LLP v. Wolcott Planning and Zoning Commission (2014)

RECONSIDERED MEMORANDUM OF DECISION

I

BACKGROUND

The plaintiff, Musco Propane, LLP, appeals from four decisions by the Wolcott Planning and Zoning Commission (Commission) and the Zoning Board of Appeals of the Town of Wolcott (Board of Appeals) regarding its operation and planned expansions of a property located at 585 Wolcott Street, Wolcott, Connecticut (the property).   The principals of the plaintiff are Randy and Domenic Petroniro.   The court heard argument on the consolidated appeals on August 9, 2013.   The court sustains the appeal, in part, and denies the appeal, in part.

As a general overview, the plaintiff's .87–acre property is located in a general commercial zone.   It is also located within the route 69 Corridor overlay district, which is a special district established by the town of Wolcott to regulate Route 69, the main thoroughfare through Wolcott.   The plaintiff's business at the property consists of providing propane and home heating fuel.   It is generally agreed by all parties that the plaintiff operates a model propane business in a professional manner on a well-maintained property.

In 2006, the plaintiff received approval from the Commission for the installation of a 30,000 gallon propane tank.   The Commission concedes this was approved in error, unmindful at the time of a zoning prohibition against fuel tanks in excess of 10,000 gallons.   Notwithstanding this zoning prohibition, the continued use of the existing 30,000 gallon tank on the plaintiff's property is unchallenged, so long as it is used solely for the retail sale of propane.   However, the plaintiff serves a customer base which includes other propane retailers.

There are four consolidated appeals, covering five distinct but related issues.   The first appeal is Musco Propane, LLP v. Wolcott Planning and Zoning Commission, Docket No. CV–10–6003720–S (30k Tank Appeal).   The two issues presented in this appeal are, first, whether the Commission properly denied a site plan application by the plaintiff to add an additional 30,000 gallon above-ground propane tank to its property and, second, whether the Commission properly denied the plaintiff's application for a text amendment to the zoning regulations, permitting the use of 30,000 gallon fuel tanks in Wolcott.

The second appeal, Docket No. CV–10–6005538 (10k Tank Appeal), bears the same name and challenges the Commission's denial of the plaintiff's application for approval of three 10,000 gallon tanks.   This application was sought in lieu of the application for a second 30,000 gallon tank, which was denied by the Commission.

The third case, Musco Propane, LLP v. Wolcott Zoning Board of Appeals, Docket No. CV–10–6006312–S (Cease and Desist Appeal), concerns the Board of Appeal's refusal to vacate a cease and desist order issued against the plaintiff by Zoning Enforcement Officer David Kalinowski (Wolcott ZEO hereinafter) for making wholesale sales of propane in addition to the retail sales permitted under the Zoning Regulations of the Town of Wolcott (Regulations).   The fourth case, again titled Musco Propane, LLP v. Wolcott Planning and Zoning Commission, and bearing Docket No. CV–10–6009463–S (Wholesale Appeal), concerns the Commission's denial of the plaintiff's application to modify its existing site plan to permit wholesale sales.

The court will begin by stating the undisputed facts, as revealed by the plaintiff's complaint and defendants' answers and then summarize the evidence relied upon by each party.   As there are substantial facts common to each appeal, the court will not repeat the common facts, but rather will state only the new facts in each subsequent appeal.

A

30k Tank Appeal1. Facts

In 2006, the plaintiff applied for and received the Commission's approval of a site development plan application, allowing the installation of a 30,000 gallon above-ground propane storage tank on the Property (2006 application).   Complaint, Answer, paragraph 3.¹ In early 2009, the plaintiff applied for the installation of a second 30,000 gallon tank.   Complaint, Answer, paragraph 5. A public hearing was initially scheduled in 2009, but the plaintiff withdrew this application after the town informed it of a zoning ordinance, Section 23.2.4 of the Zoning Regulations of the Town of Wolcott, Connecticut (Regulations),² prohibiting fuel storage tanks in excess of 10,000 gallons.   Complaint, Answer, paragraphs 7, 9, 10 (the Commission leaves the plaintiff to its proof regarding whether the town cited the ordinance).

The plaintiff then submitted a preliminary request to amend the text of the Regulations.   Complaint, Answer, paragraph 12.   The plaintiff later resubmitted the 30,000 gallon tank application for a zoning permit and site plan on January 28, 2010 (30k tank application), along with a formal text amendment application (text amendment application).   Complaint, Answer, paragraphs 16, 17, 20.   The Wolcott ZEO then advised the plaintiff that the application should not have been accepted because 30,000 gallon fuel tanks were prohibited by § 23.2.4 of the Regulations.   Complaint, Answer, paragraph 22.   The 30k tank application and the text amendment application were nonetheless placed on the Commission agenda and subsequently denied at the February 3, 2010 Commission meeting.   Complaint, Answer, paragraphs 28, 29.

In February 9, 2010, the Wolcott ZEO (also referred to as “Kalinowski”) issued notices of the denial, stating that the 30k tank application was denied “based on the facts stated by Kalinowski and our Zoning Regulations that it is prohibited in Town.” Complaint, Answer, paragraphs 31, 32.   The Wolcott ZEO also stated that the text amendment application was denied “based on that it compares to the gas stations in town on Route 69 and the fact that it compared it to other towns which might not have a Route 69 corridor as we do.”   Complaint, Answer, paragraph 33.   The Commission admits that this was the stated reason, but maintains that it had additional reasons, such as that the other tanks were grandfathered and that the Commission could revisit the issue in the future, which was discussed on the record at the Commission meeting on February 3, 2010.

These decisions were published on February 11, 2010.   Complaint, Answer, paragraph 34.   The plaintiff then appealed the Commission's decision by serving a complaint on the Commission February 25, 2010 and filing it with the court on February 26, 2010.

The plaintiff discovered that the Mayor of Wolcott had sent a letter to the Commission membership concerning the existing 30,000 gallon fuel tank.   This letter is dated January 27, 2010;  one day before the applications were filed by the plaintiff for a second 30,000 gallon tank and the related text amendment.   The Mayor's letter advised the Commission members that the plaintiff's previously approved 30,000 gallon fuel tank was an “unintentional oversight on the part of the Planning and Zoning Commission [in 2006].”   The letter further cautioned the members “to be very careful as to what is said during public meetings.   Specifically, a reference was made to the prior application being granted incorrectly.   All members should be advised that any comments such as that can show:  1. A predetermination of any pending applications and also;  2. Does not generate confidence in the Commission as viewed by the general public.”   Plaintiff's Exhibit 32.

2.Plaintiff's Claim Of Municipal Estoppel

The plaintiff alleges in the complaint filed February 26, 2010, that the Commission violated General Statutes § 8–1 et seq. by acting arbitrarily, illegally, and abusing its discretion in denying the 30k tank application and in refusing to amend the regulations to permit 30,000 gallon tanks.   The plaintiff further claims that the Commission's denial is barred by the doctrine of municipal estoppel and by the Commission's selective enforcement of its regulations in violation of the plaintiff's right to equal protection.   For relief in this case, the plaintiff seeks orders vacating the Commission's decisions and compelling the Commission to approve the 30k tank application and text amendment.   The Commission filed an answer to this appeal on May 5, 2010.   At oral argument held on August 9, 2013, the plaintiff conceded that municipal estoppel is the only basis for overturning the Commission's denial of the 30k tank application.

In support of the claim of estoppel regarding the 30k tank application, the plaintiff asserts that the town has never prohibited tanks in excess of 10,000 gallons in the past, pointing to its own 30,000 gallon tank, approved in 2006, as well as underground tanks owned by at least two local businesses:  Cumberland Farms and Max's Gas Station.   The plaintiff's attorney asserts that these businesses have two underground tanks exceeding 10,000 gallons, Plaintiff's Exhibit 68, pp. 8–9, but conceded at the hearing before the court that, in combination, the storage capacity of neither business exceeds 25,000 gallons.

In addition, considerable time and effort was expended by the plaintiff, preparing the site plan application for a second tank, based upon the parties' erroneous belief that 30,000 gallon tanks were a permissible use.   The record shows clearly that the plaintiff worked closely with the Wolcott ZEO to prepare and then modify a 2009 site plan application for a second 30,000 gallon tank.   In support of its collateral estoppel contention in this regard, the plaintiff provided its certificate of occupancy, zoning permit, certificate of compliance, and a letter from the plaintiff's consultant, T. Michael Morrissey, to the fire marshal regarding fire code compliance for the second 30,000 gallon tank.   Plaintiff's Exhibit 11, Plaintiff's Exhibit 12, Plaintiff's Exhibit 15, Plaintiff's Exhibit 19.   It also provided evidence regarding the propane distribution network;  Plaintiff's Exhibit 16;  Morrissey's testimony that the plaintiff needed a second tank and that the plaintiff's business was a retail business;  Plaintiff's Exhibit 70, pp. 17–21;  Randy Petroniro's testimony as to the plaintiff's business;  Plaintiff's Exhibit 73, pp. 22–26;  and of the actions it took in reliance, such as consulting with the fire marshal regarding modifying the site plan;  Plaintiff's Exhibits 18, p. 3, 19;  and commissioning a fire safety analysis;  Plaintiff's Exhibit 20.   The plaintiff therefore asserts that, under a theory of municipal estoppel, the Commission should have approved the 30k tank application.

3. Plaintiff's Text Amendment

The plaintiff's application to amend the text of the regulations to permit 30,000 gallon tanks was also denied.   The plaintiff asserts that the Commission went beyond its discretion pursuant to § 53 of the Regulations in denying the text amendment application without a public hearing, despite its compliance with all of the procedural and filing requirements set forth in Regulations § 53.³  Plaintiff's Exhibit 27.

In its application, the plaintiff submitted that an above-ground propane tank did not pose a threat of contamination or pollution and asserted that amending the text of the Regulations would bring them in conformance with the town's history of allowing tanks in excess of 10,000 gallons.   The Commission denied the application without consulting the town attorney or holding a public hearing, which the plaintiff maintains demonstrated arbitrary action in abuse of the Commission's discretion.

In furtherance of its contention that the text amendment application was improperly denied, the plaintiff has provided the preliminary text amendment application;  Plaintiff's Exhibit 24;  the text amendment application;  Plaintiff's Exhibit 27;  testimony that additional storage capacity is recommended by the federal government;  Plaintiff's Exhibit 68, pp. 7–8;  its request for formal comment and input from the Commission and/or other town officials;  Plaintiff's Exhibit 28;  the immediate denial of the 30,000 gallon tank and text amendment applications;  Plaintiff's Exhibits 30, 31;  and it claims that the site amendment application;  Plaintiff's Exhibit 24;  and its attorney's testimony;  Plaintiff's Exhibit 68, pp. 7–8;  were attempts to bring the plaintiff into compliance, to which the town never responded.

4. Equal Protection

The plaintiff also asserts that by never enforcing the tank prohibition, and then solely enforcing it against the plaintiff, the Commission and the Wolcott ZEO have practiced selective enforcement in violation of the plaintiff's right to equal protection.   It is important for the court to clarify here that there are no orders for the removal of the plaintiff's existing tank in excess of 10,000 gallons.   Furthermore, there is no evidence in the record of any other underground or above-ground fuel storage tanks in Wolcott of 30,000 gallons or more.

Finally, in support of its equal protection submission, the plaintiff highlights a previously cited letter from Wolcott's Mayor to the Commission, stating that it had approved the 2006 application, which it called a “special use permit,” and urged the Commission to carefully consider the Regulations and the General Statutes in deciding the plaintiff's 30k tank application.   Plaintiff's Exhibit 32.

5. Commission's Response

The Commission responds to the plaintiff's claim by stating that the application for a second 30,000 gallon tank clearly violated the zoning regulations.   Regarding the plaintiff's contention of municipal estoppel, the Commission responds that the plaintiff has not taken any action in reliance on its representations.   The plaintiff installed the 30,000 gallon tank in 2006 and the Town is permitting the plaintiff to continue using the existing tank, as long as it does not do so for the purpose of retail.   And although the defendant acknowledges that the plaintiff expended resources on engineering plans in preparing the application for the new 30,000 gallon tank, it denies that any agent of the Commission or town told or otherwise induced the plaintiff to apply for that tank.   Therefore, the Commission claims the plaintiff's estoppel contention lacks merit.

The Commission likewise states that the equal protection count lacks merit because no other parties have applied for 30,000 gallon above-ground tanks and no other 30,000 gallon tanks exist in Wolcott.   The Commission claims it was unaware of the existence of underground tanks in excess of 10,000 gallons, prior to the plaintiff's claim that they exist, and no evidence has been presented regarding their date of installation.   The Commission nonetheless contends it will henceforth subject any applications for fuel storage tanks to the same level of scrutiny that it applied to the plaintiff's application.

Regarding the text amendment change, the Commission asserts that the regulations do not require the approval of an amendment simply because the proper formalities are followed and that, in acting in its legislative capacity, the Commission has broad discretion.   The Commission points to the record showing that it considered the existence of other fuel stations and considered the effect of the proposed amendment on the Route 69 Corridor District Plan, as well as on the Plan of Development in general, before deciding not to allow the amendment.   It provides evidence that the Commission considered whether it would be in the best interests of the town, compared the proposed change to other towns and determined that currently existing tanks in excess of 10,000 gallons are grandfathered, including the tank owned by the plaintiff.   The Commission further asserts that it offered to consider other proposed amendments from the plaintiff, but that the plaintiff chose to appeal the decision rather than draft a new amendment.   Commission's Exhibit 3, February 3, 2010 meeting, pp. 34, 40–41, 45–48, 50.

B

10k Tank Appeal

Concurrent with its 30k tank application filing in 2010, the plaintiff submitted an alternative site plan application to install three ⁴ new 10,000 gallon propane fuel tanks (10k tank application).⁵  Complaint paragraph 15, Answer paragraph 1.⁶ At the Commission's February 17, 2010 hearing, the plaintiff, based on its consultations with several officials, advised the Commission that the site plan for the application would require modifications to satisfy all site development plan requirements.   Complaint paragraph 23, Answer paragraph 1. In a letter to the Commission, a former Wolcott Town Planner and author of the regulations, Anthony Panico, conceded that there is no prohibition in the regulations on the number of tanks with storage capacities of 10,000 gallons.   But he did state, without specific authority, that the intent of the regulations was not to permit “tank farms.”   Complaint paragraph 25, Answer paragraph 1.

At the Commission's March 3, 2010 meeting, Commissioner Olmstead inquired about the nature of the plaintiff's customer base to determine whether the plaintiff was a wholesale distributor.   The Wolcott ZEO requested the town attorney's opinion on the issue.   Complaint paragraph 31, Answer paragraph 1. The town attorney concluded that the sale of propane to other propane dealers was a violation of the 2006 approval.   Complaint paragraph 31, Answer paragraph 1. The plaintiff submitted that both wholesale and retail uses are permitted in the General Commercial zone pursuant to the regulations.⁷  Complaint paragraph 48, Answer paragraph 1. The Wolcott ZEO advised the Commission that it was not within its discretion to determine whether the plaintiff was a retailer or a wholesaler, but rather to determine the appropriateness of the site plan.   Complaint paragraph 49, Answer paragraph 1. The Commission members subsequently determined that the plaintiff was a wholesale distributor and that wholesale distribution violated the 2006 approval.

The Commission raised concerns throughout the hearings about safety, traffic, property values and compliance with the Route 69 Corridor District Plan.⁸ Complaint paragraph 36, Answer paragraph 1. Specifically, on-site traffic concerns were raised by Chairman Mahoney, involving the maneuverability of tanker trucks on the property with the proposed improvements in place.   The plaintiff requested that Chairman Mahoney recuse himself from participating in this matter at the May 5, 2010, public hearing, but the Chairman refused.   Complaint paragraphs 46 and 47;  Answer paragraph 1.⁹

At its May 19, 2010 meeting, the Commission denied the 10k tank application, citing the following reasons:  (1) the plan did not promote an aesthetic quality of development consistent with the traditional image of Wolcott;  (2) they should not encourage or set precedent of the installation of above-ground bulk storage tanks or tank farms along the Route 69 Corridor nor was that the intent of the Plan of Development;  (3) safe circulation of traffic could not be obtained at all times;  (4) no screening or landscape enhancement was submitted;  (5) no architectural design of the proposal was offered;  (6) the expansion of bulk storage tanks was more for a use that is not permitted in Schedule A than it was to expand the operations of Musco Fuel as a retailer, and (7) an alternative plan to bury the tanks that would be more consistent with the Route 69 Corridor District Plan was not looked into.   Plaintiff's Exhibits 57 and 58;  Complaint paragraph 52, Answer paragraph 1. The decision was published on May 22, 2010.   The plaintiff then appealed the decision by serving the complaint on the Commission on June 7, 2010 and filing it with the court on June 22, 2010.

The Complaint alleges that the Commission's reasons were arbitrary, illegal and an abuse of discretion, and were therefore a violation of General Statutes § 8–1 et seq.   Complaint paragraph 55.   The plaintiff takes issue with the grounds listed by the Commission and states that they are pretextual and not supported by any evidence other than speculation and conjecture and are otherwise based on personal prejudice and animosity toward the plaintiff and its principals.   Complaint paragraph 55.   The remedy requested by the plaintiff is an order vacating the Commission's decision and compelling the Commission to approve the 10k tank application.

The plaintiff also focuses on the seven reasons, hand written by Commissioner Peter Carmody in advance of the vote to deny the application.   The plaintiff contends that none of the reasons provided by the Commission are sufficient to justify denial of the 10,000 gallon tank site plan.   Carmody testimony, pp. 8–9.   The Commission maintains that these seven reasons were additional reasons and that appropriate design considerations as set down in Regulations § 31 and failure to meet the special goals for the Route 69 Corridor set out in § 35 were the two primary reasons.¹⁰  The parties' contentions are set forth in greater detail below.

1. Denial Based on Aesthetics

The plaintiff first suggests that the Commission improperly considered additional factors beyond those to which the Regulations confine it, such as aesthetic qualities.   The plaintiff asserts that aesthetic qualities alone cannot be a basis for denial;  that under the Route 69 Corridor District Plan promoting aesthetics is a goal which the specific requirements fulfill, rather than a requirement in and of itself.   The plaintiff further asserts that the Commission did not find that the plaintiff violated any of the specific requirements;  therefore, it could not deny the 10k tank application based on aesthetic qualities.   Finally, it asserts that health and safety factors may be considered by the Commission in deciding whether to require additional conditions or safeguards, but they may not be a basis for denying an application.

