229 POST OFFICE ROAD, LLC v. ENFIELD PLANNING AND ZONING COMMISSION.

2007 Ct. Sup. 16319
No. CV07-4027844Connecticut Superior Court Judicial District of Hartford at Hartford
October 1, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ZONING APPEAL
JAMES M. BENTIVEGNA, JUDGE.

I STATEMENT OF CASE
The plaintiff, 229 Post Office Road, LLC, appeals from the decision of the defendant, the Enfield Planning and Zoning Commission (commission), which denied the plaintiff’s application for site plan approval to expand an existing commercial development in Enfield.

The plaintiff contends that the commission, in denying the application, improperly considered offsite traffic issues and a proposed state department of transportation (DOT) project, known as “The Reconstruction of Post Office Road/Town Farm Road” which has not been finalized.[1]

The commission counters that it appropriately denied the application based on the plaintiff’s failure to comply with the zoning regulations regarding on-site traffic issues.[2]

II FACTS PROCEDURAL HISTORY
The following facts and procedural history are relevant to the disposition of this case. On October 3, 2006, the plaintiff filed a site plan application with the commission in connection with the proposed development of a parcel of land located at 229 Post Office Road in Enfield. (ROR, Item 2.) The application sought to expand an existing commercial building from 2,000 square feet to 7,500 square feet in order to create three additional store fronts with parking. (ROR, Item 12.) The property is a 1.26-acre site located in a BL-Business Local District at the intersection between Raffia Road and Post Office Road. (ROR, Item 2.) The present use of the property is retail. (ROR, Item 19, Traffic CT Page 16320 study, p. 1.) The parcel is flanked on all sides by property also zoned B-L. (ROR, Item 2.)

After proper notice, the matter was heard by the commission beginning on November 16, 2006, and was continued to December 7, 2006; (ROR, Item 10); December 21, 2006; (ROR, Item 23); and January 4, 2007; (ROR, Item 33.) During these hearings, much of the discussion centered on offsite traffic issues and the possibility the DOT was considering doing some work on the adjoining streets.

At the November 16, 2006 hearing, the commission stated its concerns regarding the offsite traffic issues and the proposed DOT project. (ROR, Item 12, pp. 4, 6-7.) Commissioner Jones insisted that the taking for the DOT project was going to happen. (ROR, Item 12, p. 3.) Commissioner Cooper stated: “Mr. Chairman, one thing we haven’t talked about and I’m concerned with it is the traffic at that intersection. I know you’re not required to have a traffic study done but it might be helpful in this case if we had one because you’re not decreasing the traffic . . .” (ROR, Item 12, p. 4.) Commissioner Hickey expressed the following: “Well I, along with Commissioner Cooper. I’m concerned about the traffic issues that are generated by that intersection.” (ROR, Item 12, p. 6.) Commissioner Cooper then responded that: “If I were to vote as is right now, I would deny this. I would want something from the traffic officer at least. I mean — you know . . . what impact is it going to have? It’s already a really busy intersection.” (ROR, Item 12, p. 6.) Commissioner Sarno followed with: “It is a busy traffic area.” (ROR, Item 12, p. 6.)

The application was next scheduled for hearing on December 7, 2006, but the applicant was not present, having requested a continuance. The commission heard from a member of the public concerned about the plan. During a discussion of the proposed taking, the director of planning, Jose Giner, stated that he would try to get more information about the road project “but I think we have to act on the application under our regulations as conditions are now.” (ROR, Item 17, p. 3.) The commission confirmed that they had asked for a traffic study at the last meeting. (ROR, Item 17, p. 3.)

