Imre Pleszko et al. v. Town Plan & Zoning Commission of the Town of Fairfield et al. (2011)

MEMORANDUM OF DECISION

FACTS

The plaintiffs, Imre Pleszko and Imre Pleszko as Executor of the Estate of Matilda Pleszko, appeal the October 26, 2010, decision of the defendant, Town Plan & Zoning Commission of the Town of Fairfield (“Fairfield P & Z”).  This decision approved the application of the defendant, Consumers' Petroleum of Connecticut, Inc. (“Consumers),¹ for a special permit to replace an existing gasoline station and convenience store with new, larger facilities, for the same use at 2047 Post Road in Fairfield, Connecticut.

On August 6, 2010, Consumers applied for various special permits from the Fairfield P & Z, one of which was a special exception per Section 27 of the Fairfield Zoning Regulations.   Consumers' plan involved the demolition of the 1,605 square foot existing structure on the property and replacing it with a 3,072 square foot building.   The plan increases the number of parking spots and gasoline pumps on the property.   The plan also calls for various improvements and updates to the property.²

The plaintiffs are the owners of 6 and 26 Pleszko Place in Fairfield, Connecticut.   Their property borders Consumers' property to the south.   On their property, the plaintiffs have two apartment buildings.   They rent these apartments to area residents.

On October 12, 2010, the Fairfield P & Z held a public hearing on Consumers' application.   Appropriate notice of the public hearing was published.   At this hearing, the Fairfield P & Z heard arguments and received evidence from several parties, including the plaintiffs.   On October 26, 2010, the Fairfield P & Z met in an executive session, further discussed Consumers' application and approved it unanimously.   Notice of this decision was published in the Fairfield Citizen on October 29, 2010.

The plaintiffs filed their timely appeal of this decision by serving process on the defendants on November 12, 2011.   The plaintiffs filed their brief on March 21, 2011.   Consumers filed their brief on April 20, 2011.   Fairfield P & Z filed their brief on May 10, 2011.   The court held a trial on June 3, 2011.

“It is axiomatic that aggrievement is a basic requirement of standing, just as standing is a fundamental requirement of jurisdiction.   If a party is found to lack [aggrievement], the court is without subject matter jurisdiction to determine the cause.”  (Internal quotation marks omitted.)  Abel v. Planning & Zoning Commission, 297 Conn. 414, 437, 998 A.2d 1149 (2010).   “[A]ggrievement is a jurisdictional question and is a prerequisite to maintaining an appeal.”   Greenwood v. Planning & Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV 09 5026866 (November 16, 2010, Owens, J.T.R.) (51 Conn. L. Rptr. 8).   At trial on June 3, 2011, the plaintiff testified and the court found aggrievement.

“When ruling upon an application for a special [permit], a planning and zoning board acts in an administrative capacity ․ Generally, it is the function of a zoning board or commission 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 ․ trial court [must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts ․ In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal ․

“[C]ourts are not to substitute their judgment for that of the board, and ․ the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing ․ The trial court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board's] findings ․ [E]vidence 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 ․ More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons.”   (Internal quotation marks omitted.)  Kilburn v. Planning & Zoning Commission, 113 Conn.App. 621, 626–27, 967 A.2d 131 (2009).

“The special permit, or special exception as it is also known, is authorized by General Statutes § 8–2 ․ A special [exception] allows a property owner to use his property in a manner expressly permitted by 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 ․ [The special permit] provides a local zoning agency with some flexibility while maintaining standards applicable to all members of the municipality.”   (Citation omitted;  internal quotation marks omitted.)  Kilburn v. Planning & Zoning Commission, supra, 113 Conn.App. 627–28.

The plaintiffs argue that the Fairfield P & Z ignored Section 27.4.1 of the Fairfield Zoning Regulations.   They argue that the Fairfield P & Z failed to consider that granting Consumers' application would lead to the “obvious devaluation of the plaintiffs' property.”  (Plaintiffs' Brief, p. 12.)   They further argue that the Fairfield P & Z believed that it could ignore § 27.4.1 because the plaintiffs' property had previously been benefitted by a variance.

