53 PROSPECT STREET, LLC v. PUTNAM ZONING COMMISSION.

2009 Ct. Sup. 11128
No. CV-07-4006674-SConnecticut Superior Court Judicial District of Windham at Putnam
June 30, 2009

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
RILEY, J.

The plaintiff, 53 Prospect Street, LLC, appeals pursuant to General Statutes § 8-8 from the decision of the defendant, the Putnam zoning commission, denying its application for a special exception. The plaintiff argues that its appeal should be sustained because (1) the defendant failed to state formal reasons on the record for its decision, (2) the defendant based its decision on illegal considerations, (3) the defendant’s decision was not supported by substantial evidence, and (4) one of the defendant’s commissioners was predisposed to deny the plaintiff’s application. For the following reasons, the plaintiff’s appeal is dismissed.

I FACTS
A review of the record reveals the following facts: On July 17, 2007, the plaintiff had filed the latest of three applications for a special exception in order to allow it to build a sixteen-unit multi-family residential complex on its land located at 53 Prospect Street in Putnam. At its meeting on July 18, 2007, the defendant contemplated whether to consider the application. Commissioner Nick Huston made statements indicating his opposition to considering the application because it was very similar to the first two applications previously submitted by the plaintiff. The defendant decided to seek advice from the town counsel as to whether it was required by law to consider the application.

On July 18, 2007, the defendant accepted the application. The original hearing on the application was scheduled to take place on August 15, 2007, but the defendant instead continued the hearing to September 5, 2007, at which time public testimony was heard. The defendant further continued the hearing to October 17, 2007, to hear more testimony. Most of the speakers testified in opposition to the application. The opponents primarily raised concerns about traffic safety but there were concerns CT Page 11129 about the potential change in the character of the neighborhood as well.

The defendant also considered a traffic study it commissioned after the August 15, 2007 meeting. The traffic study report described the nature of the roads and intersections around 53 Prospect Street and made recommendations for improving their safety. It concluded that the extra traffic from the proposed complex would not have a major impact on traffic flow and that there would be no need for major improvements to be made to the roads.

At the October 17, 2007 meeting, the defendant denied the application without stating formal reasons on the record. The defendant published notice of the denial in the Putnam Town Crier on October 25, 2007. This appeal was commenced by service of process on November 6, 2007. The court heard the appeal on April 6, 2009.

II AGGRIEVEMENT
“[P]leading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved . . . Aggrievement presents a question of fact for the trial court . . .” (Citations omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-39, 833 A.2d 883 (2003). One way a party may be aggrieved is if it has “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” and “the agency’s decision has specially and injuriously affected that specific personal or legal interest.” (Internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 803, 970 A.2d 640 (2009). Since the plaintiff is challenging the denial of its own application by the defendant, the court finds that the plaintiff is aggrieved and that the court has subject matter jurisdiction over the appeal.

III DISCUSSION
Under Connecticut law, municipal zoning regulations may provide that certain uses are allowed in a particular zoning district only upon the granting of a special exception by the zoning commission. See General CT Page 11130 Statutes § 8-2(a).[1] “When considering an application for a special exception, a zoning authority acts in an administrative capacity, and its function is to determine whether the proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and statutes are satisfied . . . It has no discretion to deny the special exception if the regulations and statutes are satisfied.” (Internal quotation marks omitted.) Children’s School, Inc. v. Zoning Board of Appeals, 66 Conn.App. 615, 619, 785 A.2d 607, cert. denied, 259 Conn. 903, 789 A.2d 990 (2001).

General Statutes § 8-8(b) permits any person aggrieved by a decision of a zoning commission to take an appeal to the Superior Court. On appeal, the court “employ[s] a deferential standard of review to the actions of a [commission] . . . [C]ourts are not to substitute their judgment for that of the [commission], and [its decisions] will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . .” (Citation omitted; internal quotation marks omitted.) Megin v. Zoning Board of Appeals, 106 Conn.App. 602, 607-08, 942 A.2d 511, cert. denied, 289 Conn. 901, 957 A.2d 871 (2008). Nevertheless, a commission’s interpretation of the law, including zoning regulations, is not binding on the court. Richardson v. Zoning Commission, 107 Conn.App. 36, 48, 944 A.2d 360 (2008). “[T]he court may grant relief on appeal only where the [commission] has acted illegally or arbitrarily or has abused its discretion.” Raybestos-Manhattan, Inc. v. Planning Zoning Commission, 186 Conn. 466, 470, 442 A.2d 65 (1982). The burden is on the plaintiff to prove his or her entitlement to relief. Bora v. Zoning Board of Appeals, 161 Conn. 297, 300, 288 A.2d 89
(1971).

