Opinion
No. CV 02-0459707 S
June 3, 2003
MEMORANDUM OF DECISION
FACTS
The Plaintiff, C K Real Estate, LLC, brings this appeal challenging amendments to the Guilford Zoning Regulations and the zoning map, voted by the Defendant Guilford Planning and Zoning Commission.
C K Real Estate, LLC, owns two contiguous parcels located on the Boston Post Road (U.S. Route 1), just north of Exit 57 of Interstate 95.
The property, known as the "Russo Property" or "The Rockpile," is unimproved, and consists of 23.56 acres.
Following extensive study, and public hearings, the Guilford Planning and Zoning Commission voted to amend both the zoning regulations, and the zoning map of the Town of Guilford.
By its December 17, 2001 vote, the commission placed both of the Plaintiff's properties in a new Service Center West (SCW) District. (ROR 014; ROR 124.)
The new zoning district is composed of four parcels, including existing retail and office uses. (ROR 125, p. 16-17.)
Thirteen permitted uses are designated for the SCW District, including retail stores, offices, restaurants, and personal service establishments. (ROR 097, p. 16.)
Prior to the action from which this appeal originates, the Plaintiff's parcels were located partially within three zones, and were subject to an overlay zone. (ROR 127, S. 273-93.)
The overlay zone regulation contained a provision which expressed a preference for business and professional offices and light manufacturing, rather than retail stores, restaurants, and automotive services.
Section 273-93E(3), Guilford Zoning Regulations (ROR 127).
The regulations applicable to the new Service Center West (SCW) District include a provision limiting the square footage of buildings devoted to retail use.
The provision, § 273-205 — Maximum Building Size, reads:
No free standing retail building shall exceed 25,000 sq. ft. and no single related or integrated retail store use shall exceed 25,000 sq. ft. cumulatively, except that one 40,000 sq. ft. retail facility may be allowed in this District by Special Permit in accordance with 273-118.
The Plaintiff's property has been the subject of development proposals, which did not materialize.
In 1992, the Guilford Planning and Zoning Commission approved a large-scale retail development for the site. (ROR 128, 129, 130 and 131.)
The approval for that project lapsed in 1997.
In 1999, the plans were resubmitted, prior to the commission instituting a moratorium on development in January 2000. (ROR 136.)
Although the moratorium did not apply to the Plaintiff's proposal, the application was withdrawn in March 2000.
The commission's December 17, 2001 vote followed an extensive review of the zoning regulations and map applicable to Route 1 West, an area stretching from Dunk Hill Road, to the border with Branford. (ROR 14.)
Initiating a model which had been used to evaluate land use needs on the eastern portion of Guilford's Route 1, the Guilford Planning and Zoning Commission appointed the Boston Post Road West Design Study Committee.
The committee of 13 persons was composed of the Town Planner, members of the commission, and a diverse collection of persons interested in economic development and preservation.
The committee held its first meeting on December 18, 2000, and met 25 times (ROR 022 through 047) over the next eight months.
The committee performed an exhaustive review of the zoning classifications affecting Route 1 properties, and the applicable regulations.
It made periodic reports to the Guilford Planning and Zoning Commission, held two joint meetings with the commission, and conducted two public forum workshops.
On August 30, 2001 (ROR 48), the committee tendered its report to the Guilford Planning and Zoning Commission.
The committee was divided on the issue of whether large stores containing up to 60,000 square feet should be permitted, since large stores are more conducive to a regional shopping center concept.
Six members of the committee filed a minority report, expressing opposition to the 60,000 square foot proposal. The minority report made specific reference to the Plaintiff's property, and the opposition of the community to hosting a regional shopping center. (ROR 66.)
The divisions reflected within the Boston Post Road West Planning Committee on this issue were mirrored during the public hearing process which followed receipt of the reports by the commission.
The public hearings, conducted on November 26, 2001 and December 5, 2001, produced comments in favor of, and in opposition to, large retail outlets.
Opponents maintained that Guilford should not be the site of a regional shopping complex, and that "big box" stores are inconsistent with the notion that Route 1, north of Exit 57, should be a "gateway" to the community. (ROR 125, p. 131-32.)
