2004 Ct. Sup. 16524
No. CV 02 0191583 SConnecticut Superior Court, Judicial District of Stamford-Norwalk at Stamford
November 4, 2004
MEMORANDUM OF DECISION
RADCLIFFE, JUDGE.
FACTS
The plaintiff, Joan Dean, a General Partner of the Dean-Moss Family Partnership, brings these two consolidated appeals from decisions of the Defendant Norwalk Zoning Commission.
The Dean-Moss Family Partnership owns 119 Rowayton Avenue, Norwalk.
The parcel is located in a Business No. 3 Zone (B-3), consists of 12,118 square feet, and is bounded to the west by the Five Mile River.
Situated on the property is a two-story office building, a parking lot, and eight (8) boat slips. The plaintiff is also the owner of an easement concerning an abutting parcel, 117 Rowayton Avenue, Norwalk.
117 Rowayton Avenue is owned by the Intervening Defendant, Five Mile River Works, Inc.
The parcel contains a boat yard, and 17 boat slips.
The easement owned by the plaintiff is dated November 10, 1980, and is recorded at Volume 1321, Page 137, of the land records of the City of Norwalk.
The easement was granted by the predecessors in title of Five Mile River Works, Inc., to Harold H. Dean and Frederick Moss.
The easement grants to the owners of 119 Rowayton Avenue, the “. . . right privilege and authority to perpetually maintain a parking lot for up to ten (10) parking spaces . . . only if required so that the premises to the north (119 Rowayton Avenue) will comply with the off street parking regulations of the City of Norwalk . . .” CT Page 16525
The spaces designated for the use of the holder of the easement are spaces 9 through 18 on a recorded map.
The recorded easement is a perpetual easement, and permits the holder of the easement the “. . . right to enter on the land within said easement at any time for the purpose of constructing, servicing, repairing or replacing said parking lot or any material therein.”
Both 119 Rowayton Avenue and 117 Rowayton Avenue are located within the “Coastal Zone” referred to on the Coastal Boundary Map adopted by the Norwalk Planning Zoning Commission.
The properties are therefore subject to the provisions of Chapter 444 (§ 22a-90 through § 22a-113c) of the Connecticut General Statutes, and Article 111 of the Building Zone Regulations of the City of Norwalk.
On March 27, 2002, the Plaintiff filed two coastal area management site plans with the Norwalk Zoning Commission, one concerning 119 Rowayton Avenue (ROR 3) and a second concerning 117 Rowayton Avenue (ROR 4).
Section 22a-109(a)[1] of the General Statutes requires a coastal site plan to be filed with the Municipal Zoning Commission, for the purpose of determining compliance with local zoning regulations, and the policies of planned coastal management.
The Dean-Moss Family Limited Partnership sought to add ten (10) docking slips to 119 Rowayton Avenue.
In order to accommodate the need for additional parking, and comply with the zoning regulations, the Plaintiff sought to construct a bituminous parking area of ten (10) parking spaces at 117 Rowayton Avenue, pursuant to the recorded easement (ROR 4).
The Five Mile River Works, Inc., the record owner of 117 Rowayton Avenue, did not consent to the site plan application.
Prior to August 21, 2002, the date of the public hearing, comments on the application were received from the State of Connecticut, Department of Environmental Protection (DEP).
In its review (ROR 24), the DEP expressed reservations concerning the increase from 8 to 18 boat slips at 119 Rowayton Avenue, and the adverse impact which constructing the parking lot might have on existing water-dependent uses[2] at 117 Rowayton Avenue. Concerns were also raised regarding public access parking, based upon the site plan CT Page 16526 proposal.
The DEP comments were echoed by the Zoning Commission’s staff (ROR 39), which also identified alleged failures to comply with various municipal zoning regulations.
Both site plan applications were heard together at the public hearing.
Following the hearing, the Commission voted to deny both applications.
Notice of the action was published in The Norwalk Hour on August 29, 2002 (ROR 47).
Three (3) reasons were given by the Commission for the denial of the 119 Rowayton Avenue application (ROR 44): (1) insufficient parking spaces to accommodate the increase in boat slips on the site, (2) failure to file a Coastal Area Management (CAM) short form application, and (3) reduction in public access on the site.
The Commission also cited failure to comply with provisions of the building code, and an adverse impact upon coastal resources.
