Opinion
No. CV96-0336304S
May 29, 2003
MEMORANDUM OF DECISION
The plaintiff Zoning Board of Appeals brought this appeal from the Planning and Zoning Commission's adoption of two zoning regulations, §§ 14-4 7-1 (b) and 14-4 7-1 (c), claiming that it is aggrieved by the Commission's decision in that the adoption of these regulations "will and could result in the inability of the plaintiff to properly carry out its authority pursuant to state statute, specifically Connecticut General Statutes § 8-6."
The Board contends that the adoption of § 14-4 7-1 (b) precludes the Zoning Board of Appeals from granting any use variance within certain specified zones. The Commission counters that its action in adopting § 14-4 7-1 (b) is consistent with the authority granted to it pursuant to § 8-6 (a) (3), the provision for zoning commissions to specify in its regulations "the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed."
The Board claims that the adoption of § 14-4 7-1 (c) makes any variance granted by the Zoning Board of Appeals subject to the subsequent approval by the Commission, thereby eliminating the role of the Board as the determinative authority on the granting of the variance. The Commission maintains that the regulation is simply an administrative mechanism to insure that once a variance has been granted, the development that is contemplated on the parcel will comply with all other applicable development standards set forth in the Regulations as they may pertain to the proposed use and development.
Statute and Regulations
Section 8-6 sets out the powers and duties of zoning boards of appeals:
(a) 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; (2) to hear and decide all matters including special exceptions and special exemptions under § 8-2g upon which it is required to pass by the specific terms of the zoning bylaw, ordinance or regulation; and (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed.
No such board shall be required to hear any application for the same variance or substantially the same variance for a period of six months after a decision by the board or by a court on an earlier such application.
(b) Any variance granted by a zoning board of appeals shall run with the land and shall not be personal in nature to the person who applied for and received the variance. A variance shall not be extinguished solely because of the transfer of title to the property or the invalidity of any condition attached to the variance that would affect the transfer of the property from the person who initially applied for and received the variance.
Section 14-47-1 (b) provides:
Use Variances restricted: No variance shall be granted that would allow a use otherwise prohibited in a zone as authorized by § 8-6 (a) of the General Statutes. See the Use Tables set forth for each zone.
Section 14-47-1 (c) provides:
Site Plan Review required: Site plan review by the Planning and Zoning Commission, as set forth in § 14-2 is required prior to the use and/or development of any parcel granted a variance. The purpose of such review is to determine compliance with all other applicable Development Standards of these Regulations.
Aggrievement
"The jurisdictional requirement of aggrievement serves both practical and functional purposes in assuring that only those parties with genuine and legitimate interests are afforded an opportunity to appeal . . . The factors involved in whether classical aggrievement exists are tempered by the subject matter of the litigation. A party has been classically aggrieved if it successfully demonstrates a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as the concern of all members of the community as a whole, and successfully establishes that this specific, personal and legal interest has been specially and injuriously affected by the decision . . . [A Board of Zoning Appeals] has a specific, personal and legal interest in the subject matter of [the Planning and Zoning Commission's adoption of regulations which affect] the [Board's] right to grant use variances within the town." (Internal citations omitted.) Zoning Board v Planning Zoning Commission, 27 Conn. App. 297, 302, 303 (1992).
In Zoning Board v. Planning Zoning Commission, supra, the Appellate Court upheld the trial court's finding that the Board was classically aggrieved.
Similarly, this court finds that the Board is classically aggrieved because it has a specific, personal and legal interest which was specially and injuriously affected by the Commission's action.
Scope of Review
When amending zoning regulations, a zoning commission acts in a legislative capacity. The proper, limited scope of judicial review of a decision of a local zoning commission when it acts in a legislative capacity by amending zoning regulations is well established. "[T]he commission, acting in a legislative capacity, [has] broad authority to adopt . . . amendments." D J Quarry Products, Inc. v. Planning Zoning Commission, 217 Conn. 447, 450 (1991). "In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record . . . 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 quotations omitted.) Harris v. Zoning Commission, 259 Conn. 402, 415, 416 (2002); Primerica v. Planning Zoning Commission, 211 Conn. 85, 96 (1989). "Acting in such 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 that 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. (Internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 543 (1991).
Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion." Malafronte v. Planning Zoning Board, supra, 155 Conn. 209-10. "[T]he test of the action of the commission is twofold: (1) The zone change must be in accord with a comprehensive plan, General Statutes § 8-2, Summ v. Zoning Commission, 150 Conn. 79, 87, and (2) it must be reasonably related to the normal police power purposes enumerated in § 8-2 . . ." (Internal quotation marks omitted.) Protect Hamden/North Haven v. Planning Zoning Commission, supra, 220 Conn. 544. Harris v. Zoning Commission, supra.
Discussion
The Board claims that the Commission acted illegally, arbitrarily, and in abuse of its discretion in adopting regulations that, according to the Board, result in the destruction of its statutory authority to grant variances for unusual hardship or extreme difficulty. The amendments are considered separately because each has a different effect on the ability of the Zoning Board of Appeals to exercise its authority.
Section 14-47-1 (b)
Citing Wallingford Zoning Board of Appeals et al. v. Wallingford Planning Zoning Commission et al., 27 Conn. App. 297, the Board points out that the Wallingford Planning Zoning Commission's adoption of a regulation similar to § 14-47-1 (b) was found to be improper. In the Wallingford case, the zoning commission adopted the following regulation:
Notwithstanding the provisions of the preceding, the Zoning Board of Appeals may grant a use variance in any zone upon a showing by the applicant that he cannot reasonably use his property for any of the uses permitted in the zone in which his property is located and that denial of the variance under such circumstances would constitute a constitutional taking of the property without compensation as such taking is defined by the laws of the State of Connecticut and the United States.
Wallingford Zoning Regulation 9.1.H.2(c).
In sustaining the appeal, Judge Gormley stated: The present regulation completely eviscerates the power of the plaintiff from granting variances under the commonly understood criteria set forth within Connecticut General Statutes § 8-6 and substitutes the concept of unconstitutional taking for exceptional difficulty or unusual hardship. That the defendant may not do . . . In enacting the instant amendment to Sec. 9.1.H.2, the defendants acted beyond their power. That amendment is declared invalid and unlawful, and the appeal is sustained.
Wallingford Planning and Zoning Commission, et al, 1990 Conn. Sup. 858, Docket No. 29 74 18, Superior Court, Judicial District of New Haven, August 21, 1990 (Gormley, J.) ( 2 Conn.L.Rptr. 321).
In his decision, Judge Gormley cited the 1982 case of Board of Zoning Appeals v. Town Planning and Zoning Commission of Hamden, (No. CV 81-195250 S), Superior Court, J.D. of New Haven, January 29, 1982. In the Hamden case, the amendment to the zoning regulations read as follows: "Use variances shall not be granted in districts in which such uses are not otherwise allowed nor shall use variance be granted in any district within which said use is allowed by Special Permit authorized by the Planning and Zoning Commission." In adopting this amendment, the commission relied on the 1977 amendment to Connecticut General Statutes § 8-6 ( 8-6 (3)). The court (Bogdansky, J.) held:
The legislature, in modifying § 8-6 and granting the power to specify the extent to which the power to modify by variance could be limited did not intend a wholesale destruction of that power. Rather, it contemplated the continued power in the board of appeals to vary uses because of unusual difficulties and unnecessary hardship subject, however, to regulatory control.
Board of Zoning Appeals v. Town Planning and Zoning Commission of Hamden, supra.
