Alec Wargo v. Naugatuck Zoning Commission et al. (2014)

MEMORANDUM OF DECISION

This is an appeal from the decision of the Naugatuck Zoning Commission (commission) approving text changes to Sections 58.2, 58.42 and 58.4.11 of its Zoning Regulations (Regulations).   These changes essentially included R–45 and R–65 property zones within the above-mentioned Regulations.   On December 2, 2010, Woermer Law Firm (applicant) filed an application with the commission on behalf of its client, Grand Vista Meadows of Naugatuck, LLC, seeking text changes to Sections 58.2, 58.4.2 and 58.4.11 of the Regulations.   Thereafter, on February 7, 2011, the applicant filed a revised request, correcting an omission in the original request.   Following three public hearings on this matter on February 16, 2011, April 20, 2011, and May 18, 2011, the commission scheduled the matter on its agenda and approved the text changes, with modifications, during a special meeting on June 22, 2011.   After the commission approved the text changes, the plaintiff in this matter, Alec Wargo, an abutting land owner, appealed the commission's decision, naming as defendants the commission, Wilmont Holdings, LLC, Grand Vista Meadows of Naugatuck, and Matthew P. Woermer,¹ and claiming that the commission acted arbitrarily, unreasonably and in abuse of its discretion in its approval.   The appeal was argued before this court on January 10, 2014.

I

Standing

The plaintiff appeared and testified that he owns land adjacent to the property involved in this appeal prior to the time this application was made and up to and including the present date.   Under General Statutes § 8–8(1), the plaintiff qualifies as an aggrieved person, and the court finds that he is aggrieved.   Therefore, the court has subject matter jurisdiction to consider this matter.   In addition, the defendants agree and have stipulated that the plaintiff is aggrieved.

II

Discussion

As the Supreme Court explained, “[i]n traditional zoning appeals, the scope of judicial review depends on whether the zoning commission has acted in its ‘legislative’ or ‘administrative’ capacity.”  Kaufman v. Zoning Commission, 232 Conn. 122, 150, 653 A.2d 798 (1995).   When a municipal zoning commission amends zoning regulations, it acts in a legislative capacity.  Roncari Industries, Inc. v. Planning & Zoning Commission, 281 Conn. 66, 79, 912 A.2d 1008 (2007).   The parties in this matter agree that the Naugatuck Zoning Commission acted in its legislative capacity when it made the decisions leading to this appeal.

“Acting in such a legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change ․ The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than of an administrative board, which serves a quasi-judicial function ․ This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally ․ Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment ․ The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission.   Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion.”  (Citations omitted;  internal quotation marks omitted.)  Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 543–44, 600 A.2d 757 (1991).  “[I]t is not the function of the trial court to retry the case.”  Konigsberg v. Board of Aldermen, 283 Conn. 553, 582, 930 A.2d 1 (2007).   The trial court's standard of review when analyzing a commission'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.)  Id. “The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached.”   (Internal quotation marks omitted.)  Id.

The plaintiff argues that the commission acted arbitrarily, unreasonably and in abuse of its discretion in approving the text changes.   Specifically, the plaintiff argues that (1) the commission's text changes affected an entire zone, but the commission failed to consider the effects on the entire zone;  (2) the commission's decision amounted to spot zoning, making it illegal and arbitrary;  and (3) the commission, on its own motion, made new additions to the text without notice to anyone and without evidence presented as to the effect of these new text changes on any parcel.   The defendants argue in opposition that the commission “fully and fairly took into consideration the effect the text change[s] would have on all parcels” within the zones and the text changes do not constitute spot zoning.

A

Consideration of Effects on Zone

The plaintiff argues that the commission failed to consider the effects of the text changes on the entire parcel.   However, this argument lacks support in the record.   The commission held public hearings on February 16, 2011, April 20, 2011, and May 18, 2011, in order to hear input from the citizens, as well as the applicant, and to discuss the matter thoroughly reflecting on the questions and concerns raised at the meetings.   These three public hearings indicate that the commission considered the effects the changes would have on the entire parcel.   Of note, the minutes from one Public Hearing, held on April 20, 2011, state that Joe Savarese, chair of the commission, continued the Public Hearing to the next month “for more input, discussion, perspective and direction.”   (ROR 23.)   In addition, Savarese stated that the commission had to “make a proper decision based on the information they [had] received at the meetings, the current regulations, what would benefit the Borough, its citizens and overall population.”  (ROR 23.)   Savarese further noted that “it is not the commission's place to concern themselves with tax revenue;” rather, “it is their concern to evaluate the impact [on] schools, planning and people.”  (ROR 23.)   These comments show that the commission fully intended to consider the effects on the people and the Borough and on the entire zone before making a final determination.   Moreover, the minutes from the meeting on May 18, 2011, state that “[a] discussion took place regarding the impacts of the proposed text change.”  (ROR 24.)   These statements undermine the plaintiff's argument that the commission's consideration was narrow and failed to include the effects of the entire zone.   That argument, therefore, fails for lack of support.

