LLC v. The Planning and Zoning Commission of the City of Bridgeport (2010)

MEMORANDUM OF DECISION

The plaintiff, Citywide Properties, LLC, is the owner of real property known as 1581 Seaview Avenue, Bridgeport, Connecticut, which property is the subject of this appeal.   Testimony was presented on the issue of aggrievement and the court finds the plaintiff has met its burden of proof of standing and is aggrieved.

The plaintiff submitted to the Commission a Traffic Study for Contractor Storage Facility at Seaview Avenue dated October 10, 2007.   The Traffic Study indicates that the traffic from the proposed facility will have no adverse impact on the existing Seaview Avenue traffic.

The plaintiff also submitted a Coastal Area Management Report dated October 30, 2006 and revised February 5, 2007 that indicated that “This parcel is located close to Yellow Mill Channel but away from all other coastal resources such as tidal wetlands, beaches and dunes, modified bluffs and escarpments and coastal bluffs and escarpments.   There will not be any impacts on these resources as no excavation or grade changes are proposed.”   Another Coastal Area Management report dated March 5, 2007 concluded on its second page that “this entire proposal will not have any significant impact on coastal resources.”

The Commission also had before it a report from its consultant and they recommended that the Commission approve a special permit for the use of the site as a contractor storage yard on the conditions that no materials are stored or processed that cause dust odors or excessive noise and that the special permit is voided as such time as the lot may be re-zoned from an industrial zoning district to a district that does not provide for a special permit for this use.

The report also recommended that the Commission approve the site plan on condition that a landscaped area be located along the entire west edge of the site and have an approximate depth of at least 25 feet;  on the further condition that the landscape of the area along the west edge of the site be to L1 standard;  on the further condition that a public access easement for the landscaped area along the west edge of the site be granted to the City to be exercised at its convenience;  and on the further condition that a landscape buffer five feet wide and to L3 standard be located along the east edge of the site.

A public hearing was held on plaintiff's application on October 29, 2007.   The plaintiff applicant was present at said hearing and presented evidence in support of its application, including the aforementioned Traffic Study and Coastal Area Management Report.   The plaintiff also presented drainage computations which predicted zero runoff.

In response to the Commission's concerns about truck traffic and construction equipment entering and exiting the site, the plaintiff represented to the Commission that there was limited truck traffic in the course of a week, maybe once or twice a week.   The equipment that was being stored on the premises was primarily being stored on the Seaview Avenue and Crescent Avenue side of the property, away from the Yellow Mill Channel.

The plaintiff has also proposed to install a one thousand gallon water quality unit to filter any potential pollutants.   This proposal was outlined on the revised site plan submitted to the Commission at the public hearing on October 29, 2007.   In the revised site plan the plaintiff had also proposed to install 94 linear feet of 4 by 4 concrete gallery blocks into which the filtered runoff from the proposed one thousand gallon water quality unit would be directed.

The plaintiff had also constructed a silt fence and installed mulch adjacent to the Yellow Mill Channel to prevent runoff into the river and was also willing to install an additional 25 to 30 foot buffer containing shrubbery as recommended by Mr. West's report dated August 20, 2007.

The concern about the storage or processing of materials was obviated by plaintiff's representation that no rock crushing would occur.

At the public hearing held October 29, 2007 James Holloway, City Councilman for the district in which the plaintiff's property is located, testified that for the last 14 years in which he was on the City Council, he had seen a drastic change on Seaview Avenue.   Bridgeport Hospital came in and bought just about all of the resident properties on Seaview Avenue.   Mr. Holloway did not believe that the plaintiff's truck traffic was going to increase truck traffic by a significant amount.

At the public hearing held on Thursday, November 15, 2007 the defendant Commission voted to deny the plaintiff's application.   The Commission assigned the following reasons for its actions in denying the application:

1.  The proposed project does not meet the requirements of Sec. 14-4-4(1), (2), (3), (6) and (7).

2. The proposed use will have an adverse impact on Yellow Mill Pond.

3. The proposed does not meet the water dependency requirement of Coastal Area Management (ROR, item 3).

The plaintiff, Citywide Properties, LLC, commenced the present appeal wherein it alleges that the defendant Commission's denial of said application was illegal, arbitrary and an abuse of discretion.

The commission acted illegally, arbitrarily or in abuse of its discretion when it concluded that the proposed project does not meet the requirements of § 14-4-4(1), (2), (3), (6) and (7) of the zoning regulations;  when it concluded that the proposed use will have an adverse impact on Yellow Mill Pond;  and when it concluded that the proposal does not meet the water dependency requirement of coastal area management.

