166 LLC v. City of Norwalk Zoning Commission et al. (2012)

MEMORANDUM OF DECISION

I. Facts

166 Glover Avenue, LLC (166 Glover) appeals from a decision of the Norwalk Zoning Commission (Commission) denying 166 Glover's October 2007 application for site plan approval seeking to convert a portion of its building on Glover Avenue to a fitness facility known as Healthtrax to be operated under the auspices of the Stamford Hospital which has leased the entire building.

Six months earlier 166 Glover had applied for site plan approval to expand the same building by approximately 21,000 square feet and the intended use of all three floors of the building was stated to be for “medical office space.”   Return of Record (ROR) Exhibit (Ex.) 16 (April 13, 2007 application, Schedule C.) ¹ That application was granted at a May 16, 2007 Commission meeting without a hearing.   ROR, Ex. 41.   The resolution of approval stated that any changes to the plan must be reviewed and approved before implementation.   Id. The building is located in the Executive Office (EO) zone.

The October 2007 application's purpose was to obtain approval of the Healthtrax facility to replace medical offices in 26,100 square feet of the building.   ROR, Ex. 39, Schedule C.² There was considerable review by the Commission's Plan Review Committee, and a public hearing in January 2008 at which time the Norwalk Hospital opposed the application.   Subsequently the Commission denied the application at its February 2008 meeting by a unanimous vote.   ROR, Ex. 5 (minutes of February 20, 2008 meeting.)   The denial was conveyed to Attorney David Waters, the representative of 166 Glover by letter dated February 21, 2008.   ROR, Ex. 3. The Commission resolution denying the application set forth the bases for denial as follows:

1. That this proposal in its entirety is a modification of the previous approval of the Zoning Commission without an application to modify that approval and therefore it does not comply with Section 118–1451B(11);  and

2.  That the application as submitted and advertised is a health care facility as defined in the Zoning Regulations in Section 118–100.   A health care facility is not an allowed use in this zone so the proposal does not comply with Section 118–503 and 118–1451B(4) of the Zoning Regulations;  and

3.  That the application does not comply with 118–1450, Special Permit of the Zoning Regulations, which is required for an application of this size;  and

4.  That the request to redact information would invalidate the legal notice and therefore the application would not comply with Connecticut General Statutes 8–7 or Section 118–1451B(7) of the Zoning Regulations;  and

5.  That the application was unclear as to the square footage of each use which is required to determine the parking requirement in Section 118–1220 and traffic impact in Section 118–1451C(1) and (6);  and

6.  That the expert testimony of a Professional Engineer traffic consultant pointing to adverse impacts as defined in 118–1451C(1) and (6) was credible to the Zoning Commission;  and

7.  That the site plan, when taken in its entirety does not comply with Section 118–503, 118–1220, 118–1450 and 118–1451 of the Zoning Regulations ․

ROR, Ex. 3. 166 Glover appealed the denial in a timely fashion.   Norwalk Hospital's motion to intervene as a defendant was granted by the court.   This case and another appeal involving the same property and parties, were consolidated for trial, and the trial of the two appeals was conducted on November 15 and 16, 2011.

II. Standard of Review

The scope of review of a site plan application by a zoning commission is established, in part, by General Statutes § 8–3(g).  The zoning regulations may require that a site plan be filed with the commission to aid the commission in determining the conformity of the proposed plan with zoning regulations, and a denial or modification of the site plan “shall set forth the reasons” therefore.  Id. A site plan may be modified or denied only if it fails to comply with requirements [in the regulations].  Id. The local zoning regulations control the scope of a commission's review of a site plan application.  Konigsberg v. Board of Alderman, 283 Conn. 553, 597 (2007).

