DocketNumber: No. CV 371972
Citation Numbers: 1996 Conn. Super. Ct. 4669
Judges: BOOTH, JUDGE.
Filed Date: 6/10/1996
Status: Non-Precedential
Modified Date: 4/17/2021
The Commission acted pursuant to General Statutes §
BACKGROUND
Summitwood is a Connecticut partnership which holds an option to purchase 12.70 acres of property on Sams Road in Meriden, Connecticut. (Complaint, March 17, 1995, paras. 1, 2). The property is part of a 500 acre tract of land owned by Meadow Haven, Inc. (Complaint, March 17, 1995, para. 1).
The Summitwood property is zoned as a Planned Development District (PDD) under the Meriden Zoning Regulations, Chapter 213-26.5. (Complaint, March 17, 1995, para. 3). The stated purpose of such districts "is to allow for diverse but integrated uses in a large, singularly controlled area to provide necessary housing and at the same time to further the economic base of the City by offering space for industrial and commercial expansion." (Return of Record [ROR], Item 45: Meriden Zoning Regulations, § 213-26.5.A). CT Page 4670
In November 1994, pursuant to Meriden Zoning Regulations § 213-26.5D(2), Summitwood filed a site plan application with the Commission to construct a thirty-six unit town house development on the property. (ROR, Item 37: Site Development Plan; Item 39: Application for a Certificate of Approval, 11/29/94). The site plan application proposed excavation of 625,000 cubic yards of trap rock from a naturally existing ridge located on the subject property. (ROR, Item 37: Site Development Plan; Item 28: Letter to John Netherton, Meriden Planning Commission, from Vincent J. McManus, 1/5/95, with attached engineering evaluation).
The Meriden Zoning Regulations delegate the site plan review function to the defendant Planning Commission. (ROR, Item 45: Meriden Zoning Regulations § 213-55). On February 17, 1995, the Commission held a special meeting to act on the application. (Supplemental ROR, Item 1: Transcript, 2/17/95, p. 1). Commissioners Arthur Geary, Roger DeZinno and Enrico Bucilli were the only commissioners in attendance. (Supplemental ROR, Item 1: Transcript, 2/17/95, p. 1). At the meeting, Commissioner Geary made a motion to deny the application. (Supplemental ROR, Item 1: Transcript, 2/17/95, p. 4). Commissioners Geary and Bucilli voted in favor of the motion to deny the application. Commissioner DeZinno voted against the motion. (Supplemental ROR, Item 1: Transcript, 2/17/95, p. 6). Notice of the denial of the application was sent to Summitwood on February 21, 1995, and was published in the newspaper as required by General Statutes §
Thereafter, on February 22, 1995, Summitwood's attorney wrote a letter to the Commission stating Summitwood's claim that the Commission failed to take legal action on the application because Commissioner Bucilli was not authorized to vote. Summitwood requested that the Commission issue an inferred approval of the site plan pursuant to General Statutes §
JURISDICTION
General Statutes §
1. Aggrievement.
General Statutes §
"Aggrievement falls within two broad categories, classical and statutory." (Internal quotation marks omitted). Cole v.Planning Zoning Commission,
A contract purchaser or a holder of an option to purchase has sufficient interest in a decision involving that property to prove aggrievement. Goldfeld v. Planning Zoning Commission,
Summitwood has an option to purchase the property which is the subject of the application to the Commission. Summitwood's CT Page 4672 option is sufficient to support aggrievement. Accordingly, Summitwood is aggrieved.
