Patricia W. Rogers v. Middlefield Planning and Zoning Commission et al. (2011)

MEMORANDUM OF DECISION

I

Procedural History

The plaintiff, Patricia Rogers, appeals a decision by the Middlefield planning and zoning commission that granted a special permit to Tradewinds Property Management, LLC. Tradewinds is owned by Anthony Crescimano and Matthew Crescimano, both of whom are also defendants in this appeal.   The special permit allowed Tradewinds to develop a mixed-use plaza at One Lorraine Terrace in Middlefield.   That development would include a self-service laundry, a day spa, and retail space.

On January 5, 2010, Tradewinds and Matthew Crescimano applied to the Middlefield planning and zoning commission for a special permit under § 05.06.03 of the Middlefield zoning regulations.   The commission held public hearings on the special permit application on March 24, 2010;  April 14, 2010;  May 12, 2010;  and May 26, 2010.   The commission voted to approve the special permit application on June 9, 2010.   The commission published notice of its decision on June 23, 2010.   The plaintiff served process on the defendants on July 7, 2010, and filed this appeal on July 8, 2010.   The plaintiff filed an amended complaint on August 30, 2010.   The commission filed an answer on September 29, 2010.   Tradewinds, Matthew Crescimano and Anthony Crescimano filed an answer on October 4, 2010.   The plaintiff filed her trial memorandum on November 29, 2010.   The applicants filed their trial memorandum on December 29, 2010.   The commission filed its trial memorandum on December 29, 2010.   The court conducted a hearing on April 12, 2011.

II.

Jurisdiction

General Statutes § 8–8 regulates an appeal from a zoning board of appeals to the Superior Court.   The parties must comply strictly with any provision governing a statutory right of appeal.  Bridgeport Bowl–O–Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).

A

Aggrievement

“It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved ․ Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399–400, 920 A.2d 1000 (2007).   A plaintiff may prove aggrievement by testimony at the time of trial;  see Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991);  or “by the production of the original documents or certified copies from the record.”  (Internal quotation marks omitted.)  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).

“Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case.   In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.”  (Internal quotation marks omitted.)  Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008).   The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8–8(a)(1), which provides in relevant part:  “In the case of a decision by a ․ zoning board of appeals, ․ ‘aggrieved person’ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”

In this case, the plaintiff argues that she is aggrieved because her property is located within one hundred feet of the subject property.   Neither defendant challenges that factual assertion, and both state that they leave the plaintiff to her proof as to the aggrievement issue.   The court finds that the plaintiff is aggrieved under the statute because her property is within one hundred feet of a portion of the land involved in the decision of the board.   The plaintiff entered a certified copy of the quit claim deed by which she owns the property.  (Ex. 1.) That deed indicates that the plaintiff's property is bounded to the west by Lorraine Terrace.  (Ex. 1.) The Town of Middlefield Tax Assessment Map indicates that Lorraine Terrace is fifty feet wide.  (Ex. 2.) It also indicates the subject property is bounded by Lorraine Terrace on its east side.  (Ex. 2.) The subject property is therefore less than one hundred feet from the plaintiff's property.

B

Timeliness and Service of Process

Pursuant to General Statutes § 8–8(b), 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) 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) provides:  “Process in civil actions against the following-described classes of defendants shall be served as follows ․ (5) against a board, commission, department or agency of a town, city or borough, 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 board, commission, department or agency ․”

In this case, the commission filed a notice of its decision approving the special permit application with conditions on June 23, 2010.  (R. 24.)   The plaintiff commenced this appeal by service of process on the town clerk of Middlefield on July 7, 2010, by leaving two copies of the citation and complaint in the hands of the town clerk.  (Pl. Ret. of Service, July 7, 2010.)   The plaintiff served process on Anthony Crescimano and on Matthew Crescimano by in-hand service on each, individually.  (Pl. Ret. of Service, July 7, 2010.)   Finally, the plaintiff served the corporate entity, Tradewinds, by service on the entity's agent to accept service of process, Matthew Crescimano.  (Pl. Ret. of Service, July 7, 2010.)   The plaintiff commenced this appeal by service of process within fifteen days from the date that notice of the decision was published.   The appeal is therefore timely and commenced by proper service of process.

