1315 HAMDEN, LLC v. TOWN OF HAMDEN PLANNING AND ZONING COMMISSION.

2003 Ct. Sup. 9795, 35 CLR 316
No. CV02-0471309 SConnecticut Superior Court, Judicial District of New Haven at New Haven
August 11, 2003

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
RADCLIFFE, JUDGE.

FACTS

The plaintiff, 1315 Hamden, LLC, was the owner of 1299-1315 Dixwell Avenue, Hamden, on May 15, 2002, when, acting through Ira Schwartz, it filed an application with the defendant, Town of Hamden Planning and Zoning Commission. (ROR 1.)

The property consists of 10 acres, is located in a CDD-1 (Controlled Development District) Zone, and is bisected by a railroad line.

On 5.82 acres of the parcel located west of the railroad line, stands an 80-year-old 160,000-square-foot structure, once used as a factory.

The site plan proposed to utilize approximately one-half of the structure, 80,000 square feet in the rear of the building, devoted to warehouse/self storage use. (ROR 13, 35 and 36.)

At the time of the site plan application, existing uses in the building were a business school (23,000 square feet), two retail establishments (40,000 square feet and 13,000 square feet, respectively) and a furniture assembly/warehouse (6,700 square feet). (ROR 13.)

Prior to applying for site plan approval, 1315 Hamden, LLC applied to the Hamden Zoning Board of Appeals requesting a use variance for the property, pursuant to § 861.3 of the Hamden Zoning Regulations.

The variance was requested, to allow warehousing in a zone (CDD-1) where the use is restricted to Industrial Circle, and Hamden Park Drive (§ 572.1.C, Hamden Zoning Regulations).

In describing the requested use variance, counsel indicated that 50 percent of the building (80,000 square feet) would be used for CT Page 9796 warehousing/self storage, and that the storage would provide a service to residents and business owners. (ROR 41, p. 9-10.)

The Hamden Zoning Board of Appeals unanimously approved the granting of the use variance. (ROR 41, p. 12.)

Following its submission of the site plan on May 15, 2002, the plaintiff, 1315 Hamden, LLC, conveyed its interest in the premises, by way of a quitclaim deed, to Hamden Associates, LLC.

The deed, recorded at Volume 2246, page 1 of the Hamden Land Records (Exhibit 1), did not divest 1315 Hamden, LLC of all interest in the property.

Hamden Associates, LLC is owned by Community Retail, LLC (two-thirds) and the plaintiff, 1315 Hamden, LLC (one-third). (Exhibits 2 3.)

The site plan application was before the defendant Town of Hamden Planning and Zoning Commission on July 23, 2002, and was continued until September 24, 2002.

At the commission’s October 22, 2002 meeting, plans were again reviewed. Counsel indicated that the proposed site plan complied with all zoning regulations, and that comments made by the town engineer had been addressed.

Counsel explained that storage areas would not be open to individuals, and that the loading and unloading of “homepacks” would be supervised by warehouse personnel. (ROR 33, p. 2.)

This procedure, he claimed, distinguished the proposed use from self-storage arrangements which permit individuals direct access to the storage area. (ROR 13.)

At the close of the October 22, 2002 meeting, a motion was made to deny the site plan application, “because it is not for warehousing as the commission defines it, but for self-storage.” (ROR 33, p. 3.)

The motion was made by Commissioner Robert Rostow, and seconded by Commissioner Raymond Sims.

When the vote was taken, the commission’s chair, Michael Ajello, did not vote, and Commission Sims abstained.

As a matter of custom and tradition, the chair of the commission does CT Page 9797 not vote, unless his vote would affect the outcome.

The motion to reject carried, by a vote of 1-0, with Commissioner Rostow casting the only vote.

From this decision, denying site plan approval, the plaintiff, 1315 Hamden, LLC, brings this appeal.

AGGRIEVEMENT
The plaintiff, 1315 Hamden, LLC, is a one-third owner of Hamden Associates, LLC, the entity which holds title to 1299-1315 Dixwell Avenue. (Exhibits 2 and 3.)

