John W. Somero v. Town of Middlebury Planning and Zoning Commission et al. (2014)

MEMORANDUM OF DECISION

In this administrative appeal, the plaintiff, John W. Somero, seeks the reversal of the Town of Middlebury Planning and Zoning Commission's (PZC) decision to approve a site plan for a development.   For the reasons stated below, the court dismisses the appeal.

I

Procedural Background

By appeal, Somero challenges the PZC's decision, at its meeting held on January 5, 2012, to grant site plan approval.   In his revised appeal, dated July 10, 2012 (# 104), Somero claims that the PZC acted illegally, arbitrarily, and in abuse of its discretion as an administrative agency.   In his prayer for relief, the plaintiff asks the court to declare that the approval is null and void, to direct the PZC to deny the application, and to require any future site plans to conform to a previous site plan, which was presented when a variance was granted by the Town's Zoning Board of Appeals (ZBA).

In response to the appeal, the PZC filed an answer (# 106).   The parties briefed the issues.   Oral argument was heard on January 16, 2014.

II

Aggrievement

The court finds that Somero, as a neighboring property owner, is aggrieved by the PZC's decision and that he has standing to appeal.   See General Statutes § 8–8(a)(1);  Water Pollution Control Authority v. Keeney, 234 Conn. 488, 494, 662 A.2d 124 (1995);  Walls v. Planning & Zoning Commission, 176 Conn. 475, 477–78, 408 A.2d 252 (1979).

III

Facts

The record reveals the following facts.   In September 2011, defendant Pomeroy Enterprises, LLC (Pomeroy) submitted a Zoning Permit Application (Application) to the PZC, for an office/retail development, a 4800 square foot, two-story commercial building, on property located at 472 Middlebury Road (Route 64), in Middlebury, Connecticut (property), which is within Middlebury's Commercial A–40 District.   Under the Town of Middlebury Zoning Regulations (Regulations), such a use is permitted.   See Return of Record (ROR) 1, §§ 31.1.1, 31.1.2.

The Application, as required by the Regulations, included the submission of a Site Plan. See ROR 2a, 2b.   While the Regulations require a setback distance of 75 feet, the Site Plan provided for a setback distance of 51.3 feet from Route 64.   In its Application, Pomeroy relied on a variance previously granted in April 2010 by the ZBA, wherein the minimum setback from Route 64 was reduced from 75 feet to 50 feet (Variance).   See ROR 5c.

In addition to frontage on Route 64, the Property has frontage on Clearview Knoll, an adjacent street.   The Application's proposed Site Plan showed access to the development to and from Route 64 and to and from Clearview Knoll.   See ROR 6k.

Although the Regulations do not require the PZC to hold a public hearing when considering site plan approval, see ROR 1, § 51, the PZC held public hearings concerning the Application on November 3, 2011 and December 1, 2011.   At the November 3, 2011 public hearing, the PZC was informed that, when the ZBA considered the Variance in 2010, the plan presented to the ZBA did not contain access to the development from Clearview Knoll.   See ROR 8b (transcript), pp. 5–6.   Mr. Gregory Bush, a Clearview Knoll resident, stated that Jack Baker, a member of the ZBA, “attached a condition in that traffic would be through [Route] 64 as opposed to Clearview Knoll.   Because there is an entrance in this site plan, it is in violation of that condition of the approved variance.”   See ROR 8b, p. 6. According to the minutes of the November 3, 2011 public hearing (ROR 4c, page 2), the ZBA minutes of March 3, 2010 “indicated that the entrance and exit would be from Route 64 in order to benefit the residents of Clear View Knoll.”

At the same PZC public hearing, the applicant provided the recorded Variance, which states, in relevant part, “The petitioner requested a variance because:  Seeking a setback variance from CT Route 64 from 75–feet to 50–feet.   The hardship is the topography of the land and upzoning.   Approved with the condition of a permanent landscape buffer along the rear setback line.   Action:  The vote to grant the variance passed 4–1 by a roll call vote.”   See Variance, ROR 5c.

The PZC Chairman stated there was ample time to investigate how the Variance was granted.   See ROR 8b, pp. 16–17.

The public hearing was continued to December 1, 2011.   At that hearing, the PZC Chairman stated that a thorough search of the 2010 ZBA minutes showed that various ZBA members made comments and that the result was “Motion approved with the condition of the placement of a permanent landscaped buffer on the rear setback line.   Mr. Baker, Mr. Small, Mr. Bean and Mr. Kulpa were all in agreement with the condition.   That's what we have to live with ․ as far as this, you know, as far as we're concerned, that variance was granted under those conditions ․ I didn't take 8 hours to listen to the tapes but this is the official record.   These are the Minutes.   This is what's filed ․ and that's what we have to go by.”   See ROR 8d (transcript), p. 24.

