Strategic Commercial Realty, Inc. dba Rawson Mater v. Canterbury Planning and Zoning Commission (2013)

CORRECTED MEMORANDUM OF DECISION

This court has been requested to reconsider its Memorandum of Decision, # 118, by the defendant, Canterbury Planning and Zoning Commission, via its Motion to Reargue/Reconsider, # 120, and its Motion for Clarification—Court Order, # 121.   For reasons set forth further along herein, the court dismisses the plaintiff's appeal from the decision of the defendant, Canterbury Planning and Zoning Commission.   This decision causes the Motion for Clarification—Court Order to be moot, and the court will enter an order “No Action Necessary.”

The first issue raised in the motion to reargue/reconsider is whether the defendant commission's reliance on Whisper Wind Development Corp. v. Planning & Zoning Commission, 32 Conn.App. 515, 630 A.2d 108 (1993), aff'd, 229 Conn. 176, 640 A.2d 100 (1994), for the proposition that “even the most general requirements of the [z]oning [r]egulations concerning the health and safety in the neighborhood would be adequate to support a decision to deny a special permit for a gravel excavation operation” is proper.  (Defendant's motion to reargue/reconsider, p. 2, paragraph. 4.) The defendant's interpretation of the case is correct, as the court in that case held that a special permit application may be denied on the basis of the general health, safety and welfare requirements set forth in a town's zoning regulations even if all specific, technical requirements in the regulations are met.   See Whisper Wind Development Corp. v. Planning & Zoning Commission, supra, 32 Conn.App. 519, 521–22 (affirming trial court's conclusion “that a zoning authority may deny a special permit application on the basis of general considerations in the local zoning regulations even where the plaintiff's application complies with the detailed technical requirements established in the regulations for the specific proposed use”).   Here the Planning and Zoning Commission relied on § 13.4 of its Regulations.

In its reply brief filed on March 14, 2012, the plaintiff argues that Whisper Wind is factually and legally distinguishable from the present case.   It argues that the case is factually distinguishable because the applicant in that case sought to use a road that was part of a previously approved subdivision and which served only that subdivision.   It argues that the case is legally distinguishable because the court addressed the issue of whether the commission could rely on health and safety concerns as a basis for denying a special permit or only as a basis for imposing conditions on approval.   The plaintiff's attempts to distinguish Whisper Wind are unpersuasive.   The plaintiff has not provided any analysis to support its assertion that the noted factual distinctions between Whisper Wind and the present case would limit the applicability of the court's holding.   Moreover, as the court held in that case, health and safety concerns alone, when based on requirements set forth in the applicable regulations, may provide a basis for a commission's denial of a special exception application.   The plaintiff's attempt to limit the reach of the court's holding by noting that the court also held that the commission's consideration of such issues is not merely for the purpose of formulating conditions of approval has no merit.

The second issue raised is whether the defendant is correct in asserting that in A. Aiudi & Sons, LLC v. Planning & Zoning Commission, 267 Conn. 192, 837 A.2d 748 (2004), “the Supreme Court upheld the denial of a gravel operation due to its potential effects on the neighborhood.”  (Defendant's motion to reargue/reconsider, p. 2, paragraph. 5.) The defendant is correct in its characterization of the court's holding in that case as well.   The court in that case held, after determining that the application was, in fact, a special exception application notwithstanding the applicant's filing of the application as an application for site plan approval, that because the regulations at issue expressly required “that a proposed use not impair the public health, safety or the general welfare, and that it be in harmony with the surrounding properties, the commission properly could have considered those factors in denying the plaintiff's application.”  A. Aiudi & Sons, LLC v. Planning & Zoning Commission, supra, 267 Conn. 208.