The Commission responds that health, safety and aesthetic considerations may be reasons for denial if the regulations specifically require their consideration, as the Route 69 Corridor regulations do in this case.   The Commission further points to Regulations § 35.1.3, which requires that the property be compatible with and complement nearby properties.¹¹  In addition, during the hearing on the application, the plaintiff's attorney and consultant failed to specifically answer what the plaintiff would do to enhance the aesthetics of the property, simply stating that they would comply with the Commission's requests.   Commission's Exhibit 3, May 5, 2010 meeting, p. 50.

The plaintiff provides a variety of evidence and testimony to address safety concerns;  Plaintiff's Exhibit 45, pp. 4–5;, Plaintiff's Exhibit 51, pp. 2–3;  Plaintiff's Exhibit 53, pp. 1–5;  Plaintiff's Exhibit 70, pp. 36, 39–42;  including the specific concerns of the Commission, which it claims it addressed;  Plaintiff's Exhibit 50;  Plaintiff's Exhibit 51.   It also provided testimony regarding problems it is having due to inadequate storage.   Plaintiff's Exhibit 45, pp. 3–4;  Plaintiff's Exhibit 51, pp. 2–3;  Plaintiff's Exhibit 53, pp. 1–5;  Commission's Exhibit 3, May 5, 2010 meeting, pp. 32–33.   Finally, it provided Commissioner Carmody's testimony that he had never denied a site plan application for aesthetic reasons in the past.   Carmody Testimony, p. 18, ln. 26–27, p. 19, ln. 1–6.   The Commission also provides evidence of its discussions of aesthetics and health and safety.   Commission's Exhibit 3, May 5, 2010, p. 49, ln. 22–26;  Commission's Exhibit 3, May 19, 2010, pp. 1–2.

2. Above–Ground Storage Tanks and Tank Farms

The plaintiff next notes that while the Commission discussed prohibiting “tank farms,” that phrase is not used in the regulations.   Panico, the drafter of the regulations, confirmed in a letter dated February 11, 2010 that although the regulations do not specifically prohibit multiple fuel tanks used by a business, he nonetheless maintained that “tank farms” are contrary to the intent of the regulations.   Plaintiff's Exhibit 34.   The plaintiff again concludes that the Commission went beyond the scope of its discretion by considering whether a tank farm would be inconsistent with the intent of the plan of development, rather than simply considering whether it violated the regulations.   The plaintiff provides evidence that both Commissioner Carmody and the Wolcott ZEO stated that tank farms are not specifically prohibited by the regulations.   Carmody Testimony, p. 21, ln. 1–6 (term tank farm not in Regulations), Wolcott ZEO Testimony, p. 36, ln. 5–7, p. 45, ln. 4–10.   This claim is also consistent with the plaintiff's assertion that multiple tanks had been permitted for two local businesses, although underground, at Cumberland Farms and Max's Gas Station.

The Commission responds that it denied the plan because the tanks would be out of character with the community.   It contends that it has the authority to deny plans under Regulations § 35.1.3 and the Plan of Development, both of which emphasize that the Route 69 Corridor Plan of Development is intended to aesthetically enhance Route 69.¹²

3. Traffic

The plaintiff next submits that off-site traffic considerations are not a proper basis for denial because permitted uses are deemed not to interfere with off-site traffic.   In addition, no off-site traffic study was done because, pursuant to § 31.11.7, the project did not have the necessary parking spaces (100) or encompass a sufficient area (40,000 square feet) to require a traffic analysis.¹³  The plaintiff claims that the Commission is confusing the off-site traffic plan with the concerns regarding on-site traffic voiced by Chairman Mahoney.   The plaintiff claims that Chairman Mahoney improperly presented his own opinion as to whether delivery trucks could successfully navigate the property during the plaintiff's expert's presentation regarding on-site traffic flow.

The Commission counters that it is permitted to consider traffic issues under Regulations § 31.12.2 and § 31.12.3, and that the Commission members are permitted to use their individual knowledge in analyzing the site plan.¹⁴  Therefore, the Commission claims that the Chairman was permitted to use his knowledge as a licensed commercial truck driver to take issue with the plaintiff's expert's evaluation of the accessibility of the site to trucks.

The plaintiff has provided its site plan application;  Plaintiff's Exhibit 26;  evidence of its expert, Steve Giudice's, testimony as to traffic;  Plaintiff's Exhibit 53, p. 2;  Plaintiff's Exhibit 71, pp. 46–52;  Plaintiff's Exhibit 72, pp. 10–15;  Commission's Exhibit 3, April 21, 2010 meeting, pp. 43–56;  Commissioner Carmody's statement that no traffic study was requested or required;  Carmody testimony, p. 35, ln. 4–18;  p. 28, ln. 16–18;  and evidence that the site plan had sufficient parking and met with Department of Transportation requirements;  Plaintiff's Exhibit 71, p. 46, ln. 21–27, p. 47, ln. 1–5.   The Commission has provided similar evidence of the discussion of parking.   Commission's Exhibit 3, May 5, 2010, meeting, pp. 8–15;  Commission's Exhibit 3, May 15, 2010 meeting, p. 12;  Commission's Exhibit 5, maps.

4. Landscaping and Screening

Regarding the lack of a landscaping or screening plan, the plaintiff asserts that a landscaping plan is not required during the initial site development plan approval, but is only required prior to the issuance of a zoning permit, pursuant to § 31.11.¹⁵ The plaintiff nonetheless claims that it did, in fact, include landscaping features and indicated a willingness to adopt a landscaping and screening plan recommended by the Commission.   Commission's Exhibit 3, May 5, 2010 meeting, pp. 48–50.

The Commission maintains that the plaintiff cites the wrong section of the regulations:  § 31.11 rather than § 31.12, in claiming that a landscaping or screening plan was required only in the final stage, prior to the issuance of a zoning permit.¹⁶  The Commission points to another regulation, § 31.12.4(b), that specifically applies to the Route 69 Wolcott Road corridor, requiring the Commission to evaluate the location, arrangement and adequacy of landscaping at the site development plan approval stage.¹⁷  The Commission notes that special attention is required by the regulations for the enhancement of the appearance of properties along Route 69, according to § 31.12.4(b), and that, during the hearings, Commissioner Mahoney asked what screening of the three tanks was planned.   The plaintiff's response was that there was none other than a chain link fence.   Commission's Exhibit 3, May 5, 2010 meeting, p. 48.

The plaintiff provides supporting evidence of the landscaping and screening discussions;  Plaintiff's Exhibit 53;  Plaintiff's Exhibit 72, pp. 48–50;  as does the Commission;  Commission's Exhibit 3, May 5, 2010 meeting, pp. 48 and 50.   The plaintiff also provides evidence that Commissioner Carmody did not consider the lack of landscaping or screening as a valid reason for denying the site plan application.   Carmody testimony, p. 39, ln. 7–27, p. 40, ln. 1–5.

5. Lack of an Architectural Plan

The plaintiff states that while the lack of an architectural plan was cited as a ground for denial, it was not required to provide an architectural plan because the tank was not a building or a structure.¹⁸  It therefore sought a waiver of an architectural plan in the application.   Plaintiff's Exhibit 26.   The plaintiff claims the Wolcott ZEO acknowledged at the hearing that an architectural plan may be waived with the approval of the Commission.¹⁹  The Commission responds that a tank is a structure under the definition in Regulations § 3.36 ²⁰ and architectural plans are required in the site plan application documentation.

The plaintiff provided evidence of the Commission's discussions of architectural plans;  Plaintiff's Exhibit 72, p. 49;  and Commissioner Carmody's statement that lack of an architectural plan was not a basis for denial;  Carmody Testimony, p. 39, ln. 7–27, p. 40, ln. 1–5.   The Commission maintains that it did not waive its right to require an architectural drawing at the hearing, but rather that the Wolcott ZEO stated that the tanks would be considered structures pursuant to the regulations.   Commission Exhibit 3, May 5, 2010 meeting, pp. 49–50.

6. Wholesale and Retail Use

The plaintiff claims that the Commission was not permitted to deny the application because of the Commission's belief that the tanks would be used for wholesale rather than retail use.   It contends that wholesale use is permitted under the regulations;  therefore this was not a valid basis for denial.   The permitted uses cited in the wholesale application, discussed infra, are Regulations Schedule A C–16, C–16a and C–19a.²¹ Plaintiff's Exhibit 66.

The Commission responds first that the original 2006 application was granted for Schedule A permitted use C–17, which includes only the retail use of 10,000 gallon fuel tanks.²²  Although permitted use C–17 was not specifically identified in the 2006 application, the hand-written purpose of the application explained that the “30,000 gallon LP propane bulk tank was for loading our propane trucks for deliveries throughout our service area.”  (Emphasis added.)   Plaintiff's Exhibit 4. The Commission construes this language to mean retail use only by the plaintiff, not wholesale use involving trucks owned and operated by other retailers.

When asked by the Commission, Randy Petroniro refused to answer how many customers the plaintiff has.   Commission's Exhibit 3, May 5, 2010 meeting, pp. 20, 25 (another of the plaintiff's witnesses, Morissey, did later answer).   The Commission maintains that it asked this question to determine whether the expansion would benefit retail or wholesale sales.   Based on the refusal to answer, the Commission inferred that the expansion would benefit unpermitted wholesaling and therefore denied the 10k tank application.   Both parties provided extensive evidence as to the definitions of wholesale vs. retail which is described in Section I. C of this decision.

7. Burying the Tanks

The plaintiff also claims that the Commission could not consider that the plaintiff did not propose burying the tanks because the Regulations do not require an alternative plan of use, nor was the plaintiff asked to consider alternative plans by the Commission.   The plaintiff also submits that Commissioner Carmody stated in a deposition that the plaintiff's failure to consider putting the tanks underground was not a legitimate reason to deny the application.   Carmody testimony, p. 40, ln. 6–24.

The Commission maintains that Carmody was justifiably concerned about more above-ground fuel storage tanks in Wolcott since the plaintiff owns the only above-ground tank in town.   The plaintiff's consultant never addressed whether burying the tanks would be a feasible alternative.   The Commission also maintains that Commissioner Carmody's answer in 2012 is not dispositive because the deposition took place two years after the Commission's decision.   The Commission also discussed burying the tanks in its April 21, 2010 meeting.   Commission's Exhibit 3, April 21, 2010, pp. 37–38.

8. Bias/violation of General Statutes § 8–11

The plaintiff contends in its trial brief that Chairman Mahoney was biased and should have recused himself from the deliberations on the 10k tank application.   The plaintiff's brief treats this as a separate issue, but does not allege it as a separate cause of action in the complaint.   For purposes of this appeal the court will, nonetheless, construe it as an additional basis for overturning the 10k tank application.

The plaintiff asserts that Chairman Mahoney visited the property by himself, stated that he was against the proposed changes and improperly used a dictionary definition regarding wholesaling.   The plaintiff also contends that Chairman Mahoney improperly controverted the plaintiff's expert regarding on-site traffic, by using a self-constructed scale model of a truck and by providing his own expert opinion, as the holder of a Commercial Driver's License, concerning the size and maneuverability of delivery trucks on the property, based upon the plan.   The Commission responds that it, including Mahoney, listened to all of the evidence proffered by the plaintiff and made a decision based on that evidence.

Evidence of the various improprieties noted by the plaintiff include Chairman Mahoney's use of a dictionary;  Plaintiff's Exhibit 55;  Mahoney's knowledge of the plaintiff's business practices and independent visits to the property;  Plaintiff's Exhibit 68, pp. 21–22;  Plaintiff's Exhibit 69, p. 11;  Mahoney's criticism of the Wolcott ZEO and Giudice's determinations regarding parking;  Plaintiff's Exhibit 70;  Plaintiff's Exhibit 71, pp. 9–12, 43–71;  Plaintiff's Exhibit 72, pp. 10–17;  and Chairman Mahoney's refusal to recuse himself;  Plaintiff's Exhibit 53, p. 2;  Plaintiff's Exhibit 72;  Commission's Exhibit 3, May 5, 2010 meeting, pp. 16–17.

C

Cease and Desist Appeal

While the Commission was considering the plaintiff's applications, the Wolcott ZEO issued a cease and desist order on March 22, 2010, directing the plaintiff to “stop all wholesale of propane.”   Complaint paragraph 2, Answer paragraph 1.²³

The plaintiff delivers propane via its own trucks for residential use and sells propane to several other propane retailers.   Complaint paragraph 6, Answer paragraph 4. It was conceded in the record and before the court that these sales to other propane dealers involved similarly sized “bobtail” trucks for resale to their own retail customers.   On April 7, 2010, the plaintiff filed an appeal with the Board of Appeals and a public hearing was held on June 9, 2010.   Complaint paragraph 15, Answer paragraph 1. The Board of Appeals upheld the cease and desist order and published its decision on August 16, 2010.   Complaint paragraph 20.   The plaintiff appealed the Board of Appeals' decision by serving and filing a complaint on August 18, 2010 against the Board of Appeals and the Wolcott ZEO (Cease and Desist defendants).

In its amended complaint dated July 3, 2012, the plaintiff alleges that the Board of Appeals incorrectly interpreted the Regulations, abused its discretion in applying them to the facts, and acted unreasonably, arbitrarily and/or illegally in upholding the order to cease and desist.   Complaint paragraph 22.   It also alleges that the Board of Appeals should be estopped from enforcing the cease and desist under the doctrine of municipal estoppel, because the town officials approved the 2006 application without informing the plaintiff that the 30,000 gallon tank was a prohibited use, accepted the 30k tank application and caused the plaintiff to expend money, time and effort complying with town requests, allowed the same or similar uses by others in the Town, and utilized a rarely if ever enforced section of the regulations, § 23.2.4, to thwart the plaintiff's business activities.²⁴  Complaint paragraph 23.

The plaintiff alleges that the Cease and Desist defendants were aware of these acts, omissions, and/or representations.   Complaint paragraph 24.   The plaintiff claims it exercised due diligence to ascertain the nature of the situation and acted in reliance on the representations to its detriment.   Complaint paragraphs 25, 26.   The plaintiff therefore requests that the Board of Appeals' decision be vacated, the cease and desist order be lifted, and that the cease and desist defendants be estopped from enforcing the cease and desist order, as well as any other relief the court may deem just and proper.

In support of its appeal of the cease and desist order, the plaintiff asserts two broad substantive points in making its municipal estoppel claim.   First, it submits that the 2006 application did not restrict the use of the tank to retail use.   The 2006 application did not contain the words retail or wholesale;  the plaintiff maintains that the Board of Appeals is focusing on one phrase in the 2006 application, handwritten by Randy Petroniro, stating that the tank would be used to fill “our trucks.” ²⁵  The plaintiff claims that Randy Petroniro did not mean to limit the plaintiff's business to Musco Propane trucks when he wrote “our trucks” on the 2006 application, and that the appeals board went beyond its discretion in interpreting “our trucks” to mean only those trucks owned by the plaintiff.

Second, the plaintiff contends that the use to which it is putting the tank is not a wholesale use.   The plaintiff focuses on the definitions of retail and wholesale in the propane industry, wherein wholesaling is selling directly from the propane pipeline using a large tanker truck rather than the bobtail trucks that the plaintiff and its customers use.   The plaintiff also notes that it is on the list of retail home heating dealers established by the Department of Consumer Protection pursuant to General Statutes § 16a–23s.²⁶  The plaintiff maintains that using a dictionary definition of wholesale goes beyond the board's discretion.

Finally, regarding municipal estoppel, the plaintiff notes that numerous city employees, including the fire marshal and the Wolcott ZEO, approved of the 30k tank in 2006 without inquiring into the use to which it was being put.   It states that it is now being prevented from growing its business, and that its business is in danger, because of its reliance on the municipal employees' statements.

The cease and desist defendants counter that the board conducted a proper de novo review of the ZEO's decision.   The cease and desist defendants first look to the 2006 application, wherein Randy Petroniro stated that the tank would be used to fill the plaintiff's own trucks in the plaintiff's own service area.   They assert that the Board of Appeals made a factual determination that this meant the site plan would only apply to retail sales.   Also, the cease and desist defendants stress that even after the site plan was approved, additional uses must be submitted for approval pursuant to § 31.9 of the Regulations.²⁷

Regarding the definitions of retail and wholesale, the cease and desist defendants first note that the question is whether Regulations Schedule A, permitted use C–17 permits wholesaling of propane, not whether the regulations as a whole permit wholesaling in general.   They maintain that the zoning regulations and standard canons of interpretation dictate that words should be given their plain meaning, and therefore a dictionary definition of wholesale was appropriate.   They reference several dictionaries and a variety of cases for the proposition that retail means sale to consumers, whereas wholesale means sale for resale.

The cease and desist defendants further maintain that, as a policy matter, zoning regulations should use definitions which are applicable to all industries in order to guarantee that the regulations will be uniform and provide clear standards for all industries, rather than deferring to industry-specific definitions.

The cease and desist defendants counter the plaintiff's municipal estoppel contention by noting that none of the city employees or offices cited by the plaintiff is actually responsible for determining the use of the property.   Instead, they deal with the physical structure.   In their inspections, the fire marshal was concerned with fire safety and the Wolcott ZEO was concerned with whether the physical structure of the property was in compliance.   The Town also asserts that it was not aware of the wholesale use until it was disclosed during the hearings on the plaintiff's applications in 2010, after which the Wolcott ZEO took prompt action.   They also state that the ordinance barring tanks larger than 10,000 gallons was always in the Regulations;  the plaintiffs simply failed to read this provision.

In support of their appeal of the cease and desist order, the plaintiff offers a variety of evidence.   It offers evidence of attorney Brian Tynan's opinion in a letter to the Wolcott ZEO that the sale of propane to other dealers was a violation;  Plaintiff's Exhibit 36;  of the Commission instructing the Wolcott ZEO to investigate and issue a cease and desist order;  Plaintiff's Exhibit 37, p. 6;  and of the original statement that the plaintiff would use the tank to fill its own trucks;  Plaintiff's Exhibit 4, p. 2;  Plaintiff's Exhibit 8, p.2.

The plaintiff submitted further evidence to advance its municipal estoppel claim, asserting that the town was aware of its sales to other dealers;  Plaintiff's Exhibit 38, p. 2 (letter from plaintiff's attorney regarding cease and desist);  Plaintiff's Exhibit 71, pp. 72–75 (details of fire marshal inspection);  Olmstead Testimony, p. 101, ln. 18–26;  Officer Kalinowski 4/16/09 letter, attached to the plaintiff's supplemental brief;  Officer Kalinowski Testimony, p. 16, ln. 19–27, p. 19, ln. 23–25;  and that the cease and desist order damaged its business;  Plaintiff's Exhibit 73, pp. 22–26.   It provided the text of the cease and desist order;  Plaintiff's Exhibit 39;  and of the Wolcott ZEO's letter threatening sanctions;  Plaintiff's Exhibit 42.   It provided evidence that the 2006 approval did not limit the types of customers it could serve;  Plaintiff's Exhibit 9;  Plaintiff's Exhibit 34, p. 2;  Officer Kalinowski Testimony, pp. 19, 23–25, 31, ln. 7–10.