When a site plan application is denied the decision must be sustained if any one of the reasons given is valid, i.e. supported by substantial evidence.   Goldberg v. Zoning Commission of Simsbury, 173 Conn. 23, 25–26 (1977);  Clifford v. Planning & Zoning Commission, 280 Conn. 434, 452 (2006).   If a commission has stated reasons for its decision, the reviewing court must determine only whether the commission correctly interpreted the regulation and applied it with reasonable discretion to the facts, and the commission is endowed with liberal discretion subject to review only to determine whether it was unreasonable, arbitrary or illegal.  Clifford, supra, 280 Conn. 451 [quoting Graff v. Zoning Board of Appeals, 277 Conn. 645, 559 (2006).

III. Aggrievement

166 Glover is owner of the real property that is the subject of this appeal and submitted a 2006 deed (Exhibit 1) to substantiate its position.   At oral argument, Norwalk Hospital Association opposed a finding of aggrievement on the part of 166 Glover.   However, the owner of property that is the subject of an appeal from a decision adverse to the owner's desires is sufficiently aggrieved to prosecute the appeal.  General Statutes § 8–8(b);  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308 (1991).   The court finds that 166 Glover is aggrieved, and has standing to prosecute this appeal.

IV. Discussion

Following the public hearing before the Commission in January 2008, the Commission's Plan Review Committee prepared a memorandum to the full Commission providing the views of the Committee members on the 166 Glover application based on the record and the testimony, and submissions at the public hearing.   ROR, Ex. 4. The narrative portion of the memorandum began with the following observation:

COMMENTS OF THE PLAN REVIEW COMMITTEE BASED ON REVIEW OF THE PUBLIC HEARING:  Based on the testimony and written submissions of the Public hearing, the Plan Review Committee has serious concerns about this application and it's compliance with the Zoning Regulations.   At the very least the information is not clear enough for us to state that the proposal does comply with the regulations.   We must determine compliance before we can approve any application.

Id. At the end of its memorandum the Committee recommended that the Commission deny the application “for the reasons stated and specifically as per the following resolution.”   The recommended resolution was that which was subsequently adopted by the Commission and is quoted in full in this memorandum supra.

The court now turns to the specific reasons given in the resolution of denial.

A. Reason No. 1. Application is a Modification of Prior Approval Without an Application to Modify that Approval in Violation of Section 118–1451B(11).

Norwalk Zoning Regulations (NZR) Section 118–1451B(11) states:  “Any extension or change of an existing structure or use subject to site plan review which substantially changes its character or intensity shall be subject to review and approval as set forth herein.”

166 Glover contends that there is no evidence on which the Commission could conclude that “166 Glover was seeking to modify the May 2007 Site Plan approval, or that the Healthtrax application was somehow inadequate for the Commission to exercise its statutory and regulatory function.”   166 Glover Memorandum, October 15, 2009, 9. The court disagrees that there was no evidence that a modification was sought.   Indeed, the Healthtrax application itself sought a modification of the use of one-third of the building from medical offices, as approved in May 2007, to the requested fitness center.   However, the court does agree that the application at issue allowed the Commission to exercise its authority to approve or disapprove as required by the May 2007 site plan approval, and as required by NRZ Section 118–1451B(11).   The court finds a lack of substantial evidence to support this reason for denial.

B. Reason No. 2. Application Is For a Healthcare Facility Not Permitted In The Executive Office Zone in Question.

166 Glover strongly contends its application was not one for a healthcare facility, but a fitness center which is authorized after site plan review, in the EO zone pursuant to NRZ §§ 118–503 (permitting personal service areas of 30,000 square feet or less) and 118–100 (defining “personal services” establishments as including a “health club”).  166 Glover also argues that Commission regulations making “healthcare facilities” a permitted use in the Central Business District, but not in the EO zone were not in effect at the time the subject application was filed, October 18, 2007.   At the trial of this appeal, 166 Glover made clear its intent to file this application prior to the effective date of the healthcare facility regulation which was October 26, 2007.