2. Timeliness and Service of Process.
The record reveals that the Commission published notice of its decision to deny the site plan application on February 23, 1995.2 Summitwood commenced this appeal by service of process on the Chairman of the Commission and the City Clerk for the Town of Meriden on March 8, 1995. Accordingly, this appeal was commenced in accordance with General Statutes §
ARGUMENTS
Summitwood filed its appeal on March 17, 1995. In its pretrial brief, filed on July 14, 1995, Summitwood contends that either the Commission did not have an adequate; number of members to act on the site plan application and that the vote was invalid, resulting in an inferred approval of the plan under General Statutes §
With respect to the voting issue claims, Summitwood argues that Commissioner Bucilli's appointment to the Commission was not confirmed at the time of his vote. Therefore, Summitwood argues, the Commission did not have a quorum, a necessary predicate to effectuate a vote. Furthermore, Summitwood argues that even if a quorum was present, no action was taken since less than a majority of the membership voted on the application. Thus, Summitwood argues that the Commission failed to act on the application within the statutory period and the application was automatically approved under General Statutes §
On September 21, 1995, the Commission filed its pretrial brief.3 In its brief, the Commission contends that Commissioner Bucilli was a valid member of the Commission at the time of the vote. In the alternative, the Commission argues that, if Bucilli was not a de jure member of the Commission, he was a de facto member and his vote was valid. The Commission maintains that, in any event, Summitwood waived its right to challenge Bucilli's qualifications because it failed to object to his vote CT Page 4673 at the time it was cast. Finally, the Commission maintains that Summitwood's site plan application does not conform to the Meriden Zoning Regulations and the denial of the application was proper.
DISCUSSION
1. Whether Summitwood May Seek an Inferred Approval and Raise Issues Regarding the Propriety of the Commission's Vote in an Administrative Appeal.
In this administrative appeal, Summitwood seeks to have the court direct approval of its site plan application under the automatic approval provision of General Statutes §
There are several cases in Connecticut where a trial court, in a land use administrative appeal, ordered that a certificate of approval must issue by reason of failure to deny applications in a timely manner. Caron v. Inland Wetlands WatercoursesCommission,
In a majority of Connecticut cases, however, an applicant seeking an inferred approval has filed an action for a writ of mandamus. See, e.g., Gelinas v. West Hartford,
It is questionable whether the Superior Court has jurisdiction to hear issues related to inferred approval in administrative appeals, an issue neither raised nor addressed in the cases relied upon by Summitwood. The Supreme Court has suggested in Merlo v. Planning Zoning Commission,
In Merlo, the plaintiff brought a mandamus action to compel the defendant; commission to issue a certificate of approval on a subdivision plan. Id., 677. She argued that the commission had failed to approve, modify and approve, or disapprove her plan within the period prescribed in General Statutes §
On appeal, the commission raised "a jurisdictional issue concerning the propriety of mandamus as a remedy where there is a statutory appeal available . . . in which a plaintiff includes as one ground for relief essentially the same claim presented in the mandamus action." Id., 680. In deciding this issue, the court referred to its decision in Vartuli v. Sotire, supra,
A determination that an applicant is not entitled to seek an inferred approval of a site plan application in an administrative appeal is consistent with the limited statutory right of appeal and with the nature of the writ of mandamus.
An administrative appeal exists only under statutory authority. Walls v. Planning Zoning Authority, supra,
"With respect to the extraordinary writ of mandamus, it is well established that an essential prerequisite for issuance of the writ is the absence of any other sufficient remedy." Merlo v.Planning Commission, supra,
A writ of mandamus is available to enforce the performance of a ministerial duty if (1) the party applying for the writ has a clear legal right to have the duty performed, (2) the defendant has no discretion with respect to the performance of that duty; and (3) the plaintiff has no adequate remedy at law. Golab v. NewBritain,
For the foregoing reasons the court holds that matters concerning inferred approval, or more accurately the commission's refusal to find inferred approval are not properly raised in this appeal. Since the court lacks subject matter jurisdiction to consider inferred approval in this appeal all claims for relief relying on an entitlement to an order of inferred approval are dismissed.
2. Whether the Court Should Sustain Summitwood's Appeal on the Merits.
A. Arguments of the Parties.
1. Arguments Advanced by Summitwood.
In its appeal, Summitwood contends that the Commission's denial of the site plan application was based on two sections of the Meriden Zoning Regulations which do not constitute a proper basis for the denial. In its argument, Summitwood refers to the CT Page 4677 letter it received from Dominick Caruso (Caruso), dated February 21, 1995, which outlines the reasons for the Commission's denial. (ROR, Item 6).7 Summitwood argues that the Commission relied on the general standards for Planned Development Districts in § 213-26.5 of the Regulations, instead of relying on the provisions which govern site plan approval in § 213.55. Summitwood argues that general objectives in site plan regulations can not be used as grounds for denying an application. To justify denial the application must violate specific zoning regulations.
