Christopher Greenwood v. Planning and Zoning Commission of the Town of Trumbull (2010)

MEMORANDUM OF DECISION

At a special meeting on July 6, 2009, the defendant, Trumbull Planning and Zoning Commission, enacted a proposed amendment to existing zoning regulations.   Appropriate notice of the public hearing was published.   The amendment added article II, section six which allows for consideration of the adaptive reuse of structures either previously occupied by nonconforming uses or that are of historic value to Trumbull.

Notice of the defendant's decision was authorized to be published on July 10, 2009.   The plaintiff, Christopher Greenwood, filed this timely appeal to the Superior Court.   Moreover, process was properly served in accordance with General Statutes §§ 8-8(f)(2) and 52-57(b).  On July 29, 2010, the plaintiff filed a brief in support of his appeal.   On September 1, 2010, the defendant filed a reply brief.   A trial was held on October 15, 2010.

“[A]ggrievement is a jurisdictional question and is a prerequisite to maintaining an appeal.”   Oswiany v. Fairfield ZBA, Superior Court, judicial district of Fairfield, Docket No. 084024479 (January 29, 2010, Owens, J.T.R.).   At trial on October 15, 2010, the plaintiff testified and the court found aggrievement.

When a planning and zoning commission amends zoning regulations, it acts in a legislative capacity.  Roncari Industries, Inc. v. Planning & Zoning Commission, 281 Conn. 66, 79, 912 A.2d 1008 (2007).  “The standard of review according to which courts must analyze challenges to legislative decisions of local zoning authorities is well settled.   In such circumstances, it is not the function of the court to retry the case.   Conclusions reached by the [zoning authority] 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 agency supports the decision reached ․ [T]he courts allow zoning authorities this discretion in determining the public need and the means of meeting it, because the local authority lives close to the circumstances and conditions [that] create the problem and shape the solution.”  (Citations omitted;  internal quotation marks omitted.)  Konigsberg v. Board of Alderman, 283 Conn. 553, 582, 930 A.2d 1 (2007).   It is the burden of the party challenging the amendment to the zoning regulations to establish that the decision was improper.  Id., 583.

“[W]hen a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision ․ Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations.”  (Internal quotation marks omitted.)  Clifford v. Planning & Zoning Commission, 280 Conn. 434, 439-40 n.6, 908 A.2d 1049 (2006).

In his brief, the plaintiff set forth seven grounds for appeal, but then wrote that he “will rely” on the following four grounds.¹  First, the adopted regulations are “vague, capricious and arbitrary and lacked clarity.”   Second, the adopted regulations “were not specific.”   Third, the adopted regulations failed to set forth “any guidelines or qualifications for determining what constitutes a Historic structure.”   Fourth, the regulations allow for “spot zoning.”

The defendant argues as follows.   First, it argues that the amendment provides for a “clear process to determine whether a property qualifies as being ‘historically significant’ “ and described this process.   Next, it describes the “various safeguards” provided for in the amendment, including that the defendant maintains an option to deny any request under the amendment and that the owner of a qualifying property must still follow the standard “Special Permit Application” as set forth in another zoning regulation.   The defendant also explains that it held a public hearing on this matter and that several members of the public spoke in favor of the amendment while no one spoke in opposition.   The record confirms this claim.

The defendant noted that it made “three minor revisions” to the proposed amendment during its work session, which it argues did not require additional public notice.   These changes were:  (1) a deletion of one sentence which deletion served to “clarif[y] the issue of exactly what factors” the defendant would use to determine whether a property had “potential historical significance”;  (2) the addition of one sentence which “confirms to future applications that the size of a structure which has a non-conforming use could not be expanded by applying” the amended regulation;  and (3) a minor limitation on areas in which the amended regulation could be applied.   The defendant correctly asserts that none of these changes were substantive in nature.   The plaintiff's first three claims entail the same argument:  that the amended regulation is vague and lacks legally sufficient guidelines.  “A regulation must only be reasonably sufficient to identify the criteria to be evaluated in [its] enforcement ․ since it would be impossible to establish one standard which would adequately cover all future cases.”  (Internal quotation marks omitted.)  Harris v. Zoning Commission, 259 Conn. 402, 433, 788 A.2d 1239 (2002).   A regulation must be “sufficiently precise so as to apprise both the zoning commission and an applicant of what is required, as well as to provide guidance to the zoning commission in applying the regulation, and to ensure equal treatment to each applicant subject to the regulation.”  (Internal quotation marks omitted.)  Id., 434-35.   “[R]egulations are to be construed as a whole since particular words or sections of the regulations, considered separately, may be lacking in precision of meaning to afford a standard sufficient to sustain them.”  (Internal quotation marks omitted.)  Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 679, 236 A.2d 917 (1967).