In denying the application affecting 117 Rowayton Avenue, the Commission announced four (4) reasons relating to the Norwalk Zoning Regulations (ROR 45): (1) the proposal does not represent a permitted use in the Business No. 3 zone, (2) the inability to obtain a certificate of zoning compliance, (3) inability of the parcel to meet current parking needs without additional spaces, and (4) the use of ten (10) parking spaces by 119 Rowayton Avenue would increase the nonconformity of the current parking at 117 Rowayton Avenue.
The remaining reasons (ROR 45, 5-9), concerned coastal area management criteria, including the form of the application, the adverse impact on water-dependent uses currently operating at 117 Rowayton Avenue, and the impact of the proposal upon future water-dependent uses at 117 Rowayton Avenue.
From that decision, the Plaintiff instituted a timely appeal, returnable October 15, 2002.
On the return date, the Plaintiff filed additional site plan applications concerning the same parcels, 119 Rowayton Avenue and 117 Rowayton Avenue. (ROR 1 2).
The second plan envisioned a new single-family residence on the 119 CT Page 16527 Rowayton Avenue parcel, resulting in a decrease in parking available for the existing boat slips and office building.
In order to compensate for the decrease in parking spaces, ten (10) parking spaces were proposed, pursuant to the easement covering 117 Rowayton Avenue.
A public hearing concerning both of the site plan applications was held on January 15, 2003.
Comments and an evaluation from the DEP were again received (ROR 11).
The potential adverse impact upon water-dependent uses was again highlighted, including a potential adverse impact on the existing business at 117 Rowayton Avenue.
The Commission, following the public hearing, voted to deny both applications (ROR 33, p. 42-52).
Notices of the denial were sent to the applicant (ROR 30), and the decision was published on January 23, 2003.
The Plaintiff appealed both of the denials, and both appeals were subsequently consolidated for trial.
THE PLAINTIFFS HAVE STANDING TO APPLY FOR COASTAL AREA MANAGEMENT (CAM) SITE PLAN APPROVAL FOR BOTH PROPERTIES.
The Intervening Defendant, Five Mile River Works, Inc., claims that the Plaintiffs, Joan Dean and the Dean-Moss Family Partnership, lack standing to apply for site plan approval concerning 117 Rowayton Avenue.
Five Mile River Works, Inc. claims that it must consent to the application, because the Norwalk Zoning Regulations require the signature of the “owner” of the property on the site plan application.[3]
It further argues that the plans, as submitted, require work to be performed outside the area of the recorded easement, on portions of 117 Rowayton Avenue.
Although the Dean-Moss Family Partnership does not have a fee interest in 117 Rowayton Avenue, as the owner of 119 Rowayton Avenue, it enjoys rights in the abutting property, pursuant to the recorded easement.
An easement, by its terms, gives an interest to a party in the CT Page 16528 land of another.
In this case, an express easement exists in favor of the Plaintiffs, as the owner of 119 Rowayton Avenue.
The fee owner of 117 Rowayton Avenue seems to argue that it is permitted, as the owner of the servient tenement, to frustrate the Plaintiffs’ application by withholding its consent to the site plan proposal.
While neither the Norwalk Zoning Commission, or this court, is called upon to determine the scope of the recorded easement, or the precise rights guaranteed to the holder of the easement, certain basic principles impact the issue of standing.
The rights enjoyed by the holder of an easement, and those of the owner of the servient tenement, are correlative. Even in the absence of a provision prohibiting interference with the use of an easement by the owner of the servient tenement, the law will imply such a restriction Connecticut Light Power Co. v. Holson Co., 185 Conn. 436, 443 (1981) Gager v. Carlson, 146 Conn. 288, 292 (1959).
The interests of the owner of the easement often conflict with those of the owner of the burdened estate, as they do here. However, each of the parties owes certain duties to the other. Kelly v. Ives, 187 Conn. 31, 48
(1982).
The use of an easement must be reasonable; Center Drive-in Theater, Inc. v. Derby, 166 Conn. 460, 465 (1974); and the determination of the scope of an easement, is a question of fact. Pender v. Matranga, 58 Conn.App. 19, 23 (2000).
When determining whether an applicant for site plan approval has standing, several factors must be considered: (1) whether the applicant is in control of the property, (2) whether the applicant is in possession of the property, or has rights of future possession, (3) whether the use applied for is consistent with the applicant’s interest in the property, and (4) the extent of the interest of the other persons in the property Gladys v. Planning Zoning Commission, 256 Conn. 249, 258 (2001) Richards v. Planning Zoning Commission, 170 Conn. 318, 323-24 (1976).
