Michael Stern et al. v. Town of Washington Zoning Commission et al. (2013)

MEMORANDUM OF DECISION

This matter was companionized with the case of Michael Stern et al. v. Washington Inland Wetlands Commission, Docket No. CV–12–6006424–S.   Both cases were tried to the court beginning on May 23, 2013.¹

The plaintiffs, ten individuals who claim to own property abutting land owned by defendant The Gunnery, Inc. (“Gunnery”), challenge a decision by defendant Town of Washington Zoning Commission (“WZC”) to approve a permit application submitted by Gunnery.   The appeal is dismissed.

I

THE ACTION OF THE WZC AND THE PROCEDURAL HISTORY

Gunnery is a private boarding school located in Washington, Connecticut.   In addition to the primary school campus, Gunnery owns approximately seventy acres located at 22 South Street, also in Washington, Connecticut (“the property”).   The property, acquired by Gunnery in the 1950s, is approximately one mile from the main campus and is the site of Gunnery's water system and an environmental classroom that has been operational since approximately 2005.   The property includes slightly less than nine acres of wetlands.

Gunnery wishes to construct two natural grass athletic fields on the property, as well as a driveway, a gravel parking lot and stairs to the fields (“the project”).   The project is expected to involve the excavation and redistribution, on the property, of approximately 55,000 cubic yards of material.   The athletic fields are primarily intended for use by some of Gunnery's junior varsity sports teams.   The fields are to be used in the spring and the fall, specifically for afternoon practices four weekdays each week in the latter two seasons, and for games on Wednesday and Saturday afternoons.

In October 2011, Gunnery began the application process for a permit to be issued by the Town of Washington Inland Wetlands and Watercourse Commission (“IWC”).   On March 14, 2012, the IWC approved that application, subject to ten conditions.   Two opponents of the project, Michael Stern and Linda Zelenko, appealed the IWC decision.   On September 4, 2013, this court dismissed the latter appeal.

On March 22, 2012, Gunnery applied to the WZC for a special permit, seeking approval for the project.   Two of the plaintiffs, Michael Stern and Linda Zelenko, sought intervenor status prior to the first public hearing on Gunnery's application.²  On April 23, 2012, the WZC opened the public hearing.   The WZC held a second public hearing on May 8, 2012;  a third public hearing on May 21, 2012;  another on June 25, 2012;  and a fifth, and final, public hearing on July 25, 2012.   The WZC held a special meeting on July 30, 2012, at which it deliberated and voted, four to zero (4–0), to approve Gunnery's application.   The following is a review of salient events that took place at each of the WZC meetings where the project was considered.

A

April 23, 2012 Meeting

At the first WZC meeting, on April 23, 2012, it was established that the WZC has six commissioners who are active in many community affairs within the town;  a town with a population of about 3,500 residents.   The WZC chairman, Gary Fitzherbert, noted that the commissioners have 250 years of combined residency in the town.

Commissioner Nick Solley recused himself from consideration of Gunnery's application because his wife was, at the time, serving on Gunnery's Board of Trustees.   Another commissioner, Dave Werkhoven, reported that his wife had taught at Gunnery for twenty-five years, retiring almost two years prior to the meeting.   She continued, at the time of the meeting, to work as a tutor for Gunnery students.   Nonetheless, in view of his indirect association with Gunnery, he expressed his belief that he could assess the application objectively.   Stern, the first named plaintiff in this case, immediately objected to Werkhoven's involvement in the application.   In the face of this objection, Werkhoven decided to recuse himself.   An alternate, Harry Wyant, was seated in Werkhoven's stead.

Another commissioner, Ray Reich, placed on the record that he had considered recusing himself from consideration of the application because, in addition to his membership on the WZC, he was also a member of the Washington Parks and Recreation Commission and had long considered “more athletic fields ․ in town a good thing and seven years ago publicly expressed the Rec Commission's support of Gunnery's plan to provide playing fields at its South Street property.”   ROR 164 at 6–7.   However, he also noted that the recreation commission would only support “additional playing fields ․ if installed in compliance with all zoning regulations.”   ROR 164 at 7. Thus, he concluded that he saw no conflict between his roles on the two town commissions.

Reich also noted that he had taught at Gunnery, but had retired six years before and joined the WZC three years thereafter.   He reported that, when he retired from Gunnery, his departure was complete in that he severed his ties with the school.  “When I retired, Gunnery agreed not to call me to substitute teach, not to tutor, or to help in any capacity.   My separation has been total.   I am not predisposed to favor this applicant, but I am predisposed to rely on my forty-five years of teaching physics, a discipline which values hard facts backed up by verifiable numbers.   You need not like the equations of physics, but you and I need to accept objectivity and verifiability.   It is objectivity and verifiability which I bring to each Zoning application ․ I value the mostly black and white reality of the world of physics.   I am prepared to bring this same objectivity to any Zoning ․ applicant even to a former employer six years removed ․ I am not directly or indirectly interested in either a personal or financial sense in this application.   For these reasons, I do not recuse myself.”   ROR 164 at 7.

Following an introduction regarding the project, Susan Graham, head of Gunnery, explained to the WZC why the project is, and will be, an integral part of Gunnery's educational program.   She reported that the land, on which the fields are to be located, was purchased some sixty years ago for the purpose of providing extra space to Gunnery when it would be needed.   Indeed, she reported that Gunnery maintains an environmental classroom on the land and currently uses the land for Gunnery's outdoor club as well as for art and science classes.   ROR 164 at 15–16.

After Graham, Curt Smith, a licensed land surveyor, presented the site plan for the project.   In addition to describing the project, he presented the bases for his finding that the completed project, which would be largely located in the center of the property, will not be readily visible to the plaintiffs.   Indeed, he indicated that, due to the site plan, the plaintiffs will not be able to see the players on the fields.

The next witness, Lawrence Buck, is an engineer who has consulted with Gunnery for approximately forty-five years.   He stated that he analyzed drainage issues associated with the project and determined that the use of level spreaders would control any unusual runoff.   Buck also noted that, when completed, the project should actually reduce the total volume and the peak rate of runoff from storm events as opposed to the existing runoff on the property.   He also reported that the project would not affect well water, nor would blasting be associated with the project.

Stuart Cohen, a groundwater professional, followed Buck and reported to the WZC regarding the thirty-page turf management plan that he prepared for the project.   He discussed the key provisions of the plan and his conclusion that the project would not impact aquatic organisms or their food.   Cohen stated that his plan will permit the turf to be managed in an environmentally sound manner.

A soil scientist, Michael Klein, reported his analysis of the soils on the site and their drainage capabilities.   Klein also provided length of construction recommendations to minimize the potential for an adverse impact from the project.   He noted that the project incorporates his recommendations regarding landscape buffer and, in his view, the project, as structured, will conserve natural features and protect the environment.

Michael Galante, a transportation planner, advised the WZC that the project, when operational, would have an insignificant impact on the traffic in the area around the project.   Galante was followed by Bennet Brooks, an acoustical engineer with nearly forty years' experience.   Brooks stated that any increase in sound in the neighborhood resulting from the project would be well within the regulations promulgated by the Connecticut Department of Energy and Environmental Protection.

Bruce Hunter, a certified appraiser, presented his findings regarding the impact of the project on the fair market value of the properties surrounding the project.   He concluded, based on his analyses, that the project would not negatively impact the property values of any of the neighboring properties.

B

May 8, 2012 Meeting

The next meeting took place on May 8, 2012.   At that meeting, the WZC chairman, Fitzherbert, reported that he and Reich had participated in a site visit that the IWC had carried out relative to the project.   Counsel for the plaintiffs outlined the presentations that he intended to offer in opposition to the project.   In the course of his remarks, counsel recognized that the WZC had previously allowed a special permit for an environmental classroom to be built on the site “because there's no way that The Gunnery could provide that environmental classroom on its own site.   And that environmental classroom use [sic] so benign that it fits completely almost hand and [sic] glove with the benign residential uses that are there.”   ROR 165 at 11.³

Sean Jancski, a landscape architect, opened the presentation for the plaintiffs and contended that the project would require substantial clearing of trees on the property.   The necessary clearing, he argued, would lead to a greater likelihood that the finished project would be more readily visible than Gunnery's presenters acknowledged.   Jancksi presented what he termed a three-dimensional view of what the finished project would look like.   ROR 165 at 13.   He included various photographs, including aerial photographs, in his presentation.   ROR 165 at 13–19.