The first section specified in Caruso's letter is § 213-26.5B(2).8 Summitwood argues that the Commission could not rely on this section because it is merely a statement of objectives relating to rezoning of property. Furthermore, Summitwood contends that the Commission failed to state how the site plan failed to meet this provision. Summitwood argues that the next section specified in the letter, § 213-26.5D(3)(d),9 is not a proper basis to deny a site plan application because it is merely a general development standard. Finally, Summitwood contends that Caruso added to his letter a claim of noncompliance with § 213-26.5C(2)(c),10 an accessory use provision, which the court should not consider. According to Summitwood, the court is limited to a review of the collective statements of the Commission, of which Caruso was not a member. Summitwood also points out that a reason assigned by a Commission member or the planning staff after a vote cannot be considered by the court on appeal. In any event, Summitwood submits that the proposed excavation at the site is incidental to the development under the site plan and is clearly an accessory use under § 213-26.5C(2)(c).
Summitwood argues that the Commission is precluded from questioning the suitability of the site for the proposed uses because the property was determined to be suitable for such uses when it was zoned as a Planned Development District. Summitwood also maintains that the Commission could not properly rely on the zoning regulations noted in Caruso's letter because the regulations do not contain "known and fixed standards." (Plaintiff's Brief, July 14, 1995, p. 19). It is unclear, however, whether Summitwood is arguing that the Regulations themselves are invalid because no standard is set by them or that the Commission's reliance on the regulations to deny the site plan application was improper because the regulations are only statements of general objectives. CT Page 4678
2. Arguments Advanced by the Commission.
The Commission argues that Summitwood's application does not conform to the Meriden Zoning Regulations. According to the Commission, the varied uses allowed in a Planned Development District are only permitted when a development plan complies with the site plan regulations as well as PDD general development standards. With respect to the general standards contained in the PDD Regulations, the Commission argues as follows.
The Commission maintains that § 213-26.5D(3)(d) bars Summitwood from leveling the existing ridge to construct residential units which otherwise could be constructed to accommodate the ridge.11 In addition, the Commission argues that Summitwood's plan violates § 213.26.5C(2) of the Regulations because the scope of the proposed excavation is beyond that permitted as an accessory use as a matter of law and fact.12 Contrary to Summitwood's position, the Commission maintains that it is not barred from determining whether the proposed excavation is accessory simply because excavation is a permitted accessory use under the PDD regulations. The Commission contends that it and this Court must apply the Regulations and the definition of accessory use to Summitwood's application to determine whether the excavation is customary and incidental to the construction of the town houses.13
The Commission insists that the application does not meet the specific zoning requirements of the Regulations, § 213-55J, and therefore the denial was proper and the court need not consider whether the PDD Regulations are vague. Specifically, the Commission claims that Summitwood did not file an A-2 survey of the property or a topographic map illustrating the existing and proposed conditions of the property.14 Thus, the Commission claims, the application was incomplete and the Commission was required to deny it. In addition, the Commission claims that the application violated §§ 213.55B(5), (7), and (8) of the Regulations regarding preservation of environmental land features.15
The Commission argues that Summitwood's claim that the general development standards of the PDD Regulations are vague and unenforceable is without merit. It is the Commission's position that the sufficiency of the standards must be viewed in the context of the purpose and scope of the Regulations. CT Page 4679 According to the Commission, the PDD Regulations were adopted in conjunction with Summitwood's owners to be applied to the Summitwood property. The Regulations permit a wide range of uses on a single parcel as long as the developer used the development standards to create a compatible integration of the proposed uses. Thus, the Commission argues, the requirement that "all structures and roads shall be planned to accommodate existing natural features, including topography and inland wetlands and watercourses" is not vague as it relates to Summitwood's application. Moreover, the Commission contends that Summitwood cannot "claim that the application of these standards [is] vague and meaningless when its master plan applies the regulation to the property, identifies the ridge as a significant topographical feature, and shows a development scheme which accommodates the ridge." (Defendant's Brief, September 21, 1995, p. 32). The Commission states that the natural topographic features of the property permit a variety of uses within the same parcel while allowing the uses to be physically separated. The Commission maintains that there is no ambiguity in the Regulations as they relate to this application.