In both A. Aiudi & Sons and the present case, the commissions did not provide formal collective statements of the reasons for their decisions because the applications were denied as a result of a lack of the necessary votes required for passage.   See A. Aiudi & Sons, LLC v. Planning & Zoning Commission, supra, 267 Conn. 194 n.2. Nevertheless, in A. Aiudi & Sons, the trial court had “reviewed the record and determined that a sufficient basis had existed to uphold the commission's decision to deny the plaintiff's application.”   Id., 195 n.3. The trial court also had determined that in denying the application the commission had properly based its decision on considerations of the health and safety of the community.  Id., 195.   The Supreme Court upheld the Appellate Court's affirmance of the trial court's decision, explaining in relevant part that “because § 502 of the regulations, which sets forth the standards for special exceptions, expressly requires that a proposed use not impair the public health, safety or the general welfare, and that it be in harmony with the surrounding properties, the commission properly could have considered those factors in denying the plaintiff's application.”  Id., 208.   Accordingly, in the present case, although the record does not contain a formal, collective statement of the reasons for the commission's decision,¹ the commission's denial of the plaintiff's application must be upheld if the court finds that such requirements are set forth in the regulations at issue and that substantial evidence in the record would support a determination that such requirements are not satisfied.

In order to reach such a conclusion, first, a review of the relevant provisions of the Canterbury zoning regulations (regulations) ² is necessary to determine whether they require consideration of health and safety of the community.  Section 5.3 of the regulations provides in relevant part:  “The following uses may be permitted as a special exception subject to site plan review in accordance with Section 13 these Regulations:  ․ 5.3.3 Commercial sand and gravel removal and/or processing operations for which compensation is received ․” Section 18 of the regulations, which also governs “excavation and filling of earth products,” requires the commission to consider, inter alia, “Compliance with the Performance Standards of Section 13.4 of these Regulations” in ruling on an application.   Canterbury Zoning Regs. § 18.7(h).  Section 18.8 further provides:  “The application procedure set forth in Section 13 of these Regulations (concerning Special Exceptions) shall apply to applications under this Section 18, except as modified in the following Section 18.9.”   Accordingly, the commission must consider the factors set forth in § 13 of the regulations in ruling on a special exception application for gravel excavation.

A review of § 13 of the regulations reveals that consideration of health and safety in the neighborhood is required in the present case.   Section 13.1, which sets forth the purpose of § 13, provides in relevant part that “certain uses and features, because of the unique characteristics and impact, must be treated on a case-by-case basis.   Consideration of each application for uses listed under Section 5.3 of these Regulations must be reviewed individually to determine their particular impact upon neighboring uses and the surrounding area as compared with the public need for them in particular locations ․” (Emphasis added.)   Section 13.4 enumerates the specific findings that are required for the approval of a special exception application.   That section requires, inter alia, findings that the “proposed use will not affect adversely the health and safety of residents or workers in the area and will not be unreasonably detrimental to the use or development of adjacent properties or the general neighborhood.”  (Emphasis added.)   Canterbury Zoning Regs. § 13.4.2. Accordingly, as the applicable regulations require the commission to consider these impacts, it is next necessary to determine whether the record contains substantial evidence to support a determination that these considerations would not have been satisfied.

A review of the record discloses that substantial evidence exists to support such a determination.   One safety risk associated with the plaintiff's application that is supported by substantial evidence in the record is the risk associated with the inadequate site line distances at the intersection of Depot Road and Route 169.   The undisputed evidence in the record demonstrates that the sight line distances at that intersection fall short of the distance recommended by the Department of Transportation.   The traffic investigation report prepared by the plaintiff's traffic expert, KWP Associates, states in relevant part that the “minimum sight distance for new construction with an 85th percentile speed of 55 miles per hour is 690 feet and that for 35 miles per hour is 285 feet.”  (Return of record [ROR] Exh. 14, p. 4.) The report further states:  “Sight distance at the intersection of Depot Road and Route # 169 falls somewhat short of the Department of Transportation recommended sight distance for the 85th percentile speed for 55 miles per hour.”  (ROR, Exh. 14, p. 5.) Although the report goes on to state the author's conclusion that the introduction of two additional trucks per hour will not reduce safety at the intersection, the commission is “not required to give credence to any witness, including an expert” if the record contains evidence undermining the expert's credibility or his ultimate conclusions.  Kaufman v. Zoning Commission, 232 Conn. 122, 156–57, 653 A.2d 798 (1995).