A Whether the Plaintiff’s Appeal Should Be Sustained Because the Defendant Did Not State Formal Reasons on the Record
The plaintiff first argues that a commission is required to state formal reasons on the record when ruling on a special exception application. If the commission does not, the plaintiff further argues, then the decision is invalid. The defendant’s counter-argument is that the requirement of stating formal reasons is directory and not mandatory.

General Statutes § 8-3c(b) provides in relevant part: “Whenever a commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision.” However, this CT Page 11131 requirement is merely directory and thus the commission’s failure to comply with it does not render a decision void. Morningside Assn. v. Planning Zoning Board, 162 Conn. 154, 156, 292 A.2d 893 (1972). Where a commission “does not formally state the reasons for its decision . . . the trial court must search the record for a basis for [its] decision.” (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 454, 853 A.2d 511 (2004). Therefore, the defendant’s failure to state on the record the reasons for its decision does not warrant the sustaining of the plaintiff’s appeal.

B Whether the Defendant Based Its Decision on Illegal Considerations
Second, the plaintiff argues that the defendant acted illegally in denying its application because the plaintiff demonstrated at the public hearing on October 17, 2007, that it had met the requirements of § 334 of the Putnam zoning regulations, a fact allegedly confirmed by the zoning enforcement officer. (Return of Record [ROR], Exhibit Y, p. 6.) The plaintiff contends that the denial of its application must have been due to the consideration of illegal alternative standards. The defendant argues that it properly determined that “the granting of the application would result in conditions inimical to the public safety and therefore [would] violate Regulation § 330 (1) . . .” (Defendant’s brief, p. 15.)

In order to decide whether the defendant’s decision was based on illegal considerations, the court must first search the record to determine what in fact was the basis for the defendant’s decision. The opposition to the application heard by the defendant was chiefly based upon concerns about safety due to the increase in traffic from the proposed development. The record also shows that the commissioners were concerned about traffic safety. The hearing on the application was continued from the August 15, 2007 meeting so that the defendant could await and consider a traffic study that it commissioned. At the September 5, 2007 meeting, Commissioner Ed Artiaco explained the decision to delay the hearing, stating: “After the last meeting we were as concerned about traffic safety on the streets, okay. So we had asked [the zoning enforcement officer] to look into our own traffic study.” (ROR, Exhibit N, p. 28.) Commissioner Pat Hedenberg stated the following explaining her decision not to approve the application: “I am basing my decision on the, I still feel it is a safety issue and also on the neighborhood people.” (ROR, Exhibit Y, p. 15.) Thus, the court finds that the defendant based its decision primarily on traffic safety concerns.[2]
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Next, the court must determine the legality of denying an application based on traffic safety concerns. Under General Statutes § 8-2, a zoning commission is governed by “standards set forth in the regulations and . . . conditions necessary to protect the public health, safety, convenience and property values” when it determines whether to grant a special exception. Under § 330 of the Putnam zoning regulations, an applicant for a special exception must demonstrate to the defendant’s satisfaction that “the granting will not result in conditions inimical to the public health, safety, morals and welfare, and . . . that the granting will not substantially or permanently injure the appropriate use of the property in the surrounding area or district.” Section 334(1) of the regulations permits the defendant to consider “[i]ngress and egress to the lot . . . with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire, emergency or catastrophe . . .” Under the law and regulations, it was therefore not illegal for the defendant to deny the application due to traffic safety concerns.

The plaintiff’s argument is unpersuasive. Whether the plaintiff had proven that its application complied with § 334 of the regulations was for the defendant to determine. See Putnam Zoning Regs. § 301. Even if the zoning enforcement officer had confirmed that the application was in compliance with the regulations, which she did not, [3] her opinion would not be binding upon the defendant. The plaintiff’s appeal cannot be sustained on this ground for the above reasons.

C Whether the Defendant’s Decision Was Supported by Substantial Evidence
The plaintiff’s third argument is that the defendant’s decision was not supported by substantial evidence. It argues that, because evidence shows that there would be no major changes to the roadway network needed, but rather the proposed project would merely increase traffic, the defendant is unjustified in denying the application on traffic safety grounds. Further, the plaintiff argues that the mere opposition of others in the neighborhood cannot justify the denial of the application. The defendant argues that its decision was in fact supported by substantial evidence. It argues that the evidence shows that the project would create a traffic safety hazard to cars and pedestrians on the roadways.

