DocketNumber: No. CV94 031 05 49 S
Citation Numbers: 1994 Conn. Super. Ct. 9033
Judges: FULLER, JUDGE.
Filed Date: 9/8/1994
Status: Non-Precedential
Modified Date: 4/17/2021
As discussed below, there was some confusion among the commission members as to the voting procedures on the coastal site plan for the property after the public hearing on December 13, 1993. At that time, four commission members voted to approve the plan, assigning the following reasons for their action: (1) the project, as submitted, meets with all applicable requirements of the Coastal Area Management Act; and (2) the granting of the petition would not cause any unacceptable adverse impacts on the coastal area. Three commission members voted against the application for the following reasons:
"(1) Gilman Street, a major route to St. Mary's, would be compromised by inexperienced drivers of trucks which creates a hazard for traffic on Gilman as well as residents on Mountford;
(2) the maintenance condition of the trucks which might tend to leak fluids in an area where some of the run-off goes to Ash Creek;
(3) Fairfield Avenue has become, as part of the coastal management area, a seaside shopping area, and the proposed use is not consistent with the atmosphere or use of the other businesses.
At the December 13, 1993 meeting the question was raised whether the chairman was also entitled to vote on the application under the bylaws or procedures of the commission. The application was tabled after the initial vote to a meeting on December 28, 1993. At that time the commission was advised by its corporation counsel that five votes were needed and that the chairman could only vote to break a tie. The commission failed to take another CT Page 9035 vote, and it was determined that the vote of four to three at the prior meeting was the vote of the commission, and that in the absence of five affirmative votes, the application was denied. The reasons assigned by the minority of the commissioners who voted at the previous meeting were considered the reasons for denying the application.
This appeal was then taken by U-Haul of Connecticut, the applicant and parent corporation for the property owner, Amoco Real Estate. The plaintiff has a sufficient interest in the denial of the coastal site plan and has established aggrievement under
There is no merit to the third reason for the appeal. The commission has no obligation to explain its regulations or bylaws to applicants before it as long as they are in writing and are available to the public. By proceeding with the hearing on the application, whether it had knowledge of the rules or not, the applicant was bound by the result, and cannot complain after the fact that if it had been apprised of the rules and procedures that it would have proceeded differently. A quorum was present, and the applicant did not object to proceeding without nine commissioners. Eight commission members were present even though only seven voted, and there were enough members present, even without the chairman's participation, for the five affirmative votes needed to pass the application.
However, there was a material defect in the voting procedures of the commission at the December 13, 1993 meeting. The Bridgeport Planning and Zoning Commission resulted from a merger of the Zoning Commission and the Planning Commission which took effect on January 1, 1993. The first meeting of the new commission was held on January 11, 1993, and bylaws were adopted on that date with amendments on February 8, 1993. Article 5, section 6 of the bylaws provides that a quorum for the commission to conduct its business is six members. Article 3, section 2 provided as follows: CT Page 9036
"The chairman shall preside at all meetings and hearings and shall have the duties normally conferred by parliamentary usage on such offices. The chairman shall vote only in strict conformance with Roberts Rules of Order. The chairman shall have the authority to appoint committees and call special meetings."
The second sentence in that section was amended on March 28, 1994, after the commission's decision on the plaintiff's application, to read that "The chairman shall have the same voting right as any sitting commissioners." The defendant has filed two sets of bylaws with the court, the ones in effect on February 9, 1993 and the amended bylaws of March 28, 1994. The original bylaws had no provision for the number of votes required on an application to the commission. There was some discussion at the meeting of January 11, 1993 between the commission members and their counsel when the bylaws were being adopted as to the number needed for a quorum and how many votes were needed on an application. While this discussion is not controlling, the corporation counsel indicated that five votes were required to pass an application and that the bylaws had to follow applicable state statutes. The amended bylaws of March 28, 1994 contain Article 5, section 12 on votes needed for approval of applications. It states:
"Five affirmative votes are necessary for an approval of any petition coming before the Planning and Zoning Commission representing a simple majority of the full commission except as specified under section
8-3 (b) of the Connecticut General Statutes."
Although the commission took the position at the time the application was decided that five affirmative votes were required for approval of the coastal site plan, the record before the court does not disclose that Article 5, Section 12 was in effect at that time, and it cannot be relied upon as the basis for the commission's decision. In any event, the starting point for determining the number of votes required are applicable statutory provisions, and in the absence of a relevant statute, Connecticut case law on the subject. The same applies to limitations on voting imposed on members of land use agencies. CT Page 9037
The only application before the commission here was a coastal site plan, and review of it was governed by §
While there are several zoning statutes that govern the number of votes needed on an application, none of them apply to coastal site plans. For example, §
There are several reasons why the application passed. First of all, a quorum was present and a majority of the members voting were in favor of the application, as there were four affirmative and three negative votes. No applicable statute required five affirmative votes and Article 5, Section 12 of the bylaws was not in effect when the vote was taken. (It should also be noted that it is questionable whether Article 5, Section 12 applies to all matters before the commission and coastal site plans in particular.) Secondly, assuming five votes were needed for the application, the case law rule that abstainers are counted with the majority resulted in five votes on this application.
Finally, the chairman was improperly precluded from voting on the application. The powers of a zoning commission and a combined planning and zoning commission are exclusively controlled by statute and there is no authority to enact regulations or bylaws except as expressly provided by statute.Capalbo v. Planning Zoning Board of Appeals,
When acting upon a coastal site plan application, a zoning commission acts in an administrative capacity. DeBeradinisv. Zoning Commission,
Viewed under this standard, none of the three reasons given by the commissioners who voted to deny the application are supported by substantial evidence. The first reason, based on anticipated poor driving skills of truck drivers, which might create a traffic hazard, is not supported by substantial evidence or germane to creating a parking lot on the subject property. The same applies to the second reason, speculation that trucks might not be properly maintained and might leak fluids, which in turn might flow to a creek located some distance from the property.
Under other circumstances, the third reason assigned would be a valid reason for denying the application, but that is not the case here. A coastal site plan application must conform to the municipal zoning regulations and the provisions and criteria of §§
Since the application was actually approved by the commission which improperly determined the effect of the vote and in addition, none of the reasons given for denial, of the application were valid, the coastal site plan was and had to be approved. This is a proper case to direct approval of the application. See DeMaria v. Enfield Planning Zoning Commission,
The appeal is sustained and the commission is directed to approve the site plan as submitted.
FULLER, JUDGE
Potter v. Board of Selectmen , 166 Conn. 376 ( 1974 )
DeMaria v. Enfield Planning & Zoning Commission , 159 Conn. 534 ( 1970 )
State Ex Rel. Kenney v. Ranslow , 21 Conn. Super. Ct. 294 ( 1959 )
Langer v. Planning & Zoning Commission , 163 Conn. 453 ( 1972 )