Howard Haggett v. Plainfield Planning and Zoning Commission (2013)

MEMORANDUM OF DECISION

Plaintiff appeals from the July 10, 2012 denial by the defendant commission of an application for establishment of a planned development district.

I. Aggrievement

The often-straightforward process for determining whether a plaintiff is aggrieved and thus is a proper party to pursue an administrative appeal is complicated in this case by a lack of identity between the plaintiff and the entity which owns the property affected by the defendant's action.   The Plainfield Zoning Regulations (Record, 25) are silent as to who may apply for any of the various permits authorized.   Howard Haggett filed both the application for a permit which is the subject of this appeal, and the appeal itself, individually.   At the hearing before this court on his appeal, he introduced as an exhibit a copy of a warranty deed showing that the title to the premises has been held at all relevant times by 360 Gendron Road, L.L.C. He claims to be the manager and sole member of that limited liability company.   The application (Record, 123) that he filed with the defendant lists him as “applicant” and the company as “owner,” but a line querying the nature of the relationship between “applicant” and “owner” has been left blank.   Haggett signed the application twice, above lines calling for the “signature of applicant” and the other for “signature of owner.”

The pleadings compound rather than clarify this situation.   Paragraph nine of the complaint asserts that plaintiff is aggrieved by the decision of the commission “because he is the petitioner for the establishment of the planned development district on the subject parcel”—which is correct;  but he goes on to say “and is the owner of record of said subject parcel,” which is incorrect.   Paragraph nine of the answer responds:  “[a]dmitted that Plaintiff is the petitioner and owner of record of the subject property.   The remainder of this paragraph is denied;” (emphasis added, in both cases).   Thus on the pleadings, Haggett's ownership of the subject premises stands as a judicial admission of fact, with neither party appearing to give any import to the absence of the actual owner, the limited liability company, as applicant or party to the appeal.

In light of these submissions, the court requested supplemental briefs limited to the question of aggrievement, and both parties responded.   Plaintiff claims that an essential identity exists between a limited liability company and its owner, while the town cites various authorities that undermine that contention and in defendant's opinion warrant a dismissal of the suit.   The court notes that this shadow over the issue of aggrievement was not perceived, apparently, until it was brought up at the hearing on the appeal;  nevertheless, since it goes to subject matter jurisdiction it is something the court must address when presented, even on its own motion if the parties do not raise it;  Fox v. Zoning Board of Appeals of Barkhamstead, 84 Conn.App. 628 (2004) (lack of evidence of aggrievement creates a jurisdictional defect which can be raised at any time and cannot be cured by a stipulation).

It is rather axiomatic that the entire purpose of creating a limited liability company as allowed by our statutes is to allow an individual to segregate business from personal interests.   The pertinent statutes make clear that property of a limited liability company does not belong to the members who make up the company's ownership or management.  C.G.S. § 34–134 provides that “[a] member or manager of a limited liability company is not a proper party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company, except where the object of the proceeding is to enforce a member's or manager's right against or liability to the limited liability company or as otherwise provided in an operating agreement.” § 34–167 provides that “[p]roperty transferred to or otherwise acquired by a limited liability company is property of the limited liability company and not of the members individually.   A member has no interest in specific limited liability company property.”