Other evidence in the record would support a conclusion contrary to that of the traffic expert's report, i.e., a determination that the sight line distances at the intersection would pose a risk to public safety if used by the plaintiff's trucks to haul gravel from the site.   For example, Steven Sadlowski, the town planner/zoning and wetlands enforcement officer for the town of Canterbury, stated at the public hearing that “[t]he sight lines to the left [when pulling out of Depot Road onto Route 169] appeared to be 350 feet.”  (ROR, Exh. 31, p. 16.)   The traffic investigation report does not support this measurement, but shows nevertheless that the sight line distance, as measured by the plaintiff's experts, is 515 feet;  (ROR, Exh. 14, Fig. No. 5.);   which is 175 feet less than the Department of Transportation recommended sight distance of 690 feet.  (ROR, Exh. 14, p. 4.) At the public hearing held on April 14, 2011, Terry Chambers of KWP Associates admitted that “the sight distance at Depot Road and 169 is less than desirable,” although he emphasized that this “has not influenced any accidents in the last six years.”  (ROR, Exh. 32, p. 11.)   When Commissioner Clark voiced a concern regarding the size of the vehicles that would be used and the impact of their large size on their ability to pull out onto Route 169 quickly enough to avoid a collision, Chambers explained that the weight of the vehicles is taken into account in determining the intersection's efficiency, but did not state that this was considered in determining the adequacy of sight line distances.   Although he later stated that there is “enough sight and safe stopping distance that a vehicle can stop in time,” he did not explain the basis for this conclusion other than that he had “personally sat at that intersection.”  (ROR, Exh. 32, pp. 15–16.)   He also acknowledged that “[t]rucks are slow, they start off slow.”  (ROR, Exh. 32, p. 16.)

At the next hearing on May 12, 2011, Commissioner Kelly stated that based on his personal experience driving out of Depot Road onto Route 169, “It's tough.   If this little rice burner came out it would have been all over for him.   People fly on that road.”  (ROR, Exh. 33, pp. 13–14.)   Also during that hearing, several members of the public voiced concerns relating to the inadequacy of the sight line distances and the safety risk posed thereby.   For example, Armelde Pitre stated, among other concerns, that, based on the average speed of traffic on Route 169 and the amount of time it would take for a truck to pull out of Depot Road onto Route 169, “the estimated odds of an accident at this intersection are five-fold.”  (ROR, Exh. 33, p. 20.)   Chris Newton, a resident of Depot Road, stated that he uses the intersection of Depot Road and Route 169 every day “[a]nd just during normal road conditions it's very difficult to get out due to the high volume of traffic at peak speeds of 70 miles an hour on that road.”  (ROR, Exh. 33, pp. 23–24.)   Steve Shauk, a resident of Lisbon, also remarked about the danger posed by the plaintiff's trucks turning onto Route 169 with the limited sight line distances during the March 10, 2011 public hearing.   He stated:  “You take a fully loaded truck, and you're going to make a right-hand turn onto 169.   Traffic on 169 is posted at 45, and nobody is going 45.   It's faster.   And they have to make a right uphill.”  (ROR, Exh. 31, p. 26.)   This testimony would support a conclusion that the sight line distances at the intersection of Depot Road and Route 169 would pose a safety risk if the plaintiff were to use that intersection as proposed in its application, and that the application, therefore, would not meet the health and safety standards set forth in § 13.4.2 of the regulations.

The record also contains other evidence that the health and safety considerations set forth in § 13.4.2 would not be satisfied.   For example, Sadlowski stated during the March 10, 2011 public hearing that the width of Depot Road averages between seventeen and nineteen feet, and that the road appeared to be only sixteen feet at a few locations.  (ROR, Exh. 31, p. 16.)   At the public hearing on April 14, 2011, Chambers, the plaintiff's traffic expert, stated that his team “measured Depot Road in four locations ․ The measurements were taken at known points so they can be verified 17.2 feet at the intersection of Cambell Heights;  19 feet at CL & P pole;  17.7 feet;  and lastly, 19.1 feet at the stop sign.   The narrowest was 17.2 feet.   I specifically asked our field guy to find the narrowest point, but also get representative points.   The average is 18.3 feet.”  (ROR, Exh. 32, p. 9.) Chambers stated at the public hearing on April 14, 2011, that the gravel trucks are seven and one-half feet wide.  (ROR, Exh. 32, p. 14.)   Commissioner Green then noted that with mirrors, the width would be closer to nine feet.  (ROR, Exh. 32, p. 14.)   Chambers did not contradict that statement.