In affirming the trial court's decision in the Wallingford case, the Appellate Court noted that the commission did not allege that the amendment was enacted for the protection of the community's public health, safety and general welfare: "Our review of the record reveals no mention of any concerns regarding public health, safety or general welfare." Zoning Board v. Planning Zoning Commission, 27 Conn. App. 297 (1992). The Commission's position is that The Hamden and Wallingford cases are distinguishable on this basis. The Commission argues that the record with regard to its adoption of § 14-47-1 (b) provides substantial evidence that it acted only after careful consideration of the health, safety and public policy benefits to be derived by the limitation of the power of the Zoning Board of Appeals to grant variances in residential zones "consistent with the authority of the Wallingford decision that requires the Court to consider whether or not the limitation on the power of the Zoning Board of Appeals to grant use variances will protect the public health and safety." Although the record on appeal does contain statements from Bridgeport residents regarding various aspects of all of the amended zoning regulations, including comments evincing concerns about population density and crime, it does not support the wholesale destruction of the board's ability to grant a use variance under circumstances set out in Connecticut General Statutes § 8-6 (a) (3).
In Lizotte v. Conservation Commission, 216 Conn. 320 (1990), the plaintiffs challenged the validity of a local regulation prohibiting the location of a septic system within 150 feet of an inland wetland or watercourse. They contended that the regulation was invalid because the enabling statute authorized only "necessary" regulations and the blanket prohibition was not necessary. Id., 336. The Connecticut Supreme Court held: "prohibitions of activities are within the police power of a municipality if they are rationally related to the protection of the public health, safety and welfare, and that a municipality may rationally conclude that prohibition of a risky activity is more appropriate than case-by-case analysis. Id., 334, 337. In Beacon Falls v. Posick, 212 Conn. 570 (1989), Connecticut Supreme Court upheld a trial court's finding that zoning regulations prohibiting a town dump:
According to the parties at oral argument, the trial court took evidence on the issue of whether the regulations were supported by a rational basis. The first selectman of Beacon Falls testified at trial about the reasons for the prohibition. In its memorandum of decision, the trial court concluded that "the town properly could have determined that its geographical situation and its resources were such that the presence of a dump or dumps would over-tax the abilities of the town to cope with the problems which would arise with respect to a reasonable need to serve some phase of the public health, safety or general welfare constituted in the administration, constant land checks, daily traffic census, supervisory control and the constant legal consultations pertaining thereto.
Id., 585.
In the above-noted cases, specific activities were prohibited. The instant case presents a different situation. Here, the commission is not prohibiting an activity; rather, it is prohibiting a legislatively-authorized Board from exercising its statutory powers. The amendment is not a limitation; it is a complete divestment of the Board's statutory powers to grant use variances under conditions specified in Connecticut General Statutes § 8-6. As such, it cannot stand. In adopting the amendment, the defendant acted beyond its power.
Section 14-47-1 (c)
The board claims that § 14-47-1 (c) operates to eliminate the role of the Zoning Board of Appeals as the determinative authority on the granting of the variance. The commission counters that it properly adopted the amendment pursuant to Connecticut General Statutes § 8-3 (g) which provides, in relevant part: "The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations." According to the Commission, the regulation "simply requires that once a variance is obtained, the property owner must submit a site plan review application to the Commission to allow the Commission to review the proposal in order to determine that it complies with the Commission's site plan standards and all other applicable provisions of the zoning regulations." (Emphasis supplied.)
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. The agency has no independent discretion beyond determining whether the plan complies with the site plan regulations and applicable zoning regulations incorporated by reference. `A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations.'" R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1993) § 2.2, pp. 17-18; Connecticut Res. Rec. Auth. v. Plan. Zoning Conn., 46 Conn. App. 566, 570 (1997).
The court agrees with the Commission's position that the mandatory site plan review does not inappropriately contradict, limit or displace the authority of the Board to grant variances pursuant to § 8-6 of the General Statutes. The adoption of § 14-47-1 (c) is not contrary to law and not an abuse of the Commission's broad discretion.
Conclusion
For the reasons stated above, the appeal is sustained with regard to the Commission's adoption of § 14-47-1 (b) and dismissed with regard to the adoption of § 14-47-1 (c).
Gallagher, J.