Numerous decisions cast serious doubt upon the premise that an owner of a limited liability company has any right to pursue a claim belonging to the company in his own name.   In Crozier v. Gattoni, 28 Conn. L. Rptr. 320 (2000), the court dismissed a fee collection action brought by an individual attorney upon a showing that the defendant's contract for legal services was with a limited liability company.   In The Randolph Foundation et al. v. Smith Richardson Corporation, Docket No. X05 CV 98–0167903, Superior Court, Judicial District of Fairfield at Stamford (2001;  Tierney, J.) the court followed that precedent.   So, too, did the courts in Maile v. Webster Bank, N.A., Docket No. CV 04–0527763, Superior Court, Judicial District of Hartford at New Britain (2005;  Burke, J.);  Zipp v. Florian, Docket No. CVN–03 1011980, Superior Court, Judicial District of Hartford at New Britain (2006;  Bentivegna, J.);  Elecor, LLC. v. King, Docket No. CV06 5006235, Superior Court, Judicial District of New Haven (2007;  Bellis, J.) (dismissing that portion of a complaint brought by an individual member of the plaintiff limited liability company on her own behalf);  Stanziale v. Skiba, Docket No. CV 04 0412495, Superior Court, Judicial District of Fairfield at Bridgeport (2008;  Arnold, J.) (allowing, under the circumstances of the case, substitution of the company as plaintiff in lieu of the individual plaintiffs);  and Tabacco v. Vitrano, Preleski, and Wynne, LLC., Docket No. X04 CV 08 5026131, Superior Court, Judicial District of Hartford at Hartford (2011;  Shapiro, J.).   Wilcox v. Webster Ins., Inc., 294 Conn. 206 (2009) is not authority to the contrary;  for even while it upheld the right of individual plaintiffs to sue alongside the limited liability company which they owned, it did so because they had pled an individual right arising from the insurance contract whose terms the court was asked to determine.

Prior case law involving corporations recognized a similar distinction between such an entity and the shareholders who were its owners;  see, e.g., Smith v. Snyder, 267 Conn. 456 (2004), which dismissed the claims made by individual shareholders after holding that those claims properly belonged to the corporation instead.   A case involving an appeal from a zoning decision, Cambodian Buddhist Soc. of Connecticut v. Planning and Zoning Commission of Newtown, 285 Conn. 381 (2008), held that a member of a religious or nonstock corporation had no standing as such to assert a claim on behalf of the corporation in an appeal under the zoning statutes.   Two judges of the superior court have recently dismissed zoning appeals for lack of standing, either upon finding that an individual was the plaintiff while a limited liability company was the owner of record;  Simons v. Weston Planning and Zoning Commission, # FST CV10 5013515, Superior Court, Judicial District of Stamford–Norwalk (2012;  Genaurio, J.) [55 Conn. L. Rptr. 124];  or vice versa;  Ras Realty, LLC v. Planning and Zoning Com'n of Town of Weston, # LND CV12 6036583, Superior Court, Judicial District of Hartford (2013;  Berger, J.) [56 Conn. L. Rptr. 52].   As Judge Berger noted therein, if a person wants a limited liability company “to have a separate legal existence, whether to avoid liability issues with the property or for some other purpose, he must respect and not ignore [that] legal existence in the land use process.  [He] cannot have it both ways.”

Against what appears to be a tsunami of authority warranting dismissal, plaintiff stands firm in insisting that the facts of this case warrant keeping his action alive for a decision on the merits.   Without expressly citing the case, he relies upon a principle articulated in Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93 (1989);  there, the Court acknowledged that it “has not set forth a precise standard that defines the required interest a nonowner must possess in order to become an aggrieved party under §§ 8–8 and 8–9.   Rather, we have held that the extent to which a party with an interest in the property other than that of an owner is aggrieved depends upon the circumstances of each case, because the concept of standing is a practical and functional one designed to ensure that only those parties with a substantial and legitimate interest can appeal an order.”  Primerica 's appellant succeeded in establishing standing as a lessee of the premises in question.   Footnote 9 of the Cambodian Buddhist case, 285 Conn. 381, 398, acknowledges that Primerica and several other cases have held that under certain circumstances nonowners of property can have a sufficient interest in their own right to have standing to appeal from a zoning decision affecting the property.   As additional examples to that effect, the note also cites Moutinho v. Planning and Zoning Commission, 278 Conn. 660 (2006) (developer had oral agreement with landowner to enter into long-term lease, which was determined to suffice to confer standing upon him) and DiBonaventura v. Zoning Board of Appeals, 24 Conn.App. 369 (1989) (informal agreement between owner and appellant that latter could use property for his business operation created sufficient interest in property to allow him to appeal from adverse zoning decision).

