Modern Tire Recapping Company, Inc. et al. v. Newington Town Planning and Zoning Commission (2013)

MEMORANDUM OF DECISION

This appeal challenges the validity of certain amendments to the Newington Zoning Regulations which limit automotive type uses on or near the Berlin Turnpike (CT. Rte 5).   The appeal began with seven named plaintiffs, two of whom have withdrawn.   The remaining five plaintiffs are either fee simple owners or lessees by virtue of written or oral lease agreements within the PD or B–BT zone.¹  They are therefore statutorily aggrieved.  G.S. § 8–8(1):  Primerica v. Planning and Zoning Commission, 211 Conn. 85, 95 (1989);  Moutinho v. Planning and Zoning Commission, 278 Conn. 600, 668–69 (2006).   Moreover, these property interests continued uninterruptedly to and through the trial.  Goldfeld v. Planning and Zoning Commission, 3 Conn. 172 (1984).   These facts were established either by stipulation of the parties or through the introduction into evidence of written instruments which evidenced such interests.

The amendments in question provide, in pertinent part, as follows:

Section 3.15 SPECIAL EXCEPTIONS PERMITTED IN B–BT BUSINESS BERLIN TURNPIKE ZONE

The following uses are declared to possess such special characteristics that each must be considered a special exception.   They may be permitted by the Commission subject to the following conditions and the provisions of Section 5.2 and 5.3.   All such uses must be included within a building or structure or accessory to a permitted principal use.

3.15.8 Motor vehicle service uses in accordance with Section 6.1 and Sections 5.2 and 5.3 of the Zoning Regulations.  (Effective 08/11/2012.)

Section 3.17 Special Exceptions Permitted in I Industrial Zones

3.17.8 Auto-related and motor vehicle service uses in accordance with Section 6.1 and Sections 5.2 and 5.3 of the Zoning Regulations.  (Effective 08/11/2012.)

Section 6.11 SALE, RENTAL, SERVICE OR STORAGE OF MOTOR VEHICLES (effective 8/11/2012).

The Commission may grant a special exception for the sale, rental, service or storage of motor vehicles in certain zones only, subject to the following conditions and to the provisions of Section 5.2 (Procedures and Standards for All Special Exceptions), Section 3.15 (Special Exceptions Permitted in B–BT Business Berlin Turnpike Zone), and Section 3.17 (Special Exceptions Permitted in I Industrial Zones).

For the purpose of this section, “motor vehicle service uses” include but are not limited to those of a limited repairer as defined in Sec. 14–51(a)(4) of the Connecticut General Statutes;  the lubricating of motor vehicles, adding or changing of oil or other motor vehicle fluids, changing of tires and tubes, including the balancing of wheels, or installing of batteries or light bulbs, windshield wiper blades or drive belts as described in Sec. 14–51(b) of the Connecticut General Statutes;  and the sale of gasoline or any other product under the provision of Sec. 14–319 of the Connecticut General Statutes.

Motor vehicle service uses are allowed, by special exception, in the I Zone, B–BT zone, and PD zones only.

For the purpose of this section, “auto-related uses” include but are not limited to dealers and repairers as defined in Sec. 14–51 (a)(1), (2), and (3) of the Connecticut General Statutes, car washes, car and truck rental business and other uses as may be determined by the Commission.

Auto-related uses area allowed, by special exception, in the I zone only.

6.11.1 Auto-related uses, motor vehicle service uses, and equipment such as fuel dispensers shall be at least 30 feet from any street right of way line.

6.11.2 Auto-related uses and motor vehicle service uses which include repairs shall be entirely within a building and at least 30 feet from any street right of way line.

6.11.3 Entrances and exits for auto-related uses and motor vehicle service uses shall be at least 100 feet from a church, school, playground, hospital or any residence.   The Commission reserves the right to alter this requirement when, in its opinion, the natural, topographical, or manmade utilities of the site clearly indicate that this requirement is inappropriate.   The distance may not be increased to more than double nor decreased to less than half the requirement herein, and any such action shall require a two-thirds vote of the Commission.

6.11.4 No display, sale, rental, or storage of any motor vehicle is permitted in the required front yard or in the street right-of-way.

6.11.5 No portion of any use relating to motor vehicles shall be within 100 feet of a residential zone.   The Commission reserves the right to alter this requirement when, in its opinion, the density of the residential zone and the natural, topographical, or manmade utilities of the site clearly indicate that this requirement is inappropriate.   The distance may not be increased to more than double nor decreased to less than half the requirement herein, and any such action shall require a two-thirds vote of the Commission.