Others countered that large stores were a necessity, in order to provide an anchor for any shopping center, and to make any development economically feasible. (ROR 125, p. 105-06.) The commission, in voting to amend its regulations and zoning map, vote to limit retail store size in the SCW Zone to 25,000 sq. ft., subject to further review at a later time. (ROR 124, p. 1.)
In approving the amendments to the regulations and the zoning map, the commission specifically found that the amendments conform to the Comprehensive Plan of Development and Conservation dated August 18, 1978, revised March 1991, with specific reference to Section 2.7. (ROR 078, p. 9-10.)
Section 2.7 declares special features are "(c) to emphasize retail and commercial uses for services to Guilford residents, avoiding regionally oriented major projects."
Notice of the adoption of the amendments was published in The Guilford Courier on December 27, 2001.
This appeal followed.
AGGRIEVEMENT
C K Real Estate, LLC is the owner of two parcels totaling 23.56 acres, having acquired title via a quitclaim deed dated December 30, 1999, and recorded March 16, 2000. (Exhibit 1.)
The property has been owned by the Plaintiff at all times during the pendency of this appeal.
The property is situated within the area affected by the changes in the zoning regulations and the zoning map voted by the Guilford Planning and Zoning commission on December 17, 2001.
Pleading and proof of aggrievement are jurisdictional prerequisites to a trial court's jurisdiction over the subject matter of an appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996); Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 307 (1991).
The question of aggrievement presents an issue of fact. Hughes v. Town Planning Zoning Commission, 156 Conn. 505, 508 (1968).
Section 8-8 (a) (1) of the General Statutes defines "aggrieved person" to mean "a 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."
As the owner of land within the zone created by the commission, the Plaintiff is statutorily aggrieved by the action of the Guilford Planning and Zoning Commission. Timber Trail Corporation v. Planning Zoning Commission, 222 Conn. 374, 376 n. 3 (1992); Cole v. Planning Zoning Commission, 30 Conn. App. 511, 515 (1993).
A statutorily aggrieved party may challenge the adoption of regulations, without the necessity of proving that any injury has been sustained. Lewis v. Planning Zoning Commission, 62 Conn. App. 284, 297 (2001).
It is therefore found that the Plaintiff, C K Real Estate, LLC, is statutorily aggrieved by the action of the Guilford Planning and Zoning Commission from which this appeal originates.
Because the Plaintiff is statutorily aggrieved, it is not necessary to consider whether it might also be able to establish classical aggrievement. McNally v. Zoning Commission, 225 Conn. 1 (1993).
STANDARD OF REVIEW
When it acts to amend its regulations, or to change the zoning classification of property, a planning and zoning commission sits in a legislative capacity, rather than in an administrative or quasi-judicial capacity. D J Quarry Products, Inc. v. Planning Zoning Commission, 217 Conn. 447, 450 (1991); First Hartford Realty Corporation v. Planning Zoning Commission, 165 Conn. 533, 540 (1973).
When acting as a legislative body, a commission is the formulator of public policy, and its discretion is much broader than that of a body acting in an administrative or quasi-judicial capacity. Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 543 (1991); Malafronte v. Planning Zoning Board, 155 Conn. 205, 209 (1967).
In the exercise of its discretion, a commission is free to amend its regulations and/or zoning map, whenever time, experience, and reasonable planning for contemporary or future conditions reasonably indicate the need for a change. Kaufman v. Zoning Commission, 232 Conn. 122, 150 (1995).
Zoning must be sufficiently flexible to meet changing conditions, and a commission's action should not be disturbed by a court unless it has acted arbitrarily or illegally. Burnham v. Planning Zoning Commission, 189 Conn. 261, 265 (1983).
Conclusions reached by the commission must be upheld, 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. Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).
The decision of a commission must be upheld, if it is supported by substantial evidence. The substantial evidence rule requires enough evidence to justify, if the trial was to a jury, the refusal to direct a verdict when the conclusion sought to be drawn is one of fact. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 541 (1987). The possibility of drawing two inconsistent conclusions does not prevent a decision from being supported by substantial evidence. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).
Broad discretion is vested in a municipal zoning authority when defining public needs, because the commission is much closer than any court to the circumstances and conditions which create the problem, and shape the solution. Raybestos-Manhattan, Inc. v. Planning Zoning Commission, 186 Conn. 466, 470 (1982); Stiles v. Town Council Commission, 159 Conn. 212, 219 (1970).