The next presenter for the plaintiffs, Mark Goodin, is an engineer who provided a peer review of the project from a civil engineering standpoint.   He disagreed with Gunnery's position regarding the quantity of water runoff that would occur if the project is completed.   He also disagreed with Gunnery's proposal to use level spreaders to control runoff, and he argued that the project cannot be completed without resorting to blasting.   After Goodin, Beth Evans, an environmental planner and an ecologist, made her presentation.   She took the position that the project would result in fragmentation of the forest habitat on the property.   Such fragmentation, she stated, would seriously degrade the quality of the habitat “and essentially the entire ․ site [will become] disturbed habitat that is vulnerable to invasive species, plants.”   ROR 165 at 43.   She also stated that “the fact that ․ no one has ever documented a rare or endangered species doesn't mean one isn't there.”   ROR 165 at 44.

The plaintiffs' final presenter was Hiram Peck, a municipal planner and land use consultant.   He argued that the project constituted an accessory use to a school, and that such an accessory use must be on the same lot as the primary use.   He made additional arguments that the project is inconsistent with the WZC regulations, that Gunnery must obtain an excavation permit to complete the project and that the project would require blasting.   Peck further contended that the project is inconsistent with various provisions of the Washington Plan of Conservation and Development (“POCD”).

Several plaintiffs made individual presentations regarding the project.   Stern, for example, pointed out that the orientation of the athletic fields, in an east/west direction, is inappropriate because when the sun rises and sets, it will be in the eyes of the players.   Counsel for the plaintiffs then presented several points and expressed particular concern that Gunnery might make use of the project in the summer, running camps on the property.

C

May 21, 2012 Meeting

The third meeting proceeded on May 21, 2012.   At that meeting, the chairman of the WZC noted that the intervenors had introduced information regarding issues that had been before the IWC, contrary to the chairman's request.   As a consequence, he proposed that Gunnery present the Land Tech report that was a part of the record in the hearing before IWC.⁴ The chairman stated that Gunnery was placed in the position of responding to matters that were primarily within the province of the IWC. ROR 166 at 5.

Curt Smith, Gunnery's surveyor, opined that the intervenors' presentation regarding the visual impact of the project was in error.   Smith contended that an accurate analysis of the project requires the conclusion that the project would not result in any significant visual impact.   Larry Buck, Gunnery's engineer, rebutted the claims of Mark Goodin that criticized, inter alia, the project design.

The next presenter was A.J. Towne, the representative of Towne and Aurell Excavating, the company hoping to do the site work on the project.   Towne and Aurell Excavating has some fifty-two years of experience.   A.J. Towne stated that the plans for the project are clear and the project would be completed without blasting.   Towne responded to additional concerns raised by the intervenors, explaining that the project is essentially a straightforward assignment:  “It's 50,000 yards of material roughly and that's not an awful lot ․ [T]o some people it might be.   To us ․ we're building a ball field.   It's a very matter of fact project and I don't see it taking a great deal of time to ․ do this project.”   ROR 166 at 24.

Michael Klein, a biologist and soil scientist, followed Towne.   Klein provided detailed and specific responses to the criticisms leveled by, inter alia, Jancski, Goodin and Evans.   Members of the public also addressed the WZC and the hearing was continued again.

D

June 25, 2012 Meeting

At the June 25, 2012 meeting, the chairman opened the meeting by noting that the application process was growing increasingly protracted, with each side having made a presentation, followed by a response from Gunnery and, as of the June 25, 2012 meeting, the intervenors were providing “a response to a response.”

The intervenors re-introduced landscape architect Sean Jancski who offered a presentation relative to his three-dimensional modeling of the project.   Jancski was followed by Beth Evans who responded to Gunnery's position regarding the environmental impact of the project.   She restated her position that the project would have a potential negative impact greater than that anticipated by Gunnery.

After Evans, Richard Meehan addressed the WZC. Meehan is a partner of Mark Goodin, who previously made a presentation on behalf of the intervenors.   Meehan expressed his view on the WZC's responsibilities regarding the special permit application.   Thereafter, Goodin expressed his view as to the level of review that the Department of Environmental Protection would provide relative to the project.   Goodin also asserted that Gunnery had not sufficiently addressed some of his concerns expressed at his first appearance before the WZC. The intervenors next presented Hiram Peck. Peck claimed that Gunnery's presentation had not met “75% of the special permit standards” required for it to succeed with its application.   ROR 167 at 37.

After Peck, one counsel for intervenors summarized his opposition to the project.   The intervenors' other counsel then requested an opportunity to withhold his summary until Gunnery had made its concluding remarks.   The chairman and counsel for the parties engaged in an extended debate on the question of whether the WZC would alter its normal procedure to accommodate the request of intervenors' counsel to have the last word in the process.   At the conclusion of the discussion, the WZC scheduled a further hearing, followed by a presentation by a member of the public.

E

July 25, 2012 Meeting

At the July 25, 2012 meeting, the chairman pointed out that the WZC proceedings on Gunnery's application had, as of that date, caused the matter to rank as the second or third longest WZC proceeding in the last twenty-five years.   Although the chairman indicated that the WZC was only interested in hearing any additional factual presentations, counsel for all parties requested an opportunity to provide a summary of their respective positions.

The intervenors began with their summary, acknowledging that the WZC had allowed an environmental classroom on the property in 2005:  “I assume ․ because this is a great site for environmental studies.   You can't have environmental studies on the main campus because there is so much activity, there's so much development there ․ The 2005 Special Permit had very minimal impact on the neighborhood.   I'm not questioning and saying you were wrong to grant it, given, given the environmental value of the property ․” ROR 168 at 8.⁵ Counsel for the intervenors then reviewed its claims that Gunnery had failed to meet all of the standards required to receive a special permit.

Gunnery introduced the new head of the school, followed by Gunnery's counsel who responded to the intervenors' arguments.   That response was followed by a series of factual presentations, beginning with Curt Smith, Gunnery's surveyor.   Smith responded to claims by Jancski, the intervenors' landscape architect.   Smith contended that Jancski's drawings of the project were not to scale and did not accurately depict the project or the landscape implicated by the project.

The next presenter, Lawrence Buck, responded to intervenors' claims regarding the nature of soils in the project area, the use of level spreaders, the means of completing the project without blasting, and other claims by the intervenors.   Michael Klein, a biologist and soil scientist, followed Buck. Klein rebutted, in particular, claims by Evans regarding the environmental impact of the project.   He contended that there is no credible evidence that the project will have significant adverse impacts on the ecology and hydrology of the site.

Gunnery's last presenter, Bennett Brooks, is an engineer who made a presentation regarding the acoustical aspects of the project.   He explained the reasons why, in his opinion, the project would have little or no impact on neighbors of the property.   Brooks introduced photographs showing an inflatable dome over Stern's tennis court and introduced evidence that the pump used to support this inflatable dome would, itself, generate noise, limiting the effect of any noise generated by the project.   He noted that his work is based on engineering calculations and that the intervenors' contrary evidence was not competent, having been prepared by a consultant who is not an engineer, but rather a home theater designer.   At the conclusion of Brooks' report, counsel for Gunnery provided a summary of Gunnery's position and the WZC then closed the public hearing.

F

July 30, 2012 Meeting

At the July 30, 2012 WZC meeting, the commission began deliberation on Gunnery's special permit application.   The chairman opened the meeting by addressing several questions that had been raised relative to the special application.   He stated that, in the view of the WZC, the application was not for a commercial use of the property.   He noted that the IWC had reviewed more than the area that was within its normal purview and included a review of the erosion controls and best management practices for the entire project.   Thereafter, he took a straw poll of the WZC members, and found that four of them were leaning towards approving the project.

Reich then indicated that he would abstain from voting on the project as well as from deliberations.   The chairman cautioned Reich, in view of Reich's decision to abstain, against making any expression or even “any nod of the head” that might be interpreted as agreeing or disagreeing with anything said by any other member of the WZC. ROR 169 at 6–7.

The chairman then reviewed the reasoning that supported the WZC decision to take into consideration the work done by the IWC and by its consultant, Land Tech. Both the chairman and commissioner Wyant, who stated that he had years of experience in construction and excavation, explained why they found the intervenors' engineer to be unconvincing.   Referring to a 2005 opinion by its land use attorney, the WZC concluded that the use proposed by Gunnery, in the special permit application, was a “school use.”   The chairman stated:  “I have no doubt in my mind looking at our past experiences ․ past applications ․ and ․ this letter [written by the WZC land use attorney] that we have used before ․ on our definition that it meets the definition of school.”   ROR 169 at 17.