B

Spot Zoning

The plaintiff argues that the decision of the commission constituted “spot zoning” because the text changes were made to help one developer develop a single piece of property.  “Spot zoning is impermissible in this state.”   (Internal quotation marks omitted.)  Gaida v. Planning & Zoning Commission, 108 Conn.App. 19, 32, 947 A.2d 361 (2008).  “[S]pot zoning is the reclassification of a small area of land in such a manner as to disturb the tenor of the surrounding neighborhood ․ Two elements must be satisfied to constitute spot zoning First, the zone change must concern a small area of land.   Second, the change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole ․ T]he vice of spot zoning lies in the fact that it singles out for special treatment a lot or a small area in a way that does not further such a plan.”  (Citations omitted;  internal quotation marks omitted.)  Konigsberg v. Board of Alderman, supra, 283 Conn. 591–92.  “A ‘comprehensive plan’ means a general plan to control and direct the use and development of property in a municipality or a large part of it by dividing it into districts according to the present and potential use of the properties ․ Action by a zoning authority which gives to a single lot or a small area privileges which are not extended to other land in the vicinity is in general against sound public policy and obnoxious to the law.”  (Internal quotation marks omitted.)   Gaida v. Planning & Zoning Commission, supra, 32.

Applying the two-pronged test to the present case, the plaintiff's argument that the text changes constitute spot zoning fails.   The first prong, that the zone change concerned a small area of land, is not met.   The text changes applied to all parcels within R–45 and R–65 zones.   Even though the applicant owns property just in the R–45 zone, the evidence is clear that the text changes do not apply only to a small area owned by the developer, but apply to all parcels in the R–43 and R–65 zones.   Because the first prong is not met and both prongs are required for the court to conclude that the action of the commission constituted spot zoning, the plaintiff's spot zoning argument fails.

C

The Commission's Modifications

The plaintiff argues that the commission made changes to the proposed text changes offered by the applicant.   The decision to make these changes, according to the plaintiff, occurred after the public hearings and required a new public hearing that was never held.

In zoning appeal matters, the plaintiff has the burden of proving that the zoning commission has acted improperly and in abuse of its discretion.   Konigsberg v. Board of Alderman, supra, 283 Conn. 583;  Rapoport v. Zoning Board of Appeals, 301 Conn. 22, 33, 19 A.3d 622 (2011).   Under General Statutes § 8–3(a), a zoning commission is required to hold a public hearing before any “regulation or boundary shall become effective or be established or changed.”   In the present case, the commission held three public hearings regarding textual changes to Section 58 of the Regulations.   The plaintiff relies on the fact that the commission made changes that were not in the applicant's request.   However, the record does not indicate the exact changes that were discussed at the public hearings.   Therefore, this reliance is misplaced.   The applicant's request sought to make changes to Section 58 and the commission made modifications to that request.  Section 58 was the only section that was affected by the commission's decision.   The plaintiff has not shown that the modifications made by the commission were not discussed at any of these public hearings.   Therefore, the plaintiff's argument fails because the plaintiff has not sustained its burden of showing that the board acted improperly.

III

Conclusion

After considering all of the arguments of counsel and after a review of the record, this court finds that the record supports the conclusions of the commission.   There is nothing in the record that indicates that the commission acted arbitrarily and illegally.   For the foregoing reasons, the court dismisses this appeal.

Joseph H. Pellegrino, JTR

FOOTNOTES

FN1. For purposes of this memorandum, the four named defendants will collectively be referred to as “the defendants.”.  FN1. For purposes of this memorandum, the four named defendants will collectively be referred to as “the defendants.”

Pellegrino, Joseph H., J.T.R.