The plaintiff additionally provided extensive evidence as to the definition of wholesale as applied to the propane industry, state law, and federal law;  and that sale to other retailers was permitted;  Plaintiff's Exhibits 16, p. 2;  Plaintiff's Exhibit 45, pp. 3–4;  Plaintiff's Exhibits 46–49;  Plaintiff's Exhibit 51, p. 2–3;  Plaintiff's Exhibit 53, pp. 1–5;  Plaintiff's Exhibit 54.   It also provided the Wolcott ZEO's letter regarding the cease and desist;  Plaintiff's Exhibit 59;  and Panico's letter to the Wolcott ZEO;  Plaintiff's Exhibit 60;  evidence it is a retailer seller;  Plaihtiff's Exhibits 16, p. 2;  Plaintiff's Exhibits 46–49;  Plaintiff's Exhibit 54;  and evidence the 2006 approval was not limited to retail;  Plaintiff's Exhibit 6;  Plaintiff's Exhibit 9;  Plaintiff's Exhibit 10, pp. 5, 9, 11–15;  Plaintiff's Exhibit 72, pp. 7–8;  Plaintiff's Exhibit 73, p. 22–26 and 52–57.   Finally, it offered a letter from the town attorney stating that there is no prohibition on wholesale “with site plan approval”;  Plaintiff's Exhibit 62, n.3;  and testimony of other commercial uses permitted, such as gas stations, warehouses, and storage;  Plaintiff's Exhibit 71, p. 19–20.

The Commission provided evidence supporting the cease and desist appeal, such as the January 28, 2010 30k tank application, citing Schedule A Use Line C–17 regarding retail sales;  Commission's Exhibit 1, p. 1;  Attorney Salvatore's statement that the plaintiff was wholesaling;  Commission's Exhibit 3, February 3, 2010 meeting, p. 17;  and a discussion of wholesaling by the Commission;  Commission's Exhibit 3, March 3, 2010 meeting, pp. 6–11.   The cease and desist defendants also provide evidence of the definitions of wholesaling it used.   Cease and desist defendants Exhibit 1. The cease and desist defendants also introduced the transcripts of the meetings in which the issue was discussed;  cease and desist defendants Exhibit 4;  and the Wolcott ZEO's testimony that he was only aware of the plaintiff's wholesale sales a few months before the hearing.   Cease and desist defendants Exhibit 4, June 9, 2010 meeting, p. 37.

D

Wholesale Application Appeal

On January 21, 2011, the plaintiff submitted a site plan application to conduct wholesale propane sales (wholesale application), under use lines C–16, C–16a and C–19a, which was denied.   Complaint paragraphs 75 and 79.   The reason given for the decision, published on March 19, 2011, was that permitted use C–17 was more applicable, and zoning regulations 3.1, 23.2, and 23.2.4 prevented such use.²⁸  Complaint paragraph 79.   The plaintiff then appealed the Commission's decision by serving the Complaint on the Commission on March 31, 2011, and filing it on April 7, 2011.   The Commission does not admit any facts which are specifically applicable to the application to modify the site plan.²⁹

The Complaint alleges that the Commission incorrectly interpreted the regulations, abused its discretion, and acted unreasonably, arbitrarily and/or illegally.   Complaint paragraph 81.   It requests an order vacating the Commission's decision denying the wholesale application, an order compelling approval of the wholesale application, and any other relief the court deems just and proper.

In support of the appeal of the denial of the wholesale application, the plaintiff asserts that the Regulations permit wholesale sales in the GC region, under use lines C–16, C–16a and C–19a,³⁰ and that the Board of Appeals upheld the cease and desist order after its attorney advised it that the plaintiff could apply to the Commission to do wholesale sales.   Zoning Board Exhibit 4, August 11, 2010 meeting, p. 7. The plaintiff submits that the Commission's stated reason for denying its wholesale application, that C–17 is more applicable than the other permitted use lines it cites, is irrational.   The Commission responds that use line C–17 controls because it is specifically applicable to fuel storage tanks and specifically mentions retail, but not wholesale sales.   Therefore, as a specific provision, it applies instead of the broader use lines for warehousing, wholesaling, and storage cited by the plaintiff.   The Board also relies upon Regulations § 23.2, providing that any use not specified is prohibited, so wholesaling, not being specified in the provision dedicated to fuel tanks, C–17, is prohibited.³¹

The plaintiff provided the wholesale application;  Plaintiff's Exhibit 65;  Plaintiff's Exhibit 66;  as evidence, along with a letter from the town attorney stating that wholesaling is permitted;  Plaintiff's Exhibit 62;  the Commission's reasons for denial;  Plaintiff's Exhibit 67;  and the Commission's finding that the plaintiff was a wholesaler;  Plaintiff's Exhibit 16, p. 2;  Plaintiff's Exhibit 45, pp. 3–4;  Plaintiff's Exhibits 46–49;  Plaintiff's Exhibit 54.

E

Equal Protection Case:  Musco Propane, LLP v. Wolcott et al.

The plaintiff also brought a federal case pursuant to 42 U.S.C. § 1983, against the Town, the Commission, the Board of Appeals, Wolcott's mayor, the Wolcott ZEO, five members of the Commission in 2009 and 2010, and four individual members of the Board of Appeals in 2009 and 2010.  Musco Propane, LLP v. Wolcott, 891 F.Sup.2d 261 (D.Conn.2012), aff'd, United States Court of Appeals for the Second Circuit, Docket No. 12–3746–CV (2d Cir. September 3, 2013).

In that action, the plaintiff sued the individual defendants in both their official and individual capacities.  Musco Propane, LLP, supra, 891 F.Sup.2d 263.   The plaintiff claimed that the defendants violated its right to equal protection and violated its right to free speech by retaliating against it.   Id. The court, however, granted the defendants' motion for summary judgment, finding on the free speech claim that the plaintiff had not presented any facts demonstrating that its actions, such as appealing the Commission's decisions, caused the defendants' adverse actions, such as the denial of later applications and the issuing of the cease and desist order.  Id., 271.   On the equal protection claim, the court first found that the plaintiff had not demonstrated that it was similarly situated to the other businesses in Wolcott with tanks in excess of 10,000 gallons because those other businesses had received approval for their tanks several years in the past, and that it was not similarly situated to other wholesalers because none of those other wholesalers sold heating fuel or natural gas.  Id., 273–74.   Finally, the court determined that the plaintiff presented no evidence showing that any selective treatment was based on impermissible considerations.  Id., 274.

II

Procedural History of the Consolidated Appeal

The following procedural history concerns all four appeals in the Superior Court.   On February 22, 2012, the Commission moved to supplement the Return of Record with the Town of Wolcott Plan of Development Update dated November 1, 1996.   On May 24, 2012, the plaintiff moved to admit additional testimony into the record.   The Commission and the Wolcott ZEO objected to the motion to admit testimony on June 1, 2012;  however, the objection was not ruled upon.   On September 25, 2012, hearings were held in front of a judge of the Superior Court, Sheedy, J., and testimony of the Wolcott ZEO, Olmstead, and Carmody was presented.

The court permitted the testimony on the record, but stated that the trial judge would rule on the motion to admit testimony and any other evidentiary objections.   The Commission and the Board of Appeals contend that the court should decline to hear this new evidence because there was significant evidence submitted at the public hearings, the transcript of the hearings has been submitted, and the plaintiff could have obtained and presented this evidence at the public hearings.   The parties have filed a variety of briefs.   The plaintiff filed a trial brief on March 5, 2012, and a supplemental brief on November 19, 2012.   The Commission filed a trial brief on April 27, 2012 and a supplemental brief on November 19, 2012.   The Board of Appeals filed a trial brief in the Cease and Desist Appeal on May 9, 2012, and a supplemental trial brief on November 19, 2012.³²

Finally, the Wolcott ZEO filed a trial brief on April 27, 2012 in the Cease and Desist Appeal as well.   On August 9, 2013, the consolidated appeal was submitted at trial before this court.

III

AGGRIEVEMENT

General Statutes § 8–8(b) provides, in pertinent 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 ․” Section 8–8(a)(1) defines an aggrieved person in relevant part as including both “a person aggrieved by a decision of a board” and “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.”

“[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved.”  (Citation omitted;  internal quotation marks omitted.)  Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537–38, 833 A.2d 883 (2003).  “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  Id., 538–39.   A plaintiff may prove aggrievement by testimony at the time of trial.   See Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).  “[A]ggrievement implicates the court's subject matter jurisdiction ․ A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised.   The parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent.”  (Citation omitted.)  Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996).   According to Fox v. Zoning Board of Appeals, 84 Conn.App. 628, 637, 854 A.2d 806 (2004), “parties can stipulate to facts to allow findings of aggrievement, but cannot confer subject matter by agreement ․” Citing R. Fuller, 9 Connecticut Practice Series:  Land Use Law and Practice (1993) § 32.3, p. 531.

“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] ․ Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  (Internal quotation marks omitted.)  Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 394, 941 A.2d 868 (2008).

In the present case, the parties have stipulated to the following for purposes of the aggrievement determination:

“1. The four actions, which have been consolidated for trial, were brought by Musco Propane, LLP (“Musco”).

“2. The actions involve four applications filed by Musco with the Town of Wolcott Planning and Zoning Commission (“PZC”), as well as an appeal of a ruling of the Town's Zoning Board of Appeals (“ZBA”) upholding the issuance of a cease and desist order by the Town's Zoning Enforcement Officer (“ZEO”).

“3. The applications and the appeal all concern the real property located at 585 Wolcott Street, Wolcott, Connecticut (the “Property”) which is owned by Randy Petroniro and his brother Domenic Petroniro.   Randy and Domenic Petroniro are also the co-owners of Musco.

“4. Musco's principal place of business is located at the Property.   It has leased the Property from the owners of Musco Propane, Randy and Domenic Petroniro, since 2003.

“5. With the approval of Randy and Domenic Petroniro, Musco filed four zoning applications with the Town of Wolcott's Planning and Zoning Commission concerning the operation of its business on the Property which are at issue in these consolidated appeals:  1) to install a 30,000 gallon propane storage tank;  2) to amend the text of the Town's Zoning Regulations to accommodate a 30,000 gallon propane storage tank;  3) to install three 10,000 gallon propane storage tanks;  and 4) to conduct wholesale sales of propane at the Property.   The PZC issued a decision denying each of these four applications which Musco has appealed.

“6. Musco has also appealed the issuance of a cease and desist order by the ZEO and the Zoning Board of Appeals ruling which upheld that order.   The order was issued to Musco directing it to stop the “wholesale” sale of propane to other dealers from the Property.

“7. Musco continues to maintain its interest in the Property as a lessee and continues to run its business at the Property under the management of Randy and Domenic Petroniro.

“8. Musco and thus the lessees are aggrieved.”

Based on the facts stipulated by the parties, the court finds that the plaintiff is aggrieved by the actions of the Commission and the Board of Appeals.

IV

STANDARDS OF REVIEW

General Statutes § 8–8(b) states:  “(b) Except as provided in subsections (c), (d) and (r) of this section and sections 7–147 and 7–147i, any person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8–3 or a special permit or special exception pursuant to section 8–3c, may take an appeal to the superior court for the judicial district in which the municipality is located, notwithstanding any right to appeal to a municipal zoning board of appeals under section 8–6.   The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes.   The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.”

A Board is defined by General Statutes § 8–8(a)(2) as “a municipal zoning commission, planning commission, combined planning and zoning commission, zoning board of appeals or other board or commission the decision of which may be appealed pursuant to this section, or the chief elected official of a municipality, or such official's designee, in a hearing held pursuant to section 22a–250, whose decision may be appealed.”

General Statutes § 8–8(l) provides, in part, that “[t]he court, after a hearing thereon, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from.   If a particular board action is required by law, the court, on sustaining the appeal, may render a judgment that modifies the board decision or orders the particular board action.”

A

Review of Actions in an Administrative Capacity

When a Commission functions in an administrative capacity, “a reviewing court's standard of review is limited to whether it was illegal, arbitrary or in abuse of [its] discretion ․ In determining whether a zoning Commission's action was illegal, arbitrary or in abuse of its discretion, a reviewing court's principal inquiry is whether the Commission's action was in violation of the powers granted to it or the duties imposed upon it.”  (Citations omitted;  internal quotation marks omitted.)  Clifford v. Planning & Zoning Commission, supra, 280 Conn. 440.  “When reviewing a site plan application, a planning commission similarly acts in an administrative capacity and may not reject an application that complies with the relevant regulations.”  Pansy Road, LLC v. Town Plan & Zoning Commission, 283 Conn. 369, 375, 926 A.2d 1029 (2007).

“[W]hen a zoning ․ agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision ․ Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations ․ The principle that a court should confine its review to the reasons given by a zoning agency ․ applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action ․ It does not apply to mere utterances of individual members of the agency.”  (Internal quotation marks omitted.)   Clifford v. Planning & Zoning Commission, 280 Conn. 434, 439–40 n.6, 908 A.2d 1049 (2006).

“[A] commission's failure to state on the record the reasons for its actions ․ renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission's decision.”   Graff v. Zoning Board of Appeals, 277 Conn. 645, 670, 894 A.2d 285 (2006).   The court then determines whether the record contains substantial evidence to support the Commission's decision.  Id.

“In ruling upon a site plan application, the planning commission acts in its ministerial capacity, rather than in its quasi-judicial or legislative capacity.   It is given no independent discretion beyond determining whether the plan complies with the applicable regulations ․ The board is under a mandate to apply the requirements of the regulations as written.   If the plan submitted conforms to these regulations, the council has no discretion or choice but to approve it.”  (Citation omitted, internal quotation marks omitted.)  Allied Plywood v. Planning & Zoning Commission, 2 Conn.App. 506, 512, 480 A.2d 584, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984);  see also Westover v. Zoning, 91 Conn.App. 125, 132 n.8, 881 A.2d 412 (2005).

“When reviewing a site plan application, a planning commission similarly acts in an administrative capacity and may not reject an application that complies with the relevant regulations.”  (Internal quotation marks omitted.)  Loring v. Planning & Zoning Commission, 287 Conn. 746, 770, 950 A.2d 494 (2008).  “The designation of a particular use of property as a permitted use establishes a conclusive presumption that such use does not adversely affect the district and precludes further inquiry into its effect on traffic, municipal services, property values, or the general harmony of the district.”  Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 443, 418 A.2d 82 (1979).

The Supreme Court made clear in TLC Development, Inc. v. Planning & Zoning Commission, 215 Conn. 527, 532, 577 A.2d 288 (1990) that a zoning commission may only deny a site plan on the bases for which the regulations permit denial;  if the regulations only permit the Commission to require modification of a site plan, the commission does not have the power to deny based on those bases:  “Although the text of [the relevant zoning statute] makes it clear that the general objectives are to serve solely as the basis for requiring a modification of the proposed site plan, the commission used these general objectives as the basis for denying the application altogether.   To the extent that the content of these general objectives deals with offsite traffic considerations, our review discloses no similar provisions elsewhere in the ․ zoning regulations.   Thus, offsite traffic considerations should not have served as the basis for denying the plaintiff's site plan application.”

The Supreme Court further clarified in Friedman v. Planning & Zoning Commission, 222 Conn. 262, 266–67, 608 A.2d 1178 (1992), that only criteria which are specified as necessary for approval and which are specifically set down, such as a requirement that a traffic study be provided, can be a basis for denial of a site plan application.

B

Review of Actions in a Legislative Capacity

The trial court's standard of review when analyzing a challenge to a local zoning authority's legislative decision is such that “[c]onclusions reached by the [zoning authority] must be upheld by the trial court if they are reasonably supported by the record.”  (Internal quotation marks omitted.)  Konigsberg v. Board of Aldermen, 283 Conn. 553, 582, 930 A.2d 1 (2007). is not the function of the trial court to retry the case.”  (Internal quotation marks omitted.)  Id. “[T]he courts allow zoning authorities this discretion in determining the public need and the means of meeting it, because the local authority lives close to the circumstances and conditions [that] create the problem and shape the solution.”  (Internal quotation marks omitted.)  Id. When enacting regulations;  Graff v. Zoning Board of Appeals, 277 Conn. 645, 652, 894 A.2d 285 (2006);  or amending zoning regulations, a commission acts in a legislative capacity.  Roncari Industries, Inc. v. Planning & Zoning Commission, 281 Conn. 66, 79, 912 A.2d 1008 (2007).

C

Zoning Board of Appeals Review of Zoning Enforcement OfficerDecision

“The zoning board of appeals shall have the following powers and duties:  (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter ․” General Statutes § 8–6(a).  “[F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board.”  Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 626 A.2d 744 (1993).

“In reviewing the actions of a zoning board of appeals, we note that the board is endowed with liberal discretion and that its actions are subject to review by the courts only to determine whether they are unreasonable, arbitrary or illegal ․ The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision ․ [A] zoning board of appeals hears and decides an appeal de novo ․ It is the board's responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts ․ In doing so, the board is endowed with a liberal discretion ․ Indeed, under appropriate circumstances, the board may act upon facts which are known to it even though they are not produced at the hearing ․ Upon an appeal from the board, the court must focus on the decision of the board and the record before it ․

“It is well settled that the courts should not substitute their own judgment for that of the board and that the decisions of the board will not be disturbed as long as an honest judgment has been reasonably and fairly made after a full hearing ․ The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings ․ Upon an appeal from the judgment of the trial court, we review the record to see if there is factual support for the board's decision, not for the contentions of the applicant ․ to determine whether the judgment was clearly erroneous or contrary to law ․

“In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record.   The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] ․ The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached ․ If the trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board ․ If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court ․ cannot substitute its judgment as to the weight of the evidence for that of the commission ․ The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.”  (Footnote omitted, internal quotation marks omitted.)  Woodbury Donuts, LLC v. Zoning Board of Appeals, 139 Conn.App. 748, 758–60, 57 A.3d 810 (2012).  “[T]he zoning board of appeals makes a de novo determination of the issue before it, without deference to the actions of the zoning enforcement officer.”  (Internal quotation marks omitted.)  Id., 757.

