Jeff Haines et al. v. Brooklyn Planning and Zoning Commission et al. (2010)

MEMORANDUM OF DECISION

By citation and complaint filed on August 14, 2009, the plaintiffs herein appeal from a decision of the Brooklyn Planning and Zoning Commission which decision approved an application filed by the Wal-Mart Real Estate Business Trust (hereinafter, “Wal-Mart”).

The approval grants permission for Wal-Mart to develop a site consisting of approximately 25.56 acres and to build a “Wal-Mart Super Center” which would include a building of approximately 162,000 square feet.   The application was filed as an application for special permit and site plan approval.   The application was filed in December 2008 and heard at the planning and zoning commission on seven different dates commencing February 18, 2009 and concluding on May 13, 2009.

The plaintiffs claim standing under several grounds.   Plaintiffs Jeffrey Haines and Dan Litke claim aggrievement under the provisions of Connecticut General Statute Section 22a-19 in that they assert that the conduct of the defendant is reasonably likely to pollute, or impair the air, water or other natural resources.   The plaintiffs Demetrios Pasiakos and Anne Marie Pasiakos claim standing because their property abuts the subject property.   The plaintiffs Kerry Lambert and Elaine Lambert are also allege that they are abutting property owners.   The Court hereby finds aggrievement, and thus standing for the above-named plaintiffs.

STANDARD OF REVIEW

Briefly stated, in a matter where a special permit is under appeal, the court's obligation is to find whether or not the decision of the board is supported by “substantial evidence.”  Huck v. Inland Wetlands and Watercourses Agency, 203 Conn. 525 (1987).   Within those parameters, it is well established that the court cannot substitute its own judgment for that of the commission, nor should it question whether it would have reached the same decision.   See Pinchbeck v. Planning and Zoning Commission, 69 Conn.App. 796 (2002).

DISCUSSION

The approval of the planning and zoning commission was issued by way of a letter dated June 29, 2009.   In its decision, the commission makes several findings of fact.   In addition, the commission imposes a number of conditions to be met by the applicant subsequent to the approval of the application, and to be monitored pursuant to its authority under Section 5-11 of its regulations.

Section 5-11 of the Brooklyn regulations states as follows:  “Consultant Review:  The Commission may engage consultants including but not limited to, Consulting Town Planner, Consulting Town Engineer, or Consulting Town Landscape Architect to review the applications, to prepare written findings and recommendations, to prepare oral testimony for the public hearings, to act as the commission's agents, to meet with the applicant and the applicant's agents prior to or during the application review process, and to function as or to advise the Architectural/Design Review Committee ․” (Similar language is contained in other sections of the regulations as well.)

Substantial portions of the plaintiffs' appeal center around the claim that the commission has delegated its authority impermissibly by allowing other entities to monitor certain conditions, and further that the conditions undermine the findings made by the commission.

In this regard, the plaintiffs' first claim is that Condition # 1 is an improper delegation of responsibility.   Condition # 1 requires that the applicant submit a revised survey of the property, with documents comprising the conveyance of several parcels to form this subject parcel.   As part of the condition it states that “these maps and documents shall be reviewed and approved by the town's consultants prior to filing.”

The court finds this claim without merit.   The intention of the condition is clearly to have a survey and mylars reflect “the final configuration of the property in accordance with the site plan as approved.”   There is no independent delegation of authority, and by the terms themselves, the aim is to assure compliance in accordance with action already taken by the commission.

The second condition of approval calls for revisions of plans in order to eliminate certain pre-cast concrete surfaces.   In pertinent part, the condition states that certain concrete surfaces should be replaced with “cementitous clapboards of complementary color or colors as selected by the applicant's architect and approved by the town's consulting architect prior to the filing of plans.   In areas in which cementitous clapboards may not be feasible or may be inappropriate, combination of other suitable, complementary materials, (such as architecturally consistent brick or stone), approved in advance by the town's consulting architect, and reviewed by the commission pursuant to section 3.4.8.5, may be utilized.   The goal is to refine the design and material selections to be more consistent with the community's general architectural themes and appearances as required by the regulations and as suggested by the town's consulting architect ․”

The plaintiffs claim that this condition is in direct conflict with a finding contained within the approval of the commission which states that “the architectural standards and design requirements of section 3.4.8.6 are satisfied by the proposed design and the reasonable conditions imposed by the commission as part of this approval.”