Norwalk Hospital and the Commission respond that regardless of effective date of the regulation regarding healthcare facilities, the EO Zoning regulations do not permit what the Commission perceives as a healthcare facility.   In its memorandum to the full Commission, the Plan Review Committee stated unequivocally:

When viewed in its entirety the application is clearly a health care facility.   It may even be a hospital.   What it is not is a simple health club in the same building as an office.   It is clear from the testimony that the proposed use here, and at other locations, is part of a comprehensive health care facility.   To call this a health club would be the same as a contractor asking the Commission to ignore his heavy equipment and material and just look at the use as “office.”

There is evidence in the record to support the conclusion of the Plan Review Committee, and ultimately the Commission, that the proposed use of the 166 Glover Avenue building would qualify as a healthcare facility.   To begin with, the definition of “healthcare facility” adopted by the Commission, effective October 26, 2007, is a “facility to accommodate the medical care of persons including, but not limited to medical laboratories, diagnostic testing facilities, physical therapy, pharmaceutical centers, research centers and similar facilities.”   NZR Section 118–100.   166 Glover is correct that this definition was not effective at the time of the application at issue;  nevertheless the definition appears to be a practical and common sense description of what is meant.

The October 18, 2007 site plan application by 166 Glover referred to the building as “an ambulatory care center being developed by Stamford Health System including “health care services.”   ROR, Ex. 39.  (Document entitled “The Norwalk Wellness Center Concept.”)   The traffic study accompanying the application referred to the Norwalk/Wilton Ambulatory Care Center.   ROR, Ex. 39.   The schematic floor plans dated October 17, 2007 showed spaces reserved for cardiology diagnostic services such as EKGs, echo cardiography and stress tests, and radiology services including MRIs, ultrasound, bone density and mammography and space for chemo-therapy infusion.   ROR, Ex. 39 (third floor schematic).   On the first and second floor there is space delineated for an immediate care center, including X-ray and treatment facilities, a blood draw area and a pharmacy.   ROR, Ex. 39 (first and second floor schematics).   See also ROR, Exs. 43–10, 43–11 and 43–12.

The record also includes a letter of intent filed by Stamford Hospital with the Connecticut Office of Health Care Access, dated September 21, 2007, describing the nature of the facility proposed at 166 Glover Avenue.   ROR, Ex. 16 (Minutes of January 16, 2008 Commission meeting including materials submitted on behalf of Norwalk Hospital.   The letter of intent, form 2030, is found at Ex. B2 of the submission and consists of six pages and transmittal letter from Attorney Stephen Cowherd).   On page 4 the letter of intent lists the medical diagnostic equipment planned for the building which matches almost perfectly with the floor schematics discussed above, i.e. Philips Cardiac Ultrasound Machine, G.E. Bone Densitometry Machine, G.E. MRI, etc.   The project description in the letter of intent refers to an ambulatory care center located “along the I–95/Merit Parkway/Route 7 interchange ․ which will contain a variety of diagnostic and treatment services.”   The letter of intent continues:

The medical mall concept of concentrating outpatient health services such as diagnostic cardiology (including nuclear medicine, echocardiography, EKG, stress testing and holter monitoring), infusion therapy (intravenous and injectable dry therapy and blood product administration) and imaging services (X-ray, ultrasound, MRI, etc.) in the same building as physician offices has been embraced by health care consumers across the U.S. and Connecticut.   In this case, the proposed location of the Center will provide patients and referring physicians in the towns to the north and east of the City of Stamford with close and convenient access to these standard diagnostics and therapeutic procedures for the purpose of expediting diagnoses and facilitating the start of appropriate treatment regimens.

* * *

While TSH, Norwalk Hospital and various physician offices currently provide many of the services enumerated above, the proposed ACC will significantly improve health care delivery in this heavily congested region of the state by being the first provider to concentrate all of these services in a convenient one-stop, 45,000 square foot freestanding setting that will be easily accessible to patients arriving by car, train or bus.

