C. Patrick Sharpe et al. v. Planning and Zoning Commission of the Town of Watertown et al. (2011)

MEMORANDUM OF DECISION

These consolidated matters were tried to the court on July 28, 2011.   The parties agreed that it would be of assistance to the court to visit the site that is at issue.   The court completed the site visit on August 1, 2011.

The plaintiffs, Carol C. Gilbert, Gregory Chere, Diane E. Chere, C. Patrick Sharpe and Sharon K. Sharpe, challenge the rezoning of a parcel of land in Watertown, Connecticut (the “town”).   The land at issue is the site of the former Baldwin School, a facility that the town sold to a developer in 2008.   The appeal is denied.

I

THE ACTION OF THE ADMINISTRATIVE BOARD

On May 19, 2010, Taft North, LLC (“TN”) applied with the Planning and Zoning Commission of the Town of Watertown (“the commission”) ¹ for a new regulation that would permit up to nineteen units of age-restricted housing to be constructed in the former Baldwin school (“the school”) in the town.   The commission held a public hearing on June 16, 2010, continuing on July 7, 2010, and again on August 4, 2010.   In the course of the hearing, TN amended the proposed regulation to allow for seventeen dwelling units, a garage facility and common meeting building.   On September 1, 2010, the commission unanimously voted to amend its zoning regulations, thereby adding a new section, effective September 10, 2010, designated as Section 83.22.9 and titled “adaptive reuse of a former public school.”   Plaintiffs C. Patrick Sharpe and Sharon K. Sharpe appealed that decision in a timely manner.   Plaintiffs Gilbert, Gregory Chere and Diane E. Chere filed a separate appeal, also in a timely manner.   The commission moved to consolidate the two appeals on October 28, 2010.²

A

The History of the School

The school was built in 1907 and is located on a 2.53–acre parcel of land in Watertown.   By 2005, it was no longer needed or used as a school.   The Board of Education transferred the school to the town on May 21, 2008.   On June 3, 2008, the town sold the school to TN, subject to certain stipulations.

The school is a red-brick structure, two and one-half stories in height and holds twelve classrooms.   Initially, it educated students for all grades through high school.   Over time, it was used for children in kindergarten through grade four.   When it operated as a school facility, it had some 230 students, teachers and staff.   As a school, it had attendant bus and parent vehicular traffic in the morning and afternoon, and, on occasion, had traffic associated with evening activities.

B

The Current Status of the School

When the town sold the school to TN, the sale was accompanied by multiple restrictions.   Among the salient restrictions were, first, that the facade never be changed or altered and, second, that all residential units be for adults aged fifty-five or older.   Further, TN would not be permitted to create more than nineteen units in the building.

The school is located in a Residence R–10F zone, as defined in the town's zoning regulations at Section 83.22.   The latter regulation permits buildings to be used for the town, the town's fire district and schools.   The R–10F zone also permits single and two-family residential uses.   Currently, the school is not being used for any purpose and, according to the defendants, is at risk of being damaged by vandalism.   The school is surrounded on three sides by single-family residences.

II

AGGRIEVEMENT

“[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal.”  Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996).   General Statutes § 8–8(a)(1) defines an “aggrieved person” in relevant part as “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.”

Plaintiffs Gilbert, the Cheres and the Sharpes all allege that they are aggrieved by the amendment to the zoning regulations.   Plaintiffs C. Patrick and Sharon K. Sharpe allege that they are the owners of a residence and real property at 82 North Street in Watertown, a property that abuts the school.   Plaintiffs Gregory and Diane E. Chere allege that they own property at 87 North Street which is directly across the street from the school.   Finally, plaintiff Carol Gilbert alleges that she owns property located at 190 Main Street in Watertown, a property for which the rear property line is a common property line with the school.

The plaintiffs introduced testimony and documentary evidence before this court in support of their claims regarding the properties that they own and the location of those properties.   The defendants do not oppose those claims.   Accordingly, the court finds that the plaintiffs are statutorily aggrieved.