III

Scope of Review

“General Statutes § 8–2(a) provides in relevant part that local zoning regulations ‘may provide that certain ․ uses of land are permitted only after obtaining a special permit or special exception ․ subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values ․’ The terms special permit and special exception are interchangeable ․ A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations ․ The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values ․ An application for a special permit seeks permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district ․ When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity ․ [Its] function ․ [is] to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply ․

“The parameters of the review of a special permit application are well established.   When considering an application for a special permit, the commission acts in an administrative capacity and its function is to determine whether the applicant's proposed use is one that satisfies the standards set forth in existing regulations and statutes ․ Review of zoning commission decisions by the Superior Court is limited to a determination of whether the commission acted arbitrarily, illegally or unreasonably ․ In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record ․ The substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred.   It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury ․ The settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised ․”

The plaintiffs shoulder the burden of demonstrating that the commission acted improperly ․ In applying the law to the facts of a particular case, the board is endowed with a liberal discretion ․ The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] ․ The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached ․ In reviewing the conclusions of a zoning authority, [c]ourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions.”  (Citations omitted;  internal quotation marks omitted.)  Gevers v. Planning and Zoning Commission, 94 Conn.App. 478, 481–84, 892 A.2d 979 (2006).

IV.

Discussion

The plaintiff makes the following arguments.   First the plaintiff contends that the commission's application of nineteen conditions to the special permit makes the permit invalid.   Second, the commission ignored the concerns of local residents regarding the access to the site being off of Lorraine Terrace instead of off of route 66.   Third, “the application was not in keeping with the harmony and character of its surrounding area.”   Beyond the alleged noncompliance with the regulations, the plaintiff also argues, that the plaintiff's due process rights were violated because the applicants' revised plans were not made available to the public before the May 26, 2010, public hearing.

The applicants counter, first, the commission is free to attach conditions to the grant of a special permit application, and that such conditions do not render the commission's decision invalid.   Second, the applicants submitted the expert opinion of a traffic engineer and the commission had no contradictory expert testimony.   Third, the commission “exercised extreme caution” in making its decision.   Fourth, there is no statutory requirement that all materials for consideration at a public hearing be submitted prior to the hearing.

The commission joins the applicants in arguing that the special permit it granted complied with the applicable regulations and that the plaintiffs were not denied due process.   The commission argues that the plaintiff did not cite any specific violations of the zoning regulations.   The commission is permitted to attach conditions to the grant of a special permit.   The applicants did not object to those conditions and are now bound by them.   The commission did not deprive the plaintiff a fair hearing because the defendant presented its most recent plan at the final public hearing and the plaintiff then presented evidence of her own.   She was not denied an opportunity to be heard.

A

Conditions Attached to Grant of the Special Permit

The plaintiff argues that the commission acted arbitrarily by attaching nineteen conditions to the applicants' special permit.¹  General Statutes § 8–2 provides, in relevant part, that zoning regulations, “may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit ․ subject to ․ conditions necessary to protect the public health, safety, convenience and property values.”

“[W]here an exception or a special permit is granted and the grant is otherwise valid except that it is made reasonably conditional ․ its issuance will not be held invalid solely because of the existence of any such condition ․ Thus, 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.”  (Citation omitted;  internal quotation marks omitted.)  Kobyluck v. Planning & Zoning Commission, 84 Conn.App. 160, 170–71, 852 A.2d 826, cert. denied, 271 Conn. 923, 859 A.2d 579 (2004).   While conditions imposed on the grant of special permit are examined on a case by case basis for the conditions' validity, the imposition of conditions itself is not a basis of invalidating the special permit altogether.   Indeed, the statute expressly allows for the imposition of conditions.