Several commissioners expressed the view that the project was consistent with the POCD as it balanced the needs of the school and the town.   One commissioner noted that the project only involved twelve acres on a seventy-acre site, “and it's not even building.”   ROR 169 at 19.   Other commissioners noted that the use was to be part-time.   ROR 169 at 19–23.

The WZC discussed the limited impact on the neighborhood, with the chairman concluding that the intervenors' presentation regarding the visual impact “was total over exaggeration.”   ROR 169 at 25.   Another commissioner noted:  “I think all of us know the Town very well and we've driven it all thousands of times.”   ROR 169 at 26.   Additionally, in determining that the project would have no significant visual impact on neighboring properties, the WZC considered the photographs introduced by the plaintiffs.

The WZC considered a draft motion that set forth three separate factual findings.   Based on those findings, the WZC concluded that the intervenors had “failed to meet their burden of proving that the applicant's proposed activities are ․ reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in [the] air, water, or other natural resources of the state.”   ROR 169 at 44.   The four voting members of the WZC approved the draft motion, with Reich abstaining from the vote.   ROR 169 at 45.

Thereafter, the four voting members of the WZC voted to approve the special permit application, subject to five separate conditions imposed by the WZC. Reich, again, abstained from the vote.   Each voting member of the WZC stated his or her reasons for voting in favor of the special permit application.   ROR 169 at 49–51.

The plaintiffs appealed the WZC decision, filing their complaint on August 27, 2012.   This matter came before the court and was tried, together with the case of Stern v. Washington Inland Wetlands Commission, Docket No. CV–12–6006424–S, over the course of four days.   The appeal is dismissed.

II

AGGRIEVEMENT

The superior court's “jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute.”  Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992).  “[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal.”   Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996).  General Statutes § 8–8(a)(1) defines an “aggrieved person” in relevant part, “[i]n the case of a decision by a ․ planning and zoning commission or zoning board of appeals,” as “any person owning land ․ that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”  General Statutes § 8–8(b) provides in relevant part that “any person aggrieved by any decision of a board ․ may take an appeal to the superior court for the judicial district in which the municipality is located ․

“Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved ․ The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination:  [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole.   Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] ․ Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case ․ A statute need not specifically provide that certain persons come within its protection in order to establish aggrievement as long as that protection may be implied fairly.”  (Citations omitted;  internal quotation marks omitted.)  Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 369–70, 880 A.2d 138 (2005).  “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 400, 920 A.2d 1000 (2007).

In their complaint, the plaintiffs allege that they are statutorily and classically aggrieved by the WZC's decision in that they each own property in the Town of Washington that abuts the Gunnery property where the project is to take place.   See Compl. ¶ 68.   Plaintiffs Michael and Marjorie Stern;  Rexford Swain and Mary Roberts;  April and Donald Crumrine;  John Colepaugh and Paul Woronick;  and Linda Zelenko and Stephen Piscuskas introduced affidavits and deeds establishing that they are the owners of real property abutting the property where Gunnery proposes to build athletic fields.   The defendants do not contest the plaintiffs' claim of aggrievement.

Based upon the affidavits, deeds and the record as a whole, the court finds that all plaintiffs have met their burden of showing that they are statutorily and classically aggrieved by the WZC decision.

III

THE PARTIES' ARGUMENTSAThe Plaintiffs' Position

The plaintiffs make eight separate claims in support of their appeal.   First, they argue that the WZC was illegally constituted and demonstrated clear bias.   Second, the plaintiffs claim that the proposed athletic fields do not constitute a “school use” and so the project is barred by applicable town zoning regulations.   Third, they argue that the WZC did not find that the project constituted a use allowed in the applicable zoning district.   Fourth, the plaintiffs argue that the WZC “illegally adopted/substituted” a review by IWC consultants as the equivalent of a WZC technical site plan review.   Fifth, the plaintiffs claim that the WZC “violated basic rules of fundamental fairness and natural justice” relative to the handling of the application.   Sixth, the plaintiffs argue that the record does not include substantial evidence to permit the WZC decision that the project meets the special permit and site plan criteria under the applicable zoning regulations.   Seventh, the plaintiffs claim that the record lacks substantial evidence to support the WZC determination that the project is not reasonably likely to unreasonably pollute, impair or destroy the public trust in the air, water or other natural resources.   The plaintiffs' eighth and final claim is that Gunnery did not obtain an excavation permit which, the plaintiffs argue, is required by zoning regulations.

B

The Defendants' Position

The defendants each filed briefs in response to the plaintiffs' claims.   First, they argue that Gunnery's application is for a school use, which is a permissible use under the applicable zoning regulation.   Second, they contend that the plaintiffs have failed to establish bias or predisposition on the part of Reich.   Third, they assert that the WZC did not impermissibly rely upon the record introduced at the IWC relative to the project.   Fourth, the defendants argue that there is substantial evidence in the record showing that Gunnery complied with every special permit standard.   Fifth, the defendants claim that the plaintiffs failed to meet their burden of showing that the project is “reasonably likely to unreasonably pollute, impair, or destroy the public trust in the air, water or other natural resources.”   Sixth, the defendants contend that the proceedings were consistent with principles of fundamental fairness and/or natural justice.   Finally, the defendants claim that no special excavations permit is required for the project.

IV

THE STANDARD OF REVIEW

“It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.”  (Internal quotation marks omitted.)  Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 744, 626 A.2d 705 (1993).  “The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given” by the agency in support of its decision.  Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539–40, 525 A.2d 940 (1987).⁶  “The evidence, however, to support any such reason must be substantial ․” Id. “The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision.”  (Internal quotation marks omitted.)  Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622, 626, 814 A.2d 396, cert. denied, 263 Conn. 901, 819 A.2d 836 (2003).

When a commission “does not formally state the reasons for its decision ․ the trial court must search the record for a basis for the board's decision.”   (Internal quotation marks omitted.)  Moon v. Zoning Board of Appeals, 291 Conn. 16, 25, 966 A.2d 722 (2009).   Here, as in Moon, “the individual members of the board discussed reasons [for their decision] but ․ did not state a collective, official reason for its action.”  Id. As such, the court is required to carry out a detailed examination of the record in search of a basis for the WZC's conclusion.   See id., 25–26.

“[I]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld.”  (Emphasis in original;  internal quotation marks omitted.)  Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 608, 569 A.2d 1094 (1990).   The foregoing “substantial evidence” analysis “is similar to the ‘sufficiency of the evidence’ standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred.”  (Internal quotation marks omitted.)  Woodburn v. Conservation Commission, 37 Conn.App. 166, 171, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995).  “At issue in all of these matters ․ is that there was some onus on the commission not to act arbitrarily, and the principal way in which courts decide whether an agency's decision is arbitrary is to determine whether there is substantial evidence in the record to support that decision.”  Loring v. Planning & Zoning Commission, 287 Conn. 746, 764, 950 A.2d 494 (2008).

V

DISCUSSIONACommissioner Reich's Participation

The plaintiffs' initial claim is that one commissioner, Ray Reich, demonstrated clear bias in favor of Gunnery;  that he predetermined the issue before the WZC;  that his participation in the proceeding was statutorily proscribed because he had a “real conflict of interest” due to his relationship with Gunnery;  and that his participation in the proceedings before the WZC created the appearance of impropriety.   The plaintiffs base their arguments, in part, on the provisions of General Statute § 8–11 which provides in relevant part that “[n]o member of any zoning commission or board ․ shall participate in the hearing or decision of the board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense.”   The burden of establishing a disqualifying interest rests with the plaintiffs.  O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 430, 655 A.2d 1121 (1995).

Reich addressed the principles set forth in General Statute § 8–11 at the first meeting relative to Gunnery's application.   Although he did not specifically cite the applicable statute, he referred to some of its pertinent language.   Reich publicly stated that, years before, he had expressed support for more playing fields in the town, and that he had supported the creation of playing fields at the South Street property.   However, he also made clear that he always took the position that any proposals for playing fields had to conform to zoning requirements.

Next, Reich related details regarding his former relationship with Gunnery, and set forth his analysis as to why that former relationship did not pose, in his mind, a conflict that would preclude his service on the WZC relative to Gunnery's application.   Following those explanations, he participated in the hearings, albeit in limited fashion.   When it came time to deliberate on the application, however, he decided to abstain from the deliberations and the voting on the special permit.   Thus, he was not included in the final unanimous vote in favor of the application.