III

PARTIES' ARGUMENTSAThe Plaintiffs' Position

First, the plaintiffs claim that the addition of Section 83.22.9 to the town's zoning regulations constitutes spot zoning.   Second, the plaintiffs claim that the construction of condominium units in the school is inconsistent with the town's comprehensive plan as well as the town's plan of conservation and development.   The plaintiffs ask this court to sustain their appeal.

B

The Defendants' Position

The defendants contend that the zoning amendment that was adopted, and which permits up to seventeen condominium units in the school, is consistent with the town's plan of conservation and development, and is reasonably related to the normal purposes of the police powers set forth in General Statutes § 8–2.   The defendants argue, further, that the amendment to the zoning regulations promotes the public welfare, and does so in a reasonable manner.   Finally, the defendants contend that the zoning amendment is not spot zoning for multiple reasons.   First, the zoning change meets the two-part test for a zone change and, therefore, cannot constitute spot zoning.   Second, the zone change benefits not only TN, but also the town in that it meets a housing need that the town must address, it is a means of preserving an historic building, it would have no negative impact on neighboring property values and it would be the best use for the building.

IV

THE STANDARD OF REVIEW

As a general proposition, these appeals are governed by General Statutes § 8–8 which calls upon this court to “review the proceedings of the board ․” General Statutes § 8–8(k).  “The court, after a hearing thereon, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from.”  General Statutes § 8–8(l).  The commission has broad discretion and “is free to amend ․ its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for ․ a change.”  (Internal quotation marks omitted.)  Kaufman v. Zoning Commission, 232 Conn. 122, 150, 653 A.2d 798 (1995).  “Appeals from legislative zoning decisions require a showing that the commission has acted arbitrarily ․ illegally ․ or in abuse of discretion.”  (Internal quotation marks omitted.)  Id., 151.  “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 ․ If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board.”  (Internal quotation marks omitted.)   Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 427, 941 A.2d 868 (2008).   The burden falls to the plaintiffs to establish that the commission acted improperly.   See Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001).

V

DISCUSSIONASpot Zoning1“A Small Area of Land”

“[S]pot zoning is 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 ․ The comprehensive plan is to be found in the scheme of the zoning regulations themselves.”  (Citations omitted;  internal quotation marks omitted.)  Michel v. Planning & Zoning Commission, 28 Conn.App. 314, 319, 612 A.2d 778, cert. denied, 223 Conn. 923, 614 A.2d 824 (1992).

“The vice of spot zoning lies in the fact that it singles out for special treatment a lot or a small area in a way that does not further such a [comprehensive] plan.”  (Internal quotation marks omitted.)  Campion v. Board of Aldermen, 85 Conn.App. 820, 849 n.21, 859 A.2d 586 (2004), rev'd on other grounds, 278 Conn. 500, 899 A.2d 542 (2006).  “The obvious purpose of the requirement of uniformity in the regulations is to assure property owners that there shall be no improper discrimination, all owners of the same class and in the same district being treated alike ․” (Internal quotation marks omitted.)  Bartsch v. Planning & Zoning Commission, 6 Conn.App. 686, 689, 506 A.2d 1093 (1986).

There is little authority that is helpful in determining whether a particular zone change concerns a “small” area of land.   See Fedus v. Zoning & Planning Commission, Superior Court, judicial district of New London, Docket No. 124066 (May 16, 2003, Purtill, J.T.R.).   The record reflects, however, that the school property is a single lot that totals 2.53 acres, and is located within an R–10F zone that covers some 533 acres.   The defendants do not appear to contend that such an area is not “small” for purposes of the issue before the court.   Based on the record, the positions of the parties and the applicable authority, the court finds that the plaintiffs have met the first requirement of a claim of spot zoning, i.e., that the zone change concerns a “small” area of land.   Consequently, it is necessary to determine whether the plaintiffs have satisfied the second element of spot zoning, i.e., whether the change is out of harmony with the comprehensive plan for zoning that has been adopted to serve the needs of the community as a whole.