V

FINDINGS, DISCUSSION AND CONCLUSIONS

Throughout these combined appeals, the parties dispute whether the wholesale distribution of propane is a permitted use under the regulations as a matter of law.   Although the court will address the specific questions relating to the wholesale distribution of propane as they arise in of each of the appeals, the court finds at the outset that the Commission reasonably concluded that the plaintiff's 2006 application for a 30,000 gallon tank was for retail and not wholesale purposes.   There is no direct evidence to support the conclusion that the 2006 application was for wholesale distribution.   Further, the handwritten language supporting the application specifically states that the intended use of the tank was for “our propane trucks for deliveries thru out our service area.”

To the extent the plaintiff asserts that other provisions of the Regulations apply regarding permitted uses on Schedule A, such as permitted use C–16 concerning warehousing and wholesaling, C–16a concerning storage of a reasonable quantity of retail merchandise and supplies, and C–19, concerning accessory uses associated with trucking,³³ the court notes that these provisions are required by the language of Regulations § 23.2 to be interpreted in the context of specific prohibitions, including the specific prohibition on fuel tanks having a capacity in excess of 10,000 gallons.³⁴  To read these general provisions as unlimited by § 23.2.4 and C–17 would permit the warehousing and storing of propane in tanks of, potentially, unlimited size along the Route 69 Corridor.   In the court's view, such a reading of the regulations would be unreasonable.

“A court must interpret a statute as written ․ and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation ․ The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant ․ Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body.”  (Internal quotation marks omitted.)  Blakeman v. Planning and Zoning Commission, 82 Conn.App. 632, 639, 846 A.2d 950, cert. denied, 270 Conn. 905, 853 A.2d 521 (2004).

A

30k Tank Appeal

Based upon the clear language of Regulations § 23.2.4, the court concludes that the plaintiff's 2010 application for a 30,000 gallon tank was properly denied.   It is a use prohibited by Section 23.2.4 of the Zoning Regulations of the Town of Wolcott, Connecticut, specifically prohibiting “bulk storage of gas, petroleum products and other fuels in tanks having a capacity in excess of 10,000 gallons.”   In addition, Schedule A permitted use C–17 similarly limits fuel tanks used for retail sales to 10,000 gallons, which was the particular use cited in the plaintiff's application.   Plaintiff's Exhibit 25, ln. 6. It is also clear from the record that the 2006 application for the plaintiff's existing 30,000 gallon tank was approved in error.

1. Municipal Estoppel

In denying the plaintiff's application for a second 30,000 gallon fuel tank, the question arises of whether a prior zoning error renders the proper application of the regulation arbitrary or an abuse of discretion.   This court has previously held that “[a]bsent a showing of discrimination ․ [a] permit granted in violation of a valid zoning regulation does not render the subsequent enforcement of that regulation arbitrary, unreasonable or an abuse of discretion.”   Goulet v. Zoning Board of Appeals, Superior Court, judicial district of New Haven at Meriden, Docket No. CV–06–4005265–S (October 30, 2007, Taylor, J.) [44 Conn. L. Rptr. 430], affirmed, 117 Conn.App. 333, 978 A.2d 1160, cert. denied, 294 Conn. 909, 982 A.2d 1082 (2009).

Municipalities should not be required to compound zoning or land use errors and be estopped from enforcing clear violations of zoning regulations, absent a showing of discrimination or otherwise meeting the requirements of estoppel.   The plaintiff has shown that Regulations § 23.2.4 has not previously been enforced by the town of Wolcott through the Wolcott ZEO or the Commission.   To the extent that the plaintiff may have identified other businesses with fuel tanks in excess of 10,000 gallons, none are documented in the evidence as to size or date of approval and none are claimed to be 30,000 gallons, even in combination with other tanks on these other properties.   Based on this limited evidence in the record, the court finds there is no evidence of discrimination in the enforcement of Regulations § 23.2.4.

The court will now directly address the issue of municipal estoppel, raised by the plaintiff in this appeal.  “There are two essential elements to an estoppel—the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief;  and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done ․ [I]n order for a court to invoke municipal estoppel, the aggrieved party must establish that:  (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief;  (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge;  (3) the party had changed its position in reliance on those facts;  and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents ․” (Emphasis added.)   Levine v. Sterling, 300 Conn. 521, 534–35, 16 A.3d 664 (2011).  “In municipal zoning cases, however, estoppel may be invoked (1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations.”  (Citations omitted;  internal quotation marks omitted.)   Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 247, 662 A.2d 1179 (1995).

In Collins Group, Inc. v. Zoning Board of Appeals, 78 Conn.App. 561, 575–78, 827 A.2d 764, cert. denied, 266 Conn. 911, 832 A.2d 68 (2003), the Appellate Court upheld the trial court's refusal to allow the plaintiff's municipal estoppel claim where the plaintiff was denied approval for rooming space for ninety pre-trial young adults after previously being approved for rooming space for forty.   In West Hartford v. Rechel, 190 Conn. 114, 123–25, 459 A.2d 1015 (1983), the Supreme Court overturned the trial court's finding that municipal estoppel did not apply where previous property owners had been granted the same license that the current owners sought to receive, the current owners had purchased the property in reliance on being able to acquire the license, and the building inspector knew they intended to acquire the license.   The Appellate Court remanded the case because the trial court declined to reach the final element, “reliance of such a nature that it would be highly inequitable or oppressive to enforce the [town's zoning] regulations.”  Id., 124.   In Cortese v. Planning & Zoning Board of Appeals, 274 Conn. 411, 418, 876 A.2d 540 (2005), the plaintiff purchased a property after the zoning enforcement officer signed a letter stating that the plaintiff could use the property for storage and repair of oil delivery trucks.   Four years later the zoning enforcement officer issued a cease and desist order stating that use of the property to garage oil trucks violated the property's site plan.   The Supreme Court held that municipal estoppel did not apply because even though the plaintiff demonstrated that he would not have purchased the property absent the letter from the zoning enforcement officer he did not demonstrate that he would suffer “so substantial a loss as a result of enforcement of the cease and desist order that such enforcement would, in light of all the circumstances, be highly inequitable or oppressive.”  (Internal quotation marks omitted.)   Id., 419.

The court concludes that municipal estoppel does not apply under the facts in the record.   Fuel tanks in excess of 10,000 gallons are specifically prohibited by the Regulations and there is no independent discretion provided for their approval.   Moreover, no other person or business in the town of Wolcott possesses a 30,000 gallon fuel tank, except the plaintiff.   Therefore, it is not highly inequitable to prohibit the plaintiff from, essentially, doubling an advantage no other person in the town of Wolcott presently has been afforded, due to an oversight by the Wolcott ZEO and Commission, which occurred in 2006.

It is problematic that considerable time and effort was expended by the plaintiff, preparing the site plan application for a second tank, based upon the erroneous and unjustifiable belief by all parties that it was a permissible use.   The record shows that the plaintiff worked closely with the Wolcott ZEO to prepare and then modify a 2009 site plan application for a second 30,000 gallon tank.   Arguably, the record shows evidence that the site plan application was induced by the erroneous approval of the 2006 site plan, and further encouraged by the cooperation and guidance provided by the Wolcott ZEO, leading to the 2009 application.

The court is cautioned by our appellate courts, however, to invoke estoppel only with great caution and only when special circumstances make it highly inequitable or oppressive to enforce the regulations.   Upon more careful consideration of the record, the court finds that the Wolcott ZEO did not initiate any proposal for a 30,000 gallon tank.   Instead, this was the position initiated and maintained by the plaintiff, with which the Wolcott ZEO cooperated until the relevant prohibition was discovered.   This difference is important and it is the difference between inducement and blunder, compounded by the earlier 2006 tank approval.

Nothing in the record appears to have been intended or calculated by the Wolcott ZEO to induce either application.   Further, the only arguable change of position by the plaintiff, if any, was the wasteful preparation of an application that should have been rejected as contrary to the regulations.   Furthermore, although the Wolcott ZEO should have been aware of the prohibition on fuel tanks with a capacity in excess of 10,000 gallons, this does not thoroughly mitigate the plaintiff's responsibility to use due diligence to understand the meaning of a regulation specifically related to its business.   Based upon these considerations and the evidence presented, the court finds it would not be highly inequitable or oppressive to enforce the regulation.   The court therefore denies the appeal based upon the claim of municipal estoppel.

2. Text Amendment

The court will now address the plaintiff's application for a text amendment to the Regulations.   The plaintiff originally submitted a preliminary request to amend the text of Regulations § 23.2.4 on December 8, 2009.   Plaintiff's Exhibit 28, p. 2. The proposed amendment would allow 30,000 gallon fuel tanks.   On January 28, 2010, a formal text amendment application was submitted, along with a re-submitted 30,000 gallon tank application, based upon a permitted use under Regulations § 23.2 Schedule A § C–17. Plaintiff's Exhibits 25 and 27.

As noted previously, the site plan application cites Regulations Schedule A § C–17, as the permitted use.   This provision, however, permits only retail sales of fuel in a general commercial zone, but excludes tanks in excess of 10,000 gallons.   No text amendment to this section of the regulations was proposed by the plaintiff.   Although not identified as a reason for the denial, the court notes that the text amendment application did not include a proposed amendment to this corollary provision of the Regulations regarding fuel tanks.³⁵

The 30k tank and text amendment applications were denied at the February 3, 2010 Commission meeting.   On February 9, 2010, the Wolcott ZEO issued notices of the denial, stating that the 30k tank application was denied “based on the facts stated by Kalinowski and our Zoning Regulations that it is prohibited in Town.” The Wolcott ZEO (also referred to as Kalinowski) also stated that the text amendment application was denied “based on that it compares to the gas stations in town on Route 69 and the fact that it compared it to other towns which might not have a Route 69 corridor as we do.”   These decisions were published on February 11, 2010.

The sum and substance of the plaintiff's complaint is that by following all procedural rules required by Regulations § 53 for the submission of a text amendment, the proposed amendment should have been accepted by the commission.   In its brief, the plaintiff asserts the same argument, adding that the Commission denied the proposed amendment without a public hearing or a referral to the Town Attorney, citing no specific authority that these actions were required by law.   Instead, they assert that the denial without further consideration was arbitrary or otherwise an abuse of discretion.

Section 53.1 of the Regulations authorizes the Commission to act in its legislative capacity, quoted in relevant part, as follows:  “Authority:  The Planning and Zoning Commission may from time to time, on its own motion, adopt, amend, or repeal the provisions and boundaries established by these Regulations.   However, no change in the regulations ․ shall become effective until after notice and public hearing is held by the Commission, at which time all parties in interest and citizens shall have an opportunity to be heard.   All amendments shall be considered in accordance with and subject to the Connecticut General Statutes, as amended ․” See footnote 4 of this decision.

Under § 53.2 of the Zoning Regulations of the Town of Wolcott, Connecticut, “[a]ny person, firm, corporation or other entity desiring an amendment or change in the Zoning Regulations ․ may submit a petition proposing such amendment or change to the Commission.   Prior to consideration of any such petition, the following requirements shall be met and the following information submitted.”   In the present appeal, the Commission does not challenge the form of the petition.   It instead challenges the plaintiff's assumption that a petition in proper form must be accepted.   In evaluating these claims, the court understands the term “accepted” as limited to being accepted by the Commission for purposes of a public hearing and not as a completed and effectuated amendment to the regulations.

At the Commission meeting held on February 3, 2010, the plaintiff sought acceptance of the proposed text amendment for a public hearing.   Instead, the Commission denied the proposed amendment after substantial discussion.   The court considers this denial to be contrary to the requirements of state law.   Subsection (c) of General Statutes § 8–3 provides in relevant part:  “All petitions requesting a change in the regulations ․ shall be submitted in writing and in a form prescribed by the commission and shall be considered at a public hearing within the period of time permitted under section 8–7d.   The commission shall act upon the changes requested in such petition ․ No such commission shall be required to hear any petition or petitions relating to the same changes, or substantially the same changes, more than once in a period of twelve months.”  (Emphasis added.)

Failing to hold the public hearing, however, does not lead to the substantive result of effectuating the amendment to the regulations.  “Even though the statutes provide that the Commission ‘shall’ hold a public hearing within the stated time limits there is still the question whether that requirement is mandatory or imperative, or merely directory ․ [T]he apparent purpose for the statutory time limits for holding public hearings on and deciding zoning applications ․ indicates that the requirements in section 8–3(c) ․ are directory only.”   Housatonic Corporate Centre Associates Ltd. Partnership v. Planning and Zoning Board, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–88–025621–S (May 31, 1990, Fuller, J.) [1 Conn. L. Rptr. 685], appeal dismissed, 23 Conn.App. 256, 579 A.2d 596 (1990).

The plaintiff seeks an order, compelling the Commission to approve the text amendment application.   As a directory requirement of zoning boards and commissions, the court will impose only a procedural remedy in this case.   It appears from the language of the statute that citizens have the right to initiate a public hearing on a properly proposed amendment to zoning regulations.   The only statutory limitation on this right of initiation is that a substantially similar petition need not be heard more than once in a twelve-month period.   In denying the petition on the merits without a public hearing, the action of the Commission was unlawfully premature in that the citizens of Wolcott had the right to state their case, either for or against the amendment, prior to a decision on the merits of the proposal.   For this reason, the plaintiff's appeal is sustained.

The court therefore orders that the Commission approve for a public hearing the plaintiff's application for a text amendment, as stated in Attorney Salvatore's letter of January 28, 2010, unless withdrawn.   No additional fee shall be imposed.   The requirement of a public hearing is procedural only and the court's order does not, in the court's view, inappropriately interfere with the legislative discretion delegated to the Commission.  “Acting in such legislative capacity, the local [zoning] board is free to amend [or to refuse to amend] its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for [or the undesirability of] a change.”  Cottle v. Planning and Zoning Commission, 100 Conn.App. 291, 294, 917 A.2d 1030 (2007).

B

Submission of Additional Testimony and Claim of Bias1. Submission of Additional Testimony

Before addressing the 10k Tank Appeal, the court will address the submission of additional testimony by the plaintiff, over the objection of the Commission.   Two days of testimony was entered into the record, supervised by the court, Sheedy, J., on September 25, 2012 and on September 27, 2012.   At that time, the court left the admissibility of the testimony to the discretion of the trial judge.

In these appeals, there have been allegations of impropriety and bias.   The plaintiff takes issue with the grounds listed by the Commission for the denial of the 10k application and states that they are pretextual and not supported by any evidence other than speculation and conjecture and are otherwise based on personal prejudice and animosity toward the plaintiff and its principals.   Complaint paragraph 55.   The remedy requested is an order vacating the Commission's decision and compelling the Commission to approve the 10k tank application.

The plaintiff contends in its trial brief that Chairman Mahoney was biased and should have recused himself from the deliberations.   The plaintiff asserts that Chairman Mahoney visited the property by himself, stated that he was against the proposed changes and improperly used a dictionary definition regarding wholesaling.   The plaintiff also contends that Chairman Mahoney improperly controverted the plaintiff's expert regarding on-site traffic by using a self-constructed scale model of a delivery truck and by providing his own expert opinion as the holder of a Commercial Driver's License, concerning the size and maneuverability of a delivery truck on the property, based upon the plan.

The plaintiff has also suggested impropriety in Commissioner Carmody's preparation of handwritten notes, read into the record to support his motion to deny the 10k tank application.   Finally, the plaintiff has suggested that bias is shown by a letter sent by the Mayor to Chairman Mahoney and other Commission members, cautioning them in their consideration of the 30k tank application, inter alia, “to be very careful as to what is said during public meetings.”   Plaintiff's Exhibit 32.

General Statutes § 8–8(k) provides in pertinent part that “[t]he court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to section 8–7a, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal ․” “The determination of whether to allow such additional testimony lies in the sound discretion of the trial court, and is subject to review only for abuse of discretion.”  Clifford v. Planning and Zoning Commission, 280 Conn. 434, 447, 908 A.2d 1049 (2006).   The court should consider “whether this evidence [is] necessary for the equitable disposition of the appeal.”  Id., 448.

In light of the colorable allegation of bias, as well as for the colorable claim of estoppel, the court will admit for review the additional testimony.   The court reaches this conclusion, given the nature of bias and estoppel, in that the elements required to be shown are not often immediately ascertainable or revealed in the existing public record.

2. Claim of Bias

In considering the merit of the plaintiff's claim of bias, particularly as applicable to Chairman Mahoney's refusal to recuse himself from the proceedings, the court will begin with a review of General Statutes § 8–11.  “No member of any zoning commission or board and no member of any zoning board of appeals or of any municipal agency exercising the powers of any zoning commission or board of appeals, whether existing under the general statutes or under any special act, shall appear for or represent any person, firm, corporation or other entity in any matter pending before the planning or zoning commission or board or said board of appeals or any agency exercising the powers of any such commission or board in the same municipality, whether or not he is a member of the board or commission hearing such matter.   No member of any zoning commission or board and no member of any zoning board of appeals 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.   In the event of such disqualification, such fact shall be entered on the records of the commission or board and, unless otherwise provided by special act, any municipality may provide by ordinance that an elector may be chosen, in a manner specified in the ordinance, to act as a member of such commission or board in the hearing and determination of such matter, except that replacement shall first be made from alternate members pursuant to the provisions of sections 8–1b and 8–5a.”   General Statutes § 8–11.

“The applicable due process standards for disqualification of administrative adjudicators do not rise to the heights of those prescribed for judicial disqualification ․ The mere appearance of bias that might disqualify a judge will not disqualify an arbitrator ․ Moreover, there 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 ․ The plaintiff has the burden of establishing a disqualifying interest.”  Moraski v. Connecticut Board of Examiners of Embalmers & Funeral Directors, 291 Conn. 242, 262, 967 A.2d 1199 (2009);  see also C & C Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429–30, 655 A.2d 1121 (1995) (applying same standard to a zoning commission).

“[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 ․ The decisive question, therefore, 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 ․ This issue involves a question of fact and the burden of proving the illegality was on the plaintiffs.”  (Citations omitted, internal quotation marks omitted.)   Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 555–56, 552 A.2d 796 (1989), overruled on other grounds by Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 579, 715 A.2d 46 (1998).   In Goyette v. Planning & Zoning Commission, Superior Court, judicial district of New London at Norwich, Docket No. CV–112654–S (January 21, 1999, Purtill, J.T.R.), the court found that the Commission had not prejudged the issue despite the Chairman's statement in a letter to the town attorney that “[w]e should hold the public hearing on 4/2/97, special meeting, and approve the zone change then ․” where the Commission allowed a full hearing with all interested parties permitted to present evidence and appeared to carefully consider the evidence.   The court held that the statement was more likely a part of a proposed schedule in which the Commissioner made an unfortunate word choice.   Id. Likewise in Phillips v. Salem Planning & Zoning Commission, Superior Court, judicial district of New London at Norwich, Docket No. CV–113120–S (May 12, 1998, Purtill, J.T.R.), a Commissioner had written notes describing his concerns before the meeting.  Id. He had them typed up, then read them at the conclusion of the meeting and moved to deny the site plan application.   Id. The court held that “[t]he fact that Commissioner Stevens may have taken a tentative position on the site plan and that he reduced his concerns to writing does not establish that he had predetermined the questions and was irrevocably committed to rejecting the site plan.”  Id.