“In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record.”  Loring v. Planning & Zoning Commission, 287 Conn. 746, 756 (2008).

Section 14-4-4 of the City of Bridgeport Zoning Regulations provide as follows:

14-4-4 Special Permit Standards:  No application for a special permit shall be granted until the Planning and Zoning Commission has made the following findings:

1. the Special Permit use(s) and Site Plan are compatible with and implement the objectives and policies of Bridgeport's Master Plan;

2. the Special Permit use(s) and Site Plan will not impair the future development of the surrounding area;

3. there is a need for the proposed special permit use(s) in the area of the proposed location;

4. the height and bulk of buildings in the application proposal are consistent with the master plan and applicable development standards, internally compatible, and compatible with other structures in the vicinity and the character of the surrounding area;

5. the proposal includes adequate safeguards to protect adjacent property and the neighborhood in general from any detrimental impacts the proposed use might otherwise have;

6. any environmental impacts to Long Island Sound are appropriately mitigated;  and

7. in the case of any proposed special permit use located in, or directly adjacent to, a residential district, the location and size of such use, the nature and intensity of operations involved in or conducted in connection therewith, its site layout and its relation to access streets shall be such that both pedestrian and vehicular traffic to and from the use and the assembly of persons in connection forthwith will not be incongruous with residential uses, and will not present an undue hazard or inconvenience to residents.

The conclusions reached by the defendant Commission with regard to subsections (1), (2), (3), (6) and (7) above are not supported by the record.

Subsection (1) above requires the Commission to find that the Special Permit uses(s) and Site Plan are compatible with and implement the objectives and policies of Bridgeport's Master Plan. In addressing this particular issue with the Commission, the Buckhurst Fish & Jacquemart report written by John West concluded that the plaintiff's proposed contractor storage yard is an appropriate interim use in that it can be relocated with relatively little loss of investment in the site, although it will not be an appropriate use when planned road and park improvements were completed.   The report also concluded that the location of open space along the side of the lot near the river would be consistent with the future green way planned by the City of Bridgeport along the Seaview Avenue corridor.

This is contrary to opposition from Bridgeport Hospital which contended the report by Mr. West “notes the fact that use of this property as a contractor's yard would be inconsistent with the city's master plan for the boulevard and green way along the Seaview Avenue corridor.”   The city has not to this date revised its master plan and/or has it made road and park improvements including a boulevard and green way along the Seaview Avenue corridor since the West report.   In the absence of this revision in its master plan, the plaintiff's proposed use was and is compatible with the master plan of development.   The “interim use” relied upon and criticized by Bridgeport Hospital, as not existing in zoning law is a non issue due to the practical realities brought on by the recent economic turndown.   There is no support in the record for the conclusion that the special permit and site plan are not compatible with and implement the objectives and policies of Bridgeport's master plan.

The Commission's conclusion that the proposed project does not meet the requirement of § 14-4-4(2) of the Bridgeport regulations is also not reasonably supported by the record.   Subsection (2) requires the Commission to find that “the Special Permit use(s) and Site Plan will not impair the future development of the surrounding area.”

There was no evidence before the Commission that the plaintiff's proposed use would impair the future development of the surrounding area.   The West report indicated that when road and park improvements are completed ․ it can be relocated with relatively little loss of investment in the site.   The location of open space along the side of the lot near the river would be consistent with the future green way.

Subsection (3) of section 14-4-4 of the zoning regulations requires the Commission to find that “there is a need for the proposed special permit use(s) in the area of the proposed location.”   The Commission decided that the proposed project does not meet this requirement.   This conclusion is also not reasonably supported by the record.

The West report stated that “the nearby lots are industrial or vacant but landscaped.   Landscaping along the west side of the lot would be consistent with protecting Yellow Mill Channel and establishing a future green way along its bank.”   Again, as with subsection (2) of section 14-4-4 of the regulations, there was no claim made by Bridgeport Hospital either through counsel or in its written objection that there was no need for the proposed special permit use(s) in the area of the proposed location.

City Councilman James Holloway, whose district the plaintiff's property is located in, indicated that with the construction going on within the City of Bridgeport within the next fifteen years, construction people need to store material for a small amount of time to take it back and forth.   Plaintiff did produce evidence of a need for its proposed special permit.

Subsection (6) of section 14-4-4 of the regulations requires the Commission to make the finding that “any impacts to Long Island Sound are appropriately mitigated.”   The Commission concluded that the proposed project does not meet this requirement.   This conclusion is not reasonably supported by the record.

