commission is twofold: (1) The zone change must be in accord with a comprehensive plan . . . and (2) it must be reasonably related to the normal police power purposes enumerated in
The defendant considered the comprehensive plan in approving theamendments.
There is evidence in the record that the commissioners considered the effect of the proposed zoning amendments on the comprehensive plan and reasonably determined the proposed amendments were in conformance with the plan. For example, at the hearing on the Greenway amendment, Jeanie Davis, the town planner, stated that the three-acre zoning imposed in 1989, in the RU-120 district, was insufficient to take care of the critical resources in the area, as well as outcrops of ledge, steep slopes, extensive wetland and the need for a buffer along the Niantic River. There was also testimony that the proposed amendment was being developed by the planning and zoning commission because "[e]ssentially, we still — we needed to find the trade up mechanism to put our open space where we wanted and target development in the areas that were most suitable."
At the hearing on the lot size amendment, Megan Parulis, the land use coordinator for the town of East Lyme, stated that the reason for the proposed amendments was that "we felt that a better way to go with out objective was to preserve sensitive environmental resources and protect our water quality that the concept of minimal area of buildable land would be more appropriate. It would not penalize those areas that were very suitable for development and would be more appropriate in the areas that did have encumbrances." At that hearing, Parulis observed that "[p]reviously all we had, [was] our minimal lot size requirements that are specified for each zone, RU-40, 40,000 square feet; RU-80, 80,000 square feet; RU-120, 120,000 square feet and those are the only districts to which this would apply. I would also like to note that [the amendment] would not apply to lots that have already been created. We are not going to go back and tell you you have a nonconformity. There would be a date inserted if this were approved so that they would be grandfathered."
At the hearing on the rezoning amendment, Davies presented the commissioners with a copy of the zoning map and the indicated that: "In looking at the properties that are under question, in context with the CT Page 6527 whole town, developed acreage is about 2,700 acres and low density acreage is approximately 600 acres for developed acreage for residential uses." There was also testimony from Davies about "how the town is separated into residential zoning districts and the RU-120 is about 600 acres, more or less; RU-80 is about 6,000 acres, more or less; RU-40 is about 12,500 acres and RU-12, is about 1200 acres with a total of 20,000 acres approximately."
Finally, at the hearing on the cluster amendment, Parulis stated: "One of the things that we are doing, again to offset, if you will, and also to promote development in more appropriate areas is providing some flexibility in design. We're asking for significant amounts of open space. We want that open space to be in large pieces so we want to give some flexibility so that houses can be clustered. If we've got a good chunk of land, we want you to be able to use it to its maximum benefit. . . . And, again, so that we can focus development in the most suitable areas."
Based on this testimony and the zoning maps which were submitted as exhibits this court concludes that the defendant considered the town's comprehensive plan and the effect of the amendments on the comprehensive plan. As such, the defendant's decision to approve the amendments is not arbitrary, capricious, or an abuse of its discretion for this reason.
The defendant's approval of the amendments conformed with its police power.
There is evidence in the record that demonstrates the commissioners properly acted pursuant to their police powers, as provided by General Statutes §
With regard to the Greenway amendment, Parulis stated "We looked at the whole town, but clearly Oswegatchie Hills is a unique area and it definitely has a high conservation value because of its proximity to the Niantic River." She emphasized: "We have, however, again because of the potential for erosion and also as a sort of a ridgeline view protection, have prohibited clear cutting except in association with one of the permitted uses." There was also testimony from an East Lyme resident which stated "[i]t's one of the best pieces of property that the Indians roamed over and it hasn't been touched. It will be for the future of our CT Page 6528 children to go down and see ledges go down to the water without having to cross somebody's lawn."
With regard to the rezoning proposal, there was testimony from another East Lyme resident who emphasized: "To say that this particular parcel of land is similar to other parcels of land within the Town of East Lyme with regard to the soil conditions, the coverage of the land and the soil conditions, is to ignore the fact that this particular piece of property is located on the River. Other sites will not have the impact on the Sound and the River that this particular site has. And it is important to maintain the quality of water we have today and not to further degrade it by runoff and fertilizers and whatever runoffs and contaminations are going to come out of a development area. So, [it's] not apples to apples here when you're talking about the land here and the land in other parts of Town."
With regard to the cluster amendment, Parulis stated "we're trying to say where we want the open space and we want the open space to protect as much as possible our resources."
Finally, with regard to the lot size amendment, commissioner Formica introduced a letter by the department of environmental protection that stated: "we also support these proposed provisions which would help insure that development in the coastal portions of the subject zones will occur `in a manner consistent with their capability to support development, preservation or use without significantly discrupting either the natural environmental our sound economic growth.'" Parulis additionally stated the plan takes into account "other nonpoint sources of pollution that are generated through development. Whether that be our fertilizers and other things that would be, soil erosion control and so forth, that would be the result of general development."
The plaintiffs have also argued that the defendants failure to allow it to submit further evidence on the effect of the amendments on the value of the property after a continuance indicates that the defendant failed to look at the economic impact of the amendments as is required under General Statutes §
Based on the record evidence, this court finds that the defendant CT Page 6529 considered the factors set forth in General Statutes §
Joseph J. Purtill Judge Trial Referee
Hickey v. City of New London , 153 Conn. 35 ( 1965 )
Wright v. Zoning Board of Appeals , 174 Conn. 488 ( 1978 )
Pierrepont v. Zoning Commission , 154 Conn. 463 ( 1967 )
Passero v. Zoning Commission , 155 Conn. 511 ( 1967 )
Welles v. Town of East Windsor , 185 Conn. 556 ( 1981 )
Hall v. Planning Commission , 181 Conn. 442 ( 1980 )
Jarvis Acres, Inc. v. Zoning Commission , 163 Conn. 41 ( 1972 )