The “circumstances of each case” analysis invited by Primerica has in the above instances, at least, been applied in cases unlike the one before this court.   Each of the parties whose standing was challenged in the referenced cases had definable contractual rights to use of the subject premises.   Howard Haggett has not alleged any such precise interest.   He relies instead upon the convergence of five factors here, to wit, that he is indisputably the controlling member of the limited liability company;  that he was treated as the owner by the defendant throughout the administrative process despite its awareness of the actual state of title;  that the unanimity of interest between him and the company were understood by the defendant;  that there was no misleading or confusion of the defendant caused by anything he did;  and that the commission failed to even raise the ownership issue in its answer, or by any other pleading.

The last four of these five circumstances target the defendant's acquiescence in his submissions, or failure to challenge the same.   His argument beckons consideration of the Appellate Court's decision in Young v. Vlahos, 103 Conn.App. 470 (2007), cert. denied, 285 Conn. 913 (2008), rejecting a challenge to jurisdiction to hear a landlord tenant case brought by an individual when the lessor was actually his limited liability company.   The defendant had filed an answer in the trial court admitting that plaintiff was the lessor, and could point to no aspect in which it was prejudiced by the discrepancy in the name of the plaintiff.   Giving great weight to the principle that a judicial admission in the form of an answer is binding upon a party, the Court refused to dismiss on defendant's motion (made for the first time, apparently, at the appellate level).   The Court reasoned, at page 477, that “[f]actual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case ․ [while] parties cannot waive the issue of standing ․ [here by] admitting that the plaintiff was the lessor of the premises, the defendant dispensed with the need to prove that fact and its admission was conclusive ․ We agree with the court's conclusion that the plaintiff had standing to bring this action on the basis of the defendant's admission in its answer to the complaint and that the defendant was not confused or prejudiced by the name of the entity that brought the action.”   It further distinguished this result from those reached by the superior courts in Maile, Randolph Foundation, and Crozier, supra, on the basis that in those cases defendants challenging jurisdiction had raised the issue of standing properly and had not made judicial admissions on this conclusive issue of fact.

Similarly, in a case in which apparent nonowners asserted ownership of land which qualified for statutory aggrievement, the town's admission of their ownership was deemed sufficient to shield those plaintiffs from a dismissal for lack of aggrievement.   In Cole v. Planning and Zoning Com'n of Town of Cornwall, 30 Conn.App. 511, at 516–7 (1993), the Court ruled that any variance between the actual and the ostensible owner of property “is not material if the defendant was not prejudiced in maintaining its defense, surprised by the plaintiff's proof or misled by the allegations in the complaint.”

Notwithstanding these two decisions, it is clear that judicial admissions such as are present here are not dispositive.  Borelli v. Zoning Board of Appeals of Middletown, 106 Conn.App. 266 (2008), involved an alleged violation of that town's zoning ordinance.   The question was whether the horse boarding facility under scrutiny constituted a “livery stable;” how that was answered led to whether it could be a permitted use in a residential area of the town.   The individual defendants had admitted that it was, but the trial court found otherwise and dismissed an appeal premised upon that admission.   Appellants argued that the judicial admission made by defendants ought to have ended the court's inquiry.   Recognizing that “[j]udicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings ․ [which] excuse the other party from the necessity of presenting evidence on the fact admitted and are conclusive on the party making them,” and that “it is well settled that ‘[f]actual allegations contained in pleadings upon which the cause is tried are considered judicial admissions and hence irrefutable as long as they remain in the case,’ “ the court pointed out that nevertheless ‘judicial admissions, however binding upon the parties who made them, do not restrain this court's de novo interpretation of regulations.   Admissions, whether judicial or evidentiary, are concessions of fact, not concessions of law,” citing C. Tait, Connecticut Evidence (3d Ed.2001) § 8.16.3. “A judicial admission, like a stipulation between parties, serves to inform, rather than to bind, the court's independent plenary determination of the pertinent zoning regulations;” 106 Conn.App. 266, 271–2.   In this case, one must add, “and pertinent zoning statutes.”