6.11.6 The facade of the building shall be a combination of brick, split face block or dryvit.   Wall signage shall be uniform in size, design and lighting.   The architectural style and design shall provide for a good appearance and blend harmoniously with adjacent buildings, and shall be approved by the Commission.

6.11.7 Overhead service doors shall not be permitted on the public street side of an auto-related use or a motor vehicle service use.   The Commission reserves the right to alter this requirement for a corner lot or when, in its opinion, the natural, topographical, or manmade utilities of the site clearly indicate that the requirement is inappropriate.   Such action shall require a two-thirds vote of the Commission.

6.11.8 The minimum lot area for a parcel containing an auto-related use or a motor vehicle service use shall not be less than one (1) acre.   Such uses may be combined with other commercial uses when the total parcel size is not less than three (3) acres.

6.11.9 Pursuant to Sec. 14–321 of the Connecticut General Statutes, effective June 6, 2006 the Town Plan and Zoning Commission shall act as the local authority in approving Certificates of Location (Gasoline and Motor Oil Sales).

6.11.10 Pursuant to Sec. 14–54 and Sec. 14–55 of the Connecticut General Statutes, effective June 6, 2006 the Town Plan and Zoning Commission shall act as the local authority in approving Certificates of Location (Dealers and Repairers Licenses).”

The plaintiffs attack these amendments as a whole alleging that they are invalid, illegal, unconstitutional, arbitrary and capricious, ultra vires and contrary to sufficient evidence in the record.   The specific grounds for these claims are:  1) they impermissibly vest in the commission unlimited and undefined discretion to determine what uses are allowed;  2) the text of the amendments is so vague in places that it violates G.S. Sec. 8–2 and the Fourteenth Amendment to the United States Constitution;  3) they violate the uniformity requirements of Sec. 8–2.

Bearing in mind the deferential standard of review which is applied to a zoning commission when acting in a legislative capacity, the court is required in this attack on the facial validity of the regulations, to determine whether the commission's action is clearly contrary to law or in abuse of discretion.   Within these broad parameters, the [t]est of the [legislative] action is twofold:  (1) The zone change must be in accord with a comprehensive plan ․ and (2) it must be reasonably related to the normal police power purposes enumerated in [the city's enabling legislation] ․ Konigsberg v. Board of Alderman of City of New Haven, 283 Conn. 553, 583 (2007), or in the present case G.S. Sec. 8–2.   Because there is no allegation of any procedural irregularity or that the action of the commission is not reasonably supported by evidence in the record, Colandro v. Zoning Commission, 176 Conn. 439, 440 (1979), the issue in this case is whether the amendments are contrary to law.   Moreover, the plaintiffs bear the burden of establishing that the commission acted illegally and “[e]very intendment is to be made in favor of the validity of [an] ordinance and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt.”   (Internal quotation marks omitted.)  Konigsberg v. Board of Alderman of City of New Haven, 283 Conn. at 583–84, supra.

The court notes as a preliminary matter that each of the defects which the plaintiffs claim are present in the amendments constitutes an attack upon the facial validity of the amendments.   The attack is hybrid in nature, including both constitutional and ultra vires claims.

Under Stafford Higgins Industries v. City of Norwalk, 245 Conn. 551, 582 (1998), an aggrieved property owner may now make a general attack on the validity of land use legislation through a substantive appeal, and unlike the plaintiff in Bombero v. Planning and Zoning Commission, 40 Conn.App. 75 (1996), proof of the effect of the legislation on the plaintiff's property rights is not essential to the court's subject matter jurisdiction because as the court has already found, the plaintiffs have established their aggrievement.

The specific constitutional infirmity about which the plaintiffs complain is that the regulations suffer from incurable vagueness.   Specifically, the plaintiffs first focus on the regulation authorizing the commission to approve (i) “motor vehicle service uses and (ii) auto related uses including but not limited to those uses expressly identified and other uses as may be determined by the commission.”   Next, the plaintiffs challenge Sec. 6.11.3, 6.11.5 and 6.11.7 because they allow the commission to “alter” several requirements when a particular ․ requirement is “inappropriate.”   The final constitutional argument is directed to Sec. 6.11.6 which requires the architecture of the building to have “a good appearance and blend harmoniously with adjacent buildings” and be subject to the commission's approval.

As stated above, the complaint alleges without further particularity that these provisions violate the Fourteenth Amendment.   Examination of the plaintiffs' brief reveals that the constitutional claim is really coterminous with the ultra vires claim because no constitutional analysis is offered which is separate from the ultra vires analysis.   To put the argument another way, the amendments are unconstitutional because they are ultra vires.