No expert reports or testimony were introduced in opposition to either plaintiff's Coastal Area Management Reports, which concluded that there will not be any significant impact on coastal resources, or to its drainage computations, which predicted zero runoff.

There is no basis in the record to support the conclusion that the plaintiff's expert opinions lacked credibility nor was any evidence introduced to support any claim that the measures proposed by the plaintiff did not appropriately mitigate the environmental impact to Long Island Sound.

“[F]or the agency to disregard evidence from experts there must be some evidence in the record which undermines either the experts' credibility or their final conclusions ․” Loring v. Planning & Zoning Commission, 287 Conn. 746, 761 (2008).   There was no such evidence before the Commission.   Nor is there any basis in the record to support the Commission's conclusion with respect to Subsection (7) of section 14-4-4 of the regulations.   That subsection requires the Commission to make the following in order to grant the plaintiff's proposed permit use(s):

“7. in the case of any proposed special permit use located in, or directly adjacent to, a residential district, the location and size of such use, the nature and intensity of operations involved in or conducted in connection therewith, its site layout and its relation to access streets shall be such that both pedestrian and vehicular traffic to and from the use and the assembly of persons in connection therewith will not be incongruous with residential uses, and will not present an undue hazard or inconvenience to residents.”

The Commission decided that the proposed project does not meet the requirement of subsection (7).   However, the plaintiff's traffic study indicated that the traffic from the proposed facility will not have any adverse impact on the existing Seaview Avenue traffic.   Councilman Holloway also did not believe the plaintiff's truck traffic was going to increase truck traffic by a significant amount.

The Buckhurst Fish and Jacquement report written by Mr. West, which recommended that the Commission approve plaintiff's special permit, did so on the condition that no materials are stored or processed that cause dust, odors, or excessive noise.   Through counsel, the plaintiff had indicated it would be more than willing to abide by the conditions outlined in Mr. West's report.

As with subsection (6)'s issue regarding environmental impacts to Long Island Sound being mitigated, the same legal principle applies to the subsection (7) issues and that is “[F]or the agency to disregard evidence from experts there must be some evidence in the record which undermines either the expert's credibility or their final conclusions ․” Loring v. Planning & Zoning Commission, supra, 761.

The second reason assigned by the Commission for the denial of the plaintiff's application was that “The proposed use will have an adverse impact on Yellow Mill Pond.” There was no basis in the record to support this conclusion.

No expert reports or testimony were introduced in opposition to plaintiff's Coastal Area Management Reports, which concluded that there will not be any significant impact on coastal resources, or to its Drainage Computations, which predicted zero runoff.   There was also no evidence introduced to rebut the measures proposed by the plaintiff to mitigate the potential impacts to the Yellow Mill Channel such as the one thousand gallon water quality unit, the 94 linear feet of 4 x 4 concrete gallery blocks, proposed curbing the silt fence and mulch adjacent to the Yellow Mill Channel, a the proposed additional 25- to 30-foot buffer containing shrubbery as recommended by Mr. West's report.

The third reason assigned by the defendant Commission for the denial of the plaintiff's application was that “The proposed does not meet the water dependency requirement of Coastal Area Management.”

While the Coastal Management Act authorizes local zoning commissions to undertake “a single review process, during which proposals for development within the coastal boundary will simultaneously be reviewed for compliance with local zoning requirements and for consistency with the policies of planned coastal management.”  Dean v. Zoning Commission, 96 Conn.App. 561, 562 (2006), the legislature did not intend the preservation and enhancement of coastal resources to take priority over vested property rights.  Id., 569.   “On the contrary, General Statutes § 22a-92(a)(6) describes the act's goals and policies as the development of sound resource conservation practices that are consistent with ․ constitutionally protected rights of private property owners ․” Id., 569.

While it is conceded that another goal of the act under § 22a-92(a)(3) is “To give high priority and preference to water uses and facilities which are dependent upon proximity to the water or the shore lands immediately adjacent to marine and tidal waters;” the act does not place greater emphasis upon subsection (a)(3)'s goals and policies than subsection (a)(6)'s goals and policies.

Nor does the act mandate that any water dependency requirement overrides the plaintiff's constitutionally protected rights as a private property owner to use its property in an appropriate manner as plaintiff sought to do with its application.   The Commission's decision to deny plaintiff's application based on a water dependency requirement was illegal, arbitrary or in abuse of its discretion.

The Commission's decision is reversed and it is ordered that plaintiff's application is granted.

OWENS, J.T.R.

Owens, Howard T., J.T.R.