Although the scope of the Plaintiffs’ easement may well present an issue for another day, as the holders of the easement, they have standing to file the application. CT Page 16529
In reaching this conclusion, it is not necessary to determine whether the owner of the servient estate must permit work outside the easement, or whether a permit authorizing such work would issue, absent the consent of the owner of 117 Rowayton Avenue.
Furthermore, because ownership of the easement gives the Dean-Moss Family Partnership rights concerning 117 Rowayton Avenue, the Defendant is not assisted by § 118-1451(B)(1) of the Norwalk Zoning Regulations.
That section does not require a “fee” ownership, as a prerequisite for tendering a site plan application.
It is therefore not necessary to consider whether that provision is unconstitutional, as applied to the Plaintiffs, Joan Dean and the Dean-Moss Family Partnership.
AGGRIEVEMENT
The Plaintiff, Dean-Moss Family Partnership, is the owner of 119 Rowayton Avenue, Norwalk, having acquired title in May of 2000 (Exhibit 1).
As the owner of 119 Rowayton Avenue, the partnership is the holder of a perpetual easement burdening 117 Rowayton Avenue (Exhibit 2).
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 administrative agency. Primerica v. Planning Zoning Commission, 211 Conn. 85, 93 (1989); Hall v. Planning Zoning Commission, 181 Conn. 442, 444 (1980).
Aggrievement is jurisdictional, and a prerequisite for maintaining an appeal. Winchester Woods Associates v. Planning Zoning Commission, 219 Court. 303, 307 (1991). The question of aggrievement is one of fact Hughes v. Town Planning Zoning Commission, 156 Conn. 505, 508 (1968).
Ownership of 119 Rowayton Avenue demonstrates a specific personal and legal interest in the subject matter of the decisions appealed from. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530 (1987).
As to 117 Rowayton Avenue, the easement in favor of the Plaintiff is CT Page 16530 sufficient to establish a specific personal interest in the subject matter of the decisions.
Whether a party holds legal title to property, or has a legally enforceable interest in the property, does not control the determination of aggrievement. Antenucci v. Hartford Roman Catholic Dioceses Corporation, 142 Conn. 349, 355 (1955); DeBonaventura 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 an 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).
Denial of the coastal area management site plans concerning 119 Rowayton Avenue and 117 Rowayton Avenue has specifically and injuriously affected the interests of the Dean-Moss Family Partnership and Joan Dean, a general partner.
It is found that the Plaintiffs are aggrieved by the denial of the site plan applications, from which these appeals arose.
STANDARD OF REVIEW
The Coastal Management Act, Sections 22a-90 through 22a-113c of the General Statutes, envisions a single review process during which proposals for development within the coastal boundary are simultaneously reviewed by the municipal land use agency, to determine compliance with local zoning requirements, and the policies of planned coastal management. Vertuli v. Aotire, 192 Conn. 353, 358 (1984).
Because municipal review of a coastal site plan supersedes any review provided under General Statues § 8-3(g), the broader substantive criteria for coastal site plan review required by § 22a-109(a), takes the place of the narrower zoning criteria contemplated by § 8-3(g). This statutory scheme avoids duplicative zoning and coastal management proceedings Vartuli v. Sotire, supra, 363; Reed v. Planning Zoning Commission, 35 Conn.App. 317, 322-23 (1984); § 22a-109(a), C.G.S.
When considering a traditional site plan application, a planning and zoning commission acts in an administrative capacity, rather than 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).
Although review of a coastal site plan application requires a measure CT Page 16531 of flexibility, in order to apply the relevant statutory standards and criteria, review of a coastal site plan has nevertheless been classified as administrative. DeBarnardo v. Zoning Commission, 228 Conn. 187, 198
(1994).
The action of the land use agency is subject to the same standard of review, on appeal, as other administrative actions such as traditional site plans and special permits. Robert A. Fuller, Land Use Law and Practice (second edition), § 6.5, p. 153 (1999).
Section 22a-106(d),[4] C.G.S., requires a commission reviewing a coastal site plan application, to state written findings and reasons for its action.
Where, as here, the agency has stated collective reasons for its action, a reviewing court should not go beyond the official collective statement, and attempt to speculate upon other reasons. DeMaria v. Planning Zoning Commission, 159 Conn. 534, 541 (1970); Kaufman v. Zoning Commission, 232 Conn. 112, 143 (1995).
A commission is endowed with liberal discretion, and its actions are subject to review by a court only to determine whether it acted unreasonably, arbitrarily or illegally. Connecticut Sand Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 422 (1963).