“The burden of showing that regulations are unconstitutionally vague rests with the plaintiff.  Russo v. East Hartford, 179 Conn. 250, 257 (1979), cert. denied, 445 U.S. 940 (1980);  see also Kellems v. Brown, 163 Conn. 478, 486 (1972), appeal dismissed, 409 U.S. 1099 (1973).   Moreover, the plaintiff is required to show that the regulation complained of is impermissibly vague as applied to the facts of the particular case.  Bombero v. Planning & Zoning Commission, 218 Conn. 737, 743 (1991);  see also Ghent v. Planning Commission, supra.”  (Alternative citations omitted.)  Barberino Realty & Development Corp. v. Planning & Zoning Commission, 222 Conn. 607, 620 (1992).

Our courts have consistently held that a challenge to the facial validity of an amendment to a zoning regulation requires the challenger to present a factual record showing the manner in which the amendments affect it adversely.  D & J Quarry Products, Inc. v. Planning & Zoning Commission, 217 Conn. 447, 453 (1991).   Implicit in such a requirement is that the record contain evidence that the plaintiffs have made an unsuccessful application to the commission for a special exception under the new regulations.   This is not a case in which a freedom of speech violation has been alleged where no factual basis “as applied” is necessary.  Ramos v. Vernon, 254 Conn. 799, 871 (2000).

“Similar to statutes, regulations do not exist in a vacuum.  State v. Floyd, 217 Conn. 73, 78, 584 A.2d 1157 (1991);  Motor Vehicle Manufacturers Ass'n. of the United States, Inc. v. O'Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987).   Trial courts are not required to make predictions about how a commission may one day apply amended regulations to a potential claimant.   In order to meet its burden, a party seeking to invalidate a regulation is required to present sufficient facts to the court that demonstrate the regulation's adverse impact on some protected interest of its own, in its own particular case, and not merely under some hypothetical set of facts as yet unproven.”  Queach Corp. v. IWC, 258 Conn. 178, 190 (2001) (emphasis added).

The slender record in the present case is barren of any evidence whatsoever of how these amendments apply to the plaintiffs, negatively or otherwise.   No application for a special exception was ever filed by any of the plaintiffs.   It is entirely possible that a use proposed by one or more of the plaintiffs might very well qualify as an “included” but nonspecified use and that such use will provide a “good appearance and will blend harmoniously with adjacent buildings.”  (See Sec. 6.11.6.)   Moreover, it may be that no plaintiff will ever seek to encroach on the setback set forth in 6.11.3 or 6.11.5.   Finally, who is to say that the commission would not approve of overhead service doors facing a public street under 6.11.7 under any circumstances.   Because no application was ever filed seeking any such approvals there is simply no way to determine how these provisions will be applied by the commission.

The closest anyone at the commission's hearing came to describing the effect which these amendments would have are the remarks of Attorney Eric Napp who focused only on the need to permit owners to make improvements to the non-conforming uses “to improve them in ways that would clean up eye sores.”   Other than this, there is nothing in the record either created by affected property owners or the commission itself which creates a factual basis to which these regulations may be applied.

The language of the Queach court is particularly applicable to the present case.

“Because this appeal came to the trial court solely in the context of an appeal from the enactment of the regulations and the amendments to the regulations, the record is devoid of a sufficient factual basis on which to evaluate the alleged effect of the regulations as applied to the plaintiffs.   In particular, the plaintiffs had not filed an application with the commission that was before the trial court, and the regulations were not applied to an actual proposal submitted for approval.   The commission, therefore, did not have an opportunity or the responsibility to deny a specific application submitted by the plaintiffs.   Also, the record does not support the plaintiffs' assertion that the 100 foot buffer zone would automatically and prospectively be applied to reduce the number of possible building sites on their land from 143 to 82.   The “[r]ejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews.”  (Internal quotation marks omitted.)  Gil v. Inland Wetlands & Watercourses Agency, 219 Conn. 404, 417 (1991).”  Id. at 190 (alternate citations omitted).

Unbridled Discretion

The first aspect of this claim is to ascertain the meaning, scope and breadth of the words which are at issue.   In doing so, well recognized principles of statutory construction guide the undertaking.   Initially it is noted that “zoning regulations are local legislative enactments ․ and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes.”  Mountain Brook Association, Inc. v. Zoning Board of Appeals, 133 Conn.App. 359, 367 (2012).  “Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended ․ The process of statutory interpretation involves the determination of the meaning of the statutory language [or ․ the relevant zoning regulation] as applied to the facts of the case, including the question of whether the language does so apply.”  (Internal quotation marks omitted.)   Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn.App. 17, 21–22 cert. denied, 280 Conn. 923 (2006);  see also Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 416 (2007);  9A R. Fuller, supra, § 33:7, p. 261.”

