Gino Vona et al. v. City of Norwalk Zoning Commission (2012)

MEMORANDUM OF DECISION

Plaintiffs appeal from the action of the Norwalk Zoning Commission (“the commission”) in rezoning their property on High Street from Light Industrial # 1 (“LI # 1”) to Neighborhood Business (NB).  The property involved consists of Parcel 1 of .6789 ± acres and Parcel 2 of .439 acres.   Parcel 1 has been used as a contractor's storage yard and Parcel 2 was purchased to be used for the same purpose.   A contractor's storage yard is a permitted use in the LI # 1 zone but is not permitted in the NB zone.

The court heard testimony from the plaintiffs and finds that each plaintiff was either an owner or contract purchaser at the time the commission acted and therefore they are both aggrieved.  Goldfeld v. Planning and Zoning Commission, 3 Conn.App. 172 (1984).   The plaintiffs' practical aggrievement apart from their legal aggrievement derives from the fact that by the rezoning, their properties became legally nonconforming and consequently, as they claim, less valuable.

Before reaching the merits, the court must address the plaintiffs' potentially dispositive claim that the commission's action is “null and void” because the notice of hearing which it gave was fatally defective.   They assert that the defect lies in the failure of the legal notice to fairly and sufficiently apprise the public of the action proposed by the commission, relying on such cases as RB Kent & Sons, Inc. v. Planning and Zoning Commission of Ledyard, 21 Conn.App. 370 (1990);  Kleinsmith v. Planning and Zoning Commission, 157 Conn. 308 (1968) and Nazarko v. Zoning Commission, 50 Conn.App. 518 (1998).

The court notes from the pleadings that plaintiffs make no allegation concerning defective notice in their complaint.   In view of the requirement contained in Section 8–8(r) of the General Statutes that the issue of noncompliance with notice of hearing provisions be addressed by legal action “taken not more than one year after the date of ․ the action” complained of, the court asked the parties to submit supplemental briefs on whether plaintiffs may challenge the notice in the absence of such an allegation.   As a result, it has become clear that Section 8–8(r) is not the controlling statutory provision but rather Section 8–3(a) and Section 8–7d.   Both Section 8–3(a) and 8–7d specify the procedure for giving notice of hearing by a zoning commission.   Subsection (d) of Section 8–7d makes it clear that these notice requirements do not apply to a change in a zoning classification which is “initiated by any zoning commission.”   Notice of hearing requirements for self-initiated zone changes are now governed by subsection (g) of Section 8–7d.   This provision mandates that a zoning commission create a “public notice registry” of land owners who may request notice of any self-initiated action which it proposes.

The plaintiffs do not complain that the commission failed to follow subsection (g) but base their attack on a claimed noncompliance with Section 8–3(a) and 8–7d(a).   These statutes are clearly made inapplicable by the express terms of Section 8–7d(d).  Thus, the commission was under no duty to publish any legal notice of its proposed self-initiated zone change.   Having done more than was required of it, the notice provided by the commission cannot now be challenged for its lack of specificity.¹

The plaintiffs make three substantive attacks on the commission's decision, viz:  (1) the commission improperly relied on advisory documents as the rationale for its decision;  (2) the rezoning reduced the value of their property, (3) the rezoning creates a nonconforming use which is contrary to the goal of zoning.

It is well established that when a zoning commission changes a zone classification it acts in a legislative capacity and therefore its action is reviewed to determine if the action is reasonably supported by the record.   Protect Hamden/North Haven From Excessive Pollution and Traffic, Inc. v. Planning and Zoning Commission, 220 Conn. 527, 543–44 (1991).   The principle that requires the action of the commission to be “reasonably supported by the record” means that the record before the commission must show that it was at least a possibility that the goal which the commission sought to advance or the mischief which it sought to prevent could be accomplished by the action that it took.  Kaufman v. Danbury, 232 Conn. 122, 155–56 (1995).   When a commission gives reasons for a zone change its action will be upheld if any one of the reasons is pertinent to the considerations which the commission was required to apply as set forth in 8–2 of the Gen.Stat. Burnham v. Planning and Zoning Commission, 189 Conn. 261, 267 (1983).

