Honeycomb Assoc. v. Plan. Zon. Bd., No. Cv90 03 09 59s (Feb. 28, 1991)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION This is an appeal from the decision of the, Planning and Zoning Board of the City of Milford denying the petition of plaintiff Honeycomb Associates for a special permit to fill a 0.28 portion of a 15 acre parcel of land situated within 25 feet of a wetland near Honeycomb Lane in the City of Milford.

Plaintiff Honeycomb Associates claims that its December 7, 1989 petition for said special filling permit contained all of the drawings, maps, specifications and profiles required by the Milford Zoning regulations and that said documents provided the defendant with the information necessary to act on the application. The plaintiff further claims that its application met all of the requirements of defendant's zoning regulations.

The plaintiff argues that prior to filing its December 7, 1989 petition the Connecticut Department of Environmental Protection (DEP) had granted permission to plaintiff to deposit for fill. Plaintiff asserts that at a public hearing held on November 1, 1978 relative to plaintiff's request for DEP permission to fill the subject premises Timothy Chaucer ". . . spoke in opposition to the granting of the request and presented a letter in opposition from the Milford Conservation Commission, of which he was then President." Moreover, plaintiff claims that thereafter said Timothy Chaucer, as a member of the defendant Planning and Zoning Board ". . . spoke against the present application for a special permit at the defendant's board meeting on January 16, 1990, seconded the motion to deny the application and voted for the denial." The plaintiff maintains that although CT Page 1597 said Timothy Chaucer was directly or indirectly interested in a personal sense in the instant application, he failed to disqualify himself from participating in the hearing and decision thereon in violation of Connecticut General Statutes section 8-11.¹

Plaintiff complains further that the defendant board acted illegally, arbitrarily and in abuse of its discretion by 1) basing its denial on an issue that was not before the board, viz. concerns voiced by board members regarding approval of a septic system for a subdivision plan; 2) failing to consider approval to fill which had been granted by Connecticut DEP; and 3) failing to approve the instant petition which allegedly met all of the zoning requirements of the zoning regulations pertaining to grading and erosion control.

Furthermore, the plaintiff claims in its brief that the defendant's denial of its application should be voided for defendant's failure to state its reasons for denial on the record, as required by Connecticut General Statutes, Section 8-26e.

The defendant denies plaintiff's allegations of illegal, arbitrary or abusive actions. Although the defendant admits that board member Timothy Chaucer spoke, in opposition to the special permit, the defendant concedes no wrongdoing in this regard and posits that even if Timothy Chaucer's participation in the process were improper such improper participation was waived since the plaintiff failed to request him to recuse himself.

In an appeal from a zoning board of appeals the court will not substitute its judgment for that of the zoning board, but will review the record before the board to determine whether it acted fairly or with proper motives or upon valid reasons. Willard v. Zoning Board of Appeals,152 Conn. 247, 249 (1964). This Court divides its opinion in basically three parts, viz 1) aggrievement; 2) the issue of disqualification; and 3) the issue as to whether the record contains sufficiently valid reasons to support denial of the plaintiff's application.

Aggrievement

In order to have standing to appeal to Court a decision by a zoning agency, the party claiming aggrievement must demonstrate specific legal and special interest which has been harmed by the decision. Hall v. Planning Commission of the Town of Ledyard, 181 Conn. 442 (1980). From the testimony CT Page 1598 at the Court hearing of this appeal and from exhibits introduced into evidence the court finds that the plaintiff owned the property at issue for all times material and finds that the plaintiff is aggrieved for purposes of this appeal by the denial of its permit to fill.