[O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning ․ [General Statutes] § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ Furthermore, General Statutes § 1–1(a) provides:  In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language;  and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.   If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.”  (Citation omitted;  internal quotation marks omitted.)  Moon v. Zoning Board of Appeals, supra, 291 Conn. 21.

“A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance ․ The words employed are to be interpreted in their natural and usual meaning ․ the language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant ․ The regulations must be construed as a whole and in such a way as to reconcile all their provisions as far as possible ․ [R]egulations are to be construed as a whole since particular words or sections of the regulations, considered separately, may be lacking in precision of meaning to afford a standard sufficient to sustain them.”   (Internal quotation marks omitted.)  Fedus v. Zoning & Planning Commission, 112 Conn.App. 844, 849–50, cert. denied, 292 Conn. 904, 905 (2009);  see 9A R. Fuller, supra, § 34:6, pp. 299–303.”  (Internal quotation marks omitted.)   (Alternate citations omitted.)  Id. at 367–69.

The crux of this claim is that the words contained in the second and fourth paragraphs of § 6.11, viz:  “uses include but are not limited to” are indeterminate and potentially unlimited.   Plaintiffs argue that these words vest unbridled discretion in the commission to decide which uses are included and which are not.   In fact, in the case of “auto related uses” the commission is expressly given discretion to determine which uses ought to be permitted.   Although authority to make such a determination is not expressly granted to the commission with regard to “motor vehicle service uses” such authority must necessarily be implied because who else but the commission would determine inclusion or exclusion?

“We have recognized in the past that the words ‘include’ and ‘including’ can be considered as words of limitation as well as enlargement.  Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 150, 285 A.2d 352 (1971).”   Maciejewski v. West Hartford, 194 Conn. 139, 147, 480 A.2d 519 (1984);  accord State v. White, 204 Conn. 410, 422–23, 528 A.2d 811 (1987).   More recently, however, in a case in which we were asked to decide whether the term “including” in General Statutes (Rev. To 1989) § 17–206b was a term of limitation or expansion, we concluded that “[t]he legislature's use of the word ‘including’ rather than the commonly utilized expression, ‘shall include,’ evinces an intention to provide an expansive interpretation of the [statute].”  Mahoney v. Lensink, 213 Conn. 548, 569, 569 A.2d 518 (1990).   Although Mahoney clarified somewhat the prior ambiguity clouding the word “including,” it did not conclusively resolve the ambiguity because it interpreted “including” with reference to a particular statute and its purpose.”  State v. DeFrancesco, 235 Conn. 426, 436 (1995).

In the present case, the addition of the words “but are not limited to” make the word include” a word of enlargement and not limitation.²

In the process of analyzing subdivision regulations for their validity our Supreme Court has identified certain principles.

“Vague regulations which contain meaningless standards lead to ambiguous interpretations in determining the approval or disapproval of different subdivisions.   Adequate, fixed and sufficient standards of guidance for the commission must be delineated in its regulations so as to avoid decisions, affecting the rights of property owners, which would otherwise be a purely arbitrary choice of the commission;  such a delegation of arbitrary power is invalid.”  Sonn v. Planning Commission, 172 Conn. 156, 162 (1976).  “The subdivision regulations upon which the commission, acting administratively, should rule must contain known and fixed standards applying to all cases of a like nature, and must conform to the principle that a regulation, like a statute, cannot be too general in its terms.  Aunt Hack Ridge Estates, Inc. v. Planning Commission, [160 Conn. 109, 115–16, 273 A.2d 880 (1970) ].   The test of a permissible subdivision regulation is whether ‘the criteria contained in the commission's regulations are as reasonably precise as the subject matter requires and are reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations.  American Power & Light Co. v. Securities & Exchange Commission, 329 U.S. 90, 105 [1970];  Ours Properties, Inc. v. Ley, 198 Va. 848, 851 [1957];  1 Am.Jur.2d, Administrative Law, § 118.   Although some of the standards may be general in their terms, they ․ [must be] reasonably sufficient to identify the criteria to be evaluated in their enforcement in order to meet the many variables involved since it would be impossible to establish one standard which would adequately cover all future cases.  Blakeman v. Planning Commission, 152 Conn. 303, 307 [1965].’  Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 680 [1967];  Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 93 [1976].”  Sonn v. Planning Commission, supra, 159–60.   The regulations in this instance do not meet these standards.”   (Alternate citation omitted.)  Ghent v. Planning Comm., 219 Conn. 511, 517–18 (1991).