In this matter, the board imposed nineteen conditions on the grant of the special permit.   Those conditions, allowed under § 8–2, do not indicate that the commission acted arbitrarily or in abuse of its authority.   To the contrary, they indicate a level of engagement and concern on the part of the commission to ensure that the proposed development is not unduly intrusive on the health, safety, and property values of the abutters.   For example, the nineteenth condition provides that the development will include landscaping that prevents headlights from being projected at residential neighbors across Lorraine Terrace.   Accordingly, the court finds that the inclusion of the nineteen conditions on the grant of the applicants' special permit is not a basis to reverse the decision of the commission to grant the special permit to the applicants.

B

Traffic Concerns

The plaintiff's second argument is that the commission ignored her concerns regarding the traffic caused by the development.   The plaintiff cites § 10.02B.4.13 of the zoning regulations.²  That section requires the commission to find that the development will not adversely impact an adjacent residential district.   The commission found that “the proposed Application will meet the requirements of the Middlefield zoning regulations provided all permit conditions are adhered to.”  (R. 25.)   The court must therefore determine whether there is substantial evidence in the record to support the board's finding that the proposed development satisfied the requirements of § 10.02B.4.13.

“[W]hen a use is not allowed as of right, but only by special exception, the zoning commission is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood ․ [T]here is no presumption that a specially permitted use, or the traffic that it will generate, necessarily is compatible with any particular neighborhood within the zoning district.”  (Citations omitted;  internal quotation marks omitted.)  Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 432–33, 941 A.2d 868 (2008).

In this case, the applicants provided expert testimony to the commission that the development would not significantly adversely affect traffic conditions in the surrounding neighborhood.   The commission considered, first, a letter and report from Bruce Hillson, a professional engineer.  (R. 11, Ex. A.) Hillson testified that he has been conducting traffic studies in Connecticut since 1979, and that he performed this study in accordance with the accepted standards of the industry.  (R. 21, p. 47.)   In the report, Hillson estimates that the building of the proposed development will not affect the level of service rating for several of the approaches to the intersection of Lorraine Terrace and route 66.  (R. 11, Ex. Ap, 6.) He estimates that the most significant impact on traffic as a result of the project will be on vehicles traveling south on Lorraine Terrace and turning left, to proceed east on route 66.   During morning peak hours, the construction of the development will cause an increase in the average wait time to make that turn from 12.6 seconds to 34.1 seconds.  (R. 11, Ex. A, 6.) During Saturday midday peak hours, the construction of the development will cause an increase in the average wait time to make that turn from 20.6 seconds to 36.5 seconds.  (R. 11, Ex. A, 6.) He also estimates that if the project is built, the longest queue approaching that turn will be three cars.  (R. 11, Ex. Ap, 9.)

Second, a letter to Matthew Cresimano, from Ronald Cormier, the transportation maintenance director of the Connecticut bureau of highway operations.  (R. 11, Ex. B.) In that letter, Cormier stated that “[t]he concept that has been provided to this office looks acceptable at this time.”  (R. 11, Ex. B.)

Third, a letter and updated report from Hillson regarding the proposed traffic plan.  (R. 12, Ex. A.) That updated report indicates that the impact on turns out of Lorraine Terrace onto route 66 will be less than indicated in the first report.   The new report indicates that the delay during morning peak hours would increase from 12.6 seconds to 28.6 seconds, while the delay during Saturday midday peak hours would increase from 20.6 seconds to 24.3 seconds.   (R. 12, Ex. A, 6.) The report also indicates that if the project were built, the longest queue approaching the turn from Lorraine Terrace onto route 66 would be one car.  (R. 12, Ex. Ap, 9.) The updated report also rejects a potential entrance to the development off of route 66 for topographical reasons and rejects installing a traffic signal at the intersection of Lorraine Terrace and route 66.  (R. 12, Ex. A, 10.)   At the May 12, 2010, public hearing, Hillson explained that the difference in delay times was the result of the applicants' revision of the proposed development that would eliminate a restaurant with a drive through and replace it with retail space.  (R. 20, p. 32.)