ROR, 16.   166 Glover has pointed out, without contradiction, that the letter of intent has subsequently been withdrawn, although the date of withdrawal has not been provided to the court.   However, the Commission was certainly well within its rights and responsibilities to consider the letter of intent written less than a month before 166 Glover's application which is the subject of this appeal was filed.

Finally, the Commission requested and had before it an opinion letter from Norwalk's Law Department.   ROR, Ex. 14.   The opinion letter noted the information in the floor plans and letter of intent and stated:

It is the opinion of the Law Department that these contemplated uses are not permitted under the Zoning Commission approval of the initial application on May 16, 2007.   The initial application referred to the use of the premises for medical offices which is a permitted use in an Executive Office Zone. The uses set forth on the so called “Amending Application” go far beyond medical offices.   While some of the uses set forth in the Amending Application can typically be carried out in a physician's office most are not, and will fall within the definition of a “hospital” or a “healthcare facility” which are not permitted in an Executive Office Zone.

Id.

166 Glover attempts to counter this evidence with the argument that the only application before the Commission was for approval of a “fitness center.”   However, the only application before the Commission in May 2007 was a site plan application for “medical offices,” yet as noted by the Law Department letter, not a single office appears on the plans for two of the three floors.

The court determines there was substantial evidence to support the Commission's decision to deny the application based on the conclusion that the site plan encompasses proposed uses not permitted in the EO zone.   NZR § 118–503.   Although there was no existing definition of healthcare facility in effect at the time of the application, the uses shown on the site do not fall within the allowable uses described in Section 118–503.   These uses are offices, banks and financial institutions, hotels, personal and business service shops (30,000 square feet or less), restaurants, taverns, theaters, auditoriums, schools, studios, mixed-use development, research and development facilities, manufacturers, processing or assembling of goods that are noxious or offensive, parks, recreation areas, museums, public utility facilities, firehouse and off-street parking facilities.   The Commission was authorized to review the application by looking at the entire use of the proposed building not just the proposed Healthtrax facility, and when it found evidence that the building was not going to be used just for medical offices, the Commission supported by substantial evidence, was entitled to determine that the application before it involved something much more than just medical offices and something not permitted in the EO zone.

C. Reason No. 3. Application requires a special permit, not approval of a site plan.

It is not controverted by the parties that a “personal or business services shop of no more than 30,000 square feet” is allowed in the EO zone, but a larger area is not allowed unless a special permit application is filed and granted.   NZR § 118–503B.   The viability of the 166 Glover site plan application rested, in part, on whether the size of the proposed “medical fitness” facility was 30,000 square feet or less.   On this point, both the Plan Review Committee and the full Commission had doubts and questions.   The floor plans submitted by 166 Glover (ROR, Ex. 43–10 through 43–17) gave differing information as to the square footage of the Healthtrax facility.

At the public hearing, Commission Chair Ms. Lightfield stated there were discrepancies between the plans submitted with the original application and those submitted later.   ROR, Ex. 16, 2. Commission member Light specifically noted her reasoning for voting to deny the Healthtrax facility was because the fitness area was open and its use would take up more space than indicated on the floor plans.   ROR, Ex. 6. In this regard, the Plan Review Committee's memorandum said:

The square footage of each use is not easy to determine.   The entrance is open to the adjacent uses such as the gift shop, the main lobby, the café, etc., which are not counted in this use calculation.   The same issue occurs on the second floor, as the use flows into other areas without any restriction and, in addition, requires access into the adjacent space if the elevator is needed.   This is critical in deciding several zoning aspects:  Compliance with the parking requirements, what use should be considered in the traffic analysis and most importantly should this application be a Special Permit application.   It is not the Zoning Commission's duty to guess or figure out each answer.   An application should be clear so that the Commission and the public have a clear picture in determining use, potential impact and compliance with the Zoning Regulations.