Plaintiffs rely on several cases which have found certain land use regulations invalid for violating the above principles.   Chief among them is Helbig v. Zoning Commission of Noank Fire District, 185 Conn. 294, 307–8 (1981).   The court held that a zoning regulation was unconstitutional because it was not as reasonably precise as the subject matter requires and reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations.   The court distinguished the offending language “sufficient proof as the zoning commission may require” from the statutory language involved in American Power and Light v. S.E.C., 91 L.Ed 103 (1946), namely “to take such steps as the commission shall find necessary” because the latter language was followed immediately by words which “reasonably qualified” the alleged unconstitutional language.  Helbig is further distinguishable in that the agency authorized to determine whether the use was legally nonconforming was not endowed with the flexibility which the legislature has conferred on zoning commissions with respect to special exceptions.

In the present case, the words “uses as may be determined by the commission” are reasonably qualified by the other uses specified in the ordinance and which follow the phrase in the case of motor vehicle service uses and auto related uses.

Regulations must be viewed to form a cohesive body of law, and they “must be construed as a whole and in such a way as to reconcile all their provisions as far as possible.”  (Internal quotation marks omitted.)  Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, 73 Conn.App. 442, 462, cert. denied, 262 Conn. 928 (2002).   This is true because “particular words or sections of the regulations, considered separately, may be lacking in precision of meaning to afford a standard sufficient to sustain them.”  (Internal quotation marks omitted.)  Id. “When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results.”  (Internal quotation marks omitted.)  Graff v. Zoning Board of Appeals, 277 Conn. 645, 657 (2006);  Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 737–38 (1989).  “[W]e consider the statute as a whole with a view toward reconciling its parts in order to obtain a sensible and rational overall interpretation.”  (Internal quotation marks omitted.)  Fruin v. Colonnade One at Old Greenwich, Ltd. Partnership, 237 Conn. 123, 130 (1996).  (Alternation citations omitted.)  Borelli v. Zoning Board of Appeals, 106 Conn.App. 266, 271–72 (2008).

“According to the rule of ejusdem generis, unless a contrary intent appears, where general terms are followed by specific terms in a statute, the general terms will be construed to embrace things of the same general kind or character as those specifically enumerated.   2A J. Sutherland, Statutory Construction (4th Ed. Sands) § 47.17;  see also Eastern Connecticut Cable Television, Inc. v. Montville, 180 Conn. 409, 413 (1980);  Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289, 296 (1912).”  State v. Russell, 218 Conn. 273, 278 (1991).”  (Alternate citations omitted.)  Cheshire Mortgage Services, Inc. v. Montes, 223 Conn. 80, n.31 (1992).

Here, the words “uses include but are not limited to” are followed by several particularized uses which clearly limit the commission's authority to approval of uses of the same general kind.   Thus, this portion of the amendments does not vest unbridled discretion in the commission.

Vague Provisions

Plaintiffs argue that Sec. 6.11.6 fails to satisfy the requirement that the regulation contain an ascertainable standard which is necessary in order to provide guidance to property owners and the commission itself.   Sec. 6.11.1 provides that “the architectural style and design shall provide for a good appearance and blend harmoniously with adjacent buildings.”  (Emphasis added.)  “Certainly vague and undefined aesthetic considerations are insufficient to support the invocation of the police power.”  DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541 (1970).  “Allowing aesthetic considerations to control zoning without concrete standards would give unlimited discretion to land use agencies to arbitrarily decide land use issues on personal preferences of the agency members, or worse for favoritism not subject to any meaningful judicial control or review.”   Fuller, Land Use and Practice § 4:48 at 174.  “Architectural review provisions would also have the vice of allowing land use decisions based on the subjective opinions of the board members and not specific standards.”  Id. at 176.

“Beauty is in the eye of the beholder.” ³  It is hard to imagine a more subjective term, for what is a “good appearance” to one may very well be a bad appearance to another.   Nevertheless, as stated above “Regulations, like statutes, do not exist in a vacuum.   See State v. Floyd, 217 Conn. 73, 78 (1991);  Motor Vehicle Manufacturers Ass'n. of the United States, Inc. v. O'Neill, 203 Conn. 63, 75 (1987).   Ordinarily, their purported vagueness should be evaluated in the context of a specific factual situation, so that a court may resolve any ambiguities and, if necessary, interpret them in the light of those facts so as to avoid any potentially unconstitutional vagueness.   Connecticut Building Wrecking Co. v. Commissioner of Environmental Protection, 218 Conn. 580, 588 (1991).”  (Alternate citations omitted.)   Bombero v. Planning & Zoning Commission, 219 Conn. at 743, supra.