Fourth, photographs of the intersection of route 66 and Lorraine Terrace, taken from various angles.  (R. 12, Ex. D, F, F, G, H.) Fifth, a letter from Cormier.  (R. 12, Ex. I.) That letter addressed concerns raised at the March 24, 2010, meeting.  (R. 12, Ex. I.)

Against the evidence presented by the applicants, opponents of the development did not produce expert testimony, although they did register their opposition.   First, they introduced a petition, signed by twenty-five residents of Lorraine Terrace, indicating their belief that the proposed development would “create unsafe traffic flow on Lorraine Terrace.”  (R. 11, Ex. G.) Second, a letter from the mayor of the city of Middletown, Sebastian Giuliano.  (R. 16, Ex. B.) In that letter, Mayor Giuliano reported that several Middletown departments expressed concern with the development.   The police department said:  “Though we have not seen a traffic impact study, there seems to be a substantial likelihood that Lorraine Terrace will be used by a significant amount of traffic;  especially by those who wish to enter Route 66 by the signalized intersection of Ballfall Road.” (R. 16, Ex. B.) The fire department said:  “This facility will create an increase on Lorraine Terrace for vehicles using the traffic light at RT. 66 and Ballfall Rd. Due to the danger of vehicles trying to cross over to Lorraine Terrace from East bound on Rt. 66.   No left turn would eliminate this condition from exiting the facility onto Lorraine Terrace.”  (R. 16, Ex. B.) The engineering division said:  “Exiting the site onto Rte. 66 east would be very difficult at times.   An entrance on Lorraine Terrace would probably increase traffic on the street for people looking to get to the Ballfall/66 intersection to access Rte. 66 eastbound.”  (R. 16, Ex. B.)

In addition to that documentary evidence, several residents of Lorraine Terrace spoke at the public hearing.   For example, Brian Brady spoke at the March 24, 2010, hearing:  “And, you know, there almost maybe ought to be a speed bump there, but now you're going to have 48 cars parking down here, plus, people coming in for their coffee.   Who knows, maybe they got a hangover they're trying to straighten themselves out, who knows what they're going to be doing.   Now you're going to be coming up a residential street with little kids playing out there and everything.”  (R. 18, p. 31.)   He suggested that the applicants should purchase an abutting parcel, build a bridge over the wetland that divides the two parcels, and locate the entrance to the development off of route 66 on the abutting parcel.  (R. 18, p. 32.)   Dennis Bishop suggested that the entrance to the development be off of Route 66.  (R. 18, p. 33.)   He questioned the traffic study's methodology and said that when he turns left onto route 66 off of Lorraine Terrace, he has to wait up to a minute.  (R. 18, p. 34.)   Lori Lewis said that she is concerned for her son's safety:  “I do have a special needs son that his bike is also his outlet, he is on that bike all the time, up and down the street.”  (R. 18, p. 37.)   Margaret Sherry suggested that the entrance and exit to the development should be off of route 66 because other businesses on route 66 have their entrances and exits off of that street.  (R. 18, p. 39.)   Michelle Berg suggested that the commission consider the pedestrians walking to the new development, and noted that there are no sidewalks on Lorraine Terrace.  (R. 18, p. 53.)   Derrick Hawk told the commission that when he turns left out of Lorraine Terrace onto route 66, it takes him between three and ten minutes.  (R. 20, p. 63.)   He said that if the project was approved, he guaranteed that someone would get killed.  (R. 20, p. 64.)   Dennis Bishop stated that he had “some problems” with the applicants' traffic study.  (R. 21, p. 34.)   One of those problems was that the study based its estimates of trips without knowing what type of business would be leasing the site.