(1)

Conflict of Interest

As the plaintiffs correctly note, our Supreme Court has held that General Statutes § 8–11 provides that zoning officials “decline to participate in situations which might reasonably conflict with private, personal or financial interest.   The public official must not be permitted to place himself in the position in which personal interest may conflict with his public duty.”   (Internal quotation marks omitted.)  Thorne v. Zoning Commission, 178 Conn. 198, 203, 423 A.2d 861 (1979).   Although they recognize that Reich did not deliberate or vote, the plaintiffs note that General Statutes § 8–11 prohibits “participation in the hearing,” and they cite Mills v. Town Plan & Zoning Commission, 144 Conn. 493, 134 A.2d 250 (1957), to support their position that Reich's participation was impermissible.

The plaintiffs do not credit Reich's reasons for not recusing himself at the outset of the hearing, accusing him of “arrogance,” ⁷ and suggesting, at least, that Reich was less than truthful.⁸  The plaintiffs claim that Reich suffered from an irreconcilable conflict of interest based, in part, upon assertions that Reich “did not disclose the length of his employment at the Gunnery,” and that he did not “reveal the full nature of the relationship between him and his former employer.”   Pls.' Br. 13–14.

The record, fairly read, does not support the plaintiffs' claim that Reich was less than forthcoming about the material aspects of his relationship with Gunnery.   Further, the court finds no merit to the suggestion that Reich was untruthful.   Reich discussed the fact that he was a former Gunnery teacher, that he retired from Gunnery six years before the proceeding, that he joined the WZC three years thereafter, and that his separation from Gunnery was “total.”   He made clear that he was aware of the provisions of General Statutes § 8–11, that he considered them, and that he concluded that he had no direct or indirect interest, either personal or financial, in the application.   ROR 164 at 7. The plaintiffs' claims are insubstantial and do not convince the court that the commission was illegally constituted due to Reich's participation in the hearings.

The plaintiffs attempted to supplement their claim, that Reich had an ongoing relationship with Gunnery, with evidence they introduced long after the WZC rendered its decision.   The plaintiffs claimed, in their reply brief, that they would demonstrate that Reich's relationship with Gunnery “is far more extensive than that disclosed.”  (Emphasis in original.)   Pls.' Reply Br. 11.   That claim was based, in part, upon responses that they anticipated to receive relative to certain requests for admission regarding Reich's deceased son, Major Stephen Reich.

The “far more extensive” evidence appears to be the plaintiffs' discovery that Reich's son, whom the plaintiffs candidly acknowledge was “a hero in the war in Afghanistan,” was honored by Gunnery.   The parties advised the court that, in June of 2005, Reich's son, a member of the United States Army Special Forces, was killed in Afghanistan while engaged in a rescue mission.

In response to the plaintiffs' requests for admission, the WZC inquired of Reich with regard to claims that Gunnery had honored his deceased son by virtue of articles posted on Gunnery's website;  that Gunnery's crew team had honored Reich's son by virtue of a rowing shell dedication and by placing a poster regarding Reich's son in the crew clubhouse;  and that some Gunnery students had twice donated some proceeds from a student theatrical production to a fund intended to honor Reich's son.   Reich responded to the requests for admission.   He stated that, to his knowledge, the events reported by the plaintiffs occurred in 2006 and 2007, after his retirement from the Gunnery, and some five years before the application came before the WZC. He stated that he was not even aware that Gunnery had a website until 2008, and he was not aware of the specific website articles identified by the plaintiffs until he was called upon to address the plaintiffs' claims about them in April 2013.   Commission's Amended Responses and Objections to Requests for Admission, dated May 17, 2013.⁹

Our Supreme Court addressed a similar “conflict of interest” claim in Armstrong v. Zoning Board of Appeals, 158 Conn. 158, 257 A.2d 799 (1969).   As will become evident, it is significant that the Armstrong case arose from a challenge to a decision by the zoning commission in the town of Washington.   In Armstrong, The Devereux Foundation had received a bequest of a forty-one-acre estate, including a main house, and sought zoning commission approval to use the property “for school and education purposes.”  Id., 160, 162.   The Devereaux Foundation operated numerous treatment centers in different states for “emotionally disturbed and mentally retarded children” and adults.  Id., 160.

The plaintiff in Armstrong owned an estate adjoining the property at issue and opposed The Devereaux Foundation's application.  Id., 163.   The plaintiff contended that a member of the zoning commission and a member of the zoning board of appeals should have been disqualified from acting on the application.  Id., 170.   Her claim was that the chairman of the zoning commission was also the chairman of the Washington mental health fund, and that he had issued a letter to the citizens of Washington, soliciting funds for mental health causes.  Id. She claimed that a member of the board of appeals had a son who, over the course of six years, had received psychiatric treatment at a Devereaux Foundation institution in Pennsylvania, although the treatment had concluded prior to the board's consideration of the appeal.  Id., 170–71.

In Armstrong, the trial court declined to find that either individual was required to disqualify himself, either pursuant to General Statutes § 8–11 or under binding authority on the issue.  Id., 171–72.   The Supreme Court affirmed the trial court's opinion, concluding that “local governments would ․ be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a zoning official ․ The decision as to whether a particular interest is sufficient to disqualify is necessarily a factual one and depends on the circumstances of the particular case.”  (Citations omitted;  internal quotation marks omitted.)   Id.;  see Gaynor–Stafford Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 650, 474 A.2d 752, cert. denied, 496 U.S. 932, 105 S.Ct. 328, 83 L.Ed.2d 265 (1984) (“[w]hether a particular interest justifies disqualification is necessarily a factual question, for not every interest, no matter how remote and infinitesimal, may be said to possess the likely capacity to tempt the public official to depart from his sworn duty” (internal quotation marks omitted)).

In Mills v. Town Plan & Zoning Commission, supra, 144 Conn. 495, upon which the plaintiffs rely, a commission member, Thompson, had served as a straw purchaser for a developer who owned forty percent of the stock in a corporation that was directly interested in the issue before the commission.   Thompson had been appointed to the commission at the suggestion of the chairman of the town committee of a major political party who, himself, owned another forty percent of the same corporation.  Id. Although Thompson did not vote on the application before the commission, he aggressively involved himself in the deliberative process and actively attempted to influence the outcome.  Id., 495–96.  “At the executive session of the commission at which the application to rezone the Mills tract was discussed, Thompson made observations, gave reasons why the application should be denied, and seconded the motion to adopt the resolution denying it.”  Id., 496.   In the present case, Reich's limited questioning of some witnesses during the hearings bears no relation to the venal conduct that was disapproved in Mills.

In summary, the claim that Reich had a “real conflict of interest” and that he deliberately hid meaningful details of his relationship with Gunnery are claims that are not supported by the evidence.   Indeed, in a town as small as Washington, Connecticut, there is a strong likelihood that virtually every sentient member of the population was affected by the death of Reich's son, expressed his or her sympathy to Reich, and many members of the town's population may well have made some form of donation to the fund referred to by the plaintiffs.¹⁰  In Anderson v. Zoning Commission, 157 Conn. 285, 291, 253 A.2d 16 (1968), our Supreme Court cautioned against requiring disqualification at a level that “would not only discourage but might even prevent capable men and women from serving as members of various zoning authorities.”   This concern is particularly pronounced in a town such as Washington, where many civic duties must be performed by volunteers, but the pool from which to draw is limited to a population of some 3,500 people.   The facts relied upon by the plaintiffs did not serve to disable Reich from serving on the WZC in connection with Gunnery's application.   The court does not find that Reich had a real conflict of interest or that he departed from his sworn duty.

(2)

Bias

“[T]here is a presumption ․ that administrative board members acting in an adjudicative capacity are not biased.”  O & G Industries, Inc. v. Planning & Zoning Commission, supra, 232 Conn. 429.   The plaintiffs have the burden of establishing actual bias, not mere potential bias.  Id., 429–30.

The plaintiffs claim that Reich was biased in favor of the application based upon his alleged “actual conflict;” upon a statement he made in years prior regarding athletic fields;  and upon comments he made during the hearings.   The claim of “actual conflict” has been addressed.   The claims relative to Reich's pre-hearing statement regarding athletic fields will be addressed, infra, in the context of the discussion regarding alleged predetermination.

The plaintiffs argue that Reich's comments during the hearings reflect bias, and that the WZC's decision should be invalidated since Reich, a biased member of the commission, sought to influence other members of the WZC. See, e.g., Murach v. Planning & Zoning Commission, 196 Conn. 192, 203–04, 491 A.2d 1058 (1985).   The plaintiffs' conclusions regarding Reich's comments are not supported by a fair reading of the individual comments, the context in which they were made on each occasion, or in the context of the totality of the hearings.