Moreover, the plaintiff is required to show that the regulation complained of is impermissibly vague as applied to the facts of the particular case.   Bombero v. Planning & Zoning Commission, 218 Conn. 743, supra;  see also Ghent v. Planning Commission, [219 Conn. 511, 518 (1991) ].   The plaintiff has not met these burdens in this appeal.”  (Alternate citations omitted.)   Connecticut Health Facilities, Inc. v. ZBA, 29 Conn.App. 6 (1992).   Plaintiffs have failed to present any facts to which these provisions apply in such a way as to violate their constitutional rights and have not met their burden.

Authority to “Alter”

The plaintiffs condemn Sec. 6.11.3 because the provision reserves to the commission the right to alter certain specific requirements “when in its opinion the natural, topographical or manmade utilities of the site clearly indicate that this requirement is inappropriate.” ⁴  The claimed defect here is twofold.   First, the plaintiffs argue that the power to alter is tantamount to the power to vary and because the power to grant variances rests only with a zoning board of appeals pursuant to G.S. Sec. 8–6, the creation of such a power in a zoning commission is illegal.   Second, the standard for action by the commission is when in the opinion of the commission the setback requirement “is inappropriate” and such a standard is fatally indefinite.

In Langer v. Planning & Zoning Commission, 163 Conn. 453, 457 (1972), our Supreme Court struck down a zoning regulation which provided as follows:

“The Planning and Zoning Commission, on written request from the applicant, may modify, vary, waive or accept other uses as set forth in the above paragraph in harmony with the general purpose and intent of these Regulations, where the effect thereof is arbitrary, or where a literal enforcement of the Regulations would result in practical difficulties not required to accomplish the purpose of a professional office district, so that substantial justice will be done and the general purpose and intent of these Regulations will be accomplished.”   The plaintiffs claim that § 4B.8.4 is invalid in that it violates General Statutes § 8–6 which vests the power to vary the application of zoning ordinances exclusively in a board of appeals.

An examination of the provisions of chapter 124 of the General Statutes, especially § 8–2, concerning the power conferred on the defendant planning and zoning commission, and § 8–6, concerning the powers of boards of appeal, can lead only to the conclusion that the power to vary the ordinance to accommodate practical difficulties and do substantial justice lies exclusively in a board of appeals.   Because § 4B.8.4 allows the commission to vary uses on an application-to-application basis to a degree that they are different from those uniformly allowed under § 4B.8.1, § 4B.8.4 is beyond the scope of the planning and zoning commission's authority and is, therefore, invalid and void.”

The court understands that the term “alter” may or may not have the same functional meaning as “vary.”  “Because the term ‘alter’ is not defined in the zoning regulations, we look to the commonly accepted meaning of the word.   In Webster's Third New International Dictionary, ‘alter’ is defined as follows:  ‘[T]o cause to become different in some particular characteristic (as measure, dimension, course, arrangement, or inclination) without changing into something else.”  Richardson v. Zoning Commission, 107 Conn.App. 36, 57 (2008).”   In Torrington v. Zoning Commission, 261 Conn. 759, 779–80 (2002), our Supreme Court made it clear that variances belong in the exclusive domain of a zoning board of appeals.

“Pursuant to General Statutes (Rev. to 1991) § 8–6, the power to vary the application of zoning regulations falls within the exclusive jurisdiction of the zoning board of appeals.  Langer v. Planning & Zoning Commission, 163 Conn. 453, 457 (1972) (‘the power to vary [zoning regulations] to accommodate practical difficulties and do substantial justice lies exclusively in a [zoning] board of appeals');  R. Fuller, 9 Connecticut Practice Series:  Land Use Law and Practice (2d Ed.1999) § 22.16, p. 505 (‘the exclusive authority to vary the zoning regulations is vested in the zoning board of appeals).  ‘The zoning commission itself cannot vary the requirements of the special permit or site plan provisions of the zoning regulations.’   R. Fuller, 9 Connecticut practice Series:  Land Use Law and Practice (2d Ed.1999) § 15.15, pp. 363–64.”  (Alternate citations omitted.)  Torrington v. Zoning Commission, 261 Conn. 759, 779–80 (2002), dissenting opinion.

It is significant that in neither the Langer nor Torrington case was the zoning commission's power to vary the zoning regulations found in connection with its power to grant special exceptions.   In Langer, the challenged regulation conferred authority on the commission to vary the requirement based on “practical difficulties” and in Torrington the variance power was exercised by a stipulation of the parties which purported to override the zoning regulations.   In neither case was that authority dependent upon the existence of clearly defined standards which in the present case limit the alterations to conditions produced by “natural conditions, topography and utilities.”