Complicating the matter is the fact that while standing and aggrievement have sometimes been viewed as practically synonymous—see Beckish v. Manafort, 175 Conn. 415, 419 (1978) (“the question of aggrievement is essentially one of standing”)—the Supreme Court has also held that different standards determine whether each is present.   In Richards v. Planning & Zoning Commission, 170 Conn. 318, 323–24, 365 A.2d 1130 (1976), and subsequently in Gladysz v. Planning and Zoning Commission, 256 Conn. 249, 255–6 (2001), we are informed that “[a]ggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected,” and the two questions that must be answered to determine aggrievement are “(1) does the allegedly aggrieved party have a specific, personal, and legal interest in the subject matter of a decision;  and (2) has this interest been specifically and injuriously affected by the decision”?   At page 257 of the latter case, the opinion notes that the standard for determining whether a party has standing is less stringent, and is satisfied if a party has “a sufficient interest in the property.”   A party may therefore pass one test, and not the other.

Each of these decisions in part illustrated this distinction through a discussion of the rather obscure case of Loew v. Falsey, 144 Conn. 67 (1956).   E.M. Loew was the sole shareholder of E.M. Loew, Inc. and of E.M. Loew Theaters, Inc. He filed an application for a building permit for a project on the corporation's land, but as “owner” listed “E.M. Loew” minus the word “Incorporated.”   The Court rejected the town's challenge to his standing to bring a mandamus action to compel issuance of the denied permit;  since “[n]o claim is made that the defendants or anyone else have been misled, or that the insertion of the name of an individual rather than of a corporation was intentional ․ there is no jurisdictional defect ․;” 144 Conn. 67, 73.   At one time, this language sufficed to support a categorical assertion by Robert Fuller in “Zoning and Planning Appeals to the Courts,” 52 Connecticut Bar Journal 416 (1978), that a principal shareholder of a corporation has standing to appeal an adverse planning or zoning decision affecting corporate land interests;  yet the same author, in 9 Connecticut Practice Series:  Land Use Law and Practice (3d Ed., 2007) does not even mention the Loew case.   Nor had the Supreme Court with any frequency from 1956 through 2001, other than in the Richards and Gladysz decisions.  Loew, these cases together inform us, is a standing case, and a “beneficial” or “equitable” owner, such as Mr. Haggett claims he is here, may have standing although not possessed of a specific, personal legal interest in a premises which would confer the status of aggrievement.

It is aggrievement which the court must find under Gen.Stat. § 8–8(b).  “Pleading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal.  [I]n order to have standing to bring an administrative appeal, a person must be aggrieved.”   Moutinho v. Planning and Zoning Commission of Bridgeport, supra, at 664.   Aggrievement presents a question of fact for the trial court and the party alleging aggrievement has the burden of proving it;  Bongiorno Supermarket, Inc. v. Zoning Board of Appeals of Stamford, 266 Conn. 531 (2003).   Under the principle of cases such as Loew, Gladysz, and Robinson, Mr. Haggett could be found to have standing, without the court necessarily concluding that he is aggrieved.

In answer to its own question regarding jurisdiction, this court is guided by the observation in Moutinho and so many other decisions that the imposition of the “standing” and “aggrievement” requirements is “a practical concept” to avoid “suits brought to vindicate nonjusticiable interests”;  id., 665.   The court is hard pressed to imagine how this case would have proceeded any differently had Howard Haggett filed it as the representative of the company instead of in his individual capacity, or that the vigorous debate between the parties on the merits would have been affected by that alignment.

Also, it must not be overlooked that the mission of the courts is to hear actual disputes and not turn litigants away on curable technical defects.   C.G.S. § 52–123 expressly provides that “No writ ․ shall be abated ․ for any kind of circumstantial errors, mistakes, and defects, if the person and the cause may be rightly understood and intended by the court.”   Read in conjunction with § 52–109, providing that “When any action has been brought in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff,” many courts faced with a jurisdictional issue of this nature have permitted the substitution of a party instead of requiring dismissal of the case;  see, Lussier v. Burns, 228 Conn. 343 (1994);  Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392 (1995);  and Dyck O'Neal Inc. v. Wynne, 56 Conn.App. 161 (1999).