The hearings on the application took place on five separate occasions, over the course of four months.   The five separate public hearings generated some 289 pages of transcript.   Reich rarely spoke during most hearings, and made limited, substantive comments on approximately eleven pages of the total hearing transcript.¹¹  Those comments, read fairly and in context, reflect no more than efforts to obtain factual information regarding the presentations to the WZC. The comments were in direct conformity to the position that Reich took at the first hearing:  “You need not like the equations of physics, but you and I need to accept objectivity and verifiability.   It is objectivity and verifiability which I bring to each Zoning application ․ I value the mostly black and white reality of the world of physics.”   ROR 164 at 7. Consistent with that philosophy, Reich questioned presenters for Gunnery as well as presenters for the plaintiffs.   See, e.g., ROR 165 at 15;  ROR 166 at 16;  ROR 168 at 57.

The court finds that Reich's comments and questions do not reflect bias for or against either party.   Since the court does not find that Reich was biased, there is no basis on which to conclude, and the court does not conclude, that Reich improperly attempted to influence other members of the WZC, all of whom voted in favor of the application.   See Murach v. Planning & Zoning Commission, supra, 196 Conn. 205–06 (upholding decision of trial court which found that illegally appointed commission member had moved to approve the application but had not attempted to sway or unduly influence the commission, noting that its decision was “strengthened by the unanimity of the commission in approving the defendants' request and by a vote that exceeded that necessary to approve the reclassification”).

(3)

Predetermination

The court's inquiry on the issue of predetermination must begin with an inquiry into whether Reich had made up his mind about the project prior to the hearing.   The court recognizes that there is a critical difference between having a generalized opinion about community development and deciding the outcome of an application prior to the presentation of evidence.

“[T]he law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities.   It would be strange, indeed, if this were true ․ [T]he human mind ․ is no blank piece of paper ․ Interests, points of view, preferences, are the essence of living ․ An ‘open mind,’ in the sense of a mind containing no preconceptions whatever, would be a mind incapable of learning anything, [and] would be that of an utterly emotionless human being.”  (Citations omitted;  internal quotation marks omitted.)  Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 555, 552 A.2d 796 (1989), overruled on other grounds by Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 715 A.2d 46 (1998).  “The decisive question ․ must be whether [the commissioners] actually had made up their minds prior to the public hearing, regardless of any arguments that might have been advanced at the hearing.”  Id.

When the issue is viewed from the latter perspective, as this court must, the plaintiffs' claim fails.   Reich acknowledged that he had previously expressed support for more athletic fields in town, including the use of the South Street property for athletic fields.   However, he also made clear that, at all times, he believed that any such field proposals would have to conform to applicable zoning requirements.   He explained, and the court has no basis to conclude that he was being deceitful when he offered the explanation, that, in his view, the success of any zoning application, including Gunnery's, was dependent upon the presentation of the objective facts that supported the application.   This court reviewed the entire record in this case and was left with the abiding conclusion that Reich did no more than seek objective information that would inform his decision.   He asserted, and the court has no basis on which to disbelieve him, that he would only approve an application, whether for playing fields or for any other purpose, if the objective, factual presentation brought the application within applicable zoning regulations.

“[T]here is a presumption ․ that administrative board members acting in an adjudicative capacity are not biased ․ To overcome the presumption, the plaintiff ․ must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable.”  (Citations omitted;  internal quotation marks omitted.)  O & G Industries, Inc. v. Planning & Zoning Commission, supra, 232 Conn. 429.   The court finds that the plaintiffs have failed to demonstrate that Reich, who did not deliberate or vote on the application, predetermined the issues before him.   On the contrary, Reich's opening statement regarding his prior, public position on the issue of playing fields, as well as his subsequent appropriate behavior during the hearings make clear that he was capable of judging the application solely on its merits.   See Breiner v. State Dental Commission, 57 Conn.App. 700, 707, 750 A.2d 1111 (2000).   The court does not find that Reich predetermined the issue before the WZC.

(4)

Appearance of Impropriety

The plaintiffs contend that Reich's involvement in the proceeding creates an appearance of impropriety that undermined the public confidence in the integrity of the agency's proceedings, citing Gaynor–Stafford Industries, Inc. v. Water Pollution Control Authority, supra, 192 Conn. 638, and Thorne v. Zoning Commission, supra, 178 Conn. 198.   Neither of those cases supports the plaintiffs' claim in this case.   The court notes, in particular, that the plaintiffs' promise, in their reply brief, that they would establish at trial that Reich's relationship with Gunnery “is far more extensive” than that disclosed, was left wholly unfulfilled.  (Emphasis added.)   The evidence of Reich's “extensive” relationship with Gunnery, ultimately proffered, was insubstantial and even trivial in some respects,¹² and much of it was unknown to Reich.¹³  In view of the court's findings regarding conflict of interest, bias and predetermination, there can be no finding that Reich's participation in the hearing created an appearance of impropriety.

B

School Use

The plaintiffs argue that the project does not constitute a “school use” pursuant to Town of Washington zoning regulations.¹⁴  They argue, first, that the applicable zoning regulation defines a “school” use, and, second, that the definition will not serve to “allow the component parts of a school to be located in separate parcels and in separate zoning districts ․” Pls.' Br. 15.   The plaintiffs contend, correctly, that zoning regulations “must be interpreted so as to reconcile their provisions and make them operative so far as possible ․ 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.)  Kraiza v. Planning & Zoning Commission, 304 Conn. 447, 454, 41 A.3d 258 (2012).

The plaintiffs claim, explicitly, that “Section 21.1.56 of the Zoning Regulations defines ‘school’ use ․” (Emphasis added.)   Pls.' Br. 16.   The regulation cited by the plaintiffs defines a “school” as “[a] public or private school, including kindergarten, elementary, and secondary schools approved by the State Board of Education.¹⁵  The term ‘school’ may also include a college, graduate, or post graduate level educational institution subject to Sections 13, 14, and 15 of these Regulations.”

It is well established that “zoning regulations are local legislative enactments and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes ․ 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 ․ 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, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006).  “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, 964 A.2d 549, cert. denied, 292 Conn. 904, 905, 973 A.2d 103, 104 (2009).

The plaintiffs' argument is as follows:  “Because ‘school’ is defined by the Zoning Regulations, its ‘ordinary’ meaning has no relevance, and that term takes the specific meaning prescribed to it, which does not include ‘athletic fields' by itself, or any part of a school by itself, as distinct from an entire ‘public or private school.’   The definition does not state that a school use can be fragmented over several parcels of land, let alone in separate zoning districts.”  (Emphasis in original.)   Pls.' Br. 17.

The plaintiffs' argument fails on multiple levels.   First, the regulations do not define “school use.”   Instead, they define “school” in the simplest terms as, essentially, an accredited “school.”   The plaintiffs' ipse dixit argument that the regulatory definition somehow means that a “school use” can only be a “use” carried out on the grounds of the main campus, or that athletic fields cannot be a “school use” unless they are contiguous to a school building, is untenable.¹⁶  If the court were to impose such arbitrary requirements on the meaning of the word “school,” as it is used in Section 21.1.56, the court would be guilty of expanding the regulatory definition in a manner that is inconsistent with fundamental rules of statutory construction.

The most that can be gleaned from the Washington regulatory definition is that a “school” is something that has an educational purpose and is accredited.   The regulatory definition goes no further and so the court must consider the “natural and usual meaning” of the word “school.”   See Fedus v. Zoning & Planning Commission, supra, 112 Conn.App. 849–50.  “Under the modern concept of the definition of a school, any use which fairly falls under the broad modern concept of education may qualify.”   R. Fuller, 9 Connecticut Practice Series:  Land Use Law & Practice (3d Ed.2007) § 4.13, p. 89;  see Langbein v. Board of Zoning Appeals, 135 Conn. 575, 583, 67 A.2d 5 (1949) (summer day school permitted under the Milford Zoning Regulations that permit “schools” in a residential zone);  State v. Laurel Crest Academy, 2 Conn.Cir.Ct. 294, 198 A.2d 229 (1963) (dormitory located on land near, but not adjoining, the defendant's main campus was a “school” permitted by zoning regulations);  see also Greenwich Academy, Inc. v. Planning & Zoning Board of Appeals, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–11–6007926–S (January 31, 2012, Tierney, J.) (collecting cases that support the proposition that “Connecticut law has for generations defined ‘school’ liberally”).