On December 21, 2006, the commission again considered the application. The plaintiff had made changes to the plan to address some of the commission’s concerns, including the locations of the driveways. (ROR, Item 23, p. 1.) The applicant submitted a traffic study that it had done. (ROR, Item 23, p. 2; Item 19, traffic study.) The traffic study, dated December 14, 2006, evaluated the traffic aspects of the site plan application. (ROR, Item 19, traffic study.) The assessment considered that “[t]he existing center curb cut is being removed and the remaining CT Page 16321 two curb cuts are being moved as far away as possible from the adjacent four-way stop controlled intersection.” (ROR, Item 19, December 14, 2006 traffic study, p. 4.) The study concluded that “traffic associated with the proposed use can be accommodated without significant impact on traffic operations.” (ROR, Item 19, traffic study, p. 4.) The commission discussed the amount of time needed to get through the intersection and the possible installation of a traffic light. (ROR, Item 23, p. 3.) Some of the commission members were critical of the traffic study. (ROR, Item 23, pp. 3-4.) Chairman DiPace asked “to see what the town has as far as for a traffic study that they did and what the level of service is at that intersection.” (ROR, Item 23, p. 6.) The commission again discussed the taking issue. (ROR, Item 23, p. 7.)

The final hearing was scheduled for January 4, 2007. The commission again considered the potential impact of the DOT project. (ROR, Item 33, p. 2.) Commissioner Cooper expressed that the proposed project was “something we have to keep in mind.” (ROR, Item 33, p. 2.) However, Commissioner Ballard believed that the commission did “not have the right to deny [the applicant] because [the taking] hasn’t happened yet.” (ROR, Item 33, p. 2.) The applicant was accompanied by the engineer who prepared the traffic study. (ROR, Item 33, pp. 3-4.) He discussed the study and explained the impact of changing the number of driveways: “We’re moving the driveway away from the stop bar which gets you as far from the intersection as you can. That alone more than offsets the new traffic.” (ROR, Item 33, p. 6.)

After the public hearing was closed, Vice Chairman Hickey stated: “My comment and observation is that I’m certainly concerned about the traffic, concerned about the fact that the intersection may change at some point but I have to say that I was very persuaded by the applicant’s attorney’s remarks and the fact that the traffic as it is really not the purview of the Commission because it is a site plan review.” The commission then voted and denied the application. Jose Giner, the director of planning, asked: “Do you have some reasons for the record?” Commissioner Jones was the only commissioner to respond and stated: “My concern again is public safety. The traffic there is high and getting out of there is difficult. I don’t think it is a good decision that is harmonious with the neighborhood.” (ROR, Item 33, p. 11.)

The notice of the commission’s decision was published in th Journal Inquirer on January 6 and 7, 2007. (ROR, Item 36.) The plaintiff appealed from the commission’s decision to the Superior Court, and the matter was heard by the court on July 24, 2007. Final briefs were due by September 10, 2007. CT Page 16322

III DISCUSSION A Zoning Administrative Appeals
“As a general matter, a zoning commission is empowered to determine whether: (1) the proposed use of the property is permitted under the zoning regulations; (2) the standards contained in the regulations are satisfied; and (3) conditions of approval or modifications to the proposal are necessary to protect public health, safety, convenience and property values, as provided for in General Statutes § 8-2 . . . Recent decisions of [the Supreme Court], however, have evidenced a trend toward investing zoning commissions with greater discretion in determining whether [a] proposal meets the standards contained in the regulations. The agency [may now decide] within prescribed limits whether a particular section of the zoning regulations applies to a given situation and the manner in which it applies . . . In making such determinations, moreover, a zoning commission may rely heavily upon general considerations such as public health, safety and welfare.”Torrington v. Zoning Commission, 261 Conn. 759, 769-70, 806 A.2d 1020
(2002).

General Statutes § 8-8(b) governs appeals from decisions of planning and zoning commissions to the Superior Court.[3] “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.” (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545
(1989).

1 Aggrievement
“[P]leading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of a plaintiff’s appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved.” (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.” Bongiorno Supermarket, Inc. v. Zoning Board of CT Page 16323 Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or “by the production of the original documents or certified copies from the record.” (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).

“Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency’s decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest . . .

“Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.” (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665. The standard for statutory aggrievement in zoning appeals is set forth in General Statutes §8-8(a)(1), which provides in relevant part: “In the case of a decision by a . . . planning and zoning commission . . . `aggrieved person’ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”

In its complaint, the plaintiff alleges that it is aggrieved by the commission’s decision because it is now, and was during all times relevant to this proceeding, the owner of the subject property and because it was the applicant before the commission, and its interests in the property have been directly and adversely affected by the denial. At the hearing, the plaintiff proved aggrievement based on a stipulation of facts, which included a statutory warranty deed. From this undisputed evidence, the court finds that the plaintiff is aggrieved by the commission’s decision.

2 Timeliness and Service of Process
CT Page 16324 Pursuant to General Statutes § 8-8(b), an “appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes . . .” General Statutes § 8-8(f) provides in relevant part: “Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows . . . (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57 . . .” General Statutes §52-57(b) provides that “[p]rocess in civil actions against the following-described classes of defendants shall be served as follows . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . .”

Notice of the commission’s decision was published in the Journal Inquirer on January 6 and 7, 2007. (ROR, Item 36.) The plaintiff commenced the appeal by service of process on January 19, 2007. (Marshal’s return.) Accordingly, the court finds that this appeal was commenced by proper and timely service of process on the commission in compliance with the applicable statutes.

3 Scope of Review
“In challenging an administrative agency action, the plaintiff has the burden of proof . . . The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency’s decision . . .” (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734
(2003).

“In reviewing the actions of a [municipal zoning agency] we note that such a board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision . . . In an appeal from the decision of a zoning board, we therefore review the record to determine whether there CT Page 16325 is factual support for the board’s decision, not for the contentions of the applicant.” (Citations omitted; internal quotation marks omitted.)Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269-70, 588 A.2d 1372 (1991).

“Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . Since the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . the court must determine the correctness of the conclusions from the record on which they are based . . . That record includes knowledge acquired by board members through personal observation of the site.” (Citations omitted; internal quotation marks omitted.) Torsiello v. Zoning Board of Appeals, 3 Conn.App. 47, 49-50, 484 A.2d 483 (1984).

“It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.” (Internal quotation marks omitted.) R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). “In appeals from administrative zoning decisions, the commission’s conclusions will be invalidated only if they are not supported by substantial evidence in the record.” (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).

“If a trial court finds that there is substantial evidence to support a zoning [commission’s] findings, it cannot substitute its judgment for that of the [commission] . . . If there is conflicting evidence in support of the zoning commission’s stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.” (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 560, 916 A.2d 5 (2007).

4 Reasons Stated on the Record
“When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for CT Page 16326 other reasons supporting the commission’s decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations.” (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239
(2002).

“When a zoning commission has not stated on the record the basis of its determination, the reviewing court must search the record to determine the basis for the commission’s decision . . . If any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld . . . A reviewing court may not substitute its own judgment for that of the commission. The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . The evidence, however, to support any such decision must be substantial . . . In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 452-53, 908 A.2d 1049 (2006).

The commission contends that “[t]he reasons cited by the Commissioners are sufficient and supported by the record, tying specifically into the criteria for site plan approval. If the court determines a review of the record is warranted, it will find that the record, as a whole, substantiates the Commission’s denial of the plaintiff’s site plan application.” Defendant’s Brief, p. 5.

5 Site Plan Approval Process
“A `site plan’ is a physical plan showing the layout and design of the site of a proposed use, prepared by the builder or developer. It generally should indicate the proposed location of all structures, parking areas and open spaces on the plot and their relation to adjacent roadways and uses. Specifically, items such as grade elevation levels, drainage plans, means of access, landscaping, screening, architectural features, building dimensions and other elements relevant to the community welfare are properly included in a site plan . . . A site plan CT Page 16327 is a plan required to be submitted by the builder, showing the proposed location of the buildings, parking areas, and other installations on the plot, and their relation to existing conditions, such as roads, neighboring land uses, natural features, public facilities, ingress and egress roads, interior roads, and similar features . . .” SSM Associates Ltd. v. Plan Zoning Commission, 15 Conn.App. 561, 566-67, 545 A.2d 602, aff’d, 211 Conn. 331, 559 A.2d 196 (1988).[4]