A party claiming aggrievement must satisfy a well established two-fold test: 1) the party must show that it has a specific personal and legal interest in the subject matter of the decision, as distinct from a general interest, such as a concern of all members of the community as a whole, and 2) the party must demonstrate that its specific personal interest has been specifically and injuriously affected by the action of the agency. Primerica v. Planning Zoning Commission, 211 Conn. 85, 93 (1989); Hall v. Planning Commission, 181 Conn. 442, 444 (1980).

Aggrievement is jurisdictional, and a prerequisite for maintaining an appeal. Winchester Woods Associate v. Planning Zoning Commission, 219 Conn. 303, 307 (1991).

The question of aggrievement, is one of fact. Hughes v. Town Planning Zoning Commission, 156 Conn. 505, 508 (1968).

Ownership of the property which is the subject of the proposed site plan, demonstrates a specific personal and legal interest in the subject matter of the decision. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530 (1987).

Whether a party holds legal title to only a portion of the land, or even whether he has a legally enforceable interest in the property, does not control the determination of aggrievement. Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 355 (1955) DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 376 (1991). Although an applicant must maintain an interest in the property throughout the course of the appeal; Craig v. Maher, 174 Conn. 8, 9
(1977), that interest need not be a fee interest. Even the holder of a security interest may be aggrieved. Goodridge v. Zoning Board of Appeals, 58 Conn. App. 760, 767 (2000). CT Page 9798

Denial of the site plan application has specifically and injuriously affected the interest of the plaintiff, 1315 Hamden, LLC, in property located at 1299-1315 Dixwell Avenue, Hamden. It is therefore, found that the plaintiff is aggrieved by the decision appealed from.

STANDARD OF REVIEW
When considering a site plan application, a planning and zoning commission acts in an administrative capacity, rather than in a legislative or quasi-judicial capacity. Goldberg v. Zoning Commission, 173 Conn. 23, 29 (1977); Allied Plywood, Inc. v. Planning Zoning Commission, 2 Conn. App. 506, 512 (1984).

A commission has no independent discretion beyond determining whether the plan before it, as presented, complies with the applicable regulations. Kosinski v. Lawlor, 177 Conn. 420, 426-27 (1979).

The commission’s powers are specifically limited pursuant to §8-3[1] of the General Statutes. If a plan, as presented, conforms to the applicable regulations, the commission has no discretion or choice but to approve it. R.K. Development Corporation v. Norwalk, 156 Conn. 369, 375-76 (1968).

In discharging its responsibility, a commission is endowed with liberal discretion, and its action is subject to review by a court only to determine whether it was unreasonable, arbitrary or illegal. Connecticut Sand Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442 (1963).

A municipal land use agency has a right to interpret its regulations to determine whether or not a regulation applies in a given situation Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 513 (1969).

A trial court is charged with determining whether a commission has correctly interpreted its regulations, and applied them with reasonable discretion to the facts. Baron v. Planning Zoning Commission, 22 Conn. App. 255, 257 (1990).

While the interpretation of provisions contained in a municipal regulation is a question of law for the court, and the review is plenary, the position of a municipal land use agency is entitled to some deference. Northeast Parking, Inc. v. Planning Zoning Commission, 47 Conn. App. 284, 293 (1997); Coppola v. Zoning Board of Appeals, 23 Conn. App. 636, 640 (1990). CT Page 9799

General provisions cannot serve as the basis for denying a site plan application. TLC Development, Inc. v. Planning Zoning Commission, 215 Conn. 527, 532 (1990). The discretion exercised by an administrative agency must be controlled by known and fixed standards applicable to all cases of a like nature. Sonn v. Planning Zoning Commission, 172 Conn. 156, 163 (1976).

If any reason given by the commission supports the action taken, then the appeal must fail. Blakeman v. Planning Commission, 152 Conn. 303, 306
(1965).

VOTE OF THE COMMISSION WAS VALID
The plaintiff first claims that the solitary vote of Commissioner Rostow, is insufficient as a mater of law to reject the site plan application.

It further argues that Commissioner Rostow’s absence from two meetings of the zoning section, at which the site plan was considered, rendered him ineligible to participate in the decision.

These claims are not persuasive.