The court finds that there is substantial evidence in the record to support the commission's conclusion that the proposed development will not be hazardous or inconvenient to, or detrimental to the character of the abutting residential district or conflict with the traffic characteristics of the neighborhood.   The commission had the reports of a professional traffic engineer who has performed traffic studies since 1979.   They also heard his testimony regarding that report.   The engineer concluded that it would not be feasible to create an entrance to the development directly off of route 66, and that the only feasible entrance was off of Lorraine Terrace.   He also estimated the change in the level of service at the intersection, based on what he testified were accepted traffic study methods.   In response to that evidence, the plaintiff and other opponents of the project did not submit any expert testimony.   The commission was therefore permitted to credit the testimony of the traffic engineer and apparently did so.

C

Character of the Neighborhood

The plaintiff also challenges the commission's determination that the proposed development is in keeping with the character of the neighborhood.   The plaintiff cites § 10.02B.4.4 of the Middlefield zoning regulations.³  The plaintiff does not point to a specific element of the project that violates that section.   The plaintiff again argues that the entrance to the proposed development should be off of route 66, not off of Lorraine Terrace.   Allowing the entrance to be off of Lorraine Terrace, argues the plaintiff, would detrimentally impact the character of the abutting residential neighborhood, in violation of § 10.02B.4.4. The defendants do not counter the plaintiff's argument on this point, except to say that there is no evidence that the commission acted arbitrarily or abused its discretion.

As discussed above, there is substantial evidence in the record to support the commission's decision to allow the entrance to the development to be off of Lorraine Terrace instead of route 66.   The applicant's plan to put the entrance there was supported by expert testimony on behalf of the applicant by Hillson, the traffic engineer.

Hillson's report, submitted to the commission at the April 14, 2010 public hearing, estimated that the proposed development would generate ninety-seven additional trips to Lorraine Terrace per day in addition to the current level of one hundred eight per day.  (R. 12, Ex. Ap., 4.) The entrance to the proposed development would be two hundred feet from the intersection of Lorraine Terrace and route 66.  (R. 12, Ex. A., 2.) Hillson estimated that only a “fairly limited number of trips” would proceed north of the entrance on Lorraine Terrace.  (R. 20, p. 74.)

There is substantial evidence in the record to support the commission's finding that the proposed development would not violate § 10.02B.4.4. The applicants submitted Hillman's traffic study and his testimony to support their application.   Residents of Lorraine Terrace spoke at the public hearings, as described above, to voice their concerns regarding the change to the character of the neighborhood.   Even if the court would have come to a different conclusion, there is substantial evidence in the record to support the commission's finding in this case.

D

Due Process

Finally, the plaintiff argues that her due process rights were violated when the applicants submitted new plans for the development on the last day of the public hearing.   The plaintiffs contend that they were not allowed time to review the plans and therefore unable to properly develop an opposition to those plans.   The defendants counter by arguing that the zoning statute only requires such plans to be made available to the public, not made available in advance of a hearing.

As an initial matter, the plaintiff's due process rights in this proceeding are not protected by the Fourteenth Amendment.  “A constitutionally cognizable property interest is a prerequisite to the attachment of constitutional procedural and substantive due process rights ․ A substantive property interest arises when absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the application would have been granted ․ [E]ven a property owner has no cognizable property interest in the issuance of a zoning permit if the agency has discretion to decide whether to approve the application ․”

“Furthermore, [a] statute or ordinance providing procedural guarantees does not create a constitutionally protected property interest unless it sets forth substantive criteria that limit the discretion of the decision-making body ․ [A] party whose asserted property interest is not related to the substantive criteria but rather is grounded solely in the procedures set forth in the statute does not have a constitutionally cognizable property interest ․ Thus, we have held that an abutter has no due process right to actual notice of a hearing ․”

“Although no constitutional due process right exists in this case, we have recognized a common-law right to fundamental fairness in administrative hearings.   The only requirement [in administrative proceedings] is that the conduct of the hearing shall not violate the fundamentals of natural justice ․ Fundamentals of natural justice require that there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary.”  (Citations omitted;  internal quotation marks omitted.)  Grimes v. Conservation Commission, 243 Conn. 266, 271–74, 703 A.2d 101 (1997).