Finally, the Commission asserts that to the extent the design standards are inadequate, the entire PDD regulation must be stricken and the property returned to an R-3 zone classification. The Commission posits that the city council's stated purpose for adopting PDD zoning was to encourage residential and economic development while maintaining the existing topographical and environmental features of the property. The Commission contests Summitwood's attempt to eliminate from the Regulations the design development controls.16
B. Reasons for the Site Plan Denial.
General Statutes §
In DeMaria v. Planning Zoning Commission,
The DeMaria decision, however, was altered in Stankiewicz v.Zoning Board of Appeals,
Since Summitwood's appeal will be dismissed if the stated reasons for the denial of the site plan are adequate, the court will begin its review of the Commission's denial of the site plan with the reasons articulated in Caruso's letter. It is noted at the outset that "[t]he burden of proof is on the plaintiff to demonstrate that the board acted improperly." Spero v. ZoningBoard of Appeals,
C. Adequacy of Commission's Stated Reasons for Denial of Summitwood's Site Plan Application.
General Statutes §
Summitwood advances the argument that the Commission could not properly consider the standards set forth in the PDD Regulations § 213-26, in denying the site plan because it is limited in its review to the standards set forth in the Regulations concerning site plan review, found in § 213-55. CT Page 4682 In addition, Summitwood argues that the Commission may not look beyond the question of whether the plan satisfies the site plan regulations because the use was designated as a permitted use in that zone.
The cases cited by Summitwood do not resolve the issue. InBarberino Realty Development Corp. v. Planning ZoningCommission,
While Summitwood's argument is similar to the plaintiff's argument in Barberino, the cases are factually distinguishable and, to the extent that Barberino holds that the Commission may consider the special permit standards in reviewing site plans, the decision does not support Summitwood's position. Accordingly,Barberino is of limited applicability in the instant matter.
Summitwood also cites TLC Development, Inc. v. Planning Zoning Commission,
The court stated further that the applicant sought site plan approval for a use fully permitted under the regulations. Id. The court invoked the principle set out in Beit Havurah v. ZoningBoard of Appeals,
The court later clarified its holding in TLC in Friedman v.Planning Zoning Commission,
On the basis of the foregoing, it appears that the Commission may consider the PDD standards in reviewing the site plan application if the regulations permit such an inquiry.
The Meriden Zoning Regulations do not limit the Commission's review of site plans to the standards articulated in § 213-55, nor do the Regulations prohibit the Commission from considering the development standards in § 213-26 in its review of a site plan application for development within a PDD.21 "Generally, it is the function of a zoning . . . 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." (Internal quotation marks omitted.). Schwartz v. Planning Zoning Commission,
The other cases relied on by Summitwood relate more directly to what appears to be the crux of Summitwood's appeal; namely, that general objectives in regulations are not grounds for denying a site plan, and can be used only for modification and approval. Summitwood argues that the PDD general objectives do CT Page 4684 not contain known and fixed standards to guide a commission in reviewing site plans. Thus, Summitwood argues, even if the Commission could consider the standards in § 213-26.5, "it could not use these general provisions to deny a site plan which complied with the specific standards in the Zoning Regulations." (Plaintiff's Brief, July 14, 1995, p. 18).