Based upon the record presented and applicable law, the plaintiff has failed to meet its burden of showing unlawful bias by any official involved in this case, including Chairman Mahoney.   The court therefore specifically concludes that Chairman Mahoney's failure to recuse himself from the proceedings was not improper.

First and foremost, there is no evidence of an unlawful interest in the decision, as prohibited by General Statutes § 8–11.   In reflecting upon the record, there may be some inference of a predisposition by the Commission against permitting 30,000 gallon tanks, as shown by the Mayor's letter to the Commission;  however, the decision of the Commission on the plaintiff's 30,000 gallon tank application was justified by the specific prohibition on their use in the regulations.   Failing to hold a public hearing on the text amendment may also be evidence of a predisposition to oppose 30,000 gallon tanks;  however, the reasons cited for the premature rejection of the amendment reflect some legitimate concerns over how the amendment of the regulations would be implemented in the context of underground tanks at gas stations, for example, and the Route 69 Corridor overlay.   With the discretion afforded to zoning boards and commissions in the exercise of their legislative function, the court will not impose a substantive remedy for the procedural mistake of failing to properly hold a public hearing.

The court also finds that the actions of Commissioner Carmody fall short of the plaintiff's burden to prove illegality.   The court will not overturn the decision of the Commission merely because a Commissioner wrote his reasons for the denial of the site plan in advance of a meeting, held after numerous public hearings.  Id. Although Carmody may have recanted the basis for many elements of his own decision two years later, this evidence should not necessarily undermine the unanimous decision made years earlier by the Commission.   A collateral attack of this nature on the Commission's decision, absent sufficient proof of illegality or impropriety, should not be encouraged as it undermines the principle of finality.   The decision of the Commission on the plaintiff's site plan must, instead, stand or fall on the record of the appeal and whether it is consistent or inconsistent with the requirements of the regulations.

C

The 10k Tank Appeal

The site plan requirements in the 10k Tank Appeal are based upon two sections of the Regulations.   The first is § 31, which sets forth the general requirements for site development plans.³⁶  The second is § 35, which sets forth the requirements for special overlay districts, including the Route 69 Corridor District.³⁷  According to the Regulations, the Route 69 Corridor is “a special overlay district subject to additional planning, use, design and development standards in addition to those established by the underlying districts.” ³⁸  Therefore, these two sections are to be read together, in conjunction with one another.

The court has previously recited the general standard of review, applicable to zoning commission actions when exercised in an administrative capacity.   In the present appeal, the Commission published multiple reasons for the denial of the 10k Application.   Therefore, the court will address the more specific standard of review, where more than one reason is stated for the denial of a site plan application.  “When a site plan application is denied the decision must be sustained if any one of the reasons given is valid, i.e. supported by substantial evidence.  Goldberg v. Zoning Commission, 173 Conn. 23, 25–26 (1977);  Clifford v. Planning & Zoning Commission, 280 Conn. 434, 452, 908 A.2d 1049 (2006).   If a commission has stated reasons for its decision, the reviewing court must determine only whether the commission correctly interpreted the regulation and applied it with reasonable discretion to the facts, and the commission is endowed with liberal discretion subject to review only to determine whether it was unreasonable, arbitrary or illegal.   Clifford, supra, 280 Conn. 451, quoting Graff v. Zoning Board of Appeals, 277 Conn. 645, 669 (2006).”  166 Glover Ave., LLC v. Zoning Commission, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–08–4013524–S (February 22, 2012, Adams, J.).   See Robert A. Fuller, Land Use Law and Practice (3rd ed.), § 33.5, p. 254 (2007).

In this appeal, the plaintiff specifically challenges the Commission's interpretation of various regulations.   Therefore, the court will now revisit the proper standard for the interpretation of statutes by administrative agencies, including the interpretation of zoning regulations by municipal agencies.

“Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes ․ [A]n agency's factual and discretionary determinations are to be accorded considerable weight ․ 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 ․ Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny ․ the agency is not entitled to special deference ․ [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law ․ These principles apply equally to regulations as well as to statutes ․ [However, a] court that is faced with two equally plausible interpretations of regulatory language ․ properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation ․ Zoning regulations are local legislative enactments ․ and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes ․ Thus, in construing regulations, our function is to determine the expressed legislative intent ․ Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended ․ and the words employed therein are to be given their commonly approved meaning.”   (Internal quotation marks omitted.)  Cunningham v. Planning and Zoning Commission, 90 Conn.App. 273, 279–80, 876 A.2d 1257, cert. denied, 276 Conn. 915, 888 A.2d 83 (2005), citing Wood v. Zoning Board of Appeals, 258 Conn. 691, 698–99, 784 A.2d 354 (2001).

“A court must interpret a statute as written ․ and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation ․ The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant ․ Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body.”  (Internal quotation marks omitted.)  Blakeman v. Planning and Zoning Commission, 82 Conn.App. 632, 639, 846 A.2d 950, cert. denied, 270 Conn. 905, 853 A.2d 521 (2004).

Turning now to the denial of the 10k tank application at its May 19, 2010 meeting, the Commission cited the following reasons:  (1) the plan did not promote an aesthetic quality of development consistent with the traditional image of Wolcott;  (2) they should not encourage or set precedent of the installation of above-ground bulk storage tanks or tank farms along the Route 69 Corridor nor was that the intent of the Plan of Development;  (3) safe circulation of traffic could not be obtained at all times;  (4) no screening or landscape enhancement was submitted;  (5) no architectural design of the proposal was offered;  (6) the expansion of bulk storage tanks was more for a use that is not permitted in Schedule A than it was to expand the operations of Musco Fuel as a retailer;  and (7) an alternative plan to bury the tanks that would be more consistent with the Route 69 Corridor District Plan was not looked into.   Plaintiff's Exhibit 58;  Complaint paragraph 52, Answer paragraph 1.

Commissioner Carmody's motion to deny the site plan contained prefatory language, moving “to deny [the site plan application] because it does not meet Section 31 and 35 of the Town of Wolcott Zoning Regulations, and also did not meet the Town of Wolcott Plan of Development for the following reasons.”   Plaintiff's Exhibit 58.   The court finds that the enumerated reasons provide the basis for the Commission's decision to deny the site plan application, by referring to specific sections of Regulations § 31 and § 35.   The court will therefore confine its analysis to these specific reasons.

The court finds that four of these reasons provided the basis for a denial of the site plan application;  however, only two were lawfully applied under the facts of this case.   The first applicable reason for the denial is number (4), that “no screening or landscape enhancement was submitted.”   The second is reason number (6), that “the expansion of bulk storage tanks was more for a use that is not permitted in Schedule A than it was to expand the operations of Musco Fuel as a retailer ․” The Commission's reasons are discussed in no particular order, except as some relate to one another.

1

Reason Number 4:  Landscaping

The site development plan map requirements are generally set forth in Section 31 of the Zoning Regulations of the Town of Wolcott, Connecticut.   Regulations § 31.11.5(j) specifically requires “[a] preliminary landscape plan showing the general location and layout of plantings within all landscaped areas, as well as any fencing, walls and other screening proposed.”   With regard to the map submitted by the plaintiff, only a chain link fence was proposed.   The court finds that the site plan map submitted by the plaintiff was wholly inadequate for the Commission to evaluate the proposal under the applicable Regulations.

Under Regulations § 31.12.4(b) and (c), landscaping and screening are required to be evaluated by the Commission, especially as they relate to the Route 69 Corridor and loading areas.   Specifically, § 31.12.4(b) provides that “[s]pecial attention shall be given to the front landscape areas along Wolcott Road in the Route 69 Corridor overlay district in concert with the goal of aesthetically enhancing this area ․” Additionally, § 31.12.4(c) provides that the Commission is to consider “[t]he location, arrangement and adequacy of landscaping within and bordering parking and loading areas.”   Furthermore, subsections (b) and (d) of § 35.1.3 require that the Commission be satisfied that the “proposed use ․ compliments and enhances the appearance and value of adjacent properties ․ and [is satisfied that] the provision of landscaping ․” is consistent with the Plan of Development within the Route 69 Corridor.   Absent a proposed plan, none of these evaluations could have been conducted by the Commission, as required.

The plaintiff's position is that it would agree to any landscaping and screening suggested by the Commission pursuant to Regulations § 31.11.12, requiring a specific and final landscaping plan.   However, the court concludes that the landscaping proposal should begin with the applicant, especially where there are important, industry-specific considerations, such as access to the tanks by fire and other public safety officials.   The plaintiff's failure to submit a preliminary landscape plan pursuant to Regulations § 31.11.5(j) was significant in this case due to the requirements of Regulations § 31.12.4(b), (c), and § 35.1.3 relating to the Route 69 Corridor.   The court therefore concludes that failure to provide a preliminary landscaping plan is substantial and the Commission appropriately denied the site plan application on this basis.

2

Reason Number 5:  Architectural Plan

The full and thorough evaluation of the site plan was further defeated by the absence of an architectural plan, which is cited as reason number 5 for the denial.   Although the plaintiff sought a waiver of this requirement, it was not in fact waived by the Commission.³⁹  Whether or not an architectural plan is required by the Regulations for a tank installation is not plainly evident from the language of Regulations § 31.11.6, requiring preliminary architectural plans for all structures.⁴⁰  The Commission reasonably ruled that one was required.   The court finds, however, that in light of the request for a waiver on the application, the plaintiff should have been afforded the opportunity to provide an architectural plan at a future date, instead of immediately denying the application for this reason.

3

Reason Number 1:  Aesthetic Considerations Distinguished

It is important for the court to distinguish landscaping and architectural requirements from aesthetic considerations, generally, which are not an appropriate basis for the denial of the site plan application.   The Supreme Court stated in DeMaria v. Planning and Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970), that “vague and undefined aesthetic considerations alone are insufficient to support the invocation of the police power, which is the source of all zoning authority.”   The court also stated, however, that “[i]t is unnecessary to discuss the extent to which sufficiently defined aesthetic standards may properly influence the decision of a zoning commission.”  Id. “To be capable of meaningful review on appeal, these determinations must be based on actual knowledge and factual evidence, not solely on personal beliefs or aesthetic preferences ․ Denial of an application ‘because I don't like it’ is not persuasive legally and will not withstand an appeal.”  (Citations omitted, emphasis in original, internal quotation marks omitted.)  Gibbons v. Historic District Commission, 285 Conn. 755, 767, 941 A.2d 917 (2008) (regarding decisions by historic district commissioners).  “Permitting aesthetic considerations to control zoning decisions would give unlimited discretion to land use agencies, and would allow those agencies to arbitrarily decide issues based upon personal favoritism or preference.   Robert A. Fuller, Land Use Law and Practice (3rd ed.), § 4.48, p. 174 (2006).”   E & F Associates, LLC v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield, Docket No. CV–12–6026129–S (June 26, 2013, Radcliffe, J.) [56 Conn. L. Rptr. 334].

In the present case, the site plan was denied because there was no landscaping plan;  not because the Commission didn't like the subjective, aesthetic appearance of the landscaping proposed by the plaintiff.   Very simply, there was no landscaping plan for the Commission to consider.⁴¹  The plaintiff's response was, essentially, that we'll landscape the property based upon your requirements.   However, the regulations require the proposal to originate with the plaintiff.   Under the facts of this appeal, it is particularly important for the plaintiff to propose appropriate screening and landscaping, due to the plaintiff's knowledge of the requirements of tank maintenance, safety and loading.⁴²

4

Reason Number 6:  Wholesale Purpose

The most important and controversial issue between the parties is whether the wholesale distribution of propane is a permitted use within a general commercial zone in Wolcott.   The Commission decided that the wholesale distribution of propane is not a permitted use and, further, it determined that the expansion of the plaintiff's business was for this purpose.

The court will first address the Commission's determination that the purpose of the plaintiff's site plan application was for wholesale distribution of propane.   The court finds this determination to be reasonably supported by the record.   Based upon a review of the record and the evidence submitted, there is no reason to reach a different conclusion.   This was the primary, ongoing dispute between the parties.   In fact, the wholesale distribution of propane was a reason stated by the plaintiff for the expansion.

The Commission interpreted its regulations to limit the sale of propane to retail sales to tanks not exceeding 10,000 gallons.  “A court must interpret a statute [and a regulation] as written ․ and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation ․ The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant ․ Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body.”  (Internal quotation marks omitted.)  Blakeman v. Planning and Zoning Commission, supra, 82 Conn.App. 639.

The term “wholesale” is not defined by the Regulations.   The commonly used definition of the word “wholesale” is a sale for resale, as determined by the Commission.  “It is well established that, when determining the meaning of a word, it is appropriate to look to the common understanding of the term as expressed in a dictionary ․ This precept, however, pertains primarily to the situation where no statutory definition is available.”  (Citation omitted, internal quotation marks omitted.)  State v. Dickman, 119 Conn.App. 581, 594–95, 989 A.2d 613, cert. denied, 295 Conn. 923 (2010).

The plaintiff would prefer that the Commission use an industry-specific definition of wholesale that would, legitimately, not include the plaintiff's business practice within the industry meaning of the term wholesale.   In fact, the plaintiff provides propane to other retailers who supply their customers in the same or a similar fashion as the plaintiff provides propane to its own customers.   Therefore, these transactions are not dissimilar in nature in that all bobtail trucks filled by the plaintiff are engaged in retail sales.   However, these business transactions involve the sale of propane by the plaintiff to other retailers for resale to their customers.

In determining that these are wholesale transactions, the Commission chose a commonly used and understood definition of wholesale, ordinarily applicable to all business transactions.   The plaintiff essentially requests that the Commission cede its authority to a private, third party to define an important regulatory term.   Although this may be appropriate under limited circumstances, the failure to do so by a governmental agency should rarely, if ever, be viewed as arbitrary, illegal or an abuse of discretion.

Although wholesale, warehousing and bulk storage, inter alia, are generally permitted uses within a general commercial zone under subsections C–16, C–16a and C–19a of Regulations Schedule A, the Commission reasonably concluded that these sections are limited by a specific limitation on fuel tank size for retail purposes.⁴³  The court finds this interpretation of the regulations to be reasonable and therefore not illegal, arbitrary or in abuse of its discretion.   See Clifford v. Planning & Zoning Commission, 280 Conn. 434, 440, 908 A.2d 1049 (2006).   Although the plaintiff asserts this is an irrational result, the court concludes otherwise.   Taking the plaintiff's position to an extreme end, warehousing and storage of propane would be unlimited within the Route 69 Corridor.   This alternative result would, indeed, be unreasonable.

5

Reason Number 3:  Safe Circulation of Traffic

The third reason cited by the Commission for its denial of the plaintiff's site plan application was that “[s]afe circulation of traffic could not be obtained at all times.”   The record reflects two concerns regarding traffic.   The first involved on-site traffic in that the available space, as shown on the site plan, did not allow adequate space for delivery trucks to maneuver, especially when multiple trucks were present on the property.   The second concern relates to the first, in that this potential circumstance would result in a back-up of propane trucks on Route 69.

The regulations do not require an off-site traffic study pursuant to § 31.11.7, because the project did not have the necessary parking spaces (100) or encompass a sufficient area (40,000 square feet) to require a traffic analysis.⁴⁴  The Commission would, however, have been within its authority to order such a study pursuant to this regulation.   It did not.   Therefore, it was improper to deny the site plan for off-site traffic concerns.   Although off-site traffic is not specifically stated as a reason for the denial, it was a specific concern raised by the Commission members.   Commission's Exhibit 3, April 7, 2010 public hearing, pp. 5–10.

The primary traffic concern involved on-site traffic, voiced by Chairman Mahoney.   The plaintiff claims that Chairman Mahoney improperly presented his own opinion as to whether delivery trucks could successfully navigate the property during the plaintiff's expert's presentation regarding on-site traffic flow.   The Commission counters that it is permitted to consider traffic issues under Regulations § 31.12.2 and § 31.12.3, and that the Commission members are permitted to use their individual knowledge in analyzing the site plan.⁴⁵  Therefore, the Chairman used his knowledge as a licensed commercial truck driver to take issue with the plaintiff's expert's evaluation of the accessibility of the site to trucks.

The court will begin its analysis of this issue by examining the use of personal knowledge and experience by commission members.  “The Supreme and Appellate Courts of this state have repeatedly held that members of a Zoning Commission are allowed to rely on their personal knowledge on subjects which do not require expert knowledge, such as traffic congestion and street safety.   Brookfield Plaza, Limited Partnership v. Zoning Commission, 21 Conn.App. 489, 494, 574 A.2d 825 (1990);  Dram Associates v. Planning & Zoning Commission, 21 Conn.App. 538, 542, 574 A.2d 1317, cert. denied, 215 Conn. 817 (1990);  Primerica v. Planning & Zoning Commission, 211 Conn. 85, 97, 558 A.2d 646 (1989);  Central Bank for Savings v. Planning & Zoning Commission, 13 Conn.App. 448, 454, 537 A.2d 510 (1988);  Welch v. Zoning Board of Appeals, 158 Conn. 208, 213–14, 257 A.2d 795 (1969);  Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 675, 236 A.2d 917 (1967);  Blakeman v. Planning Commission, 152 Conn. 303, 307, 206 A.2d 425 (1965);  Atlantic Refining Co. v. Zoning Board of Appeals, 150 Conn. 558, 562, 192 A.2d 40 (1963);  Gulf Oil Corporation v. Board of Selectmen, 144 Conn. 61, 65–66, 127 A.2d 48 (1956).”  Twelfth BRT Development, LLC v. Danbury Planning Commission, Superior Court, Judicial District of Danbury, Docket No. CV–05–4003916–S (January 5, 2007, Frankel, J.).

Although the use of personal knowledge is permissible, speculation by members and their expert opinions are distinguishable from this general rule.   “Although we are mindful that commission members may rely on personal knowledge, their views must be based on facts known to them rather than on speculation.”  Loring v. Planning & Zoning Commission, 287 Conn. 746, 760, 950 A.2d 494 (2008).  “We previously have stated that decision makers for an administrative body may not disregard competent expert testimony and rely, without more, on their own knowledge of technically sophisticated and complex issues on which they have not been shown to possess expertise ․” (Internal quotation marks omitted.)  Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 296, 947 A.2d 944 (2008).  “[I]f ․ some of the members of the defendant had the requisite technical expertise, the defendant would then be required to reveal publicly its special knowledge and experience, [and] to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative proceedings.”  (Internal quotation marks omitted.)  River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 78 n.27, 848 A.2d 395 (2004).