2

The Comprehensive Plan in Watertown

“A comprehensive plan means a general plan to control and direct the use and development of property in a municipality or a large part of it by dividing it into districts according to the present and potential use of the properties ․ Action by a zoning authority which gives to a single lot or a small area privileges which are not extended to other land in the vicinity is in general against sound public policy and obnoxious to the law.   It can be justified only when it is done in furtherance of a general plan properly adopted for and designed to serve the best interests of the community as a whole ․ To permit business in a small area within a residence zone may fall within the scope of such a plan, and to do so, unless it amounts to unreasonable or arbitrary action, is not unlawful.”  (Citations omitted;  internal quotation marks omitted.)  Bartram v. Zoning Commission, 136 Conn. 89, 93–94, 68 A.2d 308 (1949).  “[T]he ultimate test is whether, upon the facts and circumstances before the zoning authority, the extension [of an existing district] is, primarily, an orderly development of an existing district which serves a public need in a reasonable way or whether it is an attempt to accommodate an individual property owner.”  (Internal quotation marks omitted.)  Konigsberg v. Board of Aldermen, 283 Conn. 553, 592–93, 930 A.2d 1 (2007).

The plaintiffs contend that the amendment is inconsistent with the comprehensive plan of Watertown in that it is a grant of special privilege to TN by a zone change for a single lot in the middle of an existing zone.   They also argue that the new zone provides for use and density in a single parcel not available to any other property owner within the R–10F zone.

Turning, first, to the town's density requirement, the plaintiffs assert that, in the R–10F zone, there must be 10,000 square feet of lot area per dwelling unit, including each dwelling unit greater than one.   The plaintiffs contend that the proposed use does not meet such a requirement.   The plaintiffs recognize that density requirements must be “uniform for each class or kind of buildings, structures or use of land throughout each district ․” General Statutes § 8–2(a).   They do not appear, however, to take into consideration the fact that the school bears no relation to the “class or kind of buildings [or] structures” that surround it.   More important, the amendment to the regulations does not authorize TN to construct a building the size of the school;  the school already exists.   It has stood in the R–10F zone for over one hundred years, and TN purchased the property with the understanding that the town wished to preserve it as an historic property.

The defendants, correctly, point out that during the time the school was operational as a school, it held up to 230 students each day of the school year.   Traffic to the school included school buses and vehicular traffic in the morning, afternoon, for after-school activities later in the day and, on occasion, into the evening.   The proposed use, on the other hand, is for a total of seventeen age-restricted active adult residential units.   The commission, in its decision, acknowledged the issue of density, finding that the parcel at issue is greater in size than the ten thousand square foot minimal parcel size in an R–10F zoning district.³  Return of Record (“ROR”) 1–4 at 2.

In view of all of the foregoing factors, the court concludes that the commission correctly adopted the zoning amendment in that the proposed use does not permit a level of density that is inconsistent with the comprehensive plan, and, therefore, the zoning change is not in violation of General Statutes § 8–2(a).   To conclude otherwise would be to disregard the nature of the school.

The claim that the amended regulation confers a special privilege to TN is equally unavailing in that it disregards the commission's clearly stated desire to preserve an historic structure.   The plaintiffs also fail to give appropriate respect for the evidence that came before the commission regarding the nature of the project, and the positive impact that the project would have on the neighborhood and the town as a whole.

It is recognized that the plaintiffs proposed that TN only be permitted to construct up to twelve units within the school.   The commission heard evidence, however, that such a limitation would make the entire project unfeasible.   Moreover, the commission was reminded that two prior, similar projects in Watertown failed, to the detriment of the Watertown community.   In one case, a different, former school remained vacant so long that it had to be razed.   In the other case, the sale and permitting process was so time consuming that the project could not proceed at all.   Consequently, that former school remains boarded up and a target for vandals.

The commission considered an appraisal report that concluded that the renovation of the school into condominiums would not adversely affect the character or value of the neighborhood, but allowing the school to remain vacant and deteriorate would negatively affect the character of, and values in, the neighborhood ⁴ TN presented the commission with the architect's preliminary floor plans and an engineer's review of the site plan.