ROR, Ex. 4. As will be noted later in this memorandum, the court agrees that it is not the Commission's responsibility to guess and an application should be clear to allow the Commission to determine use, impact and conformance with zoning regulations.   Nevertheless, there is little in the record, which is admittedly somewhat confusing, to support the Commission's determination that a special permit was required.   The 166 Glover application states that “approximately” 26,100 square feet will be devoted to the fitness area.   ROR, Ex. 39, Schedule C. The Plan Review Committee minutes of January 16, 2008 state the Healthtrax facility will take up 27,480 square feet “gross” and 20,435 square feet “active.”   These latter figures appear to be based on numbers on plans submitted by 166 Glover.   ROR, Ex. 43–15.   However, other plans submitted gave total figures (with question marks appended) for active area (with question marks following) of 24,087 square feet.   ROR, Exs. 43–10, 43–11.   There is some indication that for parking requirements “active” and not “gross” square feet are used.   See ROR, Ex. 20, p. 2. Without doubt, the Plan Review Committee and full Commission was correct that the precise square footage was “not easy to determine.”   Discrepancies in the plans were mentioned, and Commissioner Light's comments make sense.   However, there is no definitive evidence in the record that the fitness facility would exceed 30,000 square feet, thereby necessitating a special permit application, and this reason for denial is not supported by substantial evidence.

D. Reason No. 4:  The request to redact information would invalidate the legal notice.

The legal notice for the Commission's public hearing on January 16, 2008 was published on January 3 and 10, 2008.   On January 4, 2008 166 Glover submitted redacted floor plans that only showed “the areas that are the subject of the request,” i.e. the medical fitness facility.   ROR, Ex. 20.   These redacted plans are found at ROR, Ex. 43–12, 43–13 and 43–14.   However, there is no indication in the record that the Commission ordered redaction of the earlier submitted floor plans which contained information pertaining to other uses of the building, and the unredacted plans remained in the Commission files and are contained in the Return of Record.   ROR, Exs. 43–9, 43–10 and 43–11.   The court determines that the issue whether the redacted plans required a finding that the Legal Notice was invalid is not really ripe for review because the unredacted plans were not redacted or removed from the Commission files, or the record on appeal.   Therefore, there is no substantial evidence in the record supporting this reason for denial.

E. Reason No. 5. The application was unclear as to the square footage of each use required for the Commission to determine parking requirements and traffic impact.

166 Glover points out that the pertinent zoning regulations, NZR 118–1220B states that “until the active commercial floor area is known, seventy-five percent (75%) of the gross floor area shall be the basis for determining the parking and loading required.”   As part of its application 166 Glover submitted information that calculated 223 parking spaces would be required for the proposed fitness club and medical office use, and that 318 spaces were already provided in the earlier site plan approval.   ROR, Ex. 39.³

But, the Commission was not working with completely unknown proposed uses.   None of the information provided by 166 Glover included any analysis of the impact of the parking regulations on an immediate care facility, cardio, diagnosis, radiology or chemical infusion operation.   The court concludes that there is a substantial basis in the record to support the Commission's conclusion that the 166 Glover application was not clear or precise enough for it to properly determine whether the parking requirements were met.   It is the responsibility of the applicant to meet the burden of proving compliance with land use regulations.  Finlay v. Inland Wetlands Commission, 289 Conn. 12, 40 (2008).   This burden was not sustained by 166 Glover.

F. Reason No. 6. Adverse Impacts on Traffic.

The Commission found the expert testimony of a traffic expert credible, and concluded that the application would have an adverse impact in violation of NZR § 118–1451C(1) (prohibiting approval of site plans. with adverse impact on safety, congestion, highway circulation) and (6) (directing the Commission to consider impact of traffic on safe and orderly development of adjacent property).