At its January 5, 2012 meeting, the PZC voted unanimously to approve the Application.   This appeal ensued.   Additional references to the facts are set forth below.

IV

Discussion

The plaintiff contends that, based on an inadequate review of the record before the ZBA, the PZC approved a site plan which was in violation of the Variance, because the site plan has access to and from the property from Clearview Knoll.  “The burden of proof to demonstrate that the board acted improperly is upon the plaintiff ․” (Internal quotation marks omitted.)   Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995).

“It is axiomatic that the review of site plan applications is an administrative function of a planning and zoning commission ․ 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 and Zoning Commission of the City of Ansonia, 280 Conn. 434, 440, 908 A.2d 1049 (2006).

“[W]hen a commission is functioning in ․ an administrative capacity, a reviewing court's standard of review of the commission's action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion.”  (Internal quotation marks omitted).  Anatra v. Zoning Board of Appeals of the Town of Madison, 307 Conn. 728, 738, 59 A.3d 772 (2013).

“A site plan is a plan filed with a zoning commission or other municipal agency or official to determine the conformity of a proposed building, use or structure with specific provisions of the zoning regulations.   It is a physical plan showing the layout and design of a proposed use, including structures, parking areas and open space and their relation to adjacent uses and roads, and containing the information required by the zoning regulations for that use ․ A zoning commission's authority in ruling on a site plan is limited ․” (Citation omitted;  internal quotation marks omitted.)  Fedus v. Zoning & Planning Commission, 112 Conn.App. 844, 847–48, 964 A.2d 549, cert. denied, 292 Conn. 904, 973 A.2d 103, 104 (2009).

“In ruling upon a site plan application, the planning commission acts in its ministerial capacity, rather than its quasi-judicial or legislative capacity.   It is given no independent discretion beyond determining whether the plan complies with the applicable regulations.  Kosinski v. Lawlor, [177 Conn. 420, 426–27, 418 A.2d 66 (1979) ].   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.’  RK Development Corporation v. Norwalk, 156 Conn. 369, 375–76, 242 A.2d 781 (1968);  Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 674–75, 236 A.2d 917 (1967).”  (Internal quotation marks omitted.)   Roraback v. Planning & Zoning Commission, 32 Conn.App. 409, 412, 628 A.2d 1350 (1993).   See Westover v. Zoning Board of the City of Stamford, 91 Conn.App. 125, 132 n.8, 881 A.2d 412 (2005).

The matter before this court is not an appeal of the ZBA's approval of the Variance.   Rather, the appeal is from the PZC's approval of the site plan presented in 2011.  “A reviewing court may not substitute its own judgment for that of the commission.   The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached.”  (Internal quotation marks omitted.)   Clifford v. Planning and Zoning Commission of the City of Ansonia, supra, 280 Conn. 452.

The express language of the Variance does not contain a condition requiring access only via Route 64.   Rather, it states a completely different condition, concerning a landscape buffer along the rear line.   As discussed further below, in view of that clear language, no search of the record to discern the content of the Variance was required.

The facts and circumstances here contrast with those in Anatra v. Zoning Board of Appeals, supra, 307 Conn. 728, an appeal from a decision of a zoning board of appeals upholding a zoning enforcement officer's denial of an application for a certificate of zoning compliance in order to convert a residential balcony into a deck.   There, the principal issue was “whether the conditions attached to the granting of a variance must be explicitly described in the certificate of variance.”  Id., 730.   The court expressly did “not address the issue of whether the record should be consulted in order to determine whether restrictions or conditions have been attached to the granting of a variance when there is no indication in the variance that approval was granted with conditions.”   Id., 730 n.1.

Anatra does not require the record to be consulted to locate an additional condition to a variance or to understand the variance, where, as here, the words or phrases in the certificate of variance are neither ambiguous nor reasonably susceptible to multiple interpretations.   See id., 744.   Here, the Variance's only condition is clear and precise, and review of the record to understand it is unnecessary.

In contrast, in Anatra, the certificate of variance adopted by the Town of Madison's zoning board of appeals “provided that the building coverage and front and side yard variances had been granted ‘to permit [the] existing structure to be replaced in the same location within 50 [feet] of the critical coastal resources as presented at the hearing and as shown on the plans and the survey submitted ․ Accordingly, the variance was subject to a condition that, by its very terms, could not be construed on the basis of the language in the certificate alone but required a review of the administrative record to determine whether the proposed deck complied with the plans and survey submitted with the variance application[.]”  (Emphasis in original;  footnote omitted.)  Id., 753.   See id., 732–33 (quoting certificate of variance).