In this case, the plaintiff does not have a constitutionally cognizable property interest in the subject matter of the commission's decision.   The plaintiff does not own the property in question.   Indeed, even if she did, she would not automatically be entitled to federally protected due process.   The plaintiff's claim that the proceeding was procedurally defective must therefore be grounded in the common-law right to a fundamentally fair hearing in administrative proceedings.

The court must therefore consider whether the conduct of the hearing violated the fundamentals of natural justice.   In this case, the plaintiff does not argue that notice of the hearing was improper.   Nor does she argue that she was denied the opportunity to present evidence or cross examine the applicants' witnesses.   She only argues that she was not given an opportunity to examine the applicants' new plans in advance of those plans being presented to the commission at the May 26, 2010 hearing.   The defendant argues that the hearing complied with the relevant statute and was therefore proper.

General Statutes § 8–7d(a) provides, in relevant part:  “All applications and maps and documents relating thereto shall be open for public inspection.”   The statute makes no other mention of such applications and maps.   The statute, therefore, does not require the applications and maps to be open for public inspection in advance of the public hearing.   Similarly, nothing in the Middlefield zoning regulations requires that the plans be made available to the public before they are submitted to the commission.  (See Middlefield zoning regulations § 10.02B.3.) The common-law requirement of fundamental fairness only requires the board to give proper notice of the public hearing, allow the plaintiff to present testimony, and allow the plaintiff to cross examine the applicants' witnesses.   The plaintiff does not allege that any of those requirements were not met in this case.   Therefore the plaintiff's right to a fundamentally fair hearing was not violated in this case.

Conclusion

The appeal is ordered dismissed for the reasons stated.

SO ORDERED.