Similarly, “[u]nlike judicial proceedings, an administrative board ‘may act upon facts which are known to it even though they are not produced at the hearing ․ The agency must, however, disclose any special knowledge and experience upon which it relies in reaching a decision.”  (Citations omitted, internal quotation marks omitted.)  Grimes v. Conservation Commission, 243 Conn. 266, 276–77, 703 A.2d 101 (1997).

The record in this appeal clearly shows that Chairman Mahoney used specialized knowledge to challenge the opinion of the plaintiff's expert.   Commission's Exhibit 3, May 5, 2010 meeting pp. 10–16.   However, the plaintiff did not request an opportunity for rebuttal.   Instead, the plaintiff sought Chairman Mahoney's recusal.   Although Chairman Mahoney's expert opinion may have been permissible, it was an abuse of discretion for him not to reveal publicly his special knowledge and experience, and give notice of the material facts that are critical to his opinion, so that the plaintiff was afforded an opportunity for rebuttal at an appropriate stage in the administrative proceedings.   Without dismissing the substantive safety concerns of Chairman Mahoney, based upon his specialized knowledge, the court finds his expert opinions on the subject of on-site traffic were exercised in a manner inconsistent with the procedural requirements of the law.

6

Reasons Number 2 and 7:  Tank Farms and Underground Tanks

The court finds there is no basis in the regulations to deny the site plan based upon a prohibition on, so-called, “tank farms” or for failing to propose the underground burial of the tanks.   Multiple tanks exist on single properties where their use is permitted and the term “tank farm” is not a term defined in the Regulations.   In addition, although all other fuel tanks in Wolcott appear to be installed underground, the court finds no requirement in the Regulations that they be buried.

D

Cease and Desist Appeal

While the Commission was considering the plaintiff's applications, the Wolcott ZEO issued a cease and desist order on March 22, 2010, directing the plaintiff to “stop all wholesale of propane.”   Complaint paragraph 2, Answer paragraph 1. The cease and desist order was thereafter appealed to the Wolcott Zoning Board of Appeals, which upheld the actions of the Wolcott ZEO.

“It is well settled that the courts should not substitute their own judgment for that of the board and that the decisions of the board will not be disturbed as long as an honest judgment has been reasonably and fairly made after a full hearing ․ The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings ․ Upon an appeal from the judgment of the trial court, we review the record to see if there is factual support for the board's decision, not for the contentions of the applicant ․ to determine whether the judgment was clearly erroneous or contrary to law ․

“In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record.   The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] ․ The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached ․ If the trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board ․ If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court ․ cannot substitute its judgment as to the weight of the evidence for that of the commission ․ The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.”  (Citation omitted, footnote omitted.)  Woodbury Donuts, LLC v. Zoning Board of Appeals, 139 Conn.App. 748, 758–60, 57 A.3d 810 (2012).  “[T]he zoning board of appeals makes a de novo determination of the issue before it, without deference to the actions of the zoning enforcement officer.”  Id., 757.

The court has determined that the Commission properly determined that no wholesale distribution of propane is permitted in Wolcott pursuant to the Regulations.   Therefore, the court finds that the Wolcott ZEO's cease and desist order was lawfully issued and thereafter upheld by the Board.

The plaintiff has submitted evidence that the Wolcott ZEO was fully aware of its wholesale distribution of petroleum nearly a year before issuing the cease and desist order.   In a letter to the State Department of Transportation, the Wolcott ZEO expressly states that “[t]he stored propane will be sold for wholesale use for other companies as well as use for Musco Fuel customers.”   The letter is dated April 16, 2009.   The letter was offered at the trial of this appeal and is admitted over the Commission's objection as to its import, but not as to its authenticity.   The plaintiff therefore legitimately asserts that there was no secret that it was engaged in the wholesale distribution of propane.   Although it is troubling to think that the Wolcott ZEO failed to understand that this use was a violation of the Regulations in 2009, standing alone it is not persuasive evidence that the enforcement of the Regulations was retaliatory or that the original 2006 application was understood to be for wholesale purposes.

Based upon this letter and other facts, the plaintiff claims that the cease and desist order was retaliatory.   There is additional evidence of retaliation in the record, partially based upon the testimony of Commissioner Olmstead, who stated that the Commissioners decided to play “hardball” with the plaintiff because it was appealing the decision of the Commission.   He also stated that citizens were complaining about the plaintiff's business because it violated the Regulations.

The question of retaliation, although somewhat dramatic and interesting, begs another question:  why should municipal zoning officials permit the continued use of property which they believe to be unlawful?   It is equally troubling to consider that zoning officials would turn a blind eye to violations by individuals because there was no animus between them.   The court has nonetheless concluded that the wholesale distribution of propane is unlawful in Wolcott.   More importantly, once the prohibition was discovered, it was enforced.   Under these facts, the court will not interfere with the enforcement of the law.

The plaintiff also claims that the Board should be estopped from enforcing the cease and desist order because agents of the town, including the Wolcott ZEO, knew about the plaintiff's wholesale operations nearly a year prior to issuing the Cease and Desist order.   As discussed in section V.A. 1 of this decision, municipal estoppel is not applicable under the facts of this case.   An error by a zoning official, such as learning of a nonconforming use without immediately informing the landowner should not, by itself, be a sufficient basis for municipal estoppel.   The only actions by agents of the town, which could arguably have induced the plaintiff to believe that wholesale use was permitted, was the failure by the Wolcott ZEO, fire marshal, and others to immediately inform the plaintiff of the prohibition.   The court concludes these facts do not amount to an inducement resulting in estoppel.⁴⁶

The court in this appeal has found that the use of the plaintiff's property for the wholesale distribution of propane is contrary to the regulations.   Under these circumstances, the court will not overturn an order to cease and desist an unlawful use based upon the motivation of the Commission in deciding to legitimately enforce the law, or upon the failure of city officials to immediately recognize and enforce the unlawful use.   The court reaches this conclusion absent sufficient proof of selective enforcement or the elements required of municipal estoppel.⁴⁷

E

Wholesale Appeal

The plaintiff submitted a site plan application to conduct wholesale propane sales under use lines C–16, C–16a, and C–19a of Regulations § 21.1 Schedule A, which was denied by the Commission.   The reason given for the decision was that permitted use C–17 was more specifically applicable, and Regulations §§ 3.1, 23.2, and 23.2.4 prevented such use.   The plaintiff alleges that the Commission incorrectly interpreted the regulations, abused its discretion, and acted unreasonably, arbitrarily and/or illegally.   The court disagrees and has adequately addressed this issue in the 10k Tank Appeal, part V.C. 6 of this decision.

F

Equal Protection and the Preclusive Effect of a Federal Case

The plaintiff also contends that by never enforcing the tank prohibition, and then solely enforcing it against the plaintiff, the Commission and the Wolcott ZEO have practiced selective enforcement in violation of the plaintiff's right to equal protection.   The only proof of selective enforcement in these appeals is in the Commission's denial of the plaintiff's site plan application for three 10,000 gallon tanks, where multiple tanks are permitted underground at local gas stations.   However, the application was denied for other valid reasons, discussed infra.   In addition, the other owners of multiple tanks are not similarly situated, in that they have underground tanks installed for retail purposes.

The plaintiff brought a federal action pursuant to 42 U.S.C. § 1983, in Musco Propane, LLP v. Wolcott, 891 F.Sup.2d 261 (D.Conn.2012), aff'd, United States Court of Appeals for the Second Circuit, Docket No. 12–3746–CV (2d Cir. September 3, 2013).   The plaintiff claimed that the defendants violated its right to equal protection and violated its right to free speech by retaliating against it.  Id. However, the court granted the defendants' motion for summary judgment, finding on the free speech claim that the plaintiff had not presented any facts demonstrating that its actions, such as appealing the Commission's decisions, caused the defendants' adverse actions, such as the denial of later applications and the issuing of the cease and desist order.  Id.

On the equal protection claim, the court first found that the plaintiff had not demonstrated that it was similarly situated to the other businesses in Wolcott with tanks in excess of 10,000 gallons because those other businesses had received approval for their tanks several years in the past, and that it was not similarly situated to other wholesalers because none of those other wholesalers sold heating fuel or natural gas.  Id. Finally, the court determined that the plaintiff presented no evidence showing that any selective treatment was based on impermissible considerations.  Id.

“Claim preclusion, sometimes referred to as res judicata, and issue preclusion, sometimes referred to as collateral estoppel, are first cousins.   Both legal doctrines promote judicial economy by preventing relitigation of issues or claims previously resolved ․ The concepts of issue preclusion and claim preclusion are simply related ideas on a continuum, differentiated, perhaps by their breadth, and express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest ․ The subtle difference between claim preclusion and issue preclusion has been so described:  [C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits ․ [I]ssue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit.”  (Citations omitted, internal quotation marks omitted.)  LaSalla v. Doctor's Associates, 278 Conn. 578, 589–90, 898 A.2d 803 (2006).

“[W]hether to apply either doctrine in any particular case “should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close ․ and the competing interest of the plaintiff in the vindication of a just claim ․ These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation;  (2) to prevent inconsistent judgments which undermine the integrity of the judicial system;  and (3) to provide repose by preventing a person from being harassed by vexatious litigation ․ The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate ․ Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest.”  (Internal quotation marks omitted.)  Powell v. Infinity Ins. Co., 282 Conn. 594, 601–02, 922 A.2d 1073 (2007).

“Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim.”  Lyon v. Jones, 291 Conn. 384, 406, 968 A.2d 416 (2009).  “To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case.”  (Internal quotation marks omitted.)  Vanliner Ins. Co. v. Fay, 98 Conn.App. 125, 132, 907 A.2d 1220 (2006).  “[A] party may assert the doctrine of collateral estoppel successfully when three requirements are met:  [1][t]he issue must have been fully and fairly litigated in the first action;  [2] it must have been actually decided;  and [3] the decision must have been necessary to the judgment.”  Wiacek Farms, LLC v. Shelton, 132 Conn.App. 163, 169, 30 A.3d 27 (2011), cert. denied, 303 Conn. 918, 34 A.3d 394 (2012).

In Virgo v. Lyons, 209 Conn. 497, 502, 551 A.2d 1243 (1988), the Supreme Court considered the applicability of a Federal § 1983 decision on a state court decision and found that “[t]he elements of collateral estoppel [were] satisfied ․ Although the current state court action involves claims in negligence and assault and battery, while the federal court action ultimately involved only a claim for violations of the plaintiff's constitutional rights under § 1983, both causes of action arose out of the same alleged wrongs, allegedly committed by the same defendants, and involved the same injuries.”   The Court also noted that “the interests protected in a § 1983 action are similar to those protected in common law tort actions.”  Id. It then held that because the plaintiff recovered damages in the federal case he was barred from recovering damages in the state case.  Id., 510.   In Unifund CCR Partners v. Hall, Superior Court, judicial district of New Haven, Docket No. CV–04–4003709–S (November 24, 2009, Corradino, J.) [48 Conn. L. Rptr. 857], the court gave preclusive effect to a federal bankruptcy court decision that Connecticut lacked personal jurisdiction over the defendant.

In Connecticut National Bank v. Rytman, 241 Conn. 24, 37, 694 A.2d 1246 (1997), the Supreme Court stated that it was a “general proposition that a prior federal decision that litigation ․” but held that neither collateral estoppel nor res judicata applied to bar common-law and statutory causes of action in state court after the federal RICO action was dismissed.

VI

CONCLUSIONS

The 30k Tank Appeal is denied in part and is sustained in part, based upon the Commission's denial of the text amendment without a public hearing.   The 30k Tank Appeal is therefore remanded for the limited purpose of a public hearing on the plaintiff's text amendment application, unless it is withdrawn.   The plaintiff's 10k Tank, Cease and Desist and Wholesale Appeals are denied.

BY THE COURT

MARK H. TAYLOR, J.

FOOTNOTES

FN1. All references to a Complaint and an Answer in this section refer to the Complaint and Answer in the case discussed in this section..  FN1. All references to a Complaint and an Answer in this section refer to the Complaint and Answer in the case discussed in this section.

FN2. Section 23.2 of the Zoning Regulations of the Town of Wolcott provides in relevant part:  “Prohibited Uses:  Land, buildings and other structures shall only be used for one or more of the permitted uses in SCHEDULE A and no other.   Any use not specified in SCHEDULE A as permitted is prohibited.   To further assist in the interpretation of SCHEDULE A, the following uses, the listing of which is not intended to be exhaustive, are specifically and expressly prohibited in any zoning district within the Town of Wolcott:31.5.4 Commission Review:a.  In reviewing a Special Use Permit and/or Site Development Plan application, the Commission shall take into consideration the public health, safety and general welfare, and may prescribe such conditions and safeguards as are necessary to assure compliance with the requirements set forth herein.b. the Commission may require the submission of additional information deemed necessary to determine compliance with the intent and purpose of these Regulations ․31.5.5 Commission Action:.  FN2. Section 23.2 of the Zoning Regulations of the Town of Wolcott provides in relevant part:  “Prohibited Uses:  Land, buildings and other structures shall only be used for one or more of the permitted uses in SCHEDULE A and no other.   Any use not specified in SCHEDULE A as permitted is prohibited.   To further assist in the interpretation of SCHEDULE A, the following uses, the listing of which is not intended to be exhaustive, are specifically and expressly prohibited in any zoning district within the Town of Wolcott:31.5.4 Commission Review:a.  In reviewing a Special Use Permit and/or Site Development Plan application, the Commission shall take into consideration the public health, safety and general welfare, and may prescribe such conditions and safeguards as are necessary to assure compliance with the requirements set forth herein.b. the Commission may require the submission of additional information deemed necessary to determine compliance with the intent and purpose of these Regulations ․31.5.5 Commission Action:

FOOTNOTE.  FN* * *e.  A Site Development Plan may be modified or denied only if it fails to comply with the requirements already set forth in the Zoning Regulations in accordance with Section 8–3(c) of the Connecticut General Statutes.

FOOTNOTE.  FN* * *g. Reasons and Permits:  The Commission shall state upon its records the reason for its decision.   Upon granting of a Special Use Permit or approval of a Site Development Plan, the applicant shall apply for a Zoning Permit from the Zoning Enforcement Officer.

FOOTNOTE.  FN* * *23.2.4:  Bulk storage of cement;  concrete mixing plants;  bulk storage of gas, petroleum products and other fuels in tanks having a capacity in excess of 10,000 gallons.  (Emphasis added.)

FN3. Section 53 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:SECTION 53–AMENDMENTS “53.1 Authority:  The Planning and Zoning Commission may from time to time, on its own motion, adopt, amend, or repeal the provisions and boundaries established by these Regulations.   However, no change in the regulations ․ shall become effective until after notice and public hearing is held by the Commission, at which time all parties in interest and citizens shall have an opportunity to be heard.   All amendments shall be considered in accordance with and subject to the Connecticut General Statutes, as amended ․53.2 General:  Any person, firm, corporation or other entity desiring an amendment or change in the Zoning Regulations and/or Zoning Map of the Town of Wolcott may submit a petition proposing such amendment or change to the Commission.   Prior to consideration of any such petition, the following requirements shall be met and the following information submitted.53.3 Petition for Amendment:  All proceedings to change the zoning boundaries or the zoning text of these Regulations, including any change in punctuation or wording, shall be instituted by petition in writing to, and in a form prescribed by, the Commission.   Petitions shall be signed by the petitioner and shall be considered in accordance [sic] any procedures adopted by the Commission, as amended from time to time.53.2.1 [sic] Zoning Text Changes:  The petition shall precisely set forth the existing provisions, the specific provisions to be changed and the provisions to be substituted, deleted or added to the Regulations.   Ten (10) copies of the proposed text shall be submitted..  FN3. Section 53 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:SECTION 53–AMENDMENTS “53.1 Authority:  The Planning and Zoning Commission may from time to time, on its own motion, adopt, amend, or repeal the provisions and boundaries established by these Regulations.   However, no change in the regulations ․ shall become effective until after notice and public hearing is held by the Commission, at which time all parties in interest and citizens shall have an opportunity to be heard.   All amendments shall be considered in accordance with and subject to the Connecticut General Statutes, as amended ․53.2 General:  Any person, firm, corporation or other entity desiring an amendment or change in the Zoning Regulations and/or Zoning Map of the Town of Wolcott may submit a petition proposing such amendment or change to the Commission.   Prior to consideration of any such petition, the following requirements shall be met and the following information submitted.53.3 Petition for Amendment:  All proceedings to change the zoning boundaries or the zoning text of these Regulations, including any change in punctuation or wording, shall be instituted by petition in writing to, and in a form prescribed by, the Commission.   Petitions shall be signed by the petitioner and shall be considered in accordance [sic] any procedures adopted by the Commission, as amended from time to time.53.2.1 [sic] Zoning Text Changes:  The petition shall precisely set forth the existing provisions, the specific provisions to be changed and the provisions to be substituted, deleted or added to the Regulations.   Ten (10) copies of the proposed text shall be submitted.

FN4. The plaintiff initially applied for four tanks, but then amended the application to three..  FN4. The plaintiff initially applied for four tanks, but then amended the application to three.

FN5. See Zoning Regulations of the Town of Wolcott, Connecticut § 31, footnote number 1 of this decision..  FN5. See Zoning Regulations of the Town of Wolcott, Connecticut § 31, footnote number 1 of this decision.

FN6. All references to a Complaint and an Answer in this section refer to the Complaint and Answer in the case discussed in this section..  FN6. All references to a Complaint and an Answer in this section refer to the Complaint and Answer in the case discussed in this section.

FN7. Section 23.1 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:23.1 SCHEDULE A:  “SCHEDULE A–Permitted Uses” is hereby declared to be a part of these Regulations.   Subject to the approval of a Zoning Permit and the issuance of a Certificate of Zoning Compliance, land, buildings and other structures in any District shall be used for one or more of the uses specified in SCHEDULE A as permitted in the District and no other use.   Uses listed in SCHEDULE A are permitted or prohibited in accordance with the following designation and procedure:.  FN7. Section 23.1 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:23.1 SCHEDULE A:  “SCHEDULE A–Permitted Uses” is hereby declared to be a part of these Regulations.   Subject to the approval of a Zoning Permit and the issuance of a Certificate of Zoning Compliance, land, buildings and other structures in any District shall be used for one or more of the uses specified in SCHEDULE A as permitted in the District and no other use.   Uses listed in SCHEDULE A are permitted or prohibited in accordance with the following designation and procedure:

FOOTNOTE.  FN* * *“DP” means a use permitted in the District as a matter of right, subject to submission and administrative approval of a Site Development Plan in accordance with the provisions of Section 31;

FOOTNOTE.  FN* * *SCHEDULE A–PERMITTED USES[The following uses are all listed as DP in the General Commercial Zone:]C–16:  Warehousing and wholesale businesses, including commercial storage and self-storage facilities.C–16a:  Warehousing and storage of a reasonable quantity of retail merchandise and supplies necessary for the operation of a permitted use being conducted on the same lot.C–17:  Retail sale and distribution of heating fuel and natural gas, specifically excluding storage tanks having a capacity in excess of 10,000 gallons.