The court notes that the regulation at issue includes colleges and graduate schools within the definition of the word “school.”   In State v. Laurel Crest Academy, supra, 2 Conn.Cir.Ct. 294, the court found authority, including a decision by our Supreme Court, for the proposition that dormitories at Yale University are “school uses.”   It is well known that Yale University is composed of buildings that are distributed over many locations in and around the city of New Haven,¹⁷ and the court in State v. Laurel Crest Academy concluded that the analysis of what constitutes a “school use” should be no different when the school at issue is a preparatory school as opposed to a college.  Id. Thus, there is no support for the plaintiffs' argument that all school uses can only be “school” uses if they take place on a single, central campus.

The plaintiffs do not seriously contend that the proposed playing fields do not have an educational purpose.   In any case, the record supports the conclusion that school-sponsored athletics do have an important educational purpose in general and to Gunnery in particular.   Further, there is no question about the fact that Gunnery owns the property at issue, that Gunnery will build, maintain and use the playing fields for its students, and that Gunnery is an accredited educational institution.   Giving the “natural and usual meaning” to the word “school,” the court finds that the WZC correctly concluded that the proposed athletic fields constitute a “school use” permitted by the applicable regulations.

There is a second, independent reason for concluding that the WZC correctly interpreted its regulations to permit the athletic fields as a “school use” on the property.   Our Supreme Court has held that an agency's “factual and discretionary determinations are to be accorded considerable weight by the courts ․ Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion ․ We have determined, therefore, that ․ deference ․ to an agency's interpretation of a statutory term is unwarranted when the construction of a statute ․ has not previously been subjected to judicial scrutiny [or to] ․ a governmental agency's time-tested interpretation.”  (Internal quotation marks omitted.)  Heim v. Zoning Board of Appeals, 289 Conn. 709, 715, 960 A.2d 1018 (2008);  see Lowney v. Zoning Board of Appeals, 144 Conn.App. 224, 229 (2013) (“[a] local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it ․ [T]he position of the municipal land use agency is entitled to some deference ․” (internal quotation marks omitted)).

It follows, then, that some deference should be given to an agency's action when the agency's construction of a regulation has been previously interpreted by that agency.   Here, the WZC previously interpreted the relevant regulation to permit:  1) a school use;  2) by Gunnery;  3) on the property that is at issue in this case.   In 2005, Gunnery proposed to construct an environmental classroom on the South Street property.   Two of the plaintiffs in the present case, Michael and Marjorie Stern, also opposed Gunnery's application relative to that classroom building.   In the course of considering the application, the WZC obtained an opinion from its counsel that addressed the same argument raised by the Sterns in this case, to wit, that the definition of a “school” contemplates “a centralized campus.”   The WZC's counsel disagreed with that interpretation, advising the WZC that the definition only requires that the use be educational at any level and that the institution be accredited.   The WZC thereafter exercised its discretion in favor of Gunnery's application, no appeal was taken, the educational classroom was constructed, and it is in use to this day.   Thus, the WZC interpreted the relevant regulation consistently, in the present case, with the interpretation that it used eight years ago in a virtually identical situation.   Accordingly, some deference must be given to that interpretation.¹⁸  The court finds that the WZC correctly interpreted the definition of “school” to find that Gunnery's project constituted a permitted school use.

C

Athletic Fields in the R–1 Zone

The plaintiffs argue that since the proposed athletic fields are not included in the phrase “school use,” the project must be viewed simply as a proposal to build athletic fields.   Athletic fields, they claim, are not permitted in the R–1 residential zone where the property is located.¹⁹  Since this court has already concluded that the WZC properly concluded that the athletic fields are a proper school use, and since “school uses” are permitted in the R–1 zone, this argument must be rejected.

The plaintiffs also argue that the WZC did not expressly find that the proposed athletic fields are a school use, and so the case must be remanded with a direction that the WZC make appropriate, specific findings.   The court has reviewed the entire record in this case and concludes that the WZC considered the claim that athletic fields are not a permitted school use and properly—and unanimously—rejected that claim.   See, e.g., ROR 169 at 17.

D

WZC Delegated its Authority to the IWC

The plaintiffs' fourth argument is that the WZC delegated its function to the IWC and adopted the IWC's action as its own.   It would have been incorrect for the WZC to have taken the course alleged by the plaintiffs, but the plaintiffs mischaracterize the nature of the WZC's actions.

In WATR, Inc. v. Zoning Board of Appeals, 158 Conn. 196, 257 A.2d 818 (1969), on which the plaintiffs rely, the planning and zoning commission improperly delegated broad power to the zoning board of appeals in a manner prohibited by General Statutes § 8–2 and applicable Supreme Court authority.   No such delegation of authority occurred in this case.   After searching the entire record, this court finds that the WZC was fully aware of its responsibilities and that it scrupulously examined all the special permit criteria that it was obligated to consider.   The WZC was, of course, aware of the work that had been done by the IWC, and it considered some of the evidence presented to the IWC.²⁰ However, the record is clear that the WZC was fully aware of the fact that its own review encompassed issues not before the IWC, and that its review involved the entire site and not just the acreage that was within the IWC's jurisdiction.

The plaintiffs argue, for example, that the WZC, relying on evidence presented to the IWC, failed to address elements of the project involving erosion and/or sedimentation run-off, or else failed to resolve the opposing viewpoints presented by each party's witnesses.   Pls.' Br. 22.   However, the record reflects the presentation of extensive evidence on erosion and sedimentation runoff by both parties.   Several commissioners stated that they found the plaintiffs' presentation to be exaggerated and/or unconvincing, and the WZC then voted to approve the special permit.   There is no requirement that the commissioners make the individual, specific findings that the plaintiffs demand and the plaintiffs cite no authority to the contrary.

The plaintiffs' citations to isolated comments by the WZC chairman, made in the course of the hearings, do not require the conclusion that the WZC did not fully address the issues before it.   The WZC did not rely exclusively on the work done by, and presented to, the IWC. Instead, it received extensive evidence by both parties on virtually every issue that the plaintiffs wished to raise, including issues that were more properly before the IWC, issues that were presented in a repetitious manner, and issues that were speculative, such as claims regarding certain animal species that “might” live on the property.   The court finds that the WZC exercised its independent authority and it did not delegate its authority to the IWC.

E

Substantial Evidence Exists to Support the WZC's Decision that the Special Permit Application Met the Necessary Criteria

The plaintiffs contend that the record does not reflect substantial evidence that Gunnery satisfied the standards necessary for approval of the special permit for which it applied.   The plaintiffs point to a lack of specific findings regarding the need to reconcile the project with the POCD, and they rely on the fact that their consultant, Hiram Peck, told the WZC that the project failed to satisfy six of the special permit standards.   They rely on their other presenters, as well, including an ecologist and presenters who expressed concern about blasting, the need for earth moving equipment, and crowd noise associated with the project.

The court, having reviewed the record in its entirety, readily concludes that Gunnery introduced evidence relative to every special permit standard.   It is true that there were disagreements between the presenters for each party, but that fact does not warrant the relief sought by the plaintiffs.   The plaintiffs' argument is inconsistent with the analysis that this court is obliged to follow in applying the “substantial evidence” rule.   The fact that a commission assesses conflicting evidence, and then chooses to credit one submission over the other, does not require a conclusion that the commission's decision was unsupported by substantial evidence.   See Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587–88, 628 A.2d 1286 (1993).  “[T]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.”  (Internal quotation marks omitted.)  Id., 588.

There is far more than “substantial evidence” that supports the WZC's decision to approve the special permit application.   See Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 113–14, 977 A.2d 127 (2009).   Contrary to the plaintiffs' claim, the WZC heard evidence from multiple highly qualified witnesses on all of the issues properly before it.   Further, the WZC specifically found that the project was consistent with the POCD. The plaintiffs have failed to establish that “substantial evidence does not exist in the record as a whole to support the agency's decision.”   (Internal quotation marks omitted.)  Id., 113.   The court finds substantial evidence supports the WZC's action.

F

Fundamental Fairness

The plaintiffs argue that the WZC violated rules of fundamental fairness and natural justice.   They base this claim on the fact that, in their view, the WZC relied “on its own knowledge and experience regarding technical and complex issues that are beyond its comprehension.”   Pls.' Br. 29.   The plaintiffs also claim that the WZC made “no effort” to resolve the conflicting information it received about the site plan standards and it did not conduct a site visit on the property.   Pls.' Br. 30.   The plaintiffs contend that the WZC should have retained independent consultants, at Gunnery's expense, to assess the competing claims presented to the WZC. The plaintiffs add to their list of complaints the Chairman's ongoing demand for “short” presentations and the fact that one commissioner deemed Gunnery's application “one of the best [the WZC] has ever seen.”   Pls.' Br. 33.