Lussier involved a suit under the defective highway statute, which the trial court dismissed because plaintiff named as defendant the “State of Connecticut, Department of Transportation” instead of “Emil Frankel, Commissioner of Transportation.”   Reversing, the Court held that such a misnomer may be overlooked if simply a matter of mistake and if identification of the proper party is nevertheless known to all, and further noted that the question may require consideration of all the circumstances of the case in order to be accurately answered.   Plaintiff in the Andover case named the Board of Tax Review of the town of West Hartford as the defendant, when it ought instead to have sued the town itself.   Again, the Court reversed a trial court order that such a defect went to jurisdiction.   The Dyck O'Neal, Inc. case is even closer to the one at bar:  the “Inc.” was missing from the original complaint and not identified as a problem until the plaintiff sought a deficiency judgment.   The trial court denied defendant's motion to dismiss, and granted plaintiff's motion to substitute the corporation instead of its sole shareholder as the correct plaintiff.   The Appellate Court approved this procedure, relying on both of the Supreme Court decisions cited above, and deeming the absence of the “Inc.” to be a mere circumstantial defect inasmuch as the opposing party knew with whom it was contending and was not prejudiced by the substitution.

The application which initiated the entire process that is now here on appeal clearly identified Haggett as the applicant, and the company as the owner.   Defendant was not deceived, and has fully briefed what it considers a meritorious defense.   If plaintiff committed a mistake in naming himself rather than the company as plaintiff, defendant, too, is mistaken in its admission of his ownership.   This court itself raised the issue of subject matter jurisdiction, after defendant admitted facts sufficient to sustain a finding of aggrievement were those admissions not at odds with the true facts disclosed by the actual evidence presented at the hearing.   Significantly, defendant here has not made any claim that the defect under scrutiny has caused any prejudice to its defense.   It has come here, like Ahab on the deck of the Pequod, prepared to battle forward to victory “be the white whale agent, or be the white whale principal.” ¹

This court takes note that plaintiff has not sought the cure of substitution by filing a motion seeking permission to do so.   Neither has defendant filed a motion to dismiss, however.   If plaintiff files such a motion later, the court will entertain it along with any opposition which defendant may voice.   At this time, though, it will consider plaintiff to have at least potentially or in a representative capacity proven aggrievement to a degree sufficient to allow a review of his appeal on the merits.

II. The Merits of the Appeal

A. Nature of the Subject Premises

The parties are not at odds in their descriptions of the subject premises.   360 Gendron Road in Plainfield is a tract of approximately 6.87 acres now developed with five commercial or industrial buildings, and one single-family residence.   The commercial buildings have been divided into nine distinct rental units and one small storage facility, and are in various states of tenancy or vacancy at the moment.   The site is located within a zone designated as “RA–60,” shorthand for “Residential—minimum lot size 60,000 square feet.”   Its current status is non-conforming, as most of the construction and commencement of those uses on site occurred before the town's present regulatory regime was enacted.

B. Regulations and Proceedings Pertinent to Plaintiff's Application

What separates the parties is their interpretation of the meaning and applicability of Section 11 of Plainfield's Zoning Regulations, providing for the creation of a “Planned Development District” (PDD) under defined circumstances.   Sec. 11.1 authorizes the Planning and Zoning Commission to allow such a project when, inter alia, it determines that the proposed use would not adversely affect the surrounding area and when allowing it would be harmonious with the character of the town and the neighborhood surrounding it and consistent with the comprehensive plan of development of the town.

At the defendant's meeting of January 24, 2012, it formally accepted Mr. Haggett's application numbered “PDD 2012–01–10.”   The application declares as “current use of property” that it is “multiple commercial and residential”;  and as “proposed use of property,” it declares “PPD Request Partial Residential Use.” A required public hearing began on February 14 and was completed on May 8, 2012.   Following the close of the public hearing, defendant deliberated over the application at meetings held on May 8, June 12, and July 10.   On the latter date, a lengthy discussion ensued during which members raised their concerns that the project would mix new residential uses with existing commercial and industrial uses, rather than eliminating those nonconformities, and consequently left them concerned about the safety of residents, with primary focus upon traffic and parking issues.   Describing the project as “an unusual mix” with a benefit mainly of economic value to the applicant, the members unanimously passed a motion denying the application “for the reasons so stated.”  (Record, 67–70.)