In the instant matter, the commission, in reviewing the plaintiff’s application for site plan approval, was acting in an administrative capacity. “It is axiomatic that the review of site plan applications is an administrative function of a planning and zoning commission . . . When a commission is functioning in such an administrative capacity, a reviewing court’s standard of review of the commission’s action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion . . . In determining whether a zoning commission’s action was illegal, arbitrary or in abuse of its discretion, a reviewing court’s principal inquiry is whether the commission’s action was in violation of the powers granted to it or the duties imposed upon it.” (Citations omitted; internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 440, 908 A.2d 1049 (2006).

The case law is clear that a planning and zoning commission acts in an administrative capacity when reviewing a site plan application. “Where the agency, which is generally the zoning commission, acts upon a site plan application, it acts in an administrative capacity.” Borden v. Planning Zoning Commission, 58 Conn.App. 399, 408, 755 A.2d 224, cert. denied, 254 Conn. 921, 759 A.2d 1023 (2000), quoting R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 33.5, p. 166. “Pursuant to General Statutes § 8-3(g), regulations may require that a site plan be filed with the commission . . . to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations, and a site plan application may be denied only if it fails to comply with requirements already set forth in the zoning . . . regulations. When an agency undertakes consideration of a site plan application, it has no independent discretion beyond determining whether the plan complies with the site plan regulations and applicable zoning regulations incorporated into the site plan regulations by reference.” (Internal quotation marks omitted.)Borden v. Planning Zoning Commission, supra, 58 Conn.App. 408.

“A zoning commission’s authority in ruling on a site plan is limited. [A] site plan is an administrative review procedure that assists in determining compliance of an underlying development proposal with zoning regulations . . . A site plan may be modified or denied only if it fails CT Page 16328 to comply with requirements already set forth in the zoning . . . regulations.” (Citations omitted; internal quotation marks omitted.)Yagemann v. Planning Zoning Commission, 92 Conn.App. 355, 361, 886 A.2d 437 (2005).

“In ruling upon a site plan application, the planning commission acts in its ministerial capacity, rather than in its quasi-judicial or legislative capacity. It is given no independent discretion beyond determining whether the plan complies with the applicable regulations . . . The board is under a mandate to apply the requirements of the regulations as written. If the plan submitted conforms to these regulations, the council has no discretion or choice but to approve it . . . Every property owner is entitled to rely on the local zoning regulations and to use his property accordingly.” (Citations omitted; internal quotation marks omitted.) Allied Plywood v. Planning Zoning Commission, 2 Conn.App. 506, 512, 480 A.2d 584, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984).

Finally, “[i]t is the board’s responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts . . . If the application conforms to the zoning regulations, the board cannot deny the application for subjective reasons that bear no relationship to zoning regulations.” (Citations omitted; internal quotation marks omitted.)R R Pool Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 468.

“Under 8-3(g), approval, disapproval or modification of a site plan triggers certain consequences . . . If the zoning agency denies or modifies `a site plan,’ it must set forth the reasons for its action. General Statutes 8-3(g). It must also timely send by certified mail a copy of its decision to the person who submitted such plan, publish notice of approval or denial of site plans in a newspaper, and it may require a bond as a condition of approval of any modified site plan.” (Citations omitted; internal quotation marks omitted.) SSM Associates, Ltd. v. Plan Zoning Commission, supra, 15 Conn.App. 566-67.