The plaintiffs' claims are without merit.   The plaintiffs were given notice of the hearings, they were given extraordinary latitude to introduce evidence—even evidence that was arguably irrelevant—and they were given ample opportunity to cross examine the witnesses presented by Gunnery.   They make no claim to the contrary.   The requirements of fundamental fairness and natural justice were more than met in this case.   See Grimes v. Conservation Commission, 243 Conn. 266, 273–74, 703 A.2d 101 (1997).

There is no basis for the claim that the WZC members were unable to comprehend the competing claims presented to them.   A comprehensive review of the record, with a particular focus on the exchanges between the presenters and the commissioners, convinces the court that the commissioners fully understood the presentations.   Indeed, the court notes that one of the commissioners mentioned his significant construction experience, a valuable credential to have when one is called upon to evaluate what is, in the end, a construction project.   The record is clear that the commissioners specifically found the plaintiffs' presentation to be unconvincing, and it was their right to do so.   See Samperi v. Inland Wetlands Agency, supra, 226 Conn. 588.

Even though the chairman often sought “short” presentations, the record indicates that the presenters—particularly the plaintiffs' witnesses—often made presentations that went beyond the limits that the chairman sought to impose.   The record also reflects the fact that this application represented one of the most extensive, time-consuming presentations ever made to the WZC and as one commissioner noted, the project does not even involve a building.

The fact that not all of the commissioners visited the site is of no moment.   The record reflects that the commissioners have many years of residential experience in Washington, and one of them stated that he believed the commissioners had passed the site “thousands of times.”   ROR 169 at 26.   “[U]nder appropriate circumstances, the board may act upon facts which are known to it even though they are not produced at the hearing.”  (Internal quotation marks omitted.)  Caserta v. Zoning Board of Appeals, 226 Conn. 80, 90, 626 A.2d 744 (1993).   Further, the parties presented innumerable photographs (both ground and aerial), topographical maps, and three-dimensional models of the site and the project.   The plaintiffs do not explain how, in the face of such evidence, they were fatally prejudiced because the commissioners did not walk through the woods on the project site.   The plaintiffs cite to no authority that requires zoning commission members to visit a site that is at issue, and the court is not aware of any such authority.

Finally, with regard to the commissioner's remark that Gunnery's presentation was of high quality, such a comment does not establish, as the plaintiffs would have it, “favoritism.”   The court has reviewed the entire record and was, itself, impressed with the quality of Gunnery's presentation.   Indeed, the court also finds that the trial presentation by each party was of exceptionally high quality, but such a finding has no relationship to either the decision making process or the ultimate decision that must be made.

The court recognizes and respects the strong presumption of regularity to which the WZC's proceedings are entitled.  Murach v. Planning & Zoning Commission, supra, 196 Conn. 205.   The arguments advanced by the plaintiffs, and the evidence upon which they rely, are insufficient to overcome that presumption.   Even if the plaintiffs had overcome the latter presumption, they have made no meaningful showing that they were materially prejudiced by any perceived irregularity.   See id.;   see also Huck v. Inland Wetlands & Watercourses Agency, supra, 203 Conn. 536–37 (identifying burden imposed on one claiming that administrative hearings were fundamentally unfair).

In summary, the plaintiffs have not established that the WZC proceedings were fundamentally unfair.   The WZC scrupulously considered every material claim raised by the plaintiffs.   The proceedings were, without question, fundamentally fair and consistent with natural justice.

G

Substantial Evidence Exists to Support the WZC's Decision that the Project is not Reasonably Likely to Unreasonably Pollute, Impair or Destroy the Public Trust in the Air, Water, or Other Natural Resources

The plaintiffs argue, briefly, that they established that the project is reasonably likely to pollute natural resources.   They point, specifically, to a presenter who expressed concern about forest fragmentation and the potential loss of habitat for the hoary bat.   The plaintiffs contend that the latter claims were not rebutted.   The defendants reply, correctly, that the foregoing claims were rebutted by an expert who asserted that hoary bats would actually benefit from the finished project.   Further, there was evidence in the record that to the extent the project will cause “forest fragmentation,” it would leave 83% of the site undisturbed by the project.   The WZC was entitled to credit Gunnery's presenter, and to reject the plaintiffs' presenter, on these topics.   See River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 70–71, 848 A.2d 395 (2004).   The court finds that the plaintiffs failed to establish that there was not substantial evidence to support the WZC's decision that the project is not reasonably likely to unreasonably pollute, impair or destroy the public trust in the air, water, or other natural resources.

H

Gunnery Was Not Required to Obtain an Excavation Permit

The plaintiffs' final claim is that Gunnery requires an excavation permit to complete the project and it has not obtained one.   The applicable regulation, Section 13.8, provides in relevant part that a special permit is required if there will be a removal of more than 100 cubic yards of “earth, top soil, loam, peat, clay, rock, quarry stone, sand or other natural earth products ․ in a single calendar year.”   The regulation further provides, however, that a permit is not required as to “surplus material resulting from a bona fide construction, landscaping, or agricultural operation conducted on the premises provided that no permanent damage is done to the landscape ․”

There was significant evidence presented that the project will be carried out in a manner that will not implicate the provisions of Section 13.8, and so Gunnery need not obtain an excavation permit.   The WZC was not obligated to agree with the plaintiffs' opinion to the contrary.   The WZC's conclusion that the special permit should be approved, despite the absence of an excavation permit, was within its discretion.

VI

CONCLUSION

For all of the foregoing reasons, the plaintiffs' appeal is dismissed.

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. This case and the companion case were heard over the course of four days, on May 23, 2013, May 28, 2013, May 29, 2013, and June 4, 2013..  FN1. This case and the companion case were heard over the course of four days, on May 23, 2013, May 28, 2013, May 29, 2013, and June 4, 2013.

FN2. From time to time in the course of the WZC proceedings, the plaintiffs objected to being referred to as “intervenors,” arguing that they were present at the WZC hearings as “abutting property owners.”   The defendants disagree with that claim.   Solely for ease of reference, the court will, in the course of this memorandum, refer to the plaintiffs either as “plaintiffs” or “intervenors.”.  FN2. From time to time in the course of the WZC proceedings, the plaintiffs objected to being referred to as “intervenors,” arguing that they were present at the WZC hearings as “abutting property owners.”   The defendants disagree with that claim.   Solely for ease of reference, the court will, in the course of this memorandum, refer to the plaintiffs either as “plaintiffs” or “intervenors.”

FN3. At oral argument, the parties debated the significance of the existence of the environmental classroom, particularly from the perspective of whether the 2005 WZC decision to grant a special permit for the environmental classroom constituted some evidence of the WZC's interpretation of its own regulations.The plaintiffs, departing from their original, apparent approval of the special permit for the environmental classroom, argued that the WZC's 2005 decision was a “mistake.”.  FN3. At oral argument, the parties debated the significance of the existence of the environmental classroom, particularly from the perspective of whether the 2005 WZC decision to grant a special permit for the environmental classroom constituted some evidence of the WZC's interpretation of its own regulations.The plaintiffs, departing from their original, apparent approval of the special permit for the environmental classroom, argued that the WZC's 2005 decision was a “mistake.”

FN4. The chairman recognized that Land Tech had been retained, as a non-biased entity, by the Town to assist the IWC in its work.   ROR 166 at 6..  FN4. The chairman recognized that Land Tech had been retained, as a non-biased entity, by the Town to assist the IWC in its work.   ROR 166 at 6.

FN5. But see n.3, supra, and “School Use” discussion, infra..  FN5. But see n.3, supra, and “School Use” discussion, infra.

FN6. The same standard of review applies to inland wetlands appeals and planning and zoning agency appeals.  Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 606–09, 611, 569 A.2d 1094 (1990)..  FN6. The same standard of review applies to inland wetlands appeals and planning and zoning agency appeals.  Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 606–09, 611, 569 A.2d 1094 (1990).

FN7. Pls.' Br. 14..  FN7. Pls.' Br. 14.

FN8. Pls.' Br. 14, n.4. The plaintiffs claimed that they would offer additional evidence at trial that would “demonstrate that neither Mr. Reich nor the Gunnery was candid about the extent of his relationship to the Gunnery ․” Pls' Reply Br. 11..  FN8. Pls.' Br. 14, n.4. The plaintiffs claimed that they would offer additional evidence at trial that would “demonstrate that neither Mr. Reich nor the Gunnery was candid about the extent of his relationship to the Gunnery ․” Pls' Reply Br. 11.