In addition to substantive issues, plaintiff claims on appeal a procedural error also.   This claim arises under Sec. 11.4, which provides for an informal review of an application for a PPD prior to the submission of a formal application for approval.   It is undisputed that plaintiff availed himself of that option at a Commission meeting on November 9, 2011.   The parties tendered as joint exhibit A an audio recording of the November 9 meeting.   The purpose was to allow the court to discern what had transpired at that time, particularly how the defendant's members had responded to the preapplication presentation.   The court summarizes the approximately five-minute presentation thus:  1) applicant's agent explained that the proposal would add additional residential usage within the commercial and industrial facility by converting one of the buildings which had been difficult to rent;  (2) he further outlined that the residential use would not exceed fifty per cent of the entire parcel's usage, and (3) that the alterations would not cause the ouster of existing occupants.   An unidentified female voice is heard to say “Yeah, I think that's good,” whereupon the Commission turned to other business.

C. Discussion

1. Standard of Review

As in any appeal from a local zoning decision, a threshold question is the standard of review to which a court should submit the appeal.   Plaintiff acknowledges the dichotomy between legislative acts and administrative acts as they come before the court.   Succinctly put, “[w]hen a commission has acted legislatively ․ the defendant has wide and liberal discretion ․ and is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change ․ In contrast, when acting in an administrative capacity, a zoning commission's more limited function is to determine whether the applicant's proposed use is one which satisfies the standards set forth in the regulations and the statutes;” West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 505–06, n.10, (1994) (citations and internal quotation marks omitted).   The freedom to amend extends to the freedom to refuse to amend;  MacKenzie v. Planning and Zoning Commission of the Town of Monroe, 146 Conn.App. 406 (2013).

Plaintiff argues that in this case the commission acted administratively.   He reasons that what he sought is a “floating zone” to be imposed upon land that is already subject to the requirements of the zone in which it lies.   The PDD, therefore, is merely an overlay upon that zone, subjecting the premises to additional requirements, and thus akin to a special permit which in Plainfield as in most communities is viewed as something evaluated according to administrative standards.   He relies upon the case of Heithaus v. Planning and Zoning Commission of the Town of Greenwich, 258 Conn. 205 (2001).   Heithaus involved Greenwich's historic district regulations and the Supreme Court held that an application for a permit under those regulations did indeed trigger the administrative functions of the commission, requiring that the commission's decision (in that case, to deny the application) had to be supported by substantial evidence.   R. Fuller, id., at § 4.49, pp. 176–7, notes that “[z]oning regulations permit overlay zones for particular purposes, e.g., aquifer overlay zones and historic overlay zones,” via a process that is administrative, like a review of a special permit or special exception, and thus allowing limited discretion to a commission facing such an application.   The character of such an application is that “[t]here is no change of the underlying zone and all of the requirements of that zone would continue to apply to the land within it, plus the additional requirements unique to the overlay zone.”

In Blakeman v. Planning and Zoning Commission of the City of Shelton, 82 Conn.App. 632 (2004), however, the Appellate Court implicitly distinguished Heithaus when overruling a trial court decision applying “administrative review” in a case in which a planned development district was under scrutiny.   “[I]n acting on an application for the creation of a district, a planning and zoning commission acts in its legislative capacity.   When the defendant approves a district, a new zone is created and a change to the zoning map is needed to accommodate the approval.   Accordingly, we disagree with the court's conclusion that the defendant was acting in its administrative capacity.   Instead, approval of the plans submitted by the plaintiffs is inextricably intertwined with the process of petitioning for the creation of a district;” 82 Conn.App. 632, 643.   Subsequently, in Campion v. Board of Alderman, 278 Conn. 500 (2006), the Supreme Court observed that “[t]he approval of a planned development district is not different from the creation of any other new zoning district,” and that “the creation of planned development districts ․ is comparable to the creation of floating zones,” at pp. 514–5.   At note 11, the decision distinguished the granting of a special exception from the creation of a floating zone:  the first is administrative, the second legislative.  Campion was construing the powers of the New Haven zoning authorities under a Special Act passed in 1925 authorizing zoning in that municipality, and not the authority of Plainfield and similar towns acting under the authority of Chapter 124 of the General Statutes.   Notwithstanding that distinction, its definitions of the terms involved in the instant action is controlling, and establish that the accurate standard of review to be applied here is that applicable to legislative decisions.