Throughout the public hearing on the application, several people, including both commission members and members of the public, voiced concerns regarding the width of Depot Road and the safety risks posed by the operation of gravel trucks on that road for other users of the road, including pedestrians and motorists.   For example, Carolyn Bucko, a resident of Lisbon, remarked during the March 10, 2011 public hearing that she is “opposed for the safety issue for the folks on Depot Road. I use Depot Road, and currently it's a tight spot for two cars to pass.   For a truck and car to pass it would be difficult if there's no proposal to widen the road.”  (ROR, Exh. 31, p. 18.)   Cheryl Cartagena, another resident on Depot Road, stated that the road is “crowded now.   School busses go by.   And you're trying to go out, and you're trying to come in.   I have a small car, and you have to stop your ․ car.”  (ROR, Exh. 31, p. 20.)   David Lapointe, another resident of nearby property, stated “I walk [Depot Road] very often.   It is difficult even walking my dog.   We have to get off to the side.   It's very narrow.”  (ROR, Exh. 31, p. 22.)   Jonathan Beaudeau echoed these concerns by noting, “On Depot [Road] we actually step off the road and make our dog sit when a car goes by.   With a truck what can we do?”  (ROR, Exh. 31, p. 28.)   At the hearing on April 14, 2011, Jean Nelson, another resident of Depot Road, stated, “I've had an occasion where there was a dump truck coming down the road and there wasn't enough room to get into Depot Road. You have to sit out on 169 to have them pull out before you can get in.   School busses, there's a few of us who walk Depot Road, and you have to stop if there's a school bus.   You can't get two by on some of the spots on Depot Road.” (ROR, Exh. 32, p. 16.)   Walt Nelson added that “the trucks are 8–foot, 6. And you said the road averages 18 feet.   If you get two tri-axles and a school bus, provided they're in their own lane and not cutting the corner—but with the number of trucks there's going to be an accident and somebody is going to get hurt.”  (ROR, Exh. 32, p. 17.)   These concerns were also echoed by Armelde Pitre at the May 12, 2011 public hearing, who noted that “there is not sufficient room for a school bus, ambulance, or other emergency vehicles” to pass by a gravel truck traveling in the opposite direction.  (ROR, Exh. 33, pp. 21.)

Notwithstanding the plaintiff's argument in its reply brief filed on March 14, 2012, that “Depot Road's condition or configuration did not, as a matter of fact, constitute a threat to the health or safety of the residents and there was ample testimony that the additional traffic proposed would not tax the road system or affect its functioning,” the extensive testimony in the record discussed above would support a determination by the defendant that the requirement in § 13.4.2 of the regulations, that the “proposed use will not affect adversely the health and safety of residents or workers in the area and will not be unreasonably detrimental to the use or development of adjacent properties or the general neighborhood,” is not satisfied in the present case.  “If a [reviewing] court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board ․ If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court ․ cannot substitute its judgment as to the weight of the evidence for that of the commission.”   (Internal quotation marks omitted.)  Rapoport v. Zoning Board of Appeals, 301 Conn. 22, 33, 19 A.3d 622 (2011).

The next issue raised in the motion to reargue/reconsider is whether, in relying on the standard set forth in Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 434, 941 A.2d 868 (2008), the court has applied an improper standard.   Specifically, the defendant argues in its motion to reargue/reconsider that the court has used standards applicable to religious structures and misapplied them to gravel operations, which traditionally have been “held to more restrictive conditions given their particularly noxious nature.”   Although a review of that case does not support the proposition that a special exception application for a gravel operation would be subject to different standards than those applied to religious structures, the standard for considering the effects of a proposed use on traffic congestion set forth therein does not apply to specific safety concerns arising directly from the proposed use at issue.