FN9. The court notes that the defendants preserved their objections to the requests for admission.   Due to the insubstantial nature of the plaintiffs' claims, the court need not further address those objections..  FN9. The court notes that the defendants preserved their objections to the requests for admission.   Due to the insubstantial nature of the plaintiffs' claims, the court need not further address those objections.

FN10. The court notes that the plaintiffs introduced no evidence regarding the size of the fund to which they refer or to the amount of money generated by the student theatrical production that they identified.   The defendants took the position that the fund was not created or managed by Gunnery, it did not solicit donations to the fund, and it never had any involvement with the fund.   The plaintiffs did not rebut any of the latter claims..  FN10. The court notes that the plaintiffs introduced no evidence regarding the size of the fund to which they refer or to the amount of money generated by the student theatrical production that they identified.   The defendants took the position that the fund was not created or managed by Gunnery, it did not solicit donations to the fund, and it never had any involvement with the fund.   The plaintiffs did not rebut any of the latter claims.

FN11. ROR 164 (no questions);  ROR 165 (questions at 15, 17 and 39);  ROR 166 (questions at 16, 32);  ROR 167 (questions at 10, 13, 14, 15);  ROR 168 (questions at 57, 70).   Reich made other, limited remarks that dealt largely with logistical or procedural issues.   See, e.g., ROR 165 at 53, 54, 57, 64;  ROR 166 at 40, 41, 44;  ROR 167 at 4;  ROR 168 at 6, 7, 69..  FN11. ROR 164 (no questions);  ROR 165 (questions at 15, 17 and 39);  ROR 166 (questions at 16, 32);  ROR 167 (questions at 10, 13, 14, 15);  ROR 168 (questions at 57, 70).   Reich made other, limited remarks that dealt largely with logistical or procedural issues.   See, e.g., ROR 165 at 53, 54, 57, 64;  ROR 166 at 40, 41, 44;  ROR 167 at 4;  ROR 168 at 6, 7, 69.

FN12. E.g., Gunnery's crew team unilaterally decided to put up a poster honoring Major Reich in its boathouse..  FN12. E.g., Gunnery's crew team unilaterally decided to put up a poster honoring Major Reich in its boathouse.

FN13. E.g, Gunnery had postings on its website;  Reich was unaware of the postings at issue, and did not even know that Gunnery had a website until 2008, well after his retirement..  FN13. E.g, Gunnery had postings on its website;  Reich was unaware of the postings at issue, and did not even know that Gunnery had a website until 2008, well after his retirement.

FN14. Zoning regulations §§ 4.4 and 4.4.10 allow use by special permit if the use is by, inter alia, a “school.”.  FN14. Zoning regulations §§ 4.4 and 4.4.10 allow use by special permit if the use is by, inter alia, a “school.”

FN15. There is no dispute about the fact that Gunnery is a private school, that it is approved by the Connecticut State Board of Education, and that it is, therefore, within the definition of a “school” under the applicable regulation..  FN15. There is no dispute about the fact that Gunnery is a private school, that it is approved by the Connecticut State Board of Education, and that it is, therefore, within the definition of a “school” under the applicable regulation.

FN16. Indeed, the plaintiffs' insistence that a school can only exist on a single piece of property and must have a building is a definition that would deny that Aristotle's peripatetic school of philosophy was, in fact, a “school,” even though it has been widely recognized as a “school” for over 2,000 years.   F. Graeff, “Aristotle and His School” (Harper & Row, Publishers, Inc.1974) pp. 38–40..  FN16. Indeed, the plaintiffs' insistence that a school can only exist on a single piece of property and must have a building is a definition that would deny that Aristotle's peripatetic school of philosophy was, in fact, a “school,” even though it has been widely recognized as a “school” for over 2,000 years.   F. Graeff, “Aristotle and His School” (Harper & Row, Publishers, Inc.1974) pp. 38–40.

FN17. “[F]acts may be judicially noticed which are so notorious that the production of evidence would be necessary ․” State v. Tomanelli, 153 Conn. 365, 369, 216 A.2d 625 (1966);  see Conn.Code Evid. § 2–1(“(c) Kinds of facts.   A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) within the knowledge of people generally in the ordinary course of human experience, or (2) generally accepted as true and capable of ready and unquestionable demonstration. (d) Time of taking judicial notice.   Judicial notice may be taken at any stage of the proceeding”)..  FN17. “[F]acts may be judicially noticed which are so notorious that the production of evidence would be necessary ․” State v. Tomanelli, 153 Conn. 365, 369, 216 A.2d 625 (1966);  see Conn.Code Evid. § 2–1(“(c) Kinds of facts.   A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) within the knowledge of people generally in the ordinary course of human experience, or (2) generally accepted as true and capable of ready and unquestionable demonstration. (d) Time of taking judicial notice.   Judicial notice may be taken at any stage of the proceeding”).

FN18. The plaintiffs have addressed this issue inconsistently.   In their brief, they attempt to distinguish the WZC decision regarding the environmental classroom from its ruling on the athletic fields by stating that “[t]he single environmental classroom limited to fourteen students and no bathrooms clearly was allowed due to its unique opportunity to a remote and underdeveloped site, an opportunity not available on a busy campus and one which will be rendered meaningless by the construction of the athletic fields.”   Pls.' Br. 17.   At oral argument, the plaintiffs contended, more simply, that the 2005 decision was “a mistake.”.  FN18. The plaintiffs have addressed this issue inconsistently.   In their brief, they attempt to distinguish the WZC decision regarding the environmental classroom from its ruling on the athletic fields by stating that “[t]he single environmental classroom limited to fourteen students and no bathrooms clearly was allowed due to its unique opportunity to a remote and underdeveloped site, an opportunity not available on a busy campus and one which will be rendered meaningless by the construction of the athletic fields.”   Pls.' Br. 17.   At oral argument, the plaintiffs contended, more simply, that the 2005 decision was “a mistake.”

FN19. The plaintiffs rely, in part, on Washington Zoning Regulation § 2.3.2, which effectively prohibits uses that are not expressly permitted by right or special permit, and the plaintiffs do not find the phrase “athletic fields” in the definition of “school.”   The latter argument does not advance the issue.   The regulatory definition of “school” does not mention a virtually boundless list of school uses, such as libraries, cafeterias, laboratories, dormitories, or environmental classrooms, yet it is abundantly clear that all of the foregoing can, and do, fall within the phrase “school use.”.  FN19. The plaintiffs rely, in part, on Washington Zoning Regulation § 2.3.2, which effectively prohibits uses that are not expressly permitted by right or special permit, and the plaintiffs do not find the phrase “athletic fields” in the definition of “school.”   The latter argument does not advance the issue.   The regulatory definition of “school” does not mention a virtually boundless list of school uses, such as libraries, cafeterias, laboratories, dormitories, or environmental classrooms, yet it is abundantly clear that all of the foregoing can, and do, fall within the phrase “school use.”

FN20. The plaintiffs complain that the WZC should not have accepted evidence presented to the IWC because to do so constituted the acceptance of ex parte information.   This argument fails for three reasons.   First, some of these same plaintiffs opposed the evidence when it was presented to the IWC. Second, the plaintiffs could have subpoenaed the author of the report that was at issue and examined him about it.  General Statutes § 51–85.   They failed to issue such a subpoena when they had the opportunity to do so.   Third, the WZC was obligated to give “due consideration” to the work of the IWC. Arway v. Bloom, 29 Conn.App. 469, 479–80, 615 A.2d 1075 (1992), appeal dismissed, 227 Conn. 799, 633 A.2d 281 (1993)..  FN20. The plaintiffs complain that the WZC should not have accepted evidence presented to the IWC because to do so constituted the acceptance of ex parte information.   This argument fails for three reasons.   First, some of these same plaintiffs opposed the evidence when it was presented to the IWC. Second, the plaintiffs could have subpoenaed the author of the report that was at issue and examined him about it.  General Statutes § 51–85.   They failed to issue such a subpoena when they had the opportunity to do so.   Third, the WZC was obligated to give “due consideration” to the work of the IWC. Arway v. Bloom, 29 Conn.App. 469, 479–80, 615 A.2d 1075 (1992), appeal dismissed, 227 Conn. 799, 633 A.2d 281 (1993).

Danaher, John A., J.