Consumers argues that the Fairfield P & Z did not err in its approval of Consumers' application.   It argues that the Fairfield P & Z followed the requirements of § 27.4.1 and that its decision was supported by substantial evidence.   They argue that the plaintiffs did not produce any evidence demonstrating that Consumers' proposal would cause their property to suffer an impairment of value.   Last, they argue that there is no support in the record demonstrating that the Fairfield P & Z disregarded the zoning regulations.   The Fairfield P & Z adopts and supplements the arguments made by Consumers.

At issue is whether the Fairfield P & Z complied with § 27.4.1 of the Fairfield Zoning Regulations.   Section 27.4, titled “Conditions for Approval,” provides that, “[t]he proposed use, buildings and structures shall conform to the following standards:  27.4.1. the location, type, character and size of use and buildings and structures shall be in harmony with and conform to appropriate and orderly development of the Town and the neighborhood and not hinder or discourage appropriate development and use of adjacent property or impair its value.”

The plaintiffs first argue that the Fairfield P & Z relied on a statement by Consumers' counsel that the plaintiffs' prior variance limits or eliminates the plaintiffs' rights under § 27.4.1. A review of the return of record indicates that Consumers' counsel did not make such a representation, that the Fairfield P & Z did not limit or eliminate the plaintiffs' rights and did consider whether the plan would impair the value of the plaintiffs' property.

Consumers did not represent that the plaintiffs' prior variance preempted their rights.   Consumers' counsel noted that, “the other criteria for a Special Permit” includes “protecting property values.”  (October 12, 2010, Public Hearing Transcript, p. 20, lines 13, 16.)   Consumers' counsel did suggest that, “to the extent that Mr. Pleszko thinks that this is in some way problematic, frankly, it's a problem of his own making.”  (October 12, 2010, Public Hearing Transcript, p. 21, lines 8–11.)   This suggestion, however, does not imply that the Fairfield P & Z need not consider whether Consumers' proposal would impair the value of the plaintiffs' property.   Rather, it suggests that the plaintiffs should have been aware of the realities of constructing apartment buildings in a commercially zoned area.

The statements of the commissioners of the Fairfield P & Z at their October 12, 2010 and October 26, 2010 meetings confirm this conclusion.  “The only opposition that was expressed was from the adjoining landowner who has a use variance from commercial to residential and has some apartment buildings that he's concerned will be affected by where the building is proposed to be located on the lot.   And, you know, I don't think that carries the day.   I don't believe that the concern in significant enough, nor do I think he has a legal argument to restrict what is otherwise entirely regulated and consistent use, consistent with our use;  consistent with our regulations in a commercially zoned land.”  (October 26, 2010, Executive Session Transcript, p. 4, lines 7–18.)  “The apartments were built there;  they got their waiver to build it there.   They had to know what they were building next to.”  (October 26, 2010, Executive Session Transcript, p. 5, lines 1–4.)  “[W]ith the apartments.   Again, there was a use variance with those granted.   That's why they're sitting in a commercial zone.   There was reference made at the public hearing to the decks.   Well, it was the developer who put the decks facing the commercial side of the building versus the residential side of the building where they easily could have been put on the other side of the building so people on their decks wouldn't look at the back of the gas station.”  (October 26, 2010, Executive Session Transcript, p. 5–6, lines 18–25;  1–2.)  “[A]nd when you have a residential use—not in a residential zone, but a residential use, whether it's a mixed use or anything, means they are living in a commercial zone.   They're going to look at commercial stuff.”  (October 26, 2010, Executive Session Transcript, p. 20, lines 14–18.)