FOOTNOTE.  FN* * *C–19a:  Freight and materials trucking businesses, terminals and transfer stations;  bus storage yards and maintenance garages and terminals, when accessory and subordinate to a related permitted use being conducted on the same lot.

FN8. Section 35.1 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:35.1 Route 69 Corridor District:  The Route 69 Corridor District is a special overlay district subject to additional planning, use, design and development standards in addition to those established by the underlying districts.   The Route 69 Corridor District is delineated by a line located 500 feet from and parallel to the street line of Route 69 on both sides of the street and extending from the Waterbury City Line to the Bristol Town Line.35.1.1 Purpose:  The purpose of the Route 69 Corridor District is to:a.  Promote and further the objectives of the adopted Plan of Development Update and the Zoning Regulations of the Town of Wolcott.b. Promote economic vitality and growth, encouraging an orderly and harmonious pattern of commercial, industrial and residential development.c. Promote public health and safety, prohibiting uses that will significantly intensify traffic congestion on the streets.d. Promote an aesthetic quality of development consistent with the traditional image of Wolcott, gradually rehabilitating or phasing out those uses, buildings, structures and related site improvements that are not consistent with the requirements and standards set forth below.35.1.2 Requirements:  The intent of the requirements set forth herein is to promote a layout and quality of building and site development, using traditional-style architectural design, efficient site organization and planning and landscape enhancement to produce an optimum visual and functional quality of development.[Specific requirements for Setback, Building Orientation, Site Access/Egress, High Traffic Activity Generators.]e. Permitted Uses:  All uses within the Route 69 Corridor District are governed by the requirements of the underlying district as specified in Section 23, Schedule A–Permitted Uses.35.1.3 Procedure:  In the Route 69 Corridor District, each Application for a Zoning Permit shall be accompanied by a Site Development Plan. No Zoning Permit shall be issued until such Site Development Plan has been approved by the Commission.   The Site Development Plan shall be approved by the Commission when it determines that the provisions of this Section as well as Section 31 have been satisfied and that the following additional standards have been met:a.  The proposed use, buildings and other structures conform to all of the requirements of the underlying district where located.b. The proposed use, buildings, alterations or construction is compatible with, compliments and enhances the appearance and value of adjacent properties.c. The proposed use, buildings, alterations or construction establishes an orderly and harmonious pattern of development, taking into consideration the spacing and arrangement of buildings, the texture, materials, form and facade of existing and proposed buildings and uses and the impact of the proposal upon the appearance and property values of existing development within the Route 69 Corridor District.d. The proposal shall also conform to the recommendations of any adopted supplement to the Plan of Development Update with regard to such elements as land use;  location, bulk and character of buildings;  location and extent of streets and vehicular access ways;  and the provision of landscaping, open spaces and transition buffer strips.35.1.4 Applicability:  Uses lawfully existing within the Route 69 Corridor District at the time of adoption of these Regulations shall not be subject to the requirements of Paragraph 35.1.2 above.   However, any alteration, enlargement or substantial modification of an existing use or structure or any change of use shall be subject to the requirements set forth herein.a. Residential Exemption:  Existing and proposed single family residential dwellings shall not be subject to the special provisions of the Route 69 Corridor District set forth herein..  FN8. Section 35.1 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:35.1 Route 69 Corridor District:  The Route 69 Corridor District is a special overlay district subject to additional planning, use, design and development standards in addition to those established by the underlying districts.   The Route 69 Corridor District is delineated by a line located 500 feet from and parallel to the street line of Route 69 on both sides of the street and extending from the Waterbury City Line to the Bristol Town Line.35.1.1 Purpose:  The purpose of the Route 69 Corridor District is to:a.  Promote and further the objectives of the adopted Plan of Development Update and the Zoning Regulations of the Town of Wolcott.b. Promote economic vitality and growth, encouraging an orderly and harmonious pattern of commercial, industrial and residential development.c. Promote public health and safety, prohibiting uses that will significantly intensify traffic congestion on the streets.d. Promote an aesthetic quality of development consistent with the traditional image of Wolcott, gradually rehabilitating or phasing out those uses, buildings, structures and related site improvements that are not consistent with the requirements and standards set forth below.35.1.2 Requirements:  The intent of the requirements set forth herein is to promote a layout and quality of building and site development, using traditional-style architectural design, efficient site organization and planning and landscape enhancement to produce an optimum visual and functional quality of development.[Specific requirements for Setback, Building Orientation, Site Access/Egress, High Traffic Activity Generators.]e. Permitted Uses:  All uses within the Route 69 Corridor District are governed by the requirements of the underlying district as specified in Section 23, Schedule A–Permitted Uses.35.1.3 Procedure:  In the Route 69 Corridor District, each Application for a Zoning Permit shall be accompanied by a Site Development Plan. No Zoning Permit shall be issued until such Site Development Plan has been approved by the Commission.   The Site Development Plan shall be approved by the Commission when it determines that the provisions of this Section as well as Section 31 have been satisfied and that the following additional standards have been met:a.  The proposed use, buildings and other structures conform to all of the requirements of the underlying district where located.b. The proposed use, buildings, alterations or construction is compatible with, compliments and enhances the appearance and value of adjacent properties.c. The proposed use, buildings, alterations or construction establishes an orderly and harmonious pattern of development, taking into consideration the spacing and arrangement of buildings, the texture, materials, form and facade of existing and proposed buildings and uses and the impact of the proposal upon the appearance and property values of existing development within the Route 69 Corridor District.d. The proposal shall also conform to the recommendations of any adopted supplement to the Plan of Development Update with regard to such elements as land use;  location, bulk and character of buildings;  location and extent of streets and vehicular access ways;  and the provision of landscaping, open spaces and transition buffer strips.35.1.4 Applicability:  Uses lawfully existing within the Route 69 Corridor District at the time of adoption of these Regulations shall not be subject to the requirements of Paragraph 35.1.2 above.   However, any alteration, enlargement or substantial modification of an existing use or structure or any change of use shall be subject to the requirements set forth herein.a. Residential Exemption:  Existing and proposed single family residential dwellings shall not be subject to the special provisions of the Route 69 Corridor District set forth herein.

FN9. The answer only admits that the Chairman refused, not that the plaintiff requested he recuse himself, or the date of the hearing..  FN9. The answer only admits that the Chairman refused, not that the plaintiff requested he recuse himself, or the date of the hearing.

FN10. See Zoning Regulations of the Town of Wolcott, Connecticut § 35.1.1, footnote 9 of this decision..  FN10. See Zoning Regulations of the Town of Wolcott, Connecticut § 35.1.1, footnote 9 of this decision.

FN11. See Zoning Regulations of the Town of Wolcott, Connecticut § 35.1.3, footnote 9 of this decision.   See also § 31.12, which provides in relevant part:31.12 Site Development Plan Standards and Objectives:  In reviewing the Site Development Plan, the Commission shall take into consideration the public health, safety and general welfare and as a condition of approval, may require such modifications of the proposed plans as it deems necessary to comply with the specific area, bulk, parking, landscaping, sign and document standards contained herein as well as all other applicable requirements of these Regulations and to assure the accomplishments of the following general objectives:31.12.7 Character and Appearance:  That the location, size and design of any proposed building, structure or use, as well as the nature and intensity of operations involved in or conducted in connection therewith, will be compatible and harmonious with the character and appearance of the surrounding neighborhood, and will not be hazardous or otherwise detrimental to the appropriate and orderly development or use of any adjacent land, buildings or structure as indicated by the exterior appearance of buildings (bulk, height, roof style, materials and color), their location on the site in relation to existing streets, parking and adjacent residences and their relationship to the natural terrain, watercourses, water bodies, wetlands and vegetation..  FN11. See Zoning Regulations of the Town of Wolcott, Connecticut § 35.1.3, footnote 9 of this decision.   See also § 31.12, which provides in relevant part:31.12 Site Development Plan Standards and Objectives:  In reviewing the Site Development Plan, the Commission shall take into consideration the public health, safety and general welfare and as a condition of approval, may require such modifications of the proposed plans as it deems necessary to comply with the specific area, bulk, parking, landscaping, sign and document standards contained herein as well as all other applicable requirements of these Regulations and to assure the accomplishments of the following general objectives:31.12.7 Character and Appearance:  That the location, size and design of any proposed building, structure or use, as well as the nature and intensity of operations involved in or conducted in connection therewith, will be compatible and harmonious with the character and appearance of the surrounding neighborhood, and will not be hazardous or otherwise detrimental to the appropriate and orderly development or use of any adjacent land, buildings or structure as indicated by the exterior appearance of buildings (bulk, height, roof style, materials and color), their location on the site in relation to existing streets, parking and adjacent residences and their relationship to the natural terrain, watercourses, water bodies, wetlands and vegetation.

FN12. See Zoning Regulations of the Town of Wolcott, Connecticut § 35.1.3, footnote 9 of this decision;  Town of Wolcott Plan of Development Update, April 1, 1997, submitted pursuant to the Commission's motion to supplement the Return of Record, February 20, 2012..  FN12. See Zoning Regulations of the Town of Wolcott, Connecticut § 35.1.3, footnote 9 of this decision;  Town of Wolcott Plan of Development Update, April 1, 1997, submitted pursuant to the Commission's motion to supplement the Return of Record, February 20, 2012.

FN13. Section 31.11 of the Zoning Regulations of the Town of Wolcott, Connecticut, provides in relevant part:31.11 Application Information, Materials and Documents:  For all uses requiring approval of a Special Use Permit or a Site Development Plan, a complete application shall be submitted in a form prescribed by the Commission, together with an application fee in an amount determined by the Commission and posted in the Planning and Zoning Office, payable to the Town of Wolcott, together with the following information.   If the Zoning Enforcement Officer finds any of the following requirements not applicable for small-scale projects, such items may be waived with the concurrence and approval of the Commission..  FN13. Section 31.11 of the Zoning Regulations of the Town of Wolcott, Connecticut, provides in relevant part:31.11 Application Information, Materials and Documents:  For all uses requiring approval of a Special Use Permit or a Site Development Plan, a complete application shall be submitted in a form prescribed by the Commission, together with an application fee in an amount determined by the Commission and posted in the Planning and Zoning Office, payable to the Town of Wolcott, together with the following information.   If the Zoning Enforcement Officer finds any of the following requirements not applicable for small-scale projects, such items may be waived with the concurrence and approval of the Commission.

FOOTNOTE.  FN* * *31.11.7 Traffic Report:  A traffic analysis shall be required for any project containing either one hundred (100) or more parking spaces in a new or expanded parking lot or forty thousand (40,000) or more square feet of gross floor area in a new or expanded building ․ The Commission may require a traffic report for other projects if conditions warrant.

FN14. Section 31.12 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:31.12.2 Traffic and Pedestrian Access:  that all proposed vehicular and pedestrian accessways are safely designed, adequately provided and conveniently arranged to prevent traffic and pedestrian hazards both within the site and on the street.   At least the following aspects of the site plan shall be evaluated to determine conformity to this objective:a.  The number, location and dimensions of vehicular and pedestrian entrances, exits, drives and walkways.b. The width, grade and alignment of entrances and exits.c. The distance of entrances and exits from street corners, places of public assembly and other accessways.d. The visibility in both directions at all exit points of the site and the visibility of a vehicle entering or exiting the site to the driver of a vehicle traveling on the street.e. The adequacy of emergency access.31.12.3 Circulation and Parking:  That the vehicular circulation pattern and the off-street parking and loading spaces are safely designed, adequately provided and conveniently arranged to meet the needs of the proposed uses and to prevent traffic congestion and traffic and pedestrian hazards both within the site and on the street.   At least the following aspects of the site plan shall be evaluated to determine conformity to this objective:a.  The effect of the proposed development on traffic conditions on abutting streets.b. The patterns of vehicular and pedestrian circulation both within the boundaries of the development and in relation to the adjoining street and sidewalk systems.c. The adequacy of traffic signalization, traffic channelization, left turn lanes, or roadway width on the adjoining streets.d. The interconnection of parking areas via access drives within and between adjacent lots or uses, in order to maximize efficiency, minimize curb cuts and encourage safe and convenient circulation..  FN14. Section 31.12 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:31.12.2 Traffic and Pedestrian Access:  that all proposed vehicular and pedestrian accessways are safely designed, adequately provided and conveniently arranged to prevent traffic and pedestrian hazards both within the site and on the street.   At least the following aspects of the site plan shall be evaluated to determine conformity to this objective:a.  The number, location and dimensions of vehicular and pedestrian entrances, exits, drives and walkways.b. The width, grade and alignment of entrances and exits.c. The distance of entrances and exits from street corners, places of public assembly and other accessways.d. The visibility in both directions at all exit points of the site and the visibility of a vehicle entering or exiting the site to the driver of a vehicle traveling on the street.e. The adequacy of emergency access.31.12.3 Circulation and Parking:  That the vehicular circulation pattern and the off-street parking and loading spaces are safely designed, adequately provided and conveniently arranged to meet the needs of the proposed uses and to prevent traffic congestion and traffic and pedestrian hazards both within the site and on the street.   At least the following aspects of the site plan shall be evaluated to determine conformity to this objective:a.  The effect of the proposed development on traffic conditions on abutting streets.b. The patterns of vehicular and pedestrian circulation both within the boundaries of the development and in relation to the adjoining street and sidewalk systems.c. The adequacy of traffic signalization, traffic channelization, left turn lanes, or roadway width on the adjoining streets.d. The interconnection of parking areas via access drives within and between adjacent lots or uses, in order to maximize efficiency, minimize curb cuts and encourage safe and convenient circulation.

FN15. Section 31.11 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:31.11 Application Information, Materials and Documents:  For all uses requiring approval of a Special Use Permit or a Site Development Plan, a complete application shall be submitted in a form prescribed by the Commission, together with an application fee in an amount determined by the Commission and posted in the Planning and Zoning Office, payable to the Town of Wolcott, together with the following information.   If the Zoning Enforcement Officer finds any of the following requirements not applicable for small-scale projects, such items may be waived with the concurrence and approval of the Commission.31.11.12 Final Landscape Plan:  Prior to the issuance of a Zoning Permit for an approved Site Development Plan, the applicant shall prepare and submit a detailed landscape plan to the Commission for final approval ․.  FN15. Section 31.11 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:31.11 Application Information, Materials and Documents:  For all uses requiring approval of a Special Use Permit or a Site Development Plan, a complete application shall be submitted in a form prescribed by the Commission, together with an application fee in an amount determined by the Commission and posted in the Planning and Zoning Office, payable to the Town of Wolcott, together with the following information.   If the Zoning Enforcement Officer finds any of the following requirements not applicable for small-scale projects, such items may be waived with the concurrence and approval of the Commission.31.11.12 Final Landscape Plan:  Prior to the issuance of a Zoning Permit for an approved Site Development Plan, the applicant shall prepare and submit a detailed landscape plan to the Commission for final approval ․

FN16. Section 31.12 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:31.12 Site Development Plan Standards and Objectives:  In reviewing the Site Development Plan, the Commission shall take into consideration the public health, safety and general welfare and as a condition of approval, may require such modifications of the proposed plans as it deems necessary to comply with the specific area, bulk, parking, landscaping, sign and document standards contained herein as well as all other applicable requirements of these Regulations and to assure the accomplishments of the following general objectives:31.12.4 Landscaping and Screening:  That the proposed development will protect the environmental quality of the site and will preserve and enhance the adjacent property values.   At least the following aspects of the site plan shall be evaluated to determine conformity to these objectives:.  FN16. Section 31.12 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:31.12 Site Development Plan Standards and Objectives:  In reviewing the Site Development Plan, the Commission shall take into consideration the public health, safety and general welfare and as a condition of approval, may require such modifications of the proposed plans as it deems necessary to comply with the specific area, bulk, parking, landscaping, sign and document standards contained herein as well as all other applicable requirements of these Regulations and to assure the accomplishments of the following general objectives:31.12.4 Landscaping and Screening:  That the proposed development will protect the environmental quality of the site and will preserve and enhance the adjacent property values.   At least the following aspects of the site plan shall be evaluated to determine conformity to these objectives:

FOOTNOTE.  FN* * *b. Special attention shall be given to the front landscape areas along Wolcott Road in the Route 69 Corridor overlay district in concert with the goal of aesthetically enhancing this area ․c. The location, arrangement and adequacy of landscaping within and bordering parking and loading areas.d. Vehicular parking, loading and service areas shall be screened during all seasons on [sic] the year from adjacent residential uses and districts.e. The location, height and materials of walls, fences, mounds, berms, hedges and plantings so as to ensure compatibility with the character of adjacent development, screen parking and loading areas, and conceal storage areas, refuse disposal facilities, utility installations and other such features.

FN17. See Zoning Regulations of the Town of Wolcott, Connecticut § 31.12, footnote 17 of this decision..  FN17. See Zoning Regulations of the Town of Wolcott, Connecticut § 31.12, footnote 17 of this decision.

FN18. Section 31.11.6 of the Zoning Regulations of the Town of Wolcott, Connecticut provides:31.11.6 Building Plans:  Four (4) copies of preliminary architectural drawings of all proposed buildings and structures, at a minimum scale of one (1) inch equals eight (8) feet, prepared by an architect or professional engineer licensed to practice in the State of Connecticut, showing the following:a.  All exterior wall elevations indicating finished floor elevations, building heights in relation to mean sea level, base flood elevation data, lowest floor elevation, doors and windows, size and location of roof top mechanical equipment and building materials.b. Building floor plans indicating existing and proposed usage, interior floor area and/or patron floor area.   All building floor plans shall indicate floor dimensions..  FN18. Section 31.11.6 of the Zoning Regulations of the Town of Wolcott, Connecticut provides:31.11.6 Building Plans:  Four (4) copies of preliminary architectural drawings of all proposed buildings and structures, at a minimum scale of one (1) inch equals eight (8) feet, prepared by an architect or professional engineer licensed to practice in the State of Connecticut, showing the following:a.  All exterior wall elevations indicating finished floor elevations, building heights in relation to mean sea level, base flood elevation data, lowest floor elevation, doors and windows, size and location of roof top mechanical equipment and building materials.b. Building floor plans indicating existing and proposed usage, interior floor area and/or patron floor area.   All building floor plans shall indicate floor dimensions.