In that context, the Supreme Court stated that it “agree[d] with the board that it makes more sense to treat a certificate of variance, which refers to conditions having been attached, as a notice to all those searching the land records that further investigation should be undertaken by reviewing the administrative file.   Accordingly, we conclude that the Appellate Court improperly determined that the conditions attached to the granting of a variance must be explicitly stated in the certificate of variance.   Rather, consistent with our precedent, such conditions should be construed not only by examining the language contained in the certificate of variance, but by considering the entire public record, including the variance application, the accompanying plans and exhibits, the minutes or hearing transcript, and the record of decision.”  Id., 747.

In Anatra, the Supreme Court also cited with approval an earlier Appellate Court decision, R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 129 Conn.App. 275, 287–88, 19 A.3d 715 (2011):  “when the land records indicate that conditions have been attached to a variance, due diligence requires a potential buyer of the property or other interested persons to investigate the public record in order to obtain a full understanding of the scope of the variance.   Indeed, it would seem almost obligatory to do so in light of the fact that even relatively explicit language describing a condition attached to a variance may not be sufficiently precise to indicate its effect in every conceivable context in which future changes to the property may be contemplated.   Cf. R & R Pool & Patio, Inc. v. Zoning Board of Appeals, supra, 129 Conn.App. 287–88.”  Anatra v. Zoning Board of Appeals, supra, 307 Conn. 749–50.

The Supreme Court summarized R & R Pool & Patio, Inc.:  “In that case, the court concluded that, if undefined words or terms in a certificate of variance are clear and unambiguous on their face, the interpretation of their meaning requires nothing more than an examination of the certificate itself.  Id., 287.   In contrast, when ‘the undefined words or phrases [in a certificate of variance] are ambiguous or reasonably susceptible to multiple interpretations, a search for the intent of the board at the time it approved the variance is necessary to resolve that question ․’ Id., 287–88.   The Appellate Court thus reviewed the relevant record in R & R Pool & Patio, Inc., including the original application for a variance, the testimony at the hearing and the zoning board's deliberations in concluding, as a matter of law, that the term ‘fine furniture,’ as used in the variance, referred to ‘high quality’ furniture.  Id., 296.”  (Emphasis added.)  Anatra v. Zoning Board of Appeals, supra, 307 Conn. 744.

In the Variance at issue here, the terms of the single condition contained in the certificate of variance are precise, clear and unambiguous on their face.   They are unrelated to entrance and egress to and from the property.   The only condition concerns “a permanent landscape buffer along the rear setback line.”   See Variance, ROR 5c.   The location or extent of that condition is not at issue.   The interpretation of the meaning of the condition here “requires nothing more than an examination of the certificate itself.”  (Internal quotation marks omitted.)  Anatra v. Zoning Board of Appeals, supra, 307 Conn. 744.   In this factual context, the Appellate Court's analysis in R & R Pool & Patio, Inc., 129 Conn.App. 287–88, which was repeatedly cited in Anatra, is binding on this court.  “A trial court is required to follow the prior decisions of an appellate court to the extent that they are applicable to facts and issues in the case before it, and the trial court may not overturn or disregard binding precedent.”  Potvin v. Lincoln Service and Equipment Co., 298 Conn. 620, 650, 6. A.3d 60 (2010).

Under these factual circumstances, the plaintiff's references to ZBA member Baker's comments about access from Clearview Knoll when the Variance was adopted by the ZBA in 2010, and to other aspects of the proceedings before the ZBA, are unavailing.  “Evidence of the individual views of one member of a zoning commission is not competent to show the reasons actuating the commission or the grounds of its decision.”  Schwartz v. Town Planning and Zoning Commission, 168 Conn. 285, 290, 362 A.2d 1378 (1975).   The Supreme Court has cautioned that, “[w]e must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions ․” (Emphasis in original;  internal quotation marks omitted.)  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 730–31, 780 A.2d 1 (2001).

The plaintiff has not shown that the Application failed to conform to the Regulations or that the PZC failed to apply the requirements of the Regulations as written.   See Roraback v. Planning & Zoning Commission, supra, 32 Conn.App. 412.   The plaintiff has not met his burden to show that the PZC abused its discretion or acted in a manner which was unreasonable, arbitrary or illegal.   The court need not address the parties' other arguments.

CONCLUSION

Based on the foregoing reasons, the appeal is dismissed.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

Shapiro, Robert B., J.