The standard for determining the adequacy of subdivision regulations is "whether the criteria contained in the commission's regulations are as reasonably precise as the subject matter requires and are reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations." (Internal quotation marks omitted.).Ghent v. Planning Commission,
In support of its position, Summitwood cites Kosinski v.Lawlor,
Unlike the provisions in Sowin, § 213-26.5D(3)(d) of the Meriden Zoning Regulations are not broad statements related to public health and safety. Furthermore, Sowin, which cites extensively to TLC Development, Inc. v. Planning ZoningCommission, supra,
At the Commission meeting on February 17, 1995, Commissioner Geary made a motion to deny Summitwood's application "based on the comments of staff on the conformance of the development." (Supplemental ROR, Item 1: Transcript, 2/17/95, p. 4). At the Commission meeting of February 14, 1995, Caruso addressed that aspect of the site plan which proposed removal of a 100 foot hill on the site to create a low detention area. (Supplemental ROR, Item 1: Transcript, 2/14/95, p. 9). He testified that the staff's concern "is with the regulations in that this is a special (district) and there are special responsibilities under this (district) and we think they are pretty clear and the main one that I'm talking to is Section [213-26.5D(3)(d)] and it says all CT Page 4686 structures of road shall be planned to accommodate existing natural features including topography . . . when you remove such a large physical natural feature, the removal is not working with it." (Supplemental ROR, Item 1: Transcript, 2/14/95, pp. 9-10). Caruso stated further "[w]e're talking about working with the topography, whether that means taking 20 ft. off here and working it in over here. . . That's all fine. That's working with the topography. When you say to me you have to take the whole thing out, that's not working with the topography, so . . . we recommend denial that it does not meet that section of the zoning regulation. . . ." (Supplemental ROR, Item 1: Transcript, 2/14/95, p. 10).23
The court does not agree with Summitwood's claim that the regulation is vague as it applies to the facts of this case. The regulation is sufficient to apprise Summitwood that the existing topography of the land would be considered in evaluating its site plan application. Under the regulation, any part of the site plan effecting the topography of the land could subject the plan to denial. "The core idea of a site plan review is to require a focus on the relationship of proposed physical structures to existing features of a site, including roads." T. Tondro, Connecticut Land Use Regulation, Second Ed., 1992, p. 180.
Other reasons were enumerated in Caruso's letter as grounds for denial. At the Commission meeting on February 14, 1995, Caruso stated that the staff recommends denial because the plan "does not conform with Section [213.26.5B(2)] which says application of [creative] design techniques to foster attractive, functionally efficient and well planned developments which will aesthetically be integrated into adjacent areas. Again, by removing something, it does not integrate so we recommend denial." (Supplemental ROR, Item 1: Transcript, 2/14/95, p. 10).
A third reason specified in Caruso's letter is that the plan does not conform to § 213-26.5C(2)(c), regarding earth and rock excavation. This accessory use provision was j not discussed at the Commission's meetings on February 14, 1995 and February 17, 1995, although reference was made to excavation at the project site in general.
The plaintiff has the burden of showing that the regulation complained of is impermissibly vague as applied to the facts of the particular case. See Barberino Realty Development Corp. v.Planning Zoning Commission, supra,
If the court "concludes that any one of several reasons submitted by the commission for its action is reasonably supported by the record, then the commission's actions must stand." Friedman v. Planning Zoning Commission, supra,
D. Other Reasons for Denial of Summitwood's Site Plan Application.
In its brief, the Commission asserts that the site plan did not conform to various provisions of the site plan Regulations, § 213-55, and the PDD Regulations regarding accessory uses, § 213-26.5C(2)(c).
The Commission asserts that Summitwood's plan violates §§ 213-55B(5), (7) and (8), of the site plan objectives. Subsection (5) requires that existing trees be preserved to the maximum extent possible. Subsection (7) requires that all utility systems be designed to protect the property from adverse air, water or land pollution. Subsection (8) requires that the development of the site preserve sensitive land features, such as steep slopes, wetlands and large rock outcroppings.