“The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached.  Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).”   Primerica v. Planning & Zoning Commission, 211 Conn. 85, 96, 558 A.2d 646 (1989).  “Acting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change ․ The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function.  Malafronte v. Planning & Zoning Board, [155 Conn. 205, 209 (1967) ].”  (Internal quotation marks omitted.)  Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 164 (1984).   This legislative discretion is “wide and liberal,” and must not be disturbed by the courts “unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally.”  Burnham v. Planning & Zoning Commission, 189 Conn. 261, 266 (1983).  “Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment.  Luery v. Zoning Board, 150 Conn. 136, 145 (1962);  Clark v. Town Council, 145 Conn. 476, 483 [1958].   The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission.   Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion.”  Malafronte v. Planning & Zoning Board, supra, 209–10.   Within these broad parameters, “[t]he test of the action of the commission is twofold:  (1) The zone change must be in accord with a comprehensive plan, General Statutes § 8–2 Summ v. Zoning Commission, 150 Conn. 79, 87 [1962], and (2) it must be reasonably related to the normal police power purposes enumerated in § 8–2 ․” First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 541, (1973).”  Protect Hamden/North Haven From Excessive Pollution and Traffic, Inc. v. Planning and Zoning Commission, 220 Conn. At 542–43.

I. Reliance on Advisory Documents

Although unrelated to the commission's use of “advisory documents,” in this segment of their brief plaintiffs argue that the commission acted improperly by not requiring traffic and drainage impact studies before they changed the zone to a classification which permits multi-family dwellings.   Initially, the court notes that there is nothing in the regulation which requires traffic and drainage impact studies for multi-family uses.²  It is noted that when there is a proposal for 12 or more residential units any such proposal is subject to the special permit and site plan provisions of the regulations (Secs. 118–450 and 118–1451) where the commission is required to address both subjects.   Likewise, there is no requirement that the record reflect that the commission has given specific consideration to traffic and drainage conditions in initiating a zone change.

The commission gave three reasons for changing the zone to Neighborhood Business, each based on the plan of conservation and development (“POCD”) adopted by the Norwalk Planning Commission in 2008.   The resolution adopting zone change reads as follows:

BE IT FURTHER RESOLVED that the reasons for this action are:

1) To implement the Plan of Conservation and Development policy to “Update Restricted Industrial Zones, Industrial 1 Zones, and Industrial 2 Zones, to allow on a case-by-case basis certain types of office and multifamily residential uses, to reflect current economic trends in Norwalk provided they are compatible with the surrounding neighborhoods” (A.5.1.1 p. 13);  and

2) To implement the Plan of Conservation and Development policy to “Preserve the character of neighborhood businesses and neighborhood businesses districts” (A.4.1.4, p. 13);  and

3) To implement the Plan of Conservation and Development policy to “Preserve and enhance the character of Norwalk (A.1.1.4, p. 10) and to implement the recommendations of the Westport–North–Main Corridor Study (E.3.1.11, p. 31):

Reason # 3 is predicated in part on the recommendations contained in a document entitled “Westport–North Main Corridor Study.”

These reasons require the court to review the nature, purpose and legal effect of the POCD. G.S. § 8–23 mandates that all planning commissions in the state prepare, amend and adopt a plan of conservation and development for the municipality at least once every ten years.   The statute then goes on to specify numerous factors which the commission must consider and include in its written plan.   The POCD is the successor to what formerly was known as the “Master Plan” or “Plan of Development” of a municipality.   While the current statute is more detailed than its predecessor, both the Master Plan and the POCD are designed to accomplish essentially the same purpose, that is, they set forth the most desirable use of land and an overall plan for the town.   Avalon Bay Communities, Inc. v. Orange, 256 Conn. 557, 575 (2001).   In reiterating the long-standing principle that a plan of development or POCD is advisory only, our Supreme Court in Avalon Bay Communities, Inc. v. Orange, supra, at 575 set forth the following explanation.

“The development plan is the planning commission's recommendation on the most desirable uses of all land within the community, including all public and private uses from street layouts to industrial sites.”   T. Tondro, Connecticut Land Use Regulation (2d Ed.1992) pp. 203–04.  “Because the overall objectives contained in the town plan must be implemented by the enactment of specific regulations, the plan itself can operate only as an interpretive tool.   See, e.g., Raybestos–Manhattan, Inc. v. Planning & Zoning Commission, 186 Conn. 466 (1982).  Smith v. Zoning Board of Appeals, supra, 88.”   (Alternate citations omitted.)

As that court observed, the recommendations that the planning commission ³ makes can only be implemented by the enactment of specific regulations by the zoning commission.   That is precisely what was done here.

The plaintiffs interpret the POCD provisions as not recommending a change of zone classification but only “the addition of new uses in certain limited circumstances.”   Plaintiffs have misinterpreted the language used.   In recommending reason # 1 that office and multi-family uses be allowed on a “case-by-case basis” the planning commission obviously contemplated allowing these uses through the vehicle of a special permit.   In fact, offices in excess of 8,000 square feet and multi-family uses in excess of 12 units are allowed only by special permit.   See Sec. 118–510B(2)(a)(c).  In this way the zoning commission has protected the NB zone against large scale office and apartment buildings which might otherwise be permitted as of right.   Moreover, it is the zoning commission which has the statutory mandate to interpret the POCD and as long as that interpretation is reasonable, it will be upheld.   Further, the plaintiffs miss the point.   They fail to understand that the only way in which these uses can be allowed on a case-by-case basis is to change the zone classification to one that permits them on a case-by-case basis, i.e., by special permit.   The court notes that the plaintiffs make no claim that the rezoning constitutes spot zoning.

