Handsome, Inc. v. Monroe Planning and Zoning Commission (2010)

MEMORANDUM OF DECISION

The plaintiffs, Handsome, Inc. (Handsome), Todd Cascella and Mona Cascella appeal from a decision of the defendant, the Monroe planning and zoning commission (the commission), denying the plaintiffs' application for a special exception renewal to allow the completion of an industrial development on property located at 125 Garder Road, Monroe (the property).

Handsome, Inc. is the owner of the property located at 125 Garder Road, a 9.9-acre parcel of land located in the town of Monroe.   Under the Monroe zoning regulations, the property is zoned DI-2, an industrial use zone.   All uses in a DI-2 zone are by special exception permit.   An owner of property zoned DI-2 therefore must seek approval from the commission for any proposed use on such property.   On March 20, 2003, the commission approved an application from Handsome to develop the property for industrial use.  (Return of Record [ROR], Exhibit [Exh.] 1.) As a result of the approval, which was recorded on the Monroe land records on May 15, 2003, Handsome obtained a special exception permit under which it was allowed to remove rocks and earth from the property to prepare the site for the construction of a new industrial building.  (ROR, Exh. 1.) The permit was set to expire on May 15, 2008.

Approximately one month prior to the expiration of the permit, Handsome submitted a written request to extend the commission's approval of the existing permit for an additional five years.   The commission accepted the application and scheduled it for consideration at its April 24, 2008 meeting.   At that meeting, which was attended by the applicant and its engineer, David Bjorklund, the commission denied Handsome's request for an extension of its special exception permit by a unanimous vote of 5-0.   Notice of the commission's denial was published in the May 17, 2008 edition of the Connecticut Post, and the plaintiffs were notified of the decision by a May 20, 2008 letter from the town planner, Daniel Tuba, to Bjorklund.   The plaintiffs commenced the present appeal by service of process on May 30, 2008.

The defendant filed its answer on March 17, 2009, and its return of record on May 15, 2009.   The plaintiffs and the defendant filed their respective appeal briefs on March 15, 2010 and April 20, 2010.   The plaintiffs filed a reply brief on April 30, 2010.   On May 5, 2010, the defendant filed a motion to supplement the return of record with photographs of the property, or, in the alternative, to have the court visit the property in person.   The court (Owens, J.) conducted a site visit of the property on May 14, 2010, and accordingly denied the motion to supplement the record with the photographs.   On May 7, 2010, the parties appeared before this court for argument.   On May 17, 2010, the plaintiffs filed a motion to supplement the return of record with certain progress reports and plan sheets.   The defendant's objection to the plaintiff's motion, filed June 7, 2010, was denied by the court (Owens, J.) on July 7, 2010.

An appeal to the Superior Court from an administrative body exists “only under statutory authority ․ Appellate jurisdiction is derived from the ․ statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed.”  (Internal quotation marks omitted.)  Nine State Street, LLC v. Planning & Zoning Commission, 270 Conn. 42, 46, 850 A.2d 1032 (2006).  General Statutes § 8-8 governs an appeal from a decision of a zoning board of appeals.

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 Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003).   An owner of a property that is the subject of an application is aggrieved.  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).

The plaintiffs in their complaint allege that Handsome is the owner of the property located at 125 Garder Road. At trial, the plaintiffs' attorney entered into evidence deeds showing that this property was initially transferred to the ownership of Todd Cascella, and, subsequently, was transferred by quitclaim to Handsome.   On the basis of this undisputed evidence, the court concludes that the plaintiffs have established aggrievement.

Timeliness and Service of Process

General Statutes § 8-8(b) provides in relevant part that 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), in turn, 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)(5) provides that in an action against a town commission, process must be served “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 ․ commission ․”

Notice of the commission's denial was published in the May 17, 2008 edition of the Connecticut Post. The plaintiffs commenced this appeal by service of two copies of their summons and complaint on the Monroe assistant town clerk on May 30, 2008.   Accordingly, the court finds that the plaintiffs' appeal was timely and that service of process was proper.

“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.”  (Citation omitted.)  Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn.App. 53, 56, 549 A.2d 1076 (1988);  see also Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627, 711 A.2d 675 (1998).  “A special permit may be denied only for the failure to meet specific standards in the regulations, and not for vague or general reasons.”  (Internal quotation marks omitted.)  Martland v. Zoning Commission, 114 Conn.App. 655, 666, 971 A.2d 53 (2009).