BY THE COURT,

PETER EMMETT WIESE, JUDGE

FOOTNOTES

FN1. Those conditions provide:  “(1) All comments set forth in those memos of Mr. Brian Curtis of Nathan L. Jacobson & Associates, LLC shall be addressed to the satisfaction of Mr. Curtis.  (2) All areas not covered by shrubs or trees will be maintained as lawn or groundcover;  not gravel, bituminous, wood chips, or the like.   The applicant shall submit a cost estimate for the landscaping, including both material and labor for planting, and shall post a cash bond for one year following the installation of the landscaping to assure the replacement of any plants that did not survive for one full calendar year.   Landscaping shall be maintained and replaced as needed as it is essential to provide an adequate buffer and provide an adequate appearance in this Design District 2 zone.   (3) The applicant has chosen to leave the two-lane exit as depicted, but this shall not be construed as approval of a drive-in window for any use of the building along Lorraine Terrace.   Any drive-in will require a major amendment to this Special Permit.  (4) Signs shall not exceed the locations or sizes indicated on the plans and indicated or dotted lines on the building facades.   Any change to the sign sizes, locations, or numbers shall be deemed a substantial revision to the Special Permit.   All signs shall comply with Section 09.03 et seq. of the Regulations.  (5) The various materials of all buildings will be in accordance [with] the samples provided, any changes will require Commission approval.   All windows shall be tinted glass and nonreflective and no signs shall be placed in the window interiors or exteriors.  (6) For Building No. 2, all rooftop utilities and HVAC equipment shall be completely screened by the perimeter pitched roof sections when viewed from either Route 66 or Loraine Terrace.  (7) For Building No.3 (the free-standing retail building), all rooftop utilities and HVAC equipment shall be completely screened by the perimeter pitched roof sections when viewed from either Route 66 or Lorraine Terrace.  (8) All windows on all buildings shall utilize permanent dividers in keeping with traditional New England fenestration.   The dividers shall be integral to the window structure and not add-ons.  (9) The plans depict an outside trash receptacle, often referred to as a “dumpster,” along the southerly side of the parking lot, with screening detailed on Sheet SPD4. The dumpster shall be confined to this area and shall be the sole location authorized.  (10) The plans shall be modified to reflect the requirements set forth in the Memorandum dated March 15, 2010 from the Middletown Water & Sewer Department.   No Certificate of Zoning Compliance shall be issued for the property until the Department approves the revised plans.  (11) All uses of the property shall be in accordance with the Statement of Use submitted by the applicant on [May 26, 2010].   There shall be no change in use as described in the Statement of Use without an amendment to this Special Permit unless it is the replacement of a similar use which can be approved by the Zoning Enforcement Officer.   (12) The hours of operation contained in the Statement of Use shall be modified as follows:  the hours of operation shall be from 8 a.m. to 6 p.m. for retail services and from 7 a.m. to 9 p.m. for personal services and from 7 a.m. to 9 p.m. for the laundromat.  (13) A Right Turn only sign shall be posted at the driveway exit onto Lorraine Terrace and the applicant shall install a mountable curb inbound to the property, and a regular curb cut outbound at the driveway.  (14) The arbor vitae shown on the northerly boundary line shall be replaced with similar sized hemlock.   (15) No music or amplified sound shall be outside of the buildings.  (16) On Building # 2, the Applicant shall place an adequate sound attenuating fence in addition to the PVC screening fence along the north side of the roof as discussed at the public hearing on May 26, 2010.   The applicant shall utilize the type of fence recently approved for the new D# 13 athletic facility or some equivalent.   The product is called Acoust Shield sound barrier and made by Carsonite Composites.   This product or its equivalent shall achieve 55db at the west residential, north and east property lines.  (17) All utilities shall be underground.   All curbing and sidewalks to be concrete.  (18) Fencing along the northeast corner shall be the same as the fencing along the northerly border up to the entrance to the site, 5 feet from the property line.  (19) The berm and associated landscaping along Lorraine Terrace to prevent headlights from leaving the property may need to be supplemented until the vegetation matures.   After the work has been completed and if it isn't sufficient the Commission shall require a fence to be erected at the height of the vegetation to screen lights on a temporary basis.”  (R. 25.).  FN1. Those conditions provide:  “(1) All comments set forth in those memos of Mr. Brian Curtis of Nathan L. Jacobson & Associates, LLC shall be addressed to the satisfaction of Mr. Curtis.  (2) All areas not covered by shrubs or trees will be maintained as lawn or groundcover;  not gravel, bituminous, wood chips, or the like.   The applicant shall submit a cost estimate for the landscaping, including both material and labor for planting, and shall post a cash bond for one year following the installation of the landscaping to assure the replacement of any plants that did not survive for one full calendar year.   Landscaping shall be maintained and replaced as needed as it is essential to provide an adequate buffer and provide an adequate appearance in this Design District 2 zone.   (3) The applicant has chosen to leave the two-lane exit as depicted, but this shall not be construed as approval of a drive-in window for any use of the building along Lorraine Terrace.   Any drive-in will require a major amendment to this Special Permit.  (4) Signs shall not exceed the locations or sizes indicated on the plans and indicated or dotted lines on the building facades.   Any change to the sign sizes, locations, or numbers shall be deemed a substantial revision to the Special Permit.   All signs shall comply with Section 09.03 et seq. of the Regulations.  (5) The various materials of all buildings will be in accordance [with] the samples provided, any changes will require Commission approval.   All windows shall be tinted glass and nonreflective and no signs shall be placed in the window interiors or exteriors.  (6) For Building No. 2, all rooftop utilities and HVAC equipment shall be completely screened by the perimeter pitched roof sections when viewed from either Route 66 or Loraine Terrace.  (7) For Building No.3 (the free-standing retail building), all rooftop utilities and HVAC equipment shall be completely screened by the perimeter pitched roof sections when viewed from either Route 66 or Lorraine Terrace.  (8) All windows on all buildings shall utilize permanent dividers in keeping with traditional New England fenestration.   The dividers shall be integral to the window structure and not add-ons.  (9) The plans depict an outside trash receptacle, often referred to as a “dumpster,” along the southerly side of the parking lot, with screening detailed on Sheet SPD4. The dumpster shall be confined to this area and shall be the sole location authorized.  (10) The plans shall be modified to reflect the requirements set forth in the Memorandum dated March 15, 2010 from the Middletown Water & Sewer Department.   No Certificate of Zoning Compliance shall be issued for the property until the Department approves the revised plans.  (11) All uses of the property shall be in accordance with the Statement of Use submitted by the applicant on [May 26, 2010].   There shall be no change in use as described in the Statement of Use without an amendment to this Special Permit unless it is the replacement of a similar use which can be approved by the Zoning Enforcement Officer.   (12) The hours of operation contained in the Statement of Use shall be modified as follows:  the hours of operation shall be from 8 a.m. to 6 p.m. for retail services and from 7 a.m. to 9 p.m. for personal services and from 7 a.m. to 9 p.m. for the laundromat.  (13) A Right Turn only sign shall be posted at the driveway exit onto Lorraine Terrace and the applicant shall install a mountable curb inbound to the property, and a regular curb cut outbound at the driveway.  (14) The arbor vitae shown on the northerly boundary line shall be replaced with similar sized hemlock.   (15) No music or amplified sound shall be outside of the buildings.  (16) On Building # 2, the Applicant shall place an adequate sound attenuating fence in addition to the PVC screening fence along the north side of the roof as discussed at the public hearing on May 26, 2010.   The applicant shall utilize the type of fence recently approved for the new D# 13 athletic facility or some equivalent.   The product is called Acoust Shield sound barrier and made by Carsonite Composites.   This product or its equivalent shall achieve 55db at the west residential, north and east property lines.  (17) All utilities shall be underground.   All curbing and sidewalks to be concrete.  (18) Fencing along the northeast corner shall be the same as the fencing along the northerly border up to the entrance to the site, 5 feet from the property line.  (19) The berm and associated landscaping along Lorraine Terrace to prevent headlights from leaving the property may need to be supplemented until the vegetation matures.   After the work has been completed and if it isn't sufficient the Commission shall require a fence to be erected at the height of the vegetation to screen lights on a temporary basis.”  (R. 25.)