The language of the finding contradicts the plaintiffs' assertion.   The plain meaning of the commission's finding is that the proposal, as modified by the additional conditions imposed by the commission, bring the design into compliance.   Further, the commission has reserved itself the ultimate authority.   The condition, as quoted above clearly states that the substitution of materials may be made, “approved by the consulting architect, and reviewed by the commission.”   The court cannot find under the circumstances that the commission's authority has been improperly delegated.

The third condition imposed by the commission addresses the issue of landscaping.   In particular, the condition specifies that the westerly boundary of the site should consist of a staggered layout of “fastigate white pines” in accordance with a recommendation made by the town consultant.   In addition, the condition mandates screening of a certain type and height along specified sections of the project.   Again, the condition calls for review and approval by the town consultant prior to its filing.   A reading of this paragraph does not support the conclusion that the commission has delegated its authority inappropriately.   The conditions imposed are specific, and not subject to interpretation or deviation.   That a consultant should verify compliance is not a delegation of the commission's authority.

Condition # 14 requires Wal-Mart to conduct a noise survey within 45 to 60 days following the issuance of the certificate of occupancy.   It further requires the results to be forwarded to the commission for the purpose of confirmation that the operation is functioning as represented.   At the same time, Condition # 5 limits the hours of operation for the trash compactor system and refuse removal, except in the event of an emergency.

The conditions do not indicate that the commission has failed to consider the issues relating to noise.   The record contains testimony of an expert witness and a report which are sufficient for the commission to have formed a basis for concluding that the noise level of the project was within acceptable limits.   It is within the commission's authority to confirm the applicant's representations once the operation is actually up and running.

Similarly, Condition # 6 sets forth a requirement that a management plan for grounds maintenance and daily litter be included in the overall plans and allows for its review and approval as “an effective best management practice.”   Again, the nature of the condition one of recognition of the concerns expressed during the hearings about litter.   The requirement of a plan and its review to determine its effectiveness is not an improper delegation of the commission's authority.

The law states that “[I]n attaching conditions to approval of site plans, the PZC may not impermissibly delegate its administrative authority.”  Farina v. Zoning Board of Appeals, 157 Conn. 420, 423-24, 254 A.2d 492 (1969).   By the same token, “․ conditions attached to a special permit are not per se invalid.   Rather, their validity must be determined on a case-by-case basis.   A key determinant in whether a condition to a special permit is valid is that condition's relationship to the action sought by the applicant.”  Kobyluck v. Planning & Zoning Commission, 84 Conn.App. 160, so this is 170-71, 852 A.2d 826, cert. denied, 271 Conn. 923, 859 A.2d 579 (2004).

The plaintiffs state that condition number 17 “misses its target.”   In its argument, the plaintiffs suggest that the condition would be better stated by requiring the applicant to post a sign referencing the regulation prohibiting trucks from idling longer than required by statute.   While the suggestion may be valid, it does not present a basis in law for reversing the decision of the commission, nor does it invalidate the condition as stated.

The plaintiffs' argument with respect to condition number 16 is that it is vague.   Condition number 16 states that “in order to ensure public safety during special events, the owner/operator of the facility shall notify the local police department of any planned special events that may cause unusual increases in either vehicle or pedestrian traffic beyond the normal traffic volumes contemplated in the traffic report submitted as part of the zoning application ․ the owner/operator shall provide the police presence for the event at owner/operator's expense.”   Again the plaintiffs state that the condition has “fallen short of its target.”   In this condition, the commission has attempted to recognize the concerns voiced in the record about events such as “Black Friday” which are days upon which the shopping traffic is dramatically increased.   The plaintiffs' argument is not that a regulation of this kind is inappropriate, but that the regulation is not properly worded.   Again, this does not form a basis for reversing the decision of the commission.

A review of the extensive record, including a multitude of exhibits, testimony of experts for and against this project, the citizens in support and in opposition to the development and the discussion by and between the members of the commission shows that there is substantial evidence to support the commission's finding that the application complies with its own regulations as to site plan review and special permits.

There is no question that this is the very substantial project and its impact on the town of Brooklyn is likely to be significant.   By the same token there is nothing to suggest that the commission was not aware of this very obvious fact.   Indeed, the opposite conclusion is justified.

The Court concludes that the decision of the Brooklyn Planning and Zoning Commission was based on substantial evidence and further that it complies with the planning and zoning regulations in effect at the time of the application.   Accordingly, the plaintiffs' appeal is dismissed.

Robaina, J.

Robaina, Antonio C., J.