An agency decision must be upheld, if any reason given is supported by substantial evidence. Bradley v. Inland Wetlands Agency, 28 Conn.App. 48, 52 (1992).
The substantial evidence rule has been defined as similar to, and analogous to, the standard to be applied in judicial review of a jury verdict. It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict where the conclusion sought to be drawn is one of fact. Sampeiri v. Inland Wetlands Agency, 226 Conn. 579, 588
(1993).
Issues involving the credibility of witnesses and the determination of facts, are properly committed to the province of the municipal agency Laufer v. Conservation Commission, 24 Conn.App. 708, 713 (1991). The possibility of drawing two inconsistent conclusions from the evidence does not prevent a decision from being supported by substantial evidence Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 697-98
(1993).
Conclusions reached by the commission must be upheld, if they are CT Page 16532 reasonably supported by the record. The question is not whether the trial court would have reached the same conclusion, but whether the record compiled before the agency supports the decision reached. Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).
COASTAL AREA MANAGEMENT (CAM) SITE PLAN PROPOSALS COMPLIED WITH MUNICIPAL REGULATIONS
The Commission determined that an off-street parking facility is not a permitted use in a B-3 Zone, and that the Plaintiff could not utilize parking spaces at 117 Rowayton Avenue to comply with parking demands at 119 Rowayton Avenue.
The Plaintiff maintains that the use of parking spaces at 117 Rowayton Avenue, which it proposes to construct pursuant to the easement, is expressly sanctioned by the Norwalk Zoning Regulations, § 118-1220(F).
That regulation reads:
All off-street parking facilities shall be located upon the same lot where the use occurs. However, in business and industrial zones, parking facilities may be located within six hundred (600) feet measured along adjacent streets.
The Defendant seems to claim that § 118-1220(F) does not apply to a B-3 Zone, and is only applicable to those zones in which off-street parking facilities are a permitted use.
The question of whether a particular regulation applies to a given set of facts, presents a question of law for the court, and review is plenary. Coppola v. Zoning Board of Appeals, 23 Conn.App. 636, 640
(1990).
A court is charged with determining whether the land use agency has correctly interpreted its regulations, and has applied them with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 117 (1962); Baron v. Planning Zoning Commission, 22 Conn.App. 255, 257 (1990).
Zoning regulations cannot be construed to include or exclude by implication what is not clearly within their express terms. Planning Zoning Commission v. Gilbert, 208 Conn. 696, 705 (1988); Park Construction Co. v. Planning Zoning Board of Appeals, 142 Conn. 30, 35 (1954). Whenever possible, the language of zoning regulations will be construed CT Page 16533 so that no clause is superfluous, void or insignificant. Planning Zoning Commission v. Gilbert, supra, 705-06.
Regulations must be interpreted so as to reconcile their provisions and make them operative as far as possible. Donohue v. Zoning Board of Appeals, 155 Conn. 550, 557 (1967).
Prior to the court hearing, the Plaintiff was permitted to supplement the record, in order to add information concerning the interpretation given to § 118-1220(F) by the Defendant Norwalk Zoning Commission, in December of 1993.
In approving the addition of two boat slips at 133 Rowayton Avenue, a parcel located in the same zone and on the same street as 119 and 117 Rowayton Avenue, the Commission approved four (4) off-site parking spaces, in order for the applicant to comply with the parking requirements mandated by the additional boat slips.
Although an appeal should ordinarily be determined on the record, supplementing a record is appropriate where it is found that the additional information is material, and good reason exists for the failure to present the evidence in the original proceeding before the agency. Salmon v. Dept. of Public Health Addiction Services, 58 Conn.App. 642, 664 (2000).
The supplemental record, which concerns the Barclay’s Landing, LLC application (#28-03 CAM), demonstrates that the Commission approved a use at 133 Rowayton Avenue, based upon a long-term lease covering four (4) parking spaces at 140 Rowayton Avenue.
The parking spaces were leased for twenty-five years, and are located within 600 feet of 133 Rowayton Avenue.
While it is true that the interpretation of an ordinance presents a question of law, a municipal board or commission is in the most advantageous position to interpret its own regulation, and to apply the regulation to the situation before it. New London v. Zoning Board of Appeals, 29 Conn.App. 402, 405 (1992). Therefore, the position of a municipal land use agency should not be ignored, and is entitled to some deference. Roy v. Centenial Ins. Co., 171 Conn. 463, 473 (1976); Fedorich v. Zoning Board of Appeals, 178 Conn. 610, 617 (1979).