“When a party files successive applications for the same property, a court makes up to two inquiries.   The first is to determine whether the two applications seek the same relief.   The zoning board determines that question in the first instance, and its decision may be overturned only if it has abused its discretion ․ If the applications are essentially the same, the second inquiry is whether there has been a change of conditions or other considerations have intervened which materially affect the merits of the matter decided.”  (Citation omitted;  internal quotation marks omitted.)  Laurel Beach Assn. v. Zoning Board of Appeals, 66 Conn.App. 640, 645, 645-46, 785 A.2d 1169 (2001);  see also St. Patrick's Church Corp. v. Daniels, 113 Conn. 132, 138, 154 A. 343 (1932).  “The board's liberal discretion ․ is limited where it has previously acted on the same application relating to the same parcel.   In such a situation, the zoning board of appeals is prohibited from reversing the previous decision unless facts and circumstances have materially changed so as to affect the reason for the original decision and no vested rights have intervened.”  (Emphasis in original.)  Haines v. Zoning Board of Appeals, 26 Conn.App. 187, 191-92, 599 A.2d 399 (1991).

Changed conditions upon which a board or agency properly may rely include intervening changes of law as well as physical conditions on the property which have come to the attention of the board.   See e.g. Middlesex Theater, Inc. v. Hickey, 128 Conn. 20, 20 A.2d 412 (1941) (police commissioner properly expanded earlier limitation on seating capacity for outdoor theater following decision of the Superior Court holding that such a theater did not qualify as a “building” under the zoning code and thus was not subject to capacity limitations);  Bradley v. Inland Wetlands Agency, 28 Conn.App. 48, 609 A.2d 1043 (1992) (wetlands agency properly denied plaintiff's second application, identical to an earlier application which had been approved, due to intervening discovery of localized flooding problems which the plaintiff's proposed work had the potential to aggravate).

“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 [a zoning board] must be upheld by the trial court if they are reasonably supported by the record.   The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached.”  (Internal quotation marks omitted.)   Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004).  “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.”  Clifford v. Planning & Zoning Commission, 280 Conn. 434, 452, 908 A.2d 1049 (2006).

The plaintiffs appeal on the ground that the commission improperly denied the plaintiffs' application for a renewal of its special exception permit despite the fact that there had been no change in the zoning designation or other material circumstances surrounding the property.   The plaintiffs claim that the commission denied the renewal even though the same plan had been approved by the commission in 2003 and Handsome had not been cited for violating any zoning regulations on the site.   The plaintiffs further contend that the commission was motivated by acrimony against the plaintiffs and the project, and that the reasons stated by the commission to support the denial are invalid, illegal or unsupported by the record.   Due to the lack of evidence supporting the commission's denial of the renewal, the plaintiffs argue, the court should sustain their appeal and direct the commission to approve the permit.

The commission, in response, argues that it had a sufficient basis on which to deny the plaintiffs' application.   Specifically, the commission claims that the record reflects that the plaintiffs failed to submit progress reports as required by the original permit.   Additionally, the commission argues, the decision is supported by the following reasons:  lack of progress at the site, intermittent work at the site;  lack of commencement on any foundation or building during the preceding five-year period;  and complaints which had been received regarding activity on and around the site.

The record establishes that the plaintiffs, in their application for an extension, sought to renew the existing permit which had been approved in 2003.  (ROR, Exh. 2.) The application apparently did not propose any changes to the terms of the existing development plan.  (ROR, Exh. 2.) At the April 28, 2004 meeting of the commission, the town planner, Daniel Tuba, introduced the application by explaining that the plaintiffs had requested a five-year extension of their special exception permit.  (ROR, Exh. 4, p. 2.) It was not in dispute at the meeting that the existing permit had been approved in 2003 and that the new application sought only to renew that permit.  (ROR, Exh. 4, pp. 2, 3, 6.) Upon review of the record, the court concludes that the relief sought by the plaintiffs in their application for extension was essentially the same as had been sought in the 2003 application.

A review of the pertinent portion of the minutes of the April 24, 2008 meeting reveals that the commission did not state the basis for its decision when voting on the extension request;  (ROR, Exh. 4, p. 8-9);  or in its letter to the plaintiffs informing them of its decision (ROR Exh. 5).   Accordingly, the court conducts a search of the record to determine the reasons upon which the commission based its decision.   These reasons may be stated as follows:  1) the plaintiffs had worked intermittently and had completed at most 50 percent of the work on the property over the preceding five years, and had not commenced construction of planned buildings;  (ROR, Exh. 4, p. 2);  2) only four progress reports had been filed with the commission in violation of an express condition in the initial permit;  (ROR, Exh. 4, p. 6);  3) a sign was placed on the property advertising the sale of processed rock and stone, although such sales were not permitted under the initial permit;  (ROR, Exh. 4, p. 4, 5);  4) various items, including truck parts, excavation equipment and a storage container, were stored on the property, although these things were not part of the permit;  (ROR, Exh. 4, p. 4);  and 5) residents had complained about the hours during which activity was taking place at the site.  (ROR, Exh. 4, p. 5.)