Reason # 3 was given in implementation of recommendations contained in a study prepared for the city in 2006 entitled “Westport–North Main Corridor Study and Plan” by Phillips Preiss Shapiro Associates, Inc., Planning and Real Estate Consultants.   At page 34 the study recommends the following for the area.

Segment 4:  Rezone to New Residential/Limited Commercial Zone

A new zone should be mapped here to meet the goal of significantly restricting retail uses.   This “North Avenue” zone would (sic) the current multiplicity of zones that apply to properties fronting on North Avenue and create one unified set of regulations.  (The existing zones would continue for properties not fronting on North Avenue or Main Street.)   Permitted uses and bulk standards for the North Avenue zone would be as follows:

Allowed residential uses should be all those permitted in the D Residence Zone, with a maximum density of one unit for each 1,650 square feet of lot area.

The maximum nonresidential floor area ratio should be 0.5.

All retail uses shall be limited to a maximum gross floor area of 5,000 square feet, with the exception of the following low-traffic generating retail uses:

Furniture and home furnishings stores as defined at NAICS (North American Industrial Classification System) 442

Antiques and similar stores

Applying the principle that the rezoning must be reasonably supported by the record, the goals which the commission sought to advance as expressed in the preamble to the resolution of approval are:  a) to maintain the existing character of the commercial district;  b) ensure that all new uses along the North Avenue (U.S. Route 1) are compatible;  c) to make the reclassification consistent with the zoning on the north (opposite) side of the street;  d) allow only low traffic generating uses.   The record as discussed above amply satisfies this test.

II. The Value of the Plaintiffs' Property

It has been consistently held in this state that neither the highest and best use of property nor the maximum possible enrichment of its owner are controlling purposes of zoning.  Damick v. Planning and Zoning Commission, 158 Conn. 78, 82 (1969).   Hence, an unquantified reduction in value suffered by a property as a result of rezoning is not grounds for reversal of the commission's decision.   In fact, the record is barren of any evidence, expert or otherwise, that would support this claim.   The only evidence before the commission on the subject came from Attorney Frank Zullo, who in representing an affected owner, stated in opposition that the rezoning would make his client's property less valuable because the new classification is “more stringent.”

III. Creation of Nonconforming Use

There is no question that a primary goal of zoning is the ultimate elimination of noncomforming uses.  “But this goal is not, in every instance, an effective shackle on a zoning commission.   If it were, no zone could ever be lowered so as to render a nonconforming use conforming, and zoning, once established, would be forever fixed and immutable.”  Allin v. Zoning Commission, 150 Conn. 129, 134 (1962).

So, as our Supreme Court stated in Protect Hamden/North Haven From Excessive Pollution and Traffic, Inc. v. Planning and Zoning Commission, supra at 542, the commission was “free to amend its regulations whenever time, experience and responsible planning for contemporary or future condition reasonably indicate the need for change.”   Because it is highly likely that whenever a change in zone classification is made it will produce many nonconformities, a zoning commission would be powerless to act if it were constrained by the need to avoid the creation of nonconforming uses.

In conclusion, the plaintiffs have failed to demonstrate that the commission acted unreasonably, illegally or in abuse of its discretion in rezoning this property to the neighborhood business zone.   The appeal is therefore dismissed.

BY THE COURT

A. WILLIAM MOTTOLESE, J.T.R.

FOOTNOTES

FN1. The Norwalk Building Zone Regulations (“the regulations”) contain no separate provision governing notice of hearing of self-initiated zone changes..  FN1. The Norwalk Building Zone Regulations (“the regulations”) contain no separate provision governing notice of hearing of self-initiated zone changes.

FN2. Requirements for traffic impact studies contained in the form of application for a change in zone classification prescribed by the commission does not apply to self-initiated zone changes;  only to those initiated by persons other than the commission..  FN2. Requirements for traffic impact studies contained in the form of application for a change in zone classification prescribed by the commission does not apply to self-initiated zone changes;  only to those initiated by persons other than the commission.

FN3. Not only was the commission's action in implementation of the POCD but it is in accordance with a resolution adopted by the planning commission which specifically endorses the commission's self-initiative..  FN3. Not only was the commission's action in implementation of the POCD but it is in accordance with a resolution adopted by the planning commission which specifically endorses the commission's self-initiative.

Mottolese, A. William, J.T.R.