The zoning section of the Planning and Zoning Commission of the Town of Hamden consists of five members.

On the evening of the vote, October 22, 2002, four members were in attendance.

One member indicated that he would recuse himself, given a business relationship with the applicant, leaving three commission members available to vote on the matter.

Because one commissioner chose to abstain, and the commission’s chair, based on a long standing policy did not vote, the final vote was 1-0.

The plaintiff argues that the failure of the Commission Chairman, Michael Ajello, to vote, dooms the vote, because a majority of a quorum (two votes) must vote in favor of any resolution.

This is a misreading of the vote, and of the chair’s voluntary decision to refrain from voting.

Had it been the desire of Commissioner Ajello to defeat the motion, he CT Page 9800 could have voted “no,” and the motion to reject the site plan would have failed on a tie vote.

This refusal to vote effectively defeated the application, while a tie vote would have had the effect of approving the site plan as a matter of law. (ROR 33.)[2]

No provision of the General Statutes requires a specific number of commissioners to cast a vote on a site plan application, so long as a quorum of the full commission is present.

This is in contrast to statutes which require a specific number of votes to approve an application.[3]

The record fails to reveal any evidence that Commissioner Rostow was not familiar with the application at the time of the vote, notwithstanding his failure to attend two meetings.

This is not a situation in which a commissioner failed to attend a statutorily mandated public hearing, and the obligation to become acquainted with issues raised at the public hearing is required. (Se Lauer v. Zoning Commission, 220 Conn. 455, 470 (1991); Loh v. Town Plan Zoning Commission, 161 Conn. 32, 42 (1971).

A court should not infer an absence of knowledge on the part of a commissioner, where the record is silent in that regard.

CHANGE IN INTERPRETATION OF ZONING REGULATION BY PLANNING AND ZONING COMMISSION DOES NOT AFFECT SCOPE OF USE VARIANCE GRANTED BY THE ZONING BOARD OF APPEALS

The commission’s single reason for denying the plaintiff’s site plan application, concerned the definition of warehousing.

There is no claim that the site plan, in any other respect, failed to meet the requirements of the regulations.

When a commission has formally stated reasons for its decision, a reviewing court should not go beyond the official collective statement and attempt to search out or speculate upon other reasons. DeMaria v. Planning Zoning Commission, 159 Conn. 534, 541 (1970); Kaufman v. Zoning Commission, 232 Conn. 112, 143 (1995).

There is no specific definition of the term “warehousing,” contained in the Hamden Zoning Regulations. CT Page 9801

In its brief, the defendant, Town of Hamden Planning and Zoning Commission, admits that prior commissions had interpreted § 552.1[4]
of the regulations to permit self storage facilities.

The commission’s change in its interpretation of the regulations did not occur following a change in the language of the regulation, which would have subjected the revision to the public hearing requirements of § 8-3[5] of the General Statutes.

Instead, it occurred as the result of an interpretation of § 552.1 of the regulations, which occurred one day prior to the filing of the plaintiff’s site plan application.

The plaintiff, in April 2002, applied to the Hamden Zoning Board of Appeals seeking a use variance, pursuant to the zoning ordinances.[6]

A zoning board of appeals is required, pursuant to § 8-2h (1)[7]
of the General Statutes, to apply the applicable zoning regulations as of the date of the filing of the application for a use variance.

The Hamden Zoning Board of Appeals found that the proposal met the criteria for the granting of a use variance, based upon a proposal which outlined the use of the property for warehousing and self storage, for use by residents and business owners. (ROR 41, p. 8-10.)

The Hamden Town Planner clearly stated that a variance was obtained from the Hamden Zoning Board of Appeals for “Warehousing/self storage in up to 50 percent of the building.” (ROR 14.)

The Zoning Board of Appeals considered self-storage, as described in the plaintiff’s application, to involve “warehousing,” a determination which was consistent with the interpretation of the term which had been applied by land use bodies in the Town of Hamden at that time.

In determining what a variance allows, the specific use proposed must be considered. Raymond v. Zoning Board of Appeals, 164 Conn. 85, 87-88
(1972); L G Associates, Inc. v. Zoning Board of Appeals, 40 Conn. App. 784, 787-88 (1996).