In its decision, the commission noted that the school is impractical for uses now permitted in the R–10F zoning district, expressed its support for the preservation of the school due to its historical significance, and pointedly concluded that TN is entrusted with a “rich history to honor and a property to preserve.”   Further, the commission found that permitting seventeen age-restricted active adult dwelling units “approved by [the] Site Plan and Special Permit will not negatively impact upon property values, the congestion of existing streets for pedestrian and vehicular traffic, the overall residential character and stability of the North Street neighborhood, [or] on town services such as police, fire and public schools ․” ROR 1–4.

Our Supreme Court reminds us that “courts must be cautious about disturbing the decisions of a local legislative zoning body familiar with the circumstances of community concern ․ [When] a zoning authority has stated its reasons for a zone change ․ the reviewing court ought only to determine 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.”  (Citation omitted;  internal quotation marks omitted.)  Konigsberg v. Board of Aldermen, supra, 283 Conn. 593.

Mindful of its responsibilities as described in Konigsberg, this court concludes that the commission clearly stated its reasons for the zone change, those reasons are amply supported by the record, the zoning change is in harmony with the comprehensive plan and the zone change was adopted for the purpose of serving the needs of the community as a whole.   Therefore, the court concludes that the plaintiffs have failed to establish the second element that is precedent to a finding that the zone change constitutes spot zoning.

B

The Watertown Plan of Conservation and Development

The plaintiffs' final argument is that the zone change is inconsistent with the Watertown plan of conservation and development (“POCD”).   Plaintiffs Gilbert and Gregory and Diane Chere contend that the commission is statutorily required to consider the town's POCD, and must state on the record its findings that the zoning change is consistent with the POCD, in accordance with General Statutes §§ 8–2, 8–3a(a).⁵

The commission fully complied with the statutory requirements.   The commission found that “the text amendment is consistent with and in conformance with the Watertown Plan of Conservation and Development, ‘the Plan,’ and specifically the Plan Section 10.1 ‘Goals and Policies, Community Facilities and Service, Policies, E. Evaluate the best use of all obsolete municipal and school facilities.   If no use is identified the property should be disposed of to the best economic advantage to the Town. Baldwin School should be used for housing.’  “ ROR 1–4 at 9.

The plaintiffs do not dispute the fact that it is no longer practical to use Baldwin School as a school, nor do they disagree with the commission's finding to that effect.   Moreover, the plaintiffs do not dispute the validity of the commission's finding that using the school for housing is economically beneficial to the town.   Nonetheless, the plaintiffs contend that the proposed use contemplates a density of use that is “far greater” than that of the greatest density already permitted in the surrounding neighborhood.

The plaintiffs took the position that constructing as many as twelve units of housing in the school would be consistent with existing density requirements.   They are thus contending that allowing an additional five units—a figure that, according to the evidence presented, is essential to make the project viable—is “far greater” than the level of density permitted in the neighborhood.   This analysis overlooks the fact that the school is an existing structure that will not be made larger or smaller if seventeen units, instead of twelve units, are constructed inside of the existing building.

In terms of activity in the neighborhood, the occupants of five additional units in age-restricted housing would clearly be less burdensome than that which occurred during the days when some 230 students and staff entered and left the school on a regular basis.   The record confirms that the commission is fully cognizant of the use that was made of the school when it functioned as a school, and the record similarly confirms that the commission carefully explored the nature of the use proposed by TN.

The plaintiffs greatly overstate the significance of the difference in density between twelve units and seventeen units of age-restricted housing.   More to the point, this court should not sweep aside the exhaustive review process that the commission gave to this issue, its specific findings that the zoning change is consistent with the POCD, or its findings that the zoning change will benefit and promote the public interest.   See Konigsberg v. Board of Aldermen, supra, 283 Conn. 593.