The report by David Foley to the Commission states that the plan violates subsections (5) and (8) in that "every living thing in this entire 12 acre site will be killed . . . [the plan] clearly does not make any pretext of an attempt to preserve to the maximum extent possible the existing trees" and that" [e]very single sensitive environmental land feature, every steep slope, every wetland, every rock outcropping . . . is slated to be blasted to bits." (ROR, Item 28: Letter to John Netherton, Meriden Planning Commission, from Vincent McManus, Jr., 1/5/95, enclosing Site Plan Evaluation of David Foley, Professional Engineer). In addition, the record contains a memorandum from the planning staff to the Commission expressing the staff's position that the plan does not comply with subsection (8). (ROR, Item 22: Memorandum from Planning Staff to Planning Commission, 2/2/95).24
2. Conformance with PDD Accessory Use Provision. CT Page 4688
Summitwood addresses the accessory use provision only insofar as to insist that the proposed excavation on the site is incidental to the development and is clearly an accessory use. The Commission argues that Summitwood's site plan application violates § 213-26.5C(2)(c) of the PDD Regulations.25 The record supports the Commission's conclusion.
Section 213-26.5C(2)(c) of the Regulations permits as an accessory use "[e]arth and rock excavation, and/or rock crushing for the preparation of land for permitted uses, accessways and utilities." An accessory use is defined in the Regulations as "[a] use incidental to the principal use of a lot or a building located on the same lot." Meriden Zoning Regulations § 213-7. The Commission does not contest that excavation necessary to prepare property for a permitted use is an accessory use. Rather, the Commission contends that the scope of the proposed excavation establishes that the excavation of rock at the site is the principal use of the land.
Foley's report, on which the staff relied in making its recommendation to the Commission, states that the excavation would last at least four to five years; would delay construction of the townhouses for five to six years; would entail removal of 625,000 cubic yards of material; and would require 47,000 truck trips. He reported that the excavation would create a twelve acre impervious tabletop, requiring re-establishment of ground cover and vegetation at a massive additional cost to the developer. He reported that runoff at the site would increase dramatically and would require water handling and detention ponds which otherwise would be less extensive. He asserted that the market value of the property would drop with the elimination of the vistas, the panoramic views and the natural tree setting. Foley asserted that the plan of development, requiring removal of 100 feet of rock from a 12 acre parcel, is consistent with a plan of development for a strip mine.
Foley maintained that the proposed excavation is not necessary to develop the property for townhouses. He stated that Summitwood's plan would actually reduce the number of townhouses that could be built on the property. He reported that the units could be constructed easily without removal of the hill and he submitted a design alternative in support of his position.
"Whether a particular use qualifies as an accessory use is ordinarily a question of fact for the zoning authority, to be CT Page 4689 determined by it with a liberal discretion." (Internal quotation marks omitted.) Upjohn Co. v. Planning Zoning Commission,
As previously set out, the record contains substantial evidence from which the Commission could reasonably conclude that rock excavation was the intended primary use of the property and that such excavation was neither subordinate to construction of the townhouses nor minor in significance. The scope of the proposed excavation bears no reasonable relationship to the alleged primary use. Furthermore, "[t]he court's review is based on the record, which includes the knowledge of the board members gained through personal observation of the site . . . or through their personal knowledge of the area involved." ConnecticutHealth Facilities, Inc. v. Zoning Board of Appeals,
CONCLUSION
On the basis of the foregoing, Summitwood's appeal is hereby dismissed.
BY THE COURT
KEVIN E. BOOTH
Mystic Marinelife Aquarium, Inc. v. Gill , 175 Conn. 483 ( 1978 )
Sonn v. Planning Commission , 172 Conn. 156 ( 1976 )
Kosinski v. Lawlor , 177 Conn. 420 ( 1979 )
DeMaria v. Enfield Planning & Zoning Commission , 159 Conn. 534 ( 1970 )
Lawrence v. Zoning Board of Appeals , 158 Conn. 509 ( 1969 )
M & L HOMES, INC. v. Zoning & Planning Commission , 187 Conn. 232 ( 1982 )
Leech v. Gaetz , 31 Conn. Super. Ct. 81 ( 1973 )
Beit Havurah v. Zoning Board of Appeals , 177 Conn. 440 ( 1979 )