6 Offsite Traffic Considerations
This case raises the issue of whether the commission may consider offsite traffic conditions in rendering its decision on a site plan application. In Pansy Road, LLC v. PLAN ZONING COMMISSION, 283 Conn. 369, 926 A.2d 1029 (2007), the Supreme Court considered “whether a CT Page 1632 planning commission has the legal authority to deny a subdivision application because of offsite traffic congestion.” (Emphasis added.)Id., 374. In holding that it does not have such authority, the court reasoned that in reviewing such an application, a planning commission acts in an administrative capacity, and “has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance.” (Internal quotation marks omitted.) Id. In reaching this conclusion, the court noted that “[w]hen reviewing a site plan
application, a planning commission similarly acts in an administrative capacity and may not reject an application that complies with the relevant regulations.” (Emphasis added.) Id., 315. Although the court i Pansy Road, LLC, considered the issue in the context of a planning and zoning commission’s ruling on a subdivision application, rather than a site plan application, the court relied heavily on its previous decision in TLC Development, Inc. v. Planning Zoning Commission, 215 Conn. 527, 528, 577 A.2d 288 (1990), an appeal arising from the denial of a site plan application. Pansy Road, LLC v. Town Plan Zoning Commission, supra, 283 Conn. 376.

In TLC Development, Inc. v. Planning Zoning Commission supra, 215 Conn. 527, the Supreme Court held that “in light of the terms of the applicable zoning regulations, the impact on offsite traffic was not an appropriate reason for denying such an application.”Id., 528. The court reasoned that the Branford zoning regulations do not provide for traffic considerations to constitute a permissible basis for the denial of a site plan application. Id., 532. Moreover, the court noted that this result “comports with our earlier stated proposition: `The designation of a particular use of property as a permitted use establishes a conclusive presumption that such use does not adversely affect the district and precludes further inquiry into its effect on traffic, municipal services, property values, or the general harmony of the district.'” (Emphasis added.) Id., 532-33, quoting Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 443, 418 A.2d 82 (1979). Consequently, even though the court seems to base its decision, at least in part, on the fact that the zoning regulations do not allow the commission to deny a site plan application based on traffic considerations, the conclusive presumption established by the regulations allowing such uses in the district precludes the commission from denying an application because of offsite traffic considerations regardless of whether the regulations contain a provision allowing denial on that basis.

“[W]ith respect to the role of traffic considerations in weighing site plan applications . . . First, the language of a given zoning regulation may, by its textual content, limit the scope of the use of traffic CT Page 16330 considerations. Second, once a zoning authority establishes that a particular use within a zone is permitted, e.g., an office building or a church, a conclusive presumption arises that such a use in general, does not adversely affect the traffic within the zone. Neither of these tenets, however, precludes an examination into the special traffic consequences of a given site plan when the applicable zoning regulations permit it.” Friedman v. Planning Zoning Commission, 222 Conn. 262, 266, 608 A.2d 1178 (1992).

The court in Pansy Road, LLC, reiterated and clarified prior holdings in Friedman v. Planning Zoning Commission, 222 Conn. 262, 608 A.2d 1178 (1992), and Sowin Associates v. Planning Zoning Commission, 23 Conn.App. 370, 580 A.2d 91, cert. denied, 216 Conn. 832, 583 A.2d 131
(1990), stating that “traffic considerations can play only a limited role in the review of subdivision and site plan applications.” Pansy Road, LLC v. Plan Zoning Commission, supra, 283 Conn. 379. The court explained that this limited role could include addressing traffic flow within the site and assisting in locating entrances and exits from the site, but could not provide a basis for denial of an application Id., 380.

Clearly, “a land use agency cannot deny an application for a permitted use because of off-site traffic considerations.” Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 73 Conn.App. 442, 470, 807 A.2d 1089 (2002), citing TLC Development, Inc. v. Planning Zoning Commission, 215 Conn. 527, 532-33, 577 A.2d 288 (1990); Sowin Associates v. Planning Zoning Commission, 23 Conn.App. 370, 374, 375, 580 A.2d 91, cert. denied, 216 Conn. 832, 583 A.2d 131 (1990).