The granting of the use variance to the plaintiff was not appealed, following the April 18, 2002 decision of the Hamden Zoning Board of Appeals.

A variance runs with the land. Reid v. Zoning Board of Appeals, CT Page 9802 235 Conn. 850, 858 (1996); § 8-6 (b),[8] C.G.S. The variance must be based only on property conditions. Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239 (1972).

The identity of the individual or entity obtaining the variance, is irrelevant. Dinan v. Zoning Board of Appeals, 220 Conn. 61, 66-67
(1991).

Because a variance runs with the land, it creates vested rights. If the acts of municipal officials are in conformity with the zoning regulations, the legally authorized acts confer indefeasible rights upon the property owner. West Hartford v. Rechel, 190 Conn. 114, 122 (1983); Robert A. Fuller, Land Use Law and Practice (second edition), § 53.2, p. 574-75 (1999).

Based on the interpretation of § 552.1 of the zoning regulations, the decision of the Hamden Zoning Board of Appeals to grant a use variance encompassing self storage was both authorized, and appropriate.

Although the interpretation of a zoning ordinance is a question of law, and a court is not bound by an agency’s interpretations, Coppola v. Zoning Board of Appeals, 23 Conn. App. 636, 640 (1990); where an agency has previously interpreted an ordinance or regulation, the practical construction placed upon the ordinance in the past is entitled to some consideration. Fedorich v. Zoning Board of Appeals, 178 Conn. 610, 617
(1979).

Land use agencies in the Town of Hamden, prior to May 14, 2002, consistently interpreted the provisions of § 552.1 to include self storage, within the language of “warehousing and wholesaling with indoor storage.”

This court is not prepared to say that the long-standing construction of the ordinance, not only by the Hamden Zoning Board of Appeals, but also by the defendant Town of Hamden Planning and Zoning Commission, was arbitrary, illegal, or unreasonable.

To dismiss this appeal, would be to permit the defendant commission to reinterpret provisions of its regulations without the benefit of a public hearing, thereby affecting the scope of a valid variance, and impacting vested rights.

This it cannot do.

Since the granting of the use variance created rights running with the CT Page 9803 land, the reinterpretation of the regulation by the commission on May 14, 2002, does not apply to this application, and cannot serve as a basis for denying the proposed site plan.

Whether the same result would be required, concerning a site plan application which was not supported by a use variance, or by the existence of a preexisting nonconforming use, need not be determined.

However, to avoid future confusion, and in the interest of clarity, the defendant Town of Hamden Planning and Zoning Commission is free to adopt a definition of “warehousing” applicable for all purposes, prospectively, if it elects to legislate in this area.

CONCLUSION
The appeal of the plaintiff, 1315 Hamden, LLC, is sustained.

Radcliffe, J.

[1] “A site plan may be modified or denied only if it fails to comply with the requirements already set forth in the zoning . . . regulations.”
[2] Section 8-3 (g), C.G.S.
[3] Section 8-7, C.G.S. (Four members of zoning board of appeals necessary to reverse order of zoning enforcement officer).

Section 8-7, C.G.S. (four votes necessary to grant a variance).

Section 8-3 (b), C.G.S. (Protest petition filed requires two-thirds of all members of the commission).

[4] Section 552.1 Uses Permitted by right . . .”warehousing and wholesaling with indoor storage.”
[5] Section 8-3, C.G.S. No such regulation or boundary shall . . . be established or changed until after a public hearing in relation thereto . . .”
[6] Section 861.3, Hamden Zoning Regulations.
[7] Section 8-2h (a), C.G.S. “(a) An application filed with a . . . zoning board of appeals . . . which is in conformance with the applicable zoning regulation as of the time of filing shall not be required to CT Page 9804 comply with, nor shall it be disapproved for the reason that it does not comply with any change in the zoning regulations . . . taking effect after the filing of the application.”
[8] Section 8-6 (b), C.G.S. “Any variance granted by the zoning board of appeals shall run with the land and shall not be personal in nature to the person who applied for and received the variance.”

CT Page 9805