“In appeals from administrative zoning decisions . . . the decisions will be invalidated . . . if they were not supported by substantial CT Page 11133 evidence in [the] record.” (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 215, 779 A.2d 750
(2001). “The substantial evidence rule is similar to the `sufficiency of the evidence’ standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” Boris v. Garbo Lobster Co., 58 Conn.App. 29, 32, 750 A.2d 1152, cert. denied, 254 Conn. 910, 759 A.2d 504 (2000).

The defendant’s decision to deny the application due to concerns about traffic safety must be based on substantial evidence demonstrating that the safety concerns would be significantly worsened by the existence of a multi-family complex, permitted only by special exception, versus a use permitted as of right. “[W]hen a use is not allowed as of right, but only by special exception, the zoning commission is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood.” Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 432, 941 A.2d 868 (2008). “[I]f a special permitted use would have a significantly greater impact on traffic congestion in the area than a use permitted as of right, the additional congestion may provide a basis for denying the [special exception] . . . Moreover, the significance of the impact should not be measured merely by the number of additional vehicles but by the effect that the increase in vehicles will have on the existing use of the roads . . . In making this determination, the commission may rely on statements of neighborhood residents about the nature of the existing roads in the area and the existing volume of traffic, and its own knowledge of these conditions.” (Citation omitted.) Id., 434.

The plaintiff has applied for a special exception to build “4 multi-family buildings (16 townhouse style residences)” to be located on its land at 53 Prospect Street. (ROR, Exhibit A, p. 1.) The lot is located on the east side of the road and is within an R-10 residential zoning district (R-10 district). Per § 720 of the Putnam zoning regulations, single-family units, single-family semidetached units, and two-family detached units are permitted as of right in an R-10 district.[4]

The defendant’s decision was supported by substantial evidence. Substantial evidence exists to allow the conclusion that roadway access to the plaintiff’s lot would be made significantly more dangerous with a multi-family complex on the lot as opposed to a single or double-family residence. Evidence indicates that there are safety problems with the roads and intersections that provide access to the plaintiff’s property. The defendant’s belief that a multi-family complex would exacerbate CT Page 11134 these problems is justified by the evidence.

The traffic study commissioned by the defendant was based on a midday site visit. The traffic study report described the location as follows: “The site for the proposed condominiums is essentially at the top of a hill . . .” (ROR, Exhibit V, p. 2.) “The roadway network surrounding the site is best classified as a local urban street network. There are no significant businesses or major traffic generators in the area. The terrain is very steep and populated with houses. The roadway widths are not well defined, however most of the streets are approximately 20 feet wide. There are a few locations where the roadway narrows and one location where the roadway is approximately 14 feet wide . . . The pavement conditions are fair to good with all roads being paved. There are few sidewalks on the roads in the area, but no contiguous sidewalk network. There are sidewalks on W.S. Route] 44 and [state Route] 12.” (ROR, Exhibit V, p. 1.) The residents of the proposed complex would have access to the surrounding roadway network via a “one-way in, one-way out” driveway, both prongs of which would connect to Prospect Street.

The traffic study report indicates that “[t]here are no speed limit signs on the streets surrounding the site. Based on the geometry and traffic volumes, we have assumed that a design speed of 20 [miles per hour] is appropriate for this study.” (ROR, Exhibit V, p. 1.) A local resident testified that he never knew what the speed limit was on the roads in the neighborhood and that a speed limit of twenty miles per hour is “certainly not practiced based on how people drive in the neighborhood.” (ROR, Exhibit Y, p. 10.)

Prospect Street generally runs north-south. North of the proposed complex site, Prospect intersects Oak Street, an east-west running road that would provide access from Prospect to Route 44. At the September 5, 2007 meeting, a local resident described Oak as “barely passable with two cars at one time.” (ROR, Exhibit N, p. 14.) At the intersection, traveling north, Prospect curves to the east, while Oak ends at the intersection at its west side. The defendant’s traffic study report concluded the following about this intersection: “[It] is very close to the proposed exit drive. There are no stop signs at this intersection. The sight distances on the southwest corner are poor. The embankment and trees combined with the geometry of Oak Street make the sight distance very short. [At] a minimum, we recommend that the trees and slopes be cut back. An [alternative] is to install stop signs on all three legs of this intersection.” (ROR, Exhibit V, p. 6.)