“The General Assembly authorized the use of special exceptions via the 1959 amendment to General Statutes § 8–2 Fuller, supra, § 3.7, p. 30;  see also Summ v. Zoning Commission, supra, 150 Conn. 86–87.   That concept represents a compromise between the relative inflexible structure of Euclidian zoning and the impermissible favoritism, corruption and violations of the uniformity requirement that could stem from a pure case-by-case approach.   Put another way, it provides a local zoning agency with some flexibility while maintaining standards applicable to all members of the municipality.”  Campion v. Board of Aldermen, 85 Conn.App. 820, 836–37 (2004).

“The basic rationale for the special permit ․ is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated because of the particular topography, traffic problems, neighboring uses, etc., of the site.”  (Citation omitted;  internal quotation marks omitted.)  Oakbridge/Rogers Avenue Realty, LLC v. Planning & Zoning Board, 78 Conn.App. 242, 246, 826 A.2d 1232 (2003);  see also R. Fuller, supra, § 3.7 pp. 30–31.  Id. at 836.

An application for a special permit seeks permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district.”  (Emphasis added.)  Id. at 835–36.   And again in Maitland v. Zoning Commission, 114 Conn.App. 655, 660–61 (2009), the Appellate Court stated:

“Moreover, we have noted that the nature of special exceptions is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site ․ We also have recognized that, if not properly planned for, [such uses] might undermine the residential character of the neighborhood ․ Thus, we have explained that the goal of an application for a special exception is to seek permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district.”  (Internal quotation marks omitted.)  (Emphasis added.)   Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 426–27, (2008).

In the present case, the regulations in question in each instance authorize the commission to exercise its discretion (“opinion”) in determining whether it should relax the requirements that “(1) no part of the use be within 100 feet of a residential zone;  (2) overhead doors may not face a public street;  (3) “entrance and exits shall be at least 100 feet from a church, school playground, hospital or residence.”   In Maitland, therefore the court made explicit mention of the very conditions which the provisions under consideration in this case are designed to protect, i.e., topography;  neighboring uses.   Such provisions give the commission the flexibility which Sec. 8–2 seeks to promote.

The commission has given itself the power to determine under what circumstances these setbacks and overhead doors may be permitted.   However, such power may not be exercised in an unrestricted, arbitrary manner.   By the very terms of the legislation the right to alter is limited to situations in which natural conditions, topography or utilities are present.   It is noted that Sec. 5.2.6C already gives the commission discretion to regulate the “size, type and location of buildings” proposed in the application for a special exception.   Moreover, it is not unusual for special exception regulations to permit a zoning commission to regulate “the adequacy of yards, open space, screening and buffering” ⁵ as a condition of the special exception.   On the whole, this court perceives little if any practical difference in a regulation which explicitly authorizes a zoning commission, in the exercise of its special exception authority, to alter a setback on the one hand and on the other, a regulation which empowers another commission to accomplish the same result through use of a condition which permits it to move a building away from a sideline.

Based upon the foregoing analysis, the word “inappropriate” as used by the commission cannot be equated with the word “impractical” which the Supreme Court held to be “so vague and imprecise that neither the commission nor the public is fairly apprised of the circumstances under which a dead-end street would be permitted.”  Ghent v. Planning Comm., 219 Conn. at 517–18, supra.   In Ghent, the commission's opinion of “impracticality” was not guided by any standards whatsoever in contrast to the present case.   See also Kosinski v. Lawlor, 177 Conn. 420, 423 (1979) (“poor use of site” held to be so impermissibly vague and uncertain in meaning when unaccompanied by any objective standard).

The standards for altering the setback and overhead door facing are no more vague and imprecise than those that were involved in Jackson, Inc. v. Planning & Zoning Comm., 118 Conn.App. 202, 209 (2009), where the regulation permitted the commission to deny a subdivision application where development was “unsuitable” because of “topography or other features.”   The language of the court in Forest Construction Co. v. Planning & Zoning Comm., 155 Conn. 669, 675 (1967), which the Jackson, Inc. court relied on is particularly applicable here.

“It is unrealistic to demand detailed standards which are impracticable or impossible ․ As the complexity of economic and governmental conditions increases, the modern tendency is liberal in approving broad regulatory standards so as to facilitate the operational functions of administrative boards or commissions.   It is apparent that the regulations are within the purview of the enabling act, and the criteria contained in the commission's regulations are as reasonably precise as the subject matter requires and are reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations ․ although some of the standards may be general in their terms, they are reasonably sufficient to identify the criteria to be evaluated in their enforcement in order to meet the many variables involved since it would be impossible to establish one standard which would adequately cover all future cases.”  (Citations omitted.)  Id., 679–80.