With regard to the defendant's argument that different standards should be applied to gravel operations than to religious structures, the Supreme Court stated in Cambodian Buddhist Society that “although the commission has some discretion to determine whether a proposed specially permitted use is consistent with residential use, the regulations do not grant the commission the discretion to apply the standards differently to religious facilities than it applies them to the other uses allowed by special exception, such as clubs, private schools, seasonal camps, certain public utility buildings, hospitals, sanitary landfills, nurseries and horse boarding stables ․ Rather, in reviewing each application for a special exception, the commission considers ‘the impact of such uses and structures upon the neighborhood and surrounding area and upon the public health, safety convenience and welfare’ ․ and certain other criteria unrelated to the specific nature of the proposed use.”   (Citations omitted.)  Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. 420.   Thus, that case does not support the proposition that gravel operations should be subjected to more restrictive conditions or reviewed under a different standard than other uses allowed by special exception.

Nevertheless, a review of the relevant portion of Cambodian Buddhist Society discussing traffic considerations reveals that the language in that opinion requiring a comparison to be made between the impact of the specially permitted use and uses permitted as of right does not apply to specific safety concerns arising from the proposed use, but only to effects of the proposed use on traffic congestion, municipal services, property values, and the general harmony of the district.   This court failed to recognize this distinction in its prior Memorandum of Decision.

In the part of the Cambodian Buddhist Society opinion discussing traffic considerations, the court first clarified earlier holdings by stating that, unlike in site plan and subdivision applications, which pertain to uses permitted as of right, offsite traffic considerations may be considered by commissions in ruling upon special exception applications.  Id., 432–33.   The court went on to consider under what circumstances a special exception application can be denied on the basis of traffic congestion, concluding that “if a special permitted use would have a significantly greater impact on traffic congestion in the area than a use permitted as of right, the additional congestion may provide a basis for denying the permit.”  (Emphasis added.)   Id., 434.   The rationale for making such a comparison is that “[t]he designation of a particular use of property as a permitted use establishes a conclusive presumption that such use does not adversely affect the district and precludes further inquiry into its effect on traffic, municipal services, property values, or the general harmony of the district.”  (Emphasis added;  internal quotation marks omitted.)  Id., 432.

The Supreme Court then applied that standard to the application at issue and determined that the commission's decision had several flaws, including the commission's misinterpretation of the traffic study prepared by the plaintiff's expert with regard to the number of car trips generated by the site and the commission's failure to compare the number of car trips generated by the proposed use with the number that would be generated by permitted uses of the site.  Id., 434–36.   The court stated that “in the absence of any determination by the commission that an increase of seventy-five vehicles per hour at peak hours on festival days would increase traffic congestion or hazards ³ on Boggs Hill Road significantly more than a permitted use of the property would, we agree with the trial court that the evidence was inadequate to support the commission's conclusion that the society's proposed use of the property did not satisfy § 8.04.740 of the regulations.”   Although the court's holding could be broadly interpreted to require a comparison of all impacts relating to a proposed special permitted use with corresponding impacts relating to permitted uses, such an interpretation would exceed the scope of the court's holding, which related only to the potential increase in the number of car trips generated by the proposed use of the site and safety hazards arising from any such increase.   Moreover, the comparative analysis was based on the presumption that applies to permitted uses precluding further inquiry into the effects of the use on traffic, municipal services, property values, or the general harmony of the district for such uses.   It is only these general impacts of a proposed special permitted use that must be compared to those of permitted uses.   For specific health and safety concerns arising from a proposed special permitted use, no comparison is warranted.   See Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. 446 (upholding commission's denial of special exception application because, among other reasons, applicant had not obtained approval of its proposed septic and water supply systems and “because there was evidence from which the commission could have concluded that those systems would have created a health risk”).