FN2. Section 10.02B.4.13 provides, in relevant part:  “[I]n the case of any use to be located in, or directly adjacent to, or served by way of, a Residential District or area of residential uses, the Commission shall find that:  The location and size of such use, and the nature and intensity of operations involved in or conducted in connection therewith, shall be such that both pedestrian and vehicular traffic to and from and in the vicinity of the use will not be hazardous or inconvenient to, or detrimental to the character of the said residential district or conflict with the traffic characteristics of the neighborhood ․ Access, parking, service areas, lighting, Signs and landscaping shall be designed so as to protect the residential character of surrounding residential neighborhoods or residential zones ․”.  FN2. Section 10.02B.4.13 provides, in relevant part:  “[I]n the case of any use to be located in, or directly adjacent to, or served by way of, a Residential District or area of residential uses, the Commission shall find that:  The location and size of such use, and the nature and intensity of operations involved in or conducted in connection therewith, shall be such that both pedestrian and vehicular traffic to and from and in the vicinity of the use will not be hazardous or inconvenient to, or detrimental to the character of the said residential district or conflict with the traffic characteristics of the neighborhood ․ Access, parking, service areas, lighting, Signs and landscaping shall be designed so as to protect the residential character of surrounding residential neighborhoods or residential zones ․”

FN3. Section 10.02B.4.4 provides:  “The location, type, character and extent of the uses and of any building or other structure and site development in connection therewith shall be in harmony with and conform to the appropriate and orderly development of the Town and the neighborhood and shall not hinder or discourage the appropriate development and use of adjacent property or impair the value thereof.”.  FN3. Section 10.02B.4.4 provides:  “The location, type, character and extent of the uses and of any building or other structure and site development in connection therewith shall be in harmony with and conform to the appropriate and orderly development of the Town and the neighborhood and shall not hinder or discourage the appropriate development and use of adjacent property or impair the value thereof.”

Wiese, Peter E., J.