FN19. Section 31.11.13 of the Zoning Regulations of the Town of Wolcott, Connecticut provides:31.11.13 Other:  The Commission, upon written request by the applicant, may by resolution, waive the required submission of all or part of the information required under this Section if the Commission finds that the information is not necessary in order to decide on the application.   The Commission may also request the submission of such other additional information that it deems necessary in order to decide on the application..  FN19. Section 31.11.13 of the Zoning Regulations of the Town of Wolcott, Connecticut provides:31.11.13 Other:  The Commission, upon written request by the applicant, may by resolution, waive the required submission of all or part of the information required under this Section if the Commission finds that the information is not necessary in order to decide on the application.   The Commission may also request the submission of such other additional information that it deems necessary in order to decide on the application.

FN20. Section 3.36 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:3.36 Structure:  Anything constructed or erected, the use of which requires location on the ground and/or attachment to or placement on something having a location on the ground.   Except as otherwise indicated, “structure” as used in these regulations shall be deemed to include buildings, parapets, turrets, rooftop mechanical units, swimming pools, tennis courts, towers, paddle or platform tennis courts, balconies, open entries, porches, decks, signs, permanent awnings, ground mounted antennas, ground mounted solar panels and satellite dishes.(a) Fences or walls more than six (6) feet in height shall be deemed structures.(b) Patios, terraces and ground mounted mechanical units, such as air-conditioning compressors, shall be deemed structures for the purpose of compliance with any required setbacks in a Residential District and with any required buffer strip in any other District..  FN20. Section 3.36 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:3.36 Structure:  Anything constructed or erected, the use of which requires location on the ground and/or attachment to or placement on something having a location on the ground.   Except as otherwise indicated, “structure” as used in these regulations shall be deemed to include buildings, parapets, turrets, rooftop mechanical units, swimming pools, tennis courts, towers, paddle or platform tennis courts, balconies, open entries, porches, decks, signs, permanent awnings, ground mounted antennas, ground mounted solar panels and satellite dishes.(a) Fences or walls more than six (6) feet in height shall be deemed structures.(b) Patios, terraces and ground mounted mechanical units, such as air-conditioning compressors, shall be deemed structures for the purpose of compliance with any required setbacks in a Residential District and with any required buffer strip in any other District.

FN21. See footnote 8 of this decision..  FN21. See footnote 8 of this decision.

FN22. See footnote 8 of this decision..  FN22. See footnote 8 of this decision.

FN23. References to the Complaint refer to the July 3, 2012 amended complaint in the case which is the subject of this section.   References to the Answer refer to the Answer to the amended complaint dated November 19, 2012 in the case which is the subject of this section..  FN23. References to the Complaint refer to the July 3, 2012 amended complaint in the case which is the subject of this section.   References to the Answer refer to the Answer to the amended complaint dated November 19, 2012 in the case which is the subject of this section.

FN24. Section 23 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:23.2 Prohibited Uses:  Land, buildings and other structures shall only be used for one or more of the permitted uses in SCHEDULE A and no other.   Any use not specified in SCHEDULE A as permitted is prohibited.   To further assist in the interpretation of SCHEDULE A, the following uses, the listing of which is not intended to be exhaustive, are specifically and expressly prohibited in any zoning district within the Town of Wolcott:.  FN24. Section 23 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:23.2 Prohibited Uses:  Land, buildings and other structures shall only be used for one or more of the permitted uses in SCHEDULE A and no other.   Any use not specified in SCHEDULE A as permitted is prohibited.   To further assist in the interpretation of SCHEDULE A, the following uses, the listing of which is not intended to be exhaustive, are specifically and expressly prohibited in any zoning district within the Town of Wolcott:

FOOTNOTE.  FN* * *23.2.4:  Bulk storage of cement;  concrete mixing plants;  bulk storage of gas, petroleum products and other fuels in tanks having a capacity in excess of 10,000 gallons.

FN25. The entirety of the note reads as follows:  “My use of intent is to install a 30,000 gallon LP Propane bulk tank for loading our propane trucks for deliveries thru out our service area.   We will install and maintain this bulk propane tank as we keep our property in compliance with zoning Regs. As our past history will prove its self!   Thank you Randy Petroniro [phone number].”   Plaintiff's Exhibit 4..  FN25. The entirety of the note reads as follows:  “My use of intent is to install a 30,000 gallon LP Propane bulk tank for loading our propane trucks for deliveries thru out our service area.   We will install and maintain this bulk propane tank as we keep our property in compliance with zoning Regs. As our past history will prove its self!   Thank you Randy Petroniro [phone number].”   Plaintiff's Exhibit 4.

FN26. General Statutes § 16a–23s:  “List of registered home heating oil and propane gas dealers.“The Department of Consumer Protection shall establish a list of all registered home heating oil and propane gas dealers.   The department shall make the list available to all wholesalers of home heating oil or propane gas doing business in the state and such wholesalers shall only sell to the registered home heating oil or propane gas dealers on said list.”.  FN26. General Statutes § 16a–23s:  “List of registered home heating oil and propane gas dealers.“The Department of Consumer Protection shall establish a list of all registered home heating oil and propane gas dealers.   The department shall make the list available to all wholesalers of home heating oil or propane gas doing business in the state and such wholesalers shall only sell to the registered home heating oil or propane gas dealers on said list.”

FN27. Section 31.9 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:31.9 Revisions and Changes:  A minor change to an approved Site Development Plan or a Special Use Permit consists of minor changes in the use or occupancy of land, structures or buildings not requiring additional parking, loading, or access and such change may be approved administratively by the Zoning Enforcement Officer after consultation with the Town Engineer.   Any other change in the use of land or in the use of a structure or building will require Commission approval if such change in use increases the required amount of parking, loading or access or requires substantial alteration to the land, structure, building or layout.   The Commission will decide if the change is significant enough to require a complete Site Development Plan or Special Use Permit application as for a new submission..  FN27. Section 31.9 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:31.9 Revisions and Changes:  A minor change to an approved Site Development Plan or a Special Use Permit consists of minor changes in the use or occupancy of land, structures or buildings not requiring additional parking, loading, or access and such change may be approved administratively by the Zoning Enforcement Officer after consultation with the Town Engineer.   Any other change in the use of land or in the use of a structure or building will require Commission approval if such change in use increases the required amount of parking, loading or access or requires substantial alteration to the land, structure, building or layout.   The Commission will decide if the change is significant enough to require a complete Site Development Plan or Special Use Permit application as for a new submission.

FN28. Section 3.1 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:3.1 General:  The paragraphs which follow define and explain certain words used in these Regulations.   Other words used in these Regulations shall have the meaning commonly attributed to them.   Doubts as to the precise meaning of words in these Regulations shall be determined by the Commission by resolution, giving due consideration to the expressed purpose and intent of these Regulations.   Words in the present tense include the future and the singular number includes the plural and vice-versa.   See Section 23.2 and 23.2.4 of the Zoning Regulations of the Town of Wolcott, Connecticut footnote 26 of this decision..  FN28. Section 3.1 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:3.1 General:  The paragraphs which follow define and explain certain words used in these Regulations.   Other words used in these Regulations shall have the meaning commonly attributed to them.   Doubts as to the precise meaning of words in these Regulations shall be determined by the Commission by resolution, giving due consideration to the expressed purpose and intent of these Regulations.   Words in the present tense include the future and the singular number includes the plural and vice-versa.   See Section 23.2 and 23.2.4 of the Zoning Regulations of the Town of Wolcott, Connecticut footnote 26 of this decision.

FN29. All references to a Complaint and an Answer in this section refer to the Complaint and Answer in the case discussed in this section..  FN29. All references to a Complaint and an Answer in this section refer to the Complaint and Answer in the case discussed in this section.

FN30. Schedule A of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:  “DP” means a use permitted in the District as a matter of right, subject to submission and administrative approval of a Site Development Plan in accordance with the provisions of Section 31 ․.  FN30. Schedule A of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:  “DP” means a use permitted in the District as a matter of right, subject to submission and administrative approval of a Site Development Plan in accordance with the provisions of Section 31 ․

FOOTNOTE.  FN* * *[The following uses are all listed as DP in the General Commercial Zone:]C–16:  Warehousing and wholesale businesses, including commercial storage and self-storage facilities.C–16a:  Warehousing and storage of a reasonable quantity of retail merchandise and supplies necessary for the operation of a permitted use being conducted on the same lot.C–17:  Retail sale and distribution of heating fuel and natural gas, specifically excluding storage tanks having a capacity in excess of 10,000 gallons.

FOOTNOTE.  FN* * *C–19a:  Freight and materials trucking businesses, terminals and transfer stations;  bus storage yards and maintenance garages and terminals, when accessory and subordinate to a related permitted use being conducted on the same lot.

FN31. See Zoning Regulations of the Town of Wolcott, Connecticut § 23.2, footnote 25 of this decision..  FN31. See Zoning Regulations of the Town of Wolcott, Connecticut § 23.2, footnote 25 of this decision.

FN32. The Board of Appeals filed an earlier brief which appears virtually identical to the May 9, 2012 brief on April 27, 2012..  FN32. The Board of Appeals filed an earlier brief which appears virtually identical to the May 9, 2012 brief on April 27, 2012.

FN33. Schedule A of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:C–16:  Warehousing and wholesale businesses, including commercial storage and self-storage facilities.C–16a:  Warehousing and storage of a reasonable quantity of retail merchandise and supplies necessary for the operation of a permitted use being conducted on the same lot.C–19a:  Freight and materials trucking businesses, terminals and transfer stations;  bus storage yards and maintenance garages and terminals, when accessory and subordinate to a related permitted use being conducted on the same lot..  FN33. Schedule A of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:C–16:  Warehousing and wholesale businesses, including commercial storage and self-storage facilities.C–16a:  Warehousing and storage of a reasonable quantity of retail merchandise and supplies necessary for the operation of a permitted use being conducted on the same lot.C–19a:  Freight and materials trucking businesses, terminals and transfer stations;  bus storage yards and maintenance garages and terminals, when accessory and subordinate to a related permitted use being conducted on the same lot.

FN34. Section 23.2 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:Section 23.2 Prohibited Uses:  Land, buildings and other structures shall only be used for one or more of the permitted uses in SCHEDULE A and no other.   Any use not specified in SCHEDULE A as permitted is prohibited.   To further assist in the interpretation of SCHEDULE A, the following uses, the listing of which is not intended to be exhaustive, are specifically and expressly prohibited in any zoning district within the Town of Wolcott:  ․23.2.4:  Bulk storage of cement;  concrete mixing plants;  bulk storage of gas, petroleum products and other fuels in tanks having a capacity in excess of 10,000 gallons.”(Emphasis added.).  FN34. Section 23.2 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:Section 23.2 Prohibited Uses:  Land, buildings and other structures shall only be used for one or more of the permitted uses in SCHEDULE A and no other.   Any use not specified in SCHEDULE A as permitted is prohibited.   To further assist in the interpretation of SCHEDULE A, the following uses, the listing of which is not intended to be exhaustive, are specifically and expressly prohibited in any zoning district within the Town of Wolcott:  ․23.2.4:  Bulk storage of cement;  concrete mixing plants;  bulk storage of gas, petroleum products and other fuels in tanks having a capacity in excess of 10,000 gallons.”(Emphasis added.)

FN35. Arguably, the amendment of Regulations § 23.2.4 alone may have permitted 30,000 gallon tanks for wholesale purposes, leaving in place the 10,000 gallon tanks for retail sales..  FN35. Arguably, the amendment of Regulations § 23.2.4 alone may have permitted 30,000 gallon tanks for wholesale purposes, leaving in place the 10,000 gallon tanks for retail sales.

FN36. See Zoning Regulations of the Town of Wolcott, Connecticut § 31, footnotes 6, and 14–20 of this decision..  FN36. See Zoning Regulations of the Town of Wolcott, Connecticut § 31, footnotes 6, and 14–20 of this decision.

FN37. See Zoning Regulations of the Town of Wolcott, Connecticut § 35.1, footnote 9 of this decision..  FN37. See Zoning Regulations of the Town of Wolcott, Connecticut § 35.1, footnote 9 of this decision.

FN38. See Zoning Regulations of the Town of Wolcott, Connecticut § 35.1, footnote 9 of this decision..  FN38. See Zoning Regulations of the Town of Wolcott, Connecticut § 35.1, footnote 9 of this decision.

FN39. See Zoning Regulations of the Town of Wolcott, Connecticut § 31.11.13, footnote 20 of this decision..  FN39. See Zoning Regulations of the Town of Wolcott, Connecticut § 31.11.13, footnote 20 of this decision.

FN40. See Zoning Regulations of the Town of Wolcott, Connecticut § 31.11.6, footnote 19 of this decision..  FN40. See Zoning Regulations of the Town of Wolcott, Connecticut § 31.11.6, footnote 19 of this decision.

FN41. This may involve some irony in this case because the existing, approved tank is unscreened and open to public view..  FN41. This may involve some irony in this case because the existing, approved tank is unscreened and open to public view.

FN42. The Commission discussed the issue of access to the propane tanks for cooling by fire safety personnel in the event of a nearby structure fire..  FN42. The Commission discussed the issue of access to the propane tanks for cooling by fire safety personnel in the event of a nearby structure fire.

FN43. [I]t is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling ․ The provisions of one statute which specifically focus on a particular problem will always, in the absence of express contrary legislative intent, be held to prevail over provisions of a different statute more general in its coverage.  (Internal quotation marks omitted.)  Housatonic Railroad Co. v. Commission of Revenue Services, 301 Conn. 268, 301–02 21 A.3d 759 (2011)..  FN43. [I]t is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling ․ The provisions of one statute which specifically focus on a particular problem will always, in the absence of express contrary legislative intent, be held to prevail over provisions of a different statute more general in its coverage.  (Internal quotation marks omitted.)  Housatonic Railroad Co. v. Commission of Revenue Services, 301 Conn. 268, 301–02 21 A.3d 759 (2011).

FN44. Section 31 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:31.11.7 Traffic Report:  A traffic analysis shall be required for any project containing either one hundred (100) or more parking spaces in a new or expanded parking lot or forty thousand (40,000) or more square feet of gross floor area in a new or expanded building ․ The Commission may require a traffic report for other projects if conditions warrant..  FN44. Section 31 of the Zoning Regulations of the Town of Wolcott, Connecticut provides in relevant part:31.11.7 Traffic Report:  A traffic analysis shall be required for any project containing either one hundred (100) or more parking spaces in a new or expanded parking lot or forty thousand (40,000) or more square feet of gross floor area in a new or expanded building ․ The Commission may require a traffic report for other projects if conditions warrant.

FOOTNOTE.  FN* * *31.12 Site Development Plan Standards and Objectives:  In reviewing the Site Development Plan, the Commission shall take into consideration the public health, safety and general welfare and as a condition of approval, may require such modifications of the proposed plans as it deems necessary to comply with the specific area, bulk, parking, landscaping, sign and document standards contained herein as well as all other applicable requirements of these Regulations and to assure the accomplishments of the following general objectives:

FOOTNOTE.  FN* * *31.12.2 Traffic and Pedestrian Access:  that all proposed vehicular and pedestrian accessways are safely designed, adequately provided and conveniently arranged to prevent traffic and pedestrian hazards both within the site and on the street.   At least the following aspects of the site plan shall be evaluated to determine conformity to this objective:a.  The number, location and dimensions of vehicular and pedestrian entrances, exits, drives and walkways.b. The width, grade and alignment of entrances and exits.c. The distance of entrances and exits from street corners, places of public assembly and other accessways.d. The visibility in both directions at all exit points of the site and the visibility of a vehicle entering or exiting the site to the driver of a vehicle traveling on the street.e. The adequacy of emergency access.31.12.3 Circulation and Parking:  That the vehicular circulation pattern and the off-street parking and loading spaces are safely designed, adequately provided and conveniently arranged to meet the needs of the proposed uses and to prevent traffic congestion and traffic and pedestrian hazards both within the site and on the street.   At least the following aspects of the site plan shall be evaluated to determine conformity to this objective:a.  The effect of the proposed development on traffic conditions on abutting streets.b. The patterns of vehicular and pedestrian circulation both within the boundaries of the development and in relation to the adjoining street and sidewalk systems.c. The adequacy of traffic signalization, traffic channelization, left turn lanes, or roadway width on the adjoining streets.d. The interconnection of parking areas via access drives within and between adjacent lots or uses, in order to maximize efficiency, minimize curb cuts and encourage safe and convenient circulation.

FN45. See Zoning Regulations of the Town of Wolcott, Connecticut §§ 31.11 and 31.12, footnotes 14 and 15 of this decision..  FN45. See Zoning Regulations of the Town of Wolcott, Connecticut §§ 31.11 and 31.12, footnotes 14 and 15 of this decision.

FN46. Municipal Estoppel is discussed at greater in section V.A. 1. of this decision.   The basic requirements are “that:  (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief;  (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge;  (3) the party had changed its position in reliance on those facts;  and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents ․” (Emphasis added.)  Levine v. Sterling, 300 Conn. 521, 535, 16 A.3d 664 (2011).  “In municipal zoning cases, however, estoppel may be invoked (1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations.”  (Citations omitted;  internal quotation marks omitted.)   Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 246–47, 662 A.2d 1179 (1995)..  FN46. Municipal Estoppel is discussed at greater in section V.A. 1. of this decision.   The basic requirements are “that:  (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief;  (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge;  (3) the party had changed its position in reliance on those facts;  and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents ․” (Emphasis added.)  Levine v. Sterling, 300 Conn. 521, 535, 16 A.3d 664 (2011).  “In municipal zoning cases, however, estoppel may be invoked (1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations.”  (Citations omitted;  internal quotation marks omitted.)   Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 246–47, 662 A.2d 1179 (1995).

FN47. The only evidence of selective enforcement in these appeals is the decision of the Commission to deny the plaintiff's site plan application for three 10,000 gallon tanks, although multiple tanks are permitted underground at local gas stations.   However, the court notes that the decision to deny these tanks was based, in large measure, upon the Commission's distinguishable conclusion that the tanks were for the purpose of wholesale distribution..  FN47. The only evidence of selective enforcement in these appeals is the decision of the Commission to deny the plaintiff's site plan application for three 10,000 gallon tanks, although multiple tanks are permitted underground at local gas stations.   However, the court notes that the decision to deny these tanks was based, in large measure, upon the Commission's distinguishable conclusion that the tanks were for the purpose of wholesale distribution.

Taylor, Mark H., J.