South of the plaintiff’s lot, Prospect curves to the west and merges with Bellevue Street. The curve connecting Bellevue and Prospect is CT Page 11135 described as “very narrow and sharp. It currently measures 14 feet in width and the sight distance around the corner is approximately 75 feet The geometry is not adequate for two-way traffic. Widening the roadway would be very difficult with the grades in the vicinity of the curve . . .” (Emphasis added.) (ROR, Exhibit V, p. 9.) Access to the complex for emergency vehicles traveling this way would be “difficult, but not impossible.” (ROR, Exhibit V, p. 10.) One resident who lived on Bellevue remarked: “I’ve seen accidents on that Bellevue corner; I’ve seen a lot of very close calls on that corner.” (ROR, Exhibit N, p. 22.)

Bellevue travels west and intersects with Wilkinson Street, a street running parallel to Prospect. A car traveling south on Wilkinson from the intersection will reach Route 12, which is the most convenient way to access Interstate Route 395. A car attempting to turn onto Wilkinson will have sight lines that are “severely limited by retaining walls, slopes and a building.” (ROR, Exhibit V, p. 9.) There are no stop signs at this intersection.

Hammond Street is parallel to Bellevue and is situated north of it and south of the plaintiff’s lot. A local resident described this street as “barely bigger than our driveway.” (ROR, Exhibit N, p. 16.) It also connects Prospect with Wilkinson. There are no stop signs at either of Hammond’s intersections. The sight lines when one approaches Prospect are blocked by “trees and a garage.” (ROR, Exhibit V, p. 8.) The sight lines when one approaches Wilkinson “are severely limited by retaining walls and slopes.” (ROR, Exhibit V, p. 8.)

Any automobile attempting to reach the plaintiff’s lot would have to pass either the Bellevue-Prospect, Hammond-Prospect or Oak-Prospect intersections. Although the traffic study concluded that no major modifications to the roadway are needed, it provided some “recommendations for short-term minor modifications to the roadways in the vicinity of the site.” (ROR, Exhibit V, p. 11.) The relevant recommendations include: (1) at the Oak-Prospect intersection, “[removing] the slope and trees in the southwest quadrant to improve sightlines or [installing] stop signs on all legs of the intersection”; (2) “[installing] a stop sign at the top of Hammond Street”; (3) “[installing] stop signs on all legs of [the Hammond-Wilkinson] intersection”; and (4) turning the stretch of Prospect between the Bellevue curve and Hammond into a one-way street. (ROR, Exhibit V, p. 11.)

Local residents provided testimony as to the conditions of the neighborhood in the wintertime. Their testimony demonstrated that snow tends to become piled up on the sides of the roads during the winter, CT Page 11136 effectively shrinking the width of the roads. One resident of Prospect testified: “[N]obody even wants to go up our road and plow it. I mean never mind if you live up there. Just trying to get down or up the hill it’s horrible.” (ROR, Exhibit N, p. 25.) There was testimony that cars have a difficult time climbing up the hill when driving on Oak from Route 44 toward Prospect during the winter so “[v]ery often on snowy days people who live up the hill park down below the [intersection of Prospect and Oak] . . .” (ROR, Exhibit V, p. 10.)

Based on the foregoing evidence, the defendant is justified in believing that, while the problems with the intersections providing access to and from the plaintiff’s lot might not be significant if the lot contained one or two residential units, the problems would be significant if these intersections were burdened by traffic trying to access sixteen residential units on a single lot. With sixteen residences in one location, as opposed to one or two, the defendant reasonably concluded that there is a much greater likelihood of cars associated with the complex encountering each other, as well as other cars, on these narrow roads and at these dangerous intersections — and thus that there would be a much greater likelihood of accidents.

It is true that the traffic study report concluded that “[t]he proposed development will generate approximately 50 vehicle trips per day. The existing traffic volumes are low; therefore these additional trips will not have a significant impact on the traffic flow on the streets.” (ROR, Exhibit V, p. 11.) However, this is broad statement about the area as a whole and does not address the problematic roads and intersections specifically. Furthermore, the defendant is not bound by the conclusions of this or any other traffic study. Cf. Kaeser v. Conservation Commission, 20 Conn.App. 309, 316, 567 A.2d 383 (1989) (“[A]n administrative agency is not required to believe any witness, even an expert . . .” (Internal quotation marks omitted.)). For these reasons, the plaintiff’s appeal cannot be sustained on this ground.