B Analysis
The commission’s authority relating to approval of a site plan application is set forth in the applicable regulations.[5] The “Purpose and Authority” section of the regulations is also at issue.[6]

In the present case, the commission was limited by the criteria set out for reviewing site plans under its regulations. If the site plan application conforms to the regulations, the commission has no choice but to approve it. Pansy Road, LLC v. Plan Zoning Commission, supra, 283 Conn. 374. Under the site plan approval regulations, the commission may consider traffic access, circulation and parking, landscaping and screening, and design standards. CT Page 16331

The property at issue is zoned commercial, consistent with the use proposed by the plaintiff. The analysis begins with the conclusive presumption “that this proposed use does not adversely affect traffic within the zone, and the defendant therefore cannot deny the application because of existing off-site traffic congestion.” Pansy Road, LLC v. Plan Zoning Commission, supra, 283 Conn. 379. As stated in Pansy Road, “`the agency cannot turn down a site plan [or subdivision application] because of traffic problems on streets adjacent to the property.’ R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 49.14, p. 139.” Pansy Road, LLC v. Plan Zoning Commission, supra, 283 Conn. 379-80. The defendant properly could have considered the existing traffic problems on Post Office Road/Town Farm Road only for the limited purpose of reviewing the traffic access, circulation, and parking, in particular, the internal traffic circulation on the site and determining whether the location of the proposed driveways would minimize any negative impact of additional traffic to the existing traffic on Post Office Road/Town Farm Road. Se Pansy Road, LLC v. Plan Zoning Commission, supra, 283 Conn. 380.

As in Pansy Road, the entire record in this case reveals that the defendant did not consider the existing traffic congestion on Post Office Road/Town Farm Road “for the proper limited, site-specific purpose of addressing traffic flow within the site and entering and exiting the site.” Pansy Road, LLC v. Plan Zoning Commission supra, 283 Conn. 380. “Former Judge Robert A. Fuller, in his treatise, states that review in such instances `is limited to defects in the internal circulation of traffic on the site and placement of entrances and exits which affect traffic flow on the adjacent streets.'”Id., citing R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 49.14, p. 140. The defendant did not undertake such a limited review. Id. Instead, the defendant improperly denied the plaintiff’s site plan application because of the existing traffic congestion on Post Office Road/Town Farm Road. Id.

The record also reflects the commission’s concerns regarding the impact of the proposed DOT road project. Again, the record reveals that the defendant did not consider the DOT project “for the proper limited, site-specific purpose of addressing traffic flow within the site and entering and exiting the site.” Id. In addition, the case law supports the conclusion that a site plan application may not be denied based on anticipated violations. Constas v. Planning Zoning Commission, Superior Court, judicial district of Stamford, Docket No. CV 89 0104251 (February 14, 1991, Leheny, J.); See also Armstrong v. Zoning Board of Appeals, 158 Conn. 158, 168, 257 A.2d 799 (1969); Miklus v. Zoning Board CT Page 16332 of Appeals, 154 Conn. 399, 402, 225 A.2d 637 (1967). Citin Armstrong and Miklus, former Judge Robert A. Fuller, in his treatise, states that: “The Commission cannot deny the application because of the possibility that the property might be used in the future in violation of the zoning regulations, since the remedy for that is a proper legal action at that time.” R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 21:11, p. 624. Moreover, General Statutes § 8-3(g) provides: “A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland wetlands regulations.” If the site plan application complies with the regulations, the commission must approve the application without regard to any possible future purchase or taking by the state of Connecticut.

In the present matter, “[n]either the stated reason for the denial nor a thorough and meticulous search of the record discloses to this court any evidence that the applicant failed to conform to each and every applicable requirement of the regulations governing site plan approval.”Allied Plywood v. Planning Zoning, 2 Conn. App 506, 512, 480 A.2d 584
(1984). The site plan application fulfilled all of the requirements contained in the regulations. Substantial evidence does not exist on the record as a whole to support the commission’s decision denying the application. Accordingly, the court must conclude that the decision of the commission was in error.