In the present case, a review of the record indicates that any increase in traffic volume would be minimal, and does not support a conclusion that the increase in the number of vehicle trips generated by the proposed use of the site would pose a safety risk.   Nevertheless, the record contains substantial evidence to support a determination by the commission that the nature of the activities proposed in the plaintiff's application, specifically the use of large trucks to haul gravel from the site along the designated haul route on Depot Road and Route 169, would pose a threat to the health and safety of the residents in the neighborhood.   Unlike in Cambodian Buddhist Society, in which the nature of the traffic generated by the proposed use and permitted uses of the site would be the same (i.e., passenger cars), and the record did not support a determination that the increase in traffic would be significantly greater for the proposed use than that of a permitted use, the nature of the safety risk generated by the proposed use in the present case (i.e., large dump trucks hauling heavy loads of gravel on roads of inadequate width and with inadequate sight line distances for such trucks) arises as a direct result of the specific use proposed and the record in the present case would support a determination that the use proposed would pose a safety risk.

The plaintiff's argument in its reply brief that the commission's analysis was “impermissibly broad” because it did not compare the proposed use of trucks on Depot Road and Route 169 to uses that are permitted as of right is unpersuasive because, as discussed above, the holding in Cambodian Buddhist Society that would require such a comparison is limited to the issue of traffic congestion and other issues for which inquiry would be precluded in connection with uses permitted as of right.   Moreover, as noted above, the applicable regulations prohibit the commission from approving an application unless the “proposed use will not affect adversely the health and safety of residents or workers in the area and will not be unreasonably detrimental to the use or development of adjacent properties or the general neighborhood.”   Canterbury Zoning Regs. § 13.4.2. Accordingly, because the holding in Cambodian Buddhist Society discussed above is not applicable to the present case, and in light of the requirements in the applicable regulations, the commission was not required to compare the safety risks associated with the plaintiff's proposed use of Depot Road and Route 169 as a haul route for its gravel operation with the risks posed by other traffic that would be generated by permitted uses of the property.

The final issue raised in the defendant's motion to reargue/reconsider is whether the court improperly placed the burden of proof for the test set forth in Cambodian Buddhist Society on the defendant.   In light of the conclusion above, that the comparative analysis set forth in that case is not applicable, this issue need not be considered.

This court has performed a more exacting analysis of the case law and issues involved in response to the defendant's Motion to Reargue/Reconsider.   That analysis has caused this court to change its prior opinion and to determine that the plaintiff's appeal from the decision of the Canterbury Planning and Zoning Commission must be DISMISSED.

THE COURT

RILEY, J.

FOOTNOTES

FN1. Although the record does not contain a formal, collective statement of the reasons for the commission's decision, a review of the transcript of the commission's deliberations on the application reveals that the four members who voted against approval each expressed as a reason for their vote that the road conditions would be unsafe for the proposed use.  (See Return of Record [ROR], Exh 35, pp 16–18, remarks of commission members Peter Kelly, Jim Clark, Kyle Green and Christopher Bergman.).  FN1. Although the record does not contain a formal, collective statement of the reasons for the commission's decision, a review of the transcript of the commission's deliberations on the application reveals that the four members who voted against approval each expressed as a reason for their vote that the road conditions would be unsafe for the proposed use.  (See Return of Record [ROR], Exh 35, pp 16–18, remarks of commission members Peter Kelly, Jim Clark, Kyle Green and Christopher Bergman.)

FN2. For purposes of this review, I have relied on the Zoning Regulations, town of Canterbury, Revised through 6/10/2010 (Effective 6/18/10) submitted as Supplemental—Return of Record (# 106) dated 12/12/2011 although the electronic version is available on the Town's website..  FN2. For purposes of this review, I have relied on the Zoning Regulations, town of Canterbury, Revised through 6/10/2010 (Effective 6/18/10) submitted as Supplemental—Return of Record (# 106) dated 12/12/2011 although the electronic version is available on the Town's website.

FN3. Notwithstanding the court's reference to “hazards” in this part of the opinion, the only “hazards” that were discussed were those arising from the potential increase in the number of vehicle trips generated by the site and were not related to any specific type of vehicle that would be used in connection with the proposed use.   See Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. 430..  FN3. Notwithstanding the court's reference to “hazards” in this part of the opinion, the only “hazards” that were discussed were those arising from the potential increase in the number of vehicle trips generated by the site and were not related to any specific type of vehicle that would be used in connection with the proposed use.   See Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. 430.

Riley, Michael E., J.