2. Review of the Commission's Actions

Anticipating that he might be held to the standard of review this court has indicated, plaintiff contends there are two reasons why the court should hold that the defendant has acted arbitrarily and beyond its discretion in denying his application.

The first of these arguments, focused on the procedure allowed by Section 11.4, described above, employs something of a sleight of hand and is nonpersuasive.   Plaintiff states in his brief, at page 14:  “The commission gave a favorable opinion on the proposal at its November 2011, meeting,” citing the audio recording summarized above.   The commission's “favorable opinion” actually consisted of a lone female voice saying “I think that's good.”   Whether just extrapolating from that fragment, or jumping to a description of the July 10 deliberations, the second sentence in that paragraph asserts that “the commission approved of the proposed uses and found the proposal to be in harmony with the uses in the area,” etc., etc.   If the second sentence is meant to equate “I think that's good” with commission approval, the argument is frivolous;  if instead plaintiff is summarizing the discussion of July 10, the summary is inaccurate.   In either case, the premise that the November unveiling locked the commission into an interpretation of the regulations that should in this case be binding because nothing changed in the contours of the proposal from November to July is untenable.   He cites Piquet v. Chester, 306 Conn. 173 (2013), a case dealing with the duty to exhaust administrative remedies before filing an appeal in court, and not obviously of any guidance to the issue at hand.   Section 11.4 expressly states that an applicant's overtures prior to formal submission are informal and non-binding.   Also, it is significant that this procedure occurs prior to required public hearings which would be nugatory if members were bound by their comments made at the preliminary proceeding.

The second argument focuses on Section 11.8 of the regulations, containing seven subparagraphs of criteria which any PDD application must meet.   Stating that his application in fact meets all, he claims this proves that the commission acted arbitrarily.   In doing so, he overlooks the fact that the first two subparagraphs involve subjective considerations.  Section 11.8(a) requires the commission to find that the plans accomplish the purposes of harmonious design which would improve the neighborhood.  Section 11.8(b) requires a finding of consistency with the comprehensive plan of development which the commission has adopted.   The plan here under scrutiny does not propose to convert an existing, non-conforming commercial and industrial tract wholly into a residential use compatible with the remaining properties in this zone.   Instead, it proposes to utilize a currently unoccupied portion of that parcel by adding residential use to the mix, thereby creating a hybrid parcel which the commission had adequate cause to examine carefully.   After doing so, its members made their collective and unanimous decision that it failed to satisfy the harmonious design and compatibility aspects of the regulations, and they rejected it.   In doing so they discharged their constituted role of formulating public policy for their town;  Cottle v. Planning and Zoning Commission of Darien, 100 Conn.App. 291 (2007).   Consideration of the impact upon surrounding properties is one of the factors in that assessment;  Tagliarini v. New Haven Board of Aldermen, Docket No. 10 6010669 S, Superior Court, Judicial District of New Haven (2011;  Corradino, J.T.R.).   A reading of the transcript of the July 10 meeting reveals that the members went back and forth with a discussion as to whether this plan was a wise design, how it impacted the surrounding area, and whether it fit in with the town's plan.   The weight the members gave to these considerations is their privilege to calculate.   For this court to overturn that decision would involve the court's substitution of its judgment as to decisions which involve matters of balance and values.   This would not be appropriate.

The court has determined that it has jurisdiction to hear this appeal.   Having considered it in light of the facts and the law, however, the court finds that it fails on the merits.   The appeal is, therefore, dismissed.

Boland, J.

FOOTNOTES

FN1. Moby Dick, Chapter 36..  FN1. Moby Dick, Chapter 36.

Boland, John D., J.