166 Glover contends that Connecticut Supreme Court cases have held that off-site traffic considerations may not be used for denying an application if the use being applied for is permitted as a right in the applicable zone.   See Pansy Road, LLC v. Town Plan and Zone Commission, 283 Conn. 369 (2007);  TLC Development, Inc. v. Planning & Zoning Commission, 215 Conn. 527 (1990).   For instance, in Pansy Road the applicant proposed a residential subdivision in a residential zone, and the Connecticut Supreme Court applied the “conclusive presumption established in TLC Development, Inc., that this proposed use does not adversely affect traffic within the zone and the defendant therefore cannot deny the application because of existing off-site traffic congestion.”  Pansy Road, supra, 283 Conn. 279.

In this case, the Commission specifically found, and there is substantial evidence to support its finding, that the planned use was not as of right in the EO zone.   Therefore, it was appropriate to review the traffic analysis submitted (ROR, Ex. 26) and the testimony at the public hearing of the engineer who prepared the analysis, David L. Spear.   The analysis of Spear differed from an earlier traffic study by Stantec and submitted with the 166 Glover application of April 2007, and updated on October 16, 2007.   ROR, Ex. 16, Ex. C–3. The major difference was that the Stantec study only included new traffic generated from the 17,000 square feet addition approved in April 2007 whereas the Spear study included traffic generated from the use of the entire building which was vacant at the time.   ROR, Ex. 26.   The Spear study and testimony was based on 50,000 square feet of medical office space and 26,000 square feet utilized as a fitness club.   Both the study and the testimony concluded that the proposed use of the building would make traffic conditions significantly worse.  Id.;  ROR, Ex. 44, pp. 11–12.   It is up to Commission members to determine the credibility of witnesses before it, and where there is conflicting expert opinions, the Commission may make a reasoned choice.   The Court finds there is substantial evidence supporting this reason for denial.   King's Highway Association v. Planning & Zoning Commission, 14 Conn.App. 509, 523–24 (2009);  Fuller, 9A. Connecticut Practice Series:  Land Use Law and Practice (3d ed. (2007) § 33.12 2010 pocket part, p. 53.

G. Reason No. 7:  Site Plan Does Not Comply With NZR §§ 118–503, 118–1220, 118–1450 and 118–1451.

This reason gives the appearance of being a “catch-all” and a somewhat repetitive justification for the denial, citing four general provisions of the zoning regulations without further specification.   The provisions cited establish and define the EO Zone (118–503), off-street parking regulations, (118–1220) special permit procedures and rules, (118–1450) and site plan review procedures and rules (118–1451).   Each of these provisions is the basis, in part, of the six prior reasons stated for denial, and have been considered and discussed in earlier sections of this memorandum.   The citation of these provisions, standing alone, are not sufficient support for Reason No. 7, and the court finds a lack of substantial evidence for that reason.

V. Conclusion

For the reasons stated above, the court has found more than one of the stated reasons for denial of 166 Glover's application to be supported by substantial evidence;  therefore the appeal is denied

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. The April 13, 2007 application is found as Ex. A–1 to the submission of Norwalk Hospital attached to the Commission minutes of its January 16, 2008 public hearing..  FN1. The April 13, 2007 application is found as Ex. A–1 to the submission of Norwalk Hospital attached to the Commission minutes of its January 16, 2008 public hearing.

FN2. ROR, Ex. 39 is the application.   Portions of the application also appear in ROR, Ex. 16 in the written submission made on behalf of Norwalk Hospital noted in the previous footnote..  FN2. ROR, Ex. 39 is the application.   Portions of the application also appear in ROR, Ex. 16 in the written submission made on behalf of Norwalk Hospital noted in the previous footnote.

FN3. 166 Glover has not presented in its brief how many parking spaces would be required using the 75% of gross floor area calculation.   Using a figure of 76,000 square feet and a requirement of one space for every 200 square feet, the court reaches a figure of 285 spaces..  FN3. 166 Glover has not presented in its brief how many parking spaces would be required using the 75% of gross floor area calculation.   Using a figure of 76,000 square feet and a requirement of one space for every 200 square feet, the court reaches a figure of 285 spaces.

Adams, Taggart D., J.T.R.