Uniformity

Plaintiffs' argument on this point is as follows:  “the regulations impose substantially different standards on existing vs. newly-constructed uses, subjecting the former to nonconforming use limitations while allowing the latter to be permitted, expanded, modified, modernized, and even combined with commercial uses.”   This argument when taken to its logical conclusion simply states that a zoning commission has no legislative power to subject existing uses in the same zonal classification to stricter regulations which it also imposes on new uses in that zone.   If this were a correct statement of the law, how then would a zoning commission ever be able to rezone land for a different use or maintain the same use but require that future such uses meet stricter standards as to, e.g., setbacks, lot coverage, floor area ratio, height, bulk, etc.   Such a principle would overturn a substantial portion of the zoning fabric of the state.

“A landowner does not have a vested right in the existing classification of his land.   On the contrary, the enabling acts which authorize the enactment of zoning ordinances provide for the amendment of such ordinances.   A landowner's right to establish a particular use can be summarily terminated by an amendment which reclassifies his land and outlaws the use in question.”  Marmah, Inc. v. Greenwich, 176 Conn. 116, 120–21 (1978).

The very nature of a special exception is to permit a use which is not entirely consistent with the principal use of the zone, e.g., a church in a residential zone.   Insofar as that use breaks the uniform pattern of residential use in the zone, it fails to satisfy the uniformity requirement of Sec. 8–2.   That condition was recognized by our Supreme Court in Roncari Industries, Inc. v. Planning & Zoning Comm., 281 Conn. 66, 81 (2007), when it said “the fact that Sec. 8–2 explicitly authorizes special permits demonstrates that the legislature itself recognized the need for exceptions to uniformity, and, therefore, complete uniformity was not mandated.”   The uniformity argument has no merit.

The court also notes that Sec. 5.1.5 of the regulations permits a damaged or destroyed nonconforming building to be constructed in its entirety exactly as it was before the damage or destruction.   Unlike the counterpart provisions in other municipalities there is no limitation that the building suffer at least a 50% loss.

As a further ground for the nonconformity argument the plaintiffs point to the failure of Sec. 6.11 to include a repairer's license as defined in G.S. § 14–51(a)(3), characterizing the limitation to limited repairer's license under § 14–51(a)4 as “nonsensical.”   The plaintiffs have offered no authority for the proposition that a zoning commission is without authority under Sec. 8–2 to permit one class of use but not the same generic class of use.  “The judiciary may not sit as a super legislature to judge the wisdom or desirability of legislative policy determinations.”  Blue Sky Bar, Inc. v. Stratford, 209 Conn. 14, 27 (1987).   The plaintiffs have failed to demonstrate that such a distinction is illegal.

For the foregoing reasons the appeal is dismissed.

BT THE COURT

A. WILLIAM MOTTOLESE, J.T.R.

FOOTNOTES

FN1. B–BT zone is the Business Berlin Turnpike zone.   The PD (Planned Development) zone is directly affected by these amendments because Sec. 3.18.1 permits all special exception uses that are permitted under Sec. 3.15 which in turns incorporates Sec. 6.11 uses..  FN1. B–BT zone is the Business Berlin Turnpike zone.   The PD (Planned Development) zone is directly affected by these amendments because Sec. 3.18.1 permits all special exception uses that are permitted under Sec. 3.15 which in turns incorporates Sec. 6.11 uses.

FN2. The expression “including but not limited to” or a variation thereof appears in general statutes which are too numerous to mention.   See, e.g. G.S. §§ 10–46b–56;  52–572m;  8–2..  FN2. The expression “including but not limited to” or a variation thereof appears in general statutes which are too numerous to mention.   See, e.g. G.S. §§ 10–46b–56;  52–572m;  8–2.

FN3. Attributed to Margaret Wolfe Hungerford in the novel “Molly Bawn.”.  FN3. Attributed to Margaret Wolfe Hungerford in the novel “Molly Bawn.”

FN4. Drafting by a zoning commission “presumably composed of lay persons, ․ need not be in a form to satisfy the meticulous criterion of a legal expert.”  Protect Hamden/North Haven from Excessive Traffic and Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 554 (1991)..  FN4. Drafting by a zoning commission “presumably composed of lay persons, ․ need not be in a form to satisfy the meticulous criterion of a legal expert.”  Protect Hamden/North Haven from Excessive Traffic and Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 554 (1991).

FN5. Zoning regulations of the City of Norwalk Sec. 118–50c(g).  See also, Zoning regulations of the City of Stamford Sec. 19–3.2a.(1)—”the proposed size, scale and arrangement of structures ․ and proximity of existing dwellings and other structures.”.  FN5. Zoning regulations of the City of Norwalk Sec. 118–50c(g).  See also, Zoning regulations of the City of Stamford Sec. 19–3.2a.(1)—”the proposed size, scale and arrangement of structures ․ and proximity of existing dwellings and other structures.”

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