North Haven Holdings Limited Partnership v. Town of North Haven Planning and Zoning Commission (2010)

MEMORANDUM OF DECISION

The plaintiff, North Haven Holdings Limited Partnership, appeals from the decisions of the defendant Town of North Haven Planning and Zoning Commission (Commission), granting the defendant North Haven Commons Development, L.P.'s (North Haven Commons) applications for a special permit (CV 08 4032208) ¹ and site plan application (CV 08 4032209) relating to the development of property at 240 Universal Drive, North Haven for a shopping center.   The plaintiff is the owner of adjacent real property known as 100 Universal Drive on which there is an existing shopping center.²

North Haven Commons applied for said special permit pursuant to the town zoning regulation § 9.1.3.7.1.³ North Haven Commons property is considered to be a ‘corner lot’ under § 9.1.3.7.1 of the zoning regulations and, as such, would normally be burdened with two front yards setbacks requirements of 75 feet each.   However, under § 9.1.3.7.1 corner lot owners in commercial and industrial districts may apply for a special permit to reduce one of those two burdensome setbacks (and have it reduced to not less than a ‘side yard’ setback).   The application for the special permit was necessary because North Haven Commons proposed dedicating a certain portion of its property over which the plaintiff has said easement which abuts the property of the plaintiff to the Town of North Haven for a public road.

The special permit and site plan applications filed by North Haven Commons also proposed the construction of a median in the center of the proposed roadway that would block the existing northernmost entry drive to the plaintiff's property from in-coming traffic from the north.   The application for a special permit and corresponding site plan application also proposed that the location of the main North Haven Commons entry driveway would be off-set from an existing drive to the plaintiff's property.

On June 2, 2008, a hearing was held by the Commission on North Haven Commons' application for a special permit and site plan approval and the town of North Haven's referral for acceptance of the public road.   The plaintiff argues that “[n]either the defendant's statements at the hearing nor any other information that they submitted into the record contained any evidence, as required under the Regulations, that the Special Permit would have no significant negative impact on traffic or property values or health, safety and welfare in the neighboring environs.”   At the hearing the plaintiff offered evidence regarding the negative impact that it would suffer if the commission granted North Haven Commons' special permit and site plan applications.

On June 2, 2008, the commission granted North Haven Commons' special permit application as well as the site plan application.   The plaintiff took their appeals from those decisions of the Commission alleging that the Commission acted illegally, arbitrarily, capriciously and in abuse of the discretion vested in it, and failed to state any reasons and/or the basis of its decision.

The plaintiff first argues that the Commission failed to give reasons for granting the special permit to North Haven Commons and its appeal should be sustained for this reason.   This, however, is not fatal.   In such a case, the trial court must search the record “to attempt to find some basis for the action taken.”  Ward v. Zoning Board of Appeals, 153 Conn. 141, 144 (1965);  Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 (1988).   This trial court did search the record.   It is quite obvious that the Commission had in mind that the granting of the special permit application it would further encourage the development of another shopping center by North Haven Commons on 240 Universal Drive which would “increase the town's property tax base,” a permitted consideration by the Commission but only if it does not have “any significant adverse impact on traffic or nearby property values ․” Regulation 9.1.3.7.2.

A review of the only traffic study which was entered into evidence before the Commission indicated that the site plan approved by the Commission would have a negative impact on plaintiff's property.⁴  In addition, the study indicates that it would result in significant traffic congestion.⁵

Furthermore, the implementation of the special permit will permanently block the existing northerly entrance to the plaintiff's property which will obviously interfere with the traffic flow to its shopping center.

Finally, it will cause buildings existing on the property of the plaintiff that presently conform to the zoning regulations to become non-conforming.   “Any extension, either in time or in space, of the use beyond the one current at the time of the passage of the ․ regulations is a proscribed extension of a nonconforming use and is certainly not consonant with the policy of the regulations themselves.”  Beerwort v. Zoning Board of Appeals 144 Conn. 731, 734 (1958).  “Zoning regulations in general seek the elimination of nonconforming uses, not their creation or enlargement.”  Baccent v. Zoning Board of Appeals 153 Conn. 44, 47 (1965).   Furthermore this will have a negative impact on the value of plaintiff's property.

The plaintiff's appeal with respect to the special permit is hereby sustained.   Because the site plan approval is dependent upon the upholding of the special permit, the appeal with respect to the site plan must also be sustained.

Judgment may enter in favor of the plaintiff in both the appeals together with taxable costs.

Berdon, J.T.R.

FOOTNOTES

FN1. The special permit was applied for by Eclipse Development Group, an entity related to North Haven Commons.   The parties to this case agreed at oral argument, that Eclipse Development Group is to be considered the same as North Haven Commons for purposes of these appeals..  FN1. The special permit was applied for by Eclipse Development Group, an entity related to North Haven Commons.   The parties to this case agreed at oral argument, that Eclipse Development Group is to be considered the same as North Haven Commons for purposes of these appeals.

FN2. As a result of the plaintiff's property abutting the property at issue, the plaintiff statutorily is aggrieved.  General Statutes § 8-8(a)..  FN2. As a result of the plaintiff's property abutting the property at issue, the plaintiff statutorily is aggrieved.  General Statutes § 8-8(a).

FN3. “9.1.3.7.1 In the case of a corner lot, to modify the front yard setbacks so that one front yard may be reduced to no less than the side yard setback (or such lesser reduction as the Commission shall deem appropriate in the circumstances;  ․”.  FN3. “9.1.3.7.1 In the case of a corner lot, to modify the front yard setbacks so that one front yard may be reduced to no less than the side yard setback (or such lesser reduction as the Commission shall deem appropriate in the circumstances;  ․”

FN4. John Meyer Consulting, P.C. report dated June 2, 2008 (Meyer's report) Exhibit Z in record of 08 4032208, stated in part:  “As indicated in this preliminary review of the North Haven Commons project, we have serious concerns relative to the alignment and operations of the existing private/proposed public roadway, which would also have a negative result on the existing North Haven Pavilion [plaintiff's] shopping center.”   Exhibit Z..  FN4. John Meyer Consulting, P.C. report dated June 2, 2008 (Meyer's report) Exhibit Z in record of 08 4032208, stated in part:  “As indicated in this preliminary review of the North Haven Commons project, we have serious concerns relative to the alignment and operations of the existing private/proposed public roadway, which would also have a negative result on the existing North Haven Pavilion [plaintiff's] shopping center.”   Exhibit Z.

FN5. “Based on the extreme delays projected for vehicles exiting North Haven Commons, it can be reasonably inferred that the exiting delays and associated queuing would impact the operations of the internal access driveways, parking spaces and the resulting ability for vehicles to enter into the shopping center.   Vehicles delayed while attempting to enter the North Haven Commons development will further degrade overall traffic operations.”   Meyer's Report..  FN5. “Based on the extreme delays projected for vehicles exiting North Haven Commons, it can be reasonably inferred that the exiting delays and associated queuing would impact the operations of the internal access driveways, parking spaces and the resulting ability for vehicles to enter into the shopping center.   Vehicles delayed while attempting to enter the North Haven Commons development will further degrade overall traffic operations.”   Meyer's Report.

Berdon, Robert I., J.T.R.