The interpretation of § 118-1220(F) formulated by the Commission when evaluating the site plan applications at issue in this appeal, cannot be reconciled with the interpretation it gave that same section in the CT Page 16534 Barclay’s Landing application.
The Dean-Moss Family Partnership has complied with the provisions of § 118-1220(F), in that the 600 feet limit is satisfied, and the property is located in a “business” zone.
Nothing in the ordinance restricts its application to zones in which off-street parking facilities are a permitted use.
On its face, the regulation applies to “business and industrial zones.”
It is therefore found that § 118-1220(F) of the Norwalk Zoning Regulations is applicable to the B-3 Zone in which both 119 Rowayton Avenue and 117 Rowayton Avenue are situated.
Furthermore, the perpetual easement owned by the Plaintiff, easily satisfies the provisions of § 118-1120(H),[5] concerning the need for a long-term recorded instrument.
The commission cannot justify its rejection of the coastal area management site plans, based upon its initial interpretation of § 118-1220(F).
Nor do the provisions of § 118-1420(G)[6] assist the Defendants.
That section concerns occupation and use of property, and its use at the site plan stage is premature.
The Plaintiff has complied with the applicable municipal regulations, involving both properties which were the subject of site plan applications.
REJECTION OF SITE PLANS BASED UPON COASTAL AREA MANAGEMENT (CAM) CONCERNS SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD
The Commission in accordance with the observations and recommendations of the DEP (ROR 24 ROR 11), determined that approving the site plans would have an adverse impact on water-dependent activities.
In both applications, the Plaintiff was unable to increase the water-dependent uses at 119 Rowayton Avenue, or to continue existing uses while building a single family residence, without utilizing parking spaces at 117 Rowayton Avenue. CT Page 16535
There exists substantial evidence in the record to support the Commission’s finding that the proposal would have an adverse impact on water-dependent uses, and that the adverse impact had not been mitigated.
The Plaintiff seems to argue that 117 Rowayton Avenue is in violation of the zoning regulations (ROR 33, TR, p. 13), a claim which the Commission’s staff and the intervening Defendant were unable to refute.
The staff, based upon available information, was unable to confirm that existing uses at 117 Rowayton Avenue, a boat yard, marina and boat slips, were in compliance with parking requirements and other applicable sections of the regulations (ROR 28, p. 2).
The Plaintiff maintains, however, that the Commission should not be concerned with existing uses at 117 Rowayton Avenue, or the impact of the proposals upon those uses, since the Plaintiff was not seeking approval of those uses.
The plaintiff further contends that any violations would result from a conveyance of property rights, rather than from the operation of the zoning regulations.
This argument, although creative, and inevitable, is not persuasive.
In reviewing a coastal area management site plan, the Commission is charged with examining both compliance with municipal zoning regulations, and the policies of planned coastal management Vartuli v. Sotire, supra, 358.
This inquiry necessarily involves an examination of the impact of the proposal on the present and future water-dependant uses at 117 Rowayton Avenue.
The Commission’s reasons for denying the site plan applications, which echo the concerns of the DEP, are documented in the record.
In addition to the adverse impact on current and future water-dependent uses at 117 Rowayton Avenue, the record also supports the conclusion that construction of a single-family residence at 119 Rowayton Avenue would limit public access requirements, and affect water-dependent uses at the site.
While a single-family residence is a permitted use in the zone, and cannot be prohibited, the impact of construction upon public CT Page 16536 access represents a proper area of concern for the Commission.
It may be demonstrated that the actions of the owners of the burdened estate, 117 Rowayton Avenue, represent an interference with the lawful use of a recorded easement, and a breach of the duty owed to the holder of the easement.
It may also be proven, at another time, that violations of the Norwalk Zoning Regulations are present at 117 Rowayton Avenue, and that the Plaintiff has therefore been unreasonably prevented from exercising its easement rights.
However, these issues are not before the court, and were not before the Norwalk Zoning Commission. A public agency can only act within the scope of the powers and duties which the law prescribes. Ghent v. Zoning Commission, 220 Conn. 584, 588 (1991).
The defendant Norwalk Zoning Commission was charged with evaluating the coastal management criteria based upon the applications before it, not with deciding the extent of the rights of the parties in and to 117 Rowayton Avenue.
Because substantial evidence in the record supports the Commission’s conclusions, as they relate to coastal area management criteria, both of the Plaintiffs’ appeals are DISMISSED.
RADCLIFFE, J.
CT Page 16538