DocketNumber: No. CV 91 0282739 S
Citation Numbers: 1991 Conn. Super. Ct. 10849
Judges: BELINKIE, STATE TRIAL REFEREE
Filed Date: 12/31/1991
Status: Non-Precedential
Modified Date: 4/18/2021
Aggrievement has been found. The appellants own properties located in a residential AA Zone, all of which abut the property of the applicant, PRWA.
The appellants complaint alleges that in granting its approval the defendant commission acted illegally, arbitrarily and in abuse of its discretion in that:
1. The Commission violated its own regulations in that said regulations do not permit the use of land in the commercial Corporate Park to access residentially zoned property.
2. Said approval was granted without the requirements of a subdivision or re-subdivision application of the residential portion of PRWA's property.
3. The approval violates the regulations because it permits a use within the required setback line in the Corporate Park District.
4. The approval did not comply with the landscaping, screening and buffer area provisions of the commission's regulations.
The property owned by PRWA consists of approximately 6.7 acres, approximately two acres of which is zoned Corporate Park District (CPD), a commercial zone, and abuts on the Post Road in Westport. The balance of approximately five acres, zoned residence AA, is contiguous to and immediately to the rear of the two acre CPD district, and does not abut or directly access the Post Road.
Some background information is needed to clarify the precise issue before the court in this appeal.
An original site plan proposing the construction of a 19,995 square foot office building on the CPD area (2 acres) was approved by the commission on December 19, 1988. This site plan contained an access driveway from the Post Road to the proposed office building and parking area, which driveway did not extend to the residence AA zone. Before the court now is the application for modification of the prior approved site plan to extend the 24 foot driveway a distance of 35 feet to the line of the residential portion of the property. This application for modification was approved by the commission on April 8, 1991, with conditions, and is now on appeal before this court. None of the enumerated conditions appear to have any bearing on the issue before the court. CT Page 10851
As authority for its position the appellants cite the cases of Park Construction Company v. Planning and Zoning of Appeals,
While the allegation states that there was no commitment or stated purpose on the part of the applicant as to the proposed use of said driveway, the application expressly stated that the proposed use was the same, except, for the modification involving the driveway.
These allegations refer to statute
"No principle or accessory building, structure or use shall extend closer than thirty (30) feet from any front lot line or Residential District Boundary line or twenty-five (25) feet from any other side or rear lot line."
And, section
"Landscaping, screening and buffer areas shall be provided in accordance with Section 35 of the Supplementary Regulations".
It would serve no useful purpose to enumerate the various provisions of Section 35 except to note that Section
"A buffer strip shall be required along and within all Non-Residential District boundaries immediately adjacent to , Residential District ___."
The defendant takes the position that a driveway creating a means of egress and ingress is not a use at all. The court has been unable to find anything in the regulations which designates such a driveway as a use. Are the appellants contending that a driveway ingressing and egressing a structured parcel of CT Page 10853 property is in violation of setback regulations? If so, the court finds it difficult, if not impossible, to envision any structured parcel of property with a driveway not to be in violation of setback regulations. To counter the defendant's contention that without this driveway, there would be no access to the defendants AA zoned parcel, the appellants, in their brief, cite the Park Construction case, supra, at page 37 as authority for the proposition that access to a public street is not a relevant argument. Again, it must be pointed out that in the Park Construction case supra, the court was dealing with an applicant's proposal seeking access over a parcel of property wholly within a residential zone owned by others, not by the applicant, and, indispensable to the commercial use of the applicant's property. Here the applicant at best, is applying for a residential use in a commercial zoned parcel, not prohibited by the regulations.
There are cases supporting the defendant's position. In the case of State v. Gruber,
In the case of Beckmann v. Teaneck TP,
The case of Faukner v. City of Keene,
Finally, the appellants contend that landscaping, screening and buffer provisions of the regulations are being violated. As is pointed out in the defendant's brief, the original site plan approved in December 1988 did include the required buffer strip, and the presently proposed plan to modify does not eliminate this buffer strip. The court cannot view the proposal to extend the 24 foot driveway to the residential portion of the applicant's own property as a violation of the buffer requirements.
Whether, as the defendant contends, the commission has consistently interpreted the zoning regulations to conclude that access driveways are not considered "uses", is not before the court, since further evidence on this issue was denied. The court does have before it the statement made by the planning director, Mr. Minor, at the meeting of April 8, 1991, "that the application is not even required, but the applicant insisted on it for the neighbor's benefit." Whether such statement has any connection with the claimed commission's consistent interpretation of the regulations, the court is only left to speculate.
At any rate, subject to certain underlying principles, the solution of zoning questions has been left to local zoning authorities which are endowed with a wide and liberal discretion. Couch v. Zoning Commission,
This discretion is allowed largely because the circumstances and conditions in zoning matters and regulations are peculiarly within the knowledge of the zoning authority. "Where it appears that an honest judgment has been reasonably and fairly exercised after a full hearing, courts should be cautious about disturbing the decision of the local authority." Kutcher v. Town Planning Commission,
Thus, the decisions of zoning authorities are to be overruled only when it is found that they have not acted fairly, with proper motives and upon valid reasons. Krejpcio v. Zoning Board of Appeals,
"Courts must not and legally cannot substitute their own discretion for the wide and liberal discretion enjoyed by zoning agencies ___ courts can grant relief only where the local authority has acted arbitrarily or illegally and has thus abused the discretion vested in it." Morningside Assoc. v. Planning CT Page 10855 Zoning Board,
And, the burden is on the party opposing the zoning agency to prove that its action amounted to an illegal abuse of that discretion. Hall v. Planning and Zoning Board,
In addition, a zoning authority is by no means confined to a consideration of only such evidence as may be presented to it. It is entitled to take into consideration facts which may have been learned through personal observation. Demars v. Zoning Commission,
The appeal is dismissed.
MILTON H. BELINKIE STATE TRIAL REFEREE
State Ex Rel. Szodomka v. Gruber , 201 La. 1068 ( 1942 )
Beckmann v. Township of Teaneck , 6 N.J. 530 ( 1951 )
Krejpcio v. Zoning Board of Appeals , 152 Conn. 657 ( 1965 )
Faulkner v. Keene , 85 N.H. 147 ( 1931 )
Jenkins v. Indemnity Insurance Co. of North America , 152 Conn. 249 ( 1964 )
DeMars v. Zoning Commission , 142 Conn. 580 ( 1955 )
Hall v. Planning & Zoning Board , 153 Conn. 574 ( 1966 )
Gordon v. Zoning Board , 145 Conn. 597 ( 1958 )
Couch v. Zoning Commission , 141 Conn. 349 ( 1954 )
Kutcher v. Town Planning Commission , 138 Conn. 705 ( 1952 )
Morningside Assn. v. Planning & Zoning Board , 162 Conn. 154 ( 1972 )
Park Construction Co. v. Planning & Zoning Board of Appeals , 142 Conn. 30 ( 1954 )