IV CONCLUSION AND ORDER
Following the precedent set forth in Pansy Road, LLC and the prior precedent, this court enters judgment sustaining the appeal, reversing the decision of the commission from which this appeal has been taken, and issues an order directing the commission to approve the relevant application as submitted.

[1] In arguing that the regulations provided no basis for offsite traffic considerations, the plaintiff critiqued the commission’s consideration of the traffic access provision of the site plan approval regulations: “Subcategory i deals solely with the number of access points, and the Commission did not suggest that there were too few or too many. Likewise, under subcategory ii, the commission did not find (nor was there any evidence) that the access ways were too wide or too narrow, too steep, improperly aligned, or lacking in visibility . . .”

That leaves subcategory iii, forcing the Commission to claim in its CT Page 16333 brief, for the first time, that the proposed access ways were not properly separated from the street corners . . . However, there was no credible evidence in the record to support that claim, nor did the Commission specifically address it. Indeed, the Town Planner commented, without rebuttal, that the plaintiff, as requested by Town staff, had modified the plans in order to place the driveways “the farthest distance possible from the intersection. (ROR 22, p. 1, ¶ 2).” Plaintiff’s Reply Brief, p. 3.

In addition, the plaintiff argues that the standards for site plan approval did not include, as the commission now claims, the “Purpose and Authority” section of the regulations (Section 1.10). Plaintiff’s Reply Brief, p. 2. In Kosinski v. Lawlor, 177 Conn. 420, 423, 418 A.2d 66
(1979), the Supreme Court found that: “The defendants contend first that 100 of the Hamden zoning regulations provides authority for denial of a site plan on the ground that the plan constitutes a poor use of the site. The trial court, however, found that the reason given for denying the application was vague, uncertain in meaning and provided no real guidance to the plaintiff as to the manner in which the plan failed to comply with the requirements of the regulations. The court found that 100 of the regulations, relied on by the defendants, is merely a broad legislative statement of purpose comparable to that found in 8-2 of the General Statutes, and that, as such, this section does not provide any standards for use in approving or denying site plans. The court then concluded, and we agree, that this section may be used by the defendants only in conjunction with and not as an alternative to the standards contained in the applicable zoning regulations.”

[2] In evaluating the on-site traffic issues pursuant to the regulations, the commission contends “there was considerable discussion about whether the applicant’s proposed driveways were adequate and appropriately separated from street corners given that they pour so closely into adjacent intersections on two sides: this is not an offsite matter. ROR 23, 33. The manner in which the driveways will interface with the current street corners is an appropriate matter for Commission consideration pursuant to section 9.10.4.A.” Defendant’s Brief, p. 8-9.

The commission further argues that: “Regardless of the fact that the site is located in a B-L zone, which presupposes the area can adequately handle traffic to be generated in a business local zone, it is the placement and orientation of the on-site driveway access which causes the problem and which the Commission has the right and obligation to consider under site plan criteria. While site plan review is limited to the site, any such review must be done in context.” Defendant’s Brief, p. 10. CT Page 16334

In terms of the proposed DOT project, the commission contends that the planned taking is concrete enough to be considered. The commission argues that: “Although it does not appear that an assessment provided for in C.G.S. § 13a-73 has been filed with the clerk of the Superior Court, nor has there yet been a de facto take . . . the Record reflects that the plans in place are specific enough and have progressed far enough that the Commission’s failure to address them with the applicant would have been irresponsible.” Defendant’s Brief, p. 13-14. The federal funding appears to be in place with an anticipated start date in 2008. (ROR, Item 23, p. 7.) The commission argues that there is precedent for allowing land use agencies to consider future proposed events. Se Homart Development Corporation v. Planning Zoning Commission, 26 Conn.App. 212, 214, 600 A.2d 13 (1991); DeBeradinis v. Zoning Commission, 228 Conn. 187, 194, 635 A.2d 1220 (1994). The commission also argues that: “[a]ny discussion or consideration of the proposed taking by the Commission, while entirely appropriate, was merely cumulative to its decision to deny the application.” Defendant’s Brief, p. 3-4. The commission concludes that it “properly exercised its discretion in determining that the plaintiff’s site plan failed to conform to the regulations, a conclusion supported by the Record. Additionally, any discussion of the proposed taking, while cumulative to the analysis, was appropriate.” Defendant’s Brief, p. 17.