Consumers' counsel did not represent and the Fairfield P & Z did not accept as true that the plaintiffs' prior variance in any way limited or eliminated their rights under § 27.4.1. Rather, the defendants' comments highlight their belief that the plaintiffs should have been aware, at the time they obtained their variance, that having residential apartments in a commercial zone might result in what could be viewed as negative consequences.   This does not mean that the defendants argued or believed that the plaintiffs' lost any rights because of their variance.

The plaintiffs also argue that the Fairfield P & Z failed to enforce § 27.4.1 because it ignored the “obvious” impairment of value that the plaintiffs' property would suffer upon approval of Consumers' special exception.   This court must determine whether there was substantial evidence in the record supporting Fairfield P & Z's finding that approval of Consumers' special exception would not impair the value of neighboring properties under § 27.4.1. Kilburn v. Planning & Zoning Commission, supra, 113 Conn.App. 626–27.   Our Supreme Court has recognized “a trend toward investing zoning commissions with greater discretion in determining whether [a] proposal meets the standards contained in the regulations.”  (Internal quotation marks omitted.)   Torrington v. Zoning Commission, 261 Conn. 759, 769–70, 806 A.2d 1020 (2002).  “[T]he credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission].”  (Internal quotation marks omitted.)  Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 443, 941 A.2d 868 (2008).

The plaintiffs did not submit any evidence to the Fairfield P & Z demonstrating that their property would suffer any impairment of value.   At the October 12, 2010 public hearing, they argued that traffic, noise and artificial light would all increase, and that the proposed new gas station would block out all or most natural light.  (October 12, 2010, Public Hearing Transcript, p. 24–25.)   In their brief, the plaintiffs argue that the impairment of value is “obvious.”   Yet they still do not highlight any evidence of impairment.

Evidence exists, however, that Consumers' proposal would not impair the value of the plaintiffs' property.   A traffic assessment prepared by a professional engineer explains that traffic would increase on site, “but not beyond a level that the adjacent streets can accommodate.”  (Return of Record # 1, p. 4.) This assessment also finds that safety would be improved, and that “new site traffic” would be less than ten vehicles per hour, compared to 1450 during peak hours at present.  (Return of Record, # 1, p. 4.) Consumers submitted other evidence to the Fairfield P & Z in support of its application.   Furthermore, Consumers' plan enjoyed the approval of other neighboring property owners.   (October 12, 2010, Public Hearing Transcript, p. 35–37.)

The statements of the commissioners of the Fairfield P & Z affirm that they concluded that Consumers' proposal would not impair the value of neighboring properties.   One commissioner stated, “I think it's a tremendous improvement to the lot and to the establishment.   Curb cuts, traffic flow, the landscaping plan, it's well within compliance with our regulations.”  (Emphasis added.)   (October 26, 2010, Executive Session Transcript, p. 4, lines 5–7.)   The Fairfield P & Z acted fairly, reviewed the evidence before it, considered whether Consumers' plan complied with § 27.4.1 and concluded that it did.

CONCLUSION

The decision of the Fairfield P & Z is supported by substantial evidence in the record and is not unreasonable, arbitrary or illegal.   The Plaintiff's appeal is dismissed.

By the Court,

OWENS, J.T.R.

FOOTNOTES

FN1. For purposes of this memorandum, “the defendants” refers collectively to the Fairfield P & Z and Consumers..  FN1. For purposes of this memorandum, “the defendants” refers collectively to the Fairfield P & Z and Consumers.

FN2. These improvements and updates include the replacement of a nonconforming canopy with a conforming one, adding recessed lighting to the new canopy, removing vehicle repair bays, removing above ground fuel tanks, upgrading the landscaping and making improvements designed to improve traffic safety.   See Return of Record # 23..  FN2. These improvements and updates include the replacement of a nonconforming canopy with a conforming one, adding recessed lighting to the new canopy, removing vehicle repair bays, removing above ground fuel tanks, upgrading the landscaping and making improvements designed to improve traffic safety.   See Return of Record # 23.

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