In deciding whether to renew a special exception permit essentially the same as that which the commission had previously approved, the commission's discretion was limited to considering whether any facts and circumstances had materially changed so as to affect the reason for the original decision.   See Haines v. Zoning Board of Appeals, supra, 26 Conn.App. 191-92;  see also K.B.K v. East Haven Planning and Zoning Commission, judicial district of New Haven, Docket No. CV 93 0342547 (March 24, 1993, Booth, J.) (holding that a commission abused its discretion in denying a request for an extension of a special exception even where the applicant had apparently not commenced with the approved work).   In making its original decision on the plaintiffs' application for a special exception permit, the commission's function was to determine whether the proposed use was expressly permitted under the regulations, and whether the regulatory and statutory standards had been satisfied.   See Daughters of St. Paul, Inc. v. Zoning Board of Appeals, supra, 17 Conn.App. 53, 56.

In reviewing the plaintiffs' application for a extension of the previously-approved 2003 permit, the commission therefore was limited to determining whether any circumstances had materially changed such that the permit no longer complied with applicable statutes or regulations.   None of the reasons for denial which the court has gleaned from the record pertain to whether the plaintiffs' application satisfied specific standards in the regulations.   Rather, the commission's stated reasons for denying the extension relate to claimed instances of the plaintiffs' noncompliance with the conditions of the 2003 permit or to other concerns of commission members regarding the pace of work and the complaints of residents.   The claim that the plaintiffs failed to comply with the terms of the permit, even if true, has no bearing on whether the permit itself satisfies applicable regulations, and is not a valid ground on which to deny a request for an extension of a special exception permit.¹  Likewise, the commission members' concerns about the lack of progress at the site and the complaints of residents do not pertain to whether the plaintiffs' application was in compliance with specific regulatory standards.   Further, the court can identify no record evidence supporting the conclusion that the plaintiffs' application fails to satisfy any regulation or statute.   Accordingly, the court finds that the commission abused its discretion in denying the plaintiffs' application for an extension of the special exception permit.

The court concludes that because the plaintiffs' current request seeks the same relief as their earlier application, and because the record does not reflect any intervening changed conditions or other considerations materially affecting the matter decided, the commission had no option but to approve the plaintiffs' request for an extension.   Accordingly, the plaintiffs' appeal is sustained.

OWENS, J.T.R.

FOOTNOTES

FN1. Moreover, even if the commission's reasons were valid, the court finds that the claimed instances of noncompliance with the permit either are not supported by substantial evidence or do not constitute materially changed conditions.   With regard to reasons one, three, four and five set forth in part V, the court can find no evidence on the record to support the contention of commission members that the plaintiffs were in violation of any permit condition or other zoning regulation.   As to reason two, the failure of the plaintiffs to submit regular progress reports as required by the initial permit, the court finds that this reason does not constitute a changed condition or a consideration materially affecting the merits of the matter decided.   The absence of reports, which were purely descriptive in nature, does not represent a physical change on the property or a change to statutes or zoning regulations.   Moreover, the record shows that the commission did have before it a progress report prepared only three months prior to the meeting;  (ROR, Exh. 12);  as well as testimony from the town planner on the state of the project.  (ROR, Exh. 2.) Thus, the record shows that the commission members did have a progress report and other evidence before them regarding the status of the project, even though such evidence was not material to the matter before them inasmuch as no valid condition, regulation or statute required the plaintiffs to attain a certain stage of completion on the project as a precondition to receiving an extension..  FN1. Moreover, even if the commission's reasons were valid, the court finds that the claimed instances of noncompliance with the permit either are not supported by substantial evidence or do not constitute materially changed conditions.   With regard to reasons one, three, four and five set forth in part V, the court can find no evidence on the record to support the contention of commission members that the plaintiffs were in violation of any permit condition or other zoning regulation.   As to reason two, the failure of the plaintiffs to submit regular progress reports as required by the initial permit, the court finds that this reason does not constitute a changed condition or a consideration materially affecting the merits of the matter decided.   The absence of reports, which were purely descriptive in nature, does not represent a physical change on the property or a change to statutes or zoning regulations.   Moreover, the record shows that the commission did have before it a progress report prepared only three months prior to the meeting;  (ROR, Exh. 12);  as well as testimony from the town planner on the state of the project.  (ROR, Exh. 2.) Thus, the record shows that the commission members did have a progress report and other evidence before them regarding the status of the project, even though such evidence was not material to the matter before them inasmuch as no valid condition, regulation or statute required the plaintiffs to attain a certain stage of completion on the project as a precondition to receiving an extension.

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