[3] “[A]ny person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3, may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.” General Statutes § 8-8(b).
[4] General Statutes § 8-3(g) provides: “The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. If a site plan application involves an activity regulated pursuant to sections 22a-36 to 22a-45, inclusive, the applicant shall submit an application for a permit to the agency responsible for administration of the inland wetlands regulations not later than the day such application is filed with the zoning commission. The decision of the zoning commission shall not be rendered on the site plan application until the CT Page 16335 inland wetlands agency has submitted a report with its final decision. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland wetlands regulations. Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d. A certificate of approval of any plan for which the period for approval has expired and on which no action has been taken shall be sent to the applicant within fifteen days of the date on which the period for approval has expired. A decision to deny or modify a site plan shall set forth the reasons for such denial or modification. A copy of any decision shall be sent by certified mail to the person who submitted such plan within fifteen days after such decision is rendered. The zoning commission may, as a condition of approval of any modified site plan, require a bond in an amount and with surety and conditions satisfactory to it, securing that any modifications of such site plan are made or may grant an extension of the time to complete work in connection with such modified site plan. The commission may condition the approval of such extension on a determination of the adequacy of the amount of the bond or other surety furnished under this section. The commission shall publish notice of the approval or denial of site plans in a newspaper having a general circulation in the municipality. In any case in which such notice is not published within the fifteen-day period after a decision has been rendered, the person who submitted such plan may provide for the publication of such notice within ten days thereafter. The provisions of this subsection shall apply to all zoning commissions or other final zoning authority of each municipality whether or not such municipality has adopted the provisions of this chapter or the charter of such municipality or special act establishing zoning in the municipality contains similar provisions.”
[5] Section 9.10.4 of the regulations, entitled “Site Plan Approval Criteria” provides:

In addition to determining that the site plan complies with all of the standards of the zoning regulation, the Commission will be guided by the following:
A. Traffic Access: That all proposed traffic access ways are:
Adequate but not excessive in number,

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ii. Adequate in width, grade, alignment and visibility; and
iii. Appropriately separated from street corners or other places of public assembly.
B. Circulation and Parking: That adequate off-street parking and loading spaces are provided to prevent parking in public streets of vehicles of any persons connected with or visiting the use and that the interior circulation system is adequate to provide safe accessibility to all required off-street parking.
C. Landscaping and Screening: That all playground, parking and service areas are reasonably screened at all seasons of the year from the view of adjacent residential lots and streets and that the general landscaping of the site is in character with that generally prevailing in the neighborhood. Existing trees over 12″ in diameter shall be preserved to the maximum extent possible.
D. Design Standards: That the proposed improvements adhere to the standard details and cross sections depicting the Town standards for construction and site improvements found in the Technical Subdivision Regulations and, where standards are not stated, as promulgated by the Director of Public Works.

[6] The preface to the town’s zoning regulations, § 1.10, purpose and authority, provides in relevant part: “These Regulations are adopted for the purpose of promoting the health, safety, morals and general welfare of the community; for purposes of lessening congestion in the streets; . . . for the purpose of preventing over-crowding of the land and avoiding undue concentration of populations; for the purpose of facilitating adequate provision for transportation, . . . and other public requirements; for the purpose of conserving the value of building and encouraging the most appropriate use of land throughout the Town; for the purpose of providing for the public health, comfort, and the general welfare in living and working conditions . . .”

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