D Whether One of the Commissioners Was Predisposed To Deny the Application
Finally, the plaintiff argues that Commissioner Nick Huston, as evidenced by statements he made during a meeting on July 18, 2007, was “so closed-minded that he was [predisposed] to deny [the] [p]laintiff’s [a]pplication.” (Plaintiff’s brief, pp. 14-15.) Therefore, he should have recused himself from voting on the application. The defendant counters with the argument that Huston was merely stating his opinion CT Page 11137 that the application, which had been twice previously submitted, had not changed substantially enough to allow the defendant to consider it again. Also, the defendant argues that the plaintiff failed to raise its claim of predisposition at the public hearing and thus the plaintiff cannot raise the claim before the court.

A claim of predisposition is essentially a claim that a commissioner “actually had made up [his or her mind] prior to [a] public hearing, regardless of any arguments that might have been advanced at the hearing . . . The burden of proving a commissioner’s partiality and prejudgment is on the plaintiff.” (Citation omitted; internal quotation marks omitted.) Woodburn v. Conservation Commission, 37 Conn.App. 166, 175, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995). “[T]here is a presumption . . . that administrative board members acting in an adjudicative capacity are not biased . . . To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable.” (Citations omitted; internal quotation marks omitted.) O G Industries, Inc. v. Planning Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995). If the plaintiff prevails, then the predisposed commissioner must be disqualified. Woodburn v. Conservation Commission supra, 37 Conn.App. 175.

First, the court must address the defendant’s claim that the plaintiff did not timely raise the issue of Huston’s partiality. A claim that a commissioner should be disqualified on any grounds including predisposition must be raised with reasonable promptness upon learning of the underlying facts or it is ordinarily waived. Clisham v. Board of Police Commissioners, 223 Conn. 354, 367, 613 A.2d 254 (1992). There is no evidence from which the court could conclude that the plaintiff’s claim is untimely. From the record it is unclear when the plaintiff first learned of Huston’s statements. The record does not show that a representative of the plaintiff attended the July 18, 2007 meeting where these statements were made. The defendant, in its brief, makes no assertion as to the date when the plaintiff first learned of the underlying facts of its claim.

Nevertheless, the plaintiff has failed to demonstrate that Huston was predisposed to deny its application. Nothing in the record suggests Huston prejudged the plaintiff’s application. Rather, the record shows that Huston had twice previously considered the same application on its merits in his capacity as a commissioner and that he merely did not want to consider it again.

CT Page 11138 At the meeting of the defendant on July 18, 2007, the commissioners, including Huston, debated whether to consider the third version of the plaintiff’s application, which was to be the same as the second except that it would include the findings of a safety engineer. Huston’s position was that the application had not changed and it was pointless to hear it a third time. He explained that he opposed the application previously because he was concerned about changes to the quality of the neighborhood, because of the opposition of the neighbors and because he felt that the number of units sought to be built was too many considering the size of the lot. (ROR, Exhibit DD, p. 16.) He then stated that the conclusions of the safety engineer would not address those concerns. (ROR, Exhibit DD, p. 16.) The evidence demonstrates that the plaintiff’s appeal cannot be sustained on this ground.

IV CONCLUSION
For the reasons discussed above, the plaintiff’s appeal is without merit and is hereby dismissed.

[*] General Statutes § 8-2(a) provides in relevant part: “All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values.”
[2] The defendant argues that it also made its decision based on concerns about preserving the character of the neighborhood. No commissioner voiced any such concern during or following the public hearing and there were only a few passing complaints from testifying residents about the change of the neighborhood’s character. The only significant evidence that it was an issue is from the statements of commissioner Nick Huston, made prior to the public hearing, explaining why he had opposed the plaintiff’s previous application. Even if the court were to find that this was also a rationale for the defendant’s decision, the court need not discuss it to decide the case.
[3] On page 6 of Exhibit Y of the Return of Record, which the plaintiff cited in support of its contention, Cindy Dunne, the zoning enforcement officer stated: “From a technicality point of view everything is complete CT Page 11139 but it is up to the zoning commission to decide whether it meets all the criteria.” (Emphasis added.)
[4] The only non-residential use permitted as of right on the land is “Agriculture/Sale of Produce Raised on Land by Occupant.” Putnam Zoning Regs. § 720.

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