The Disqualification Issue

At the Court hearing of this appeal the parties introduced several exhibits, two of which disclosed that in 1978 Timothy Chaucer, identifying himself as the Chairman of the Milford Conservation Commission and addressing the Connecticut Department of Environmental Protection (DEP) opposed the application of Honeycomb, Inc. for a permit to subdivide about 36 acres of its property into more than 36 residential building lots. The property is contiguous to and a portion of it is within the subject wetlands.² The parties stipulated that at the time of Mr. Chaucer's testimony before DEP he was a member of the Milford Planning and Zoning Board. As a result plaintiff claims that Mr. Chaucer should have disqualified himself from voting on its application to fill 0.28 acres within 25 feet of said wetlands. Although statutory and case law make abundantly clear that "[n]o member of any zoning commission or board and no member of any zoning board of appeals shall participate in the hearing or decision of the board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense," Connecticut General Statute Section 8-11, Furtney v. Zoning Commission,159 Conn. 585, 595 (1970), this court finds no evidence which establishes that Timothy Chaucer had a personal or financial interest in the permit so as to warrant a disqualification. The testimony, introduced into evidence at this Court hearing on the appeal concerned Mr. Chaucer's opposition from an environmental prospective to an application for a more than 36 lot subdivision and not a permit to fill less than an acre of the wetlands. Furthermore, plaintiff did not seek Mr. Chaucer's disqualification prior to the denial of the permit by defendant board. See Fletcher v. Planning and Zoning Commission, 158 Conn. 497, 507-508 (1969), and McGavin v. ZBA, 26 Conn. Sup. 251, 254 (1965). The plaintiff has not proved nor demonstrated through voir dire or other means — neither prior nor subsequent to his vote — that Mr. Chaucer's environmental and conservation concerns in the wetlands area in general predisposed his particular action on the denial of plaintiff's application to fill 0.28 acres of land within 25 feet of the wetlands. See Anderson v. Zoning Commission,157 Conn. 285, 291 (1968).

Review of the Record CT Page 1599

Plaintiff presented two applications for approval by defendant board viz, 1) a petition, filed on December 7, 1989 for a permit to deposit fill on a 0.28 acre portion of a 15 acre parcel of land situated within 25 feet of a wetland near Honeycomb Lane in Milford; and 2) an application filed on November 28, 1989 for a five-lot subdivision known as Honeycomb Estates, situated contiguous to said area. Both applications were considered by defendant at a public hearing held on December 19, 1989, during a Committee meeting on January 10, 1990, and during a discussion and vote at its meeting on January 16, 1990.

The following is the verbatim statement from the record of the January 10, 1990 meeting of defendant board's subdivision and Special Permits Committee:

Honeycomb Lane-Petition of Honeycomb Associates for a special permit to conduct regulated activity within 25' of a wetland.

The Committee reviewed the plans and there was some concern regarding the septic systems. All reports were favorable, including the health department. It was noted that the houses are being set back and the septic systems will be in the front and not going into the wetlands. The Committee will recommend approval to the full board.

Id. p. a.

At the January 16, 1990 meeting defendant board discussed, the permit within the context of plaintiff's application for a five lot subdivision. Included within the discussion was whether the proposed subsurface sewage disposal system would accommodate the five lot subdivision. In this regard defendant board members reviewed several Milford Health Department Memoranda, including a memorandum dated October 19, 1989, which recommended approval of the subsurface sewage disposal system for the five-lot subdivision with the following comments:

Approval for subdivision by this department indicates on-site feasibility, for sub-surface sewage disposal. However, each lot will be re-evaluated, prior to issuance of "permit to install and/or construct" a septic system. With these concerns clearly understood by this applicant, the Milford Health Department CT Page 1600 has no objection to this application.

Nevertheless six of the nine board members voted to deny the application. City Planner W. Pierce noted that a previous court had approved the filling of the subject wetlands for development.

The record also contains a letter, dated August 14, 1989 from Connecticut DEP, accompanied by its Inland Wetlands Permit, giving its approval to fill approximately 0.3 acres of inland wetlands in conjunction with a six-lot subdivision.³

By letter, dated January 17, 1990, defendant notified plaintiff that the application for the special permit was denied, but did not state a reason therefor. However, this letter also notified plaintiff of defendant's denial of the five-lot subdivision noting as a reason therefor that health department memoranda of April 27, 1989 and July 27, 1989 contained too many discrepancies and concerns ". . . regarding septic systems for all five lots."⁴ By separate letter, dated January 17, 1990 the defendant notified the plaintiff of the note, taken at its meeting on January 17, 1990, denying plaintiff's petition for permit to fill, but stated no reasons for said action.

The record is replete with the defendant's concerns about the five-lot subdivision and its subsurface septic disposal system rather than with the permit to fill the 0.28 acre.

Based upon the record this Court finds no substantial evidence supporting a reason for denying plaintiff's petition to fill. Kaeser v. Conservation Commission, 20 CA 309, 311 (1989). A review of defendant's zoning regulations, as presented in the record, discloses no such reason, and the defendant has stated no such reasons. Moreover, the record as articulated in this decision suggests substantial evidence for approving the petition. Accordingly, plaintiff's appeal is sustained.

CLARANCE J. JONES, JUDGE