The amended regulation complies with these requirements.   The plaintiff's arguments are inadequate.   First, the plaintiff erroneously argues that the standard for “potential historic significance” set forth by the National Trust for Historic Preservation and Connecticut Trust for Historic Preservation cannot be found.   The standard is available on each organization's website.²  Moreover, courts have recognized that a planning and zoning commission may incorporate by reference criteria set forth elsewhere.   See, e.g., Harris v. Zoning Commission, supra, 259 Conn. 434 (referencing a standard set forth in General Statutes § 22a-38).

Next, the plaintiff argues “[t]here aren't any criteria or standards set forth at all.”   This argument is disingenuous;  § 6.2 of the amendment lists several criteria, including the “potential historic significance” standard already referenced by the plaintiff, as well as various limitations provided in §§ 6.2(c) and (d).  More standards are spelled out in §§ 6.3(a) through (e).

Last, the plaintiff argues that the defendant has “pure discretion” to apply the amended regulation as it sees fit.   On the contrary, the defendant may only apply the regulation when, upon application by a qualifying property owner, the defendant complies with the criteria set forth in § 6.2 of the amended regulation.   The plaintiff cannot cite individual paragraphs or sentences of the zoning regulations and argue that they lack reasonably specific standards.   As a whole, the amendment at issue and the other regulations which concern this amendment provide sufficient guidelines.

In his fourth claim, the plaintiff argues that the enacted amendment constitutes “spot zoning.”  “Spot zoning had been defined as the reclassification of a small area of land in such a manner as to disturb the tenor of the surrounding neighborhood ․ Two elements must be satisfied before spot zoning can be said to exist.   First, the zone change must concern a small area of land.   Second, the change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole.”   (Internal quotation marks omitted.)  Gaida v. Planning & Zoning Commission, 108 Conn.App. 19, 32, 947 A.2d 361, cert. denied, 289 Conn. 922, 958 A.2d 150, cert. denied, 289 Conn. 923, 958 A.2d 151 (2008).  “[T]he ultimate test is whether, upon the facts and circumstances before the zoning authority, the [change] ․ serves a public need in a reasonable way or whether it is an attempt to accommodate an individual property owner.”  (Internal quotation marks omitted.)  Id., 33.

The amendment at issue here does not constitute spot zoning.   First, it does not concern a small area of land.   As the defendant explains, the amendment could be applied to many different properties throughout Trumbull.   The amendment alters Trumbull's zoning regulations and does not involve changing the status of one property.   Second, the amendment is in harmony with Trumbull's comprehensive plan, in particular, the goal of supporting the adaptive reuse of historic homes to prevent their demolition.   Moreover, historic preservation and districting is an approved aspect of comprehensive zoning in Connecticut.   See, e.g., General Statutes § 7-147b.   The plaintiff has presented no evidence or coherent argument that the amendment was enacted to benefit an individual property owner.   Thus, the amendment is not an example of spot zoning.

In § 6.1 of the amendment, the defendant set forth the following purpose for its decision.  “The purpose of the adaptive reuse provisions in these regulations is to foster the renovation and reuse of structures which have either been previously occupied by non-conforming uses or are of historic value to the Town of Trumbull and for which uses allowed by the existing zone are no longer viable-resulting in structures that may become badly maintained, under-utilized, vacant or demolished.”   The record contains testimony from members of the community and other support for the defendant's decision, as well as findings from a June 24, 2009 meeting of the Greater Bridgeport Regional Planning Agency that support the defendant's decision.   Thus, the ground provided by the defendant as a basis for its decision is reasonably supported by the record.

The plaintiff has not satisfied his burden.   The defendant's decision is reasonably supported by the record.   The court sustains the defendant's decision.

OWENS, J.T.R.

FOOTNOTES

FN1. The plaintiff initially claimed that the defendant did not provide adequate public notice of the hearing and the defendant discussed this issue in its reply brief.   Because the plaintiff did not “rely” on this argument, however, the court does not address it..  FN1. The plaintiff initially claimed that the defendant did not provide adequate public notice of the hearing and the defendant discussed this issue in its reply brief.   Because the plaintiff did not “rely” on this argument, however, the court does not address it.

FN2. For the National Trust for Historic Preservation, see “Protecting Potential Landmarks Through Demolition Review,” available at http:// www.preservationnation.org/issues/teardowns/additional-resources/demolition_review.pdf;  for the Connecticut Trust for Historic Preservation, see “Local Historic Districts and Properties,” available at http://www.cttrust.org/1033?highlight=demolition+review..  FN2. For the National Trust for Historic Preservation, see “Protecting Potential Landmarks Through Demolition Review,” available at http:// www.preservationnation.org/issues/teardowns/additional-resources/demolition_review.pdf;  for the Connecticut Trust for Historic Preservation, see “Local Historic Districts and Properties,” available at http://www.cttrust.org/1033?highlight=demolition+review.

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