Plaintiffs C. Patrick and Sharon K. Sharpe make a similar argument, claiming that the commission paid “lip service” to the POCD. These plaintiffs claim that the zoning change is inconsistent with the POCD because the POCD states that “multi-family development should not be permitted.”   This argument, in the narrowest sense, is suspect because it ignores the word “should” in the foregoing sentence.   More significantly, however, these plaintiffs ignore two key provisions in the POCD. First, the POCD makes clear that the POCD is a “broad planning document —it provides guidelines for evaluating future land-use decisions and for developing new programs and regulations to direct the growth of the community.”  (Emphasis added.)   ROR VII at 85 (§ 10.0 of the POCD).   The POCD thereafter states, as part of its “Goals and Policies,” that Watertown should “[e]valuate the best use of all obsolete municipal and school facilities.   If no use is identified the property should be disposed of to the best economic advantage to the Town. Baldwin School should be used for housing.”  (Emphasis added.)   ROR VII at 89.   Thus, the commission carefully focused on the specific aspect of the POCD that applies to the school.

The argument offered by these plaintiffs, if accepted literally, is an argument that only one family should be allowed to reside in the school.   Such a result would obviously be an absurd interpretation of the POCD.⁶ The commission correctly understood the POCD to recommend housing in the school, and that the POCD obviously contemplated that more than one family would reside in that building.   ROR 1–4 at 2–3 (§ 83.22.9.1 of the zoning regulations).   This court concludes that the commission properly, carefully and accurately considered the POCD. Further, this court finds that the commission correctly concluded that the zone change is consistent with the POCD.

VI

CONCLUSION

For all of the foregoing reasons, the plaintiffs' appeals are dismissed.

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. All references in this opinion to “the defendants” refer to TN and the commission, collectively..  FN1. All references in this opinion to “the defendants” refer to TN and the commission, collectively.

FN2. It does not appear that the commission's motion was claimed to the court, but none of the parties opposed the motion and all parties have treated these two matters as having been consolidated..  FN2. It does not appear that the commission's motion was claimed to the court, but none of the parties opposed the motion and all parties have treated these two matters as having been consolidated.

FN3. The court takes judicial notice of the fact that 2.53 acres equals 110,206.80 square feet.   See North Water, LLC v. North Water Street Tarragon, LLC, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 07 5004758S (October 13, 2009, Tierney, J.T.R.) (trial court has inherent power to make mathematical calculations)..  FN3. The court takes judicial notice of the fact that 2.53 acres equals 110,206.80 square feet.   See North Water, LLC v. North Water Street Tarragon, LLC, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 07 5004758S (October 13, 2009, Tierney, J.T.R.) (trial court has inherent power to make mathematical calculations).

FN4. The appraiser concluded that the proposal, if it came to fruition, would prevent the school from becoming an “eyesore” in the neighborhood.   ROR IV–6 at 2..  FN4. The appraiser concluded that the proposal, if it came to fruition, would prevent the school from becoming an “eyesore” in the neighborhood.   ROR IV–6 at 2.

FN5. General Statutes § 8–3a(a) requires that “[i]n any municipality which has a combined planning and zoning commission operating under the general statutes or any special act, the commission shall state on the record its findings on consistency of a proposed zoning regulation or boundaries or changes thereof with the plan of development of the municipality.”.  FN5. General Statutes § 8–3a(a) requires that “[i]n any municipality which has a combined planning and zoning commission operating under the general statutes or any special act, the commission shall state on the record its findings on consistency of a proposed zoning regulation or boundaries or changes thereof with the plan of development of the municipality.”

FN6. At a minimum, the evidence presented to the commission establishes that fewer than seventeen units in the school would make the project economically unfeasible.   If the commission were to conclude that only a single family could reside in the school, thus making the project unworkable, the commission would be in disregard of the POCD mandate that property be used “to the best economic advantage to the Town.”.  FN6. At a minimum, the evidence presented to the commission establishes that fewer than seventeen units in the school would make the project economically unfeasible.   If the commission were to conclude that only a single family could reside in the school, thus making the project unworkable, the commission would be in disregard of the POCD mandate that property be used “to the best economic advantage to the Town.”

Danaher, John A., J.