Questions concerning the credibility of witnesses, and the determination of issues of fact, are matters solely within the province of the commission to determine. Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 697 (1993).
The test to be applied to the action of a commission, acting upon a change in zoning classification is two-fold: 1) the change must be in accordance with the comprehensive plan, and 2) it must be reasonably related to the normal police powers enumerated in § 8-2 of the General Statues. First Hartford Realty Corporation v. Planning Zoning Commission, supra, 541.
The comprehensive plan of a municipality consists of the zoning regulations themselves. Burnham v. Planning Zoning Commission, supra, 267; Damick v. Planning Zoning Commission, 158 Conn. 78, 83 (1969).
The party challenging the action of an administrative agency assumes the burden of proving that substantial evidence does not exist in the record, to support the agency's decision. Feinson v. Conservation Commission, 180 Conn. 421, 425 (1980).
At its December 17, 2001 meeting, the Defendant Guilford Planning and Zoning Commission specifically determined that the amendments to the zoning code and the zoning map conformed to the plan of development (ROR 124, p. 4), as required by § 8-3 (a) of the General Statutes.
Section 8-3 (a): "(a) In a municipality which has a combined planning and zoning commission . . . the commission shall state on the record its findings on consistency of a proposed zoning regulation or boundaries or changes thereof, with the plan of development of the municipality."
However, as the Plaintiff alleges, the commission failed to state specific reasons for its action, as required by law.
Section 8-3 (c): "(c) . . . Whenever such commission makes any change in a regulation or boundary it shall state upon its records the reason why such change is made."
Where the agency fails to state reasons in support of its decision, a court should search the entire record to determine if substantial evidence exists to support the conclusion reached. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 (1988); Parks v. Planning Zoning Commission, 178 Conn. 657, 662 (1979).
AMENDMENT TO REGULATIONS LIMITING THE SIZE OF RETAIL STORES IS NOT ILLEGAL, ARBITRARY OR IN EXCESS OF THE COMMISSION'S AUTHORITY
The Plaintiff first claims that the commission has no authority, pursuant to § 8-2 (a) of the General Statutes, to limit the square footage of retail stores.
Section 8-2 (a) provides:
The zoning commission of each city town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures . . . for trade, industry, residence or other purposes . . .
In Builders Services Corporation v. Planning Zoning Commission, 208 Conn. 267, 275-76 (1988), the Connecticut Supreme Court rejected an argument claiming that a municipal planning and zoning commission had no authority to prescribe minimum floor area requirements.
The Court noted that § 8-2 permits a commission to regulate the "size" of buildings, and concluded that the authority to regulate a building's size includes the authority to regulate floor area. This conclusion was reached in light of the entire statutory scheme found in § 8-2, C.G.S. Builders Services Corporation v. Planning Zoning Commission, supra, 277-78.
There is no reason why the rationale concerning minimum floor area should not apply with equal force to regulations limiting the maximum floor area in retail stores. Savings Bank of Rockland v. Town of Tolland, 1996 WL 686902 (Conn.Super. 1996) (Klaczak, J.) ( 18 Conn.L.Rptr. 275).
The commission's decision to limit the floor area of retail stores is consistent with a desire, expressed during the public hearing process, to avoid regional shipping centers, while providing needed services to town residents.
The commission's decision is amply supported by the record.
Although the topic of limiting the floor area of retail stores provided intense and passionate debate, the commission resolved the issue by opting against "big box" stores, and shopping centers which would serve as a draw for a regional clientele.
While acknowledging a desire to revisit the issue (ROR 124, p. 1), the commission endorsed the approach recommended by six members of the Boston Post Road West Design Study Committee, in the minority report.
The Plaintiff, while free to disagree with the conclusion, has failed to demonstrate that the decision was arbitrary, illegal, or not supported by substantial evidence.
The fact that the commission determined not to follow some of the advice provided by consultants and experts, does not render the decision arbitrary, or in abuse of the discretion vested in a zoning agency sitting in a legislative capacity. A commission is not required to believe any witness, even an expert. Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697 (1980).
The record does not support the Plaintiff's claim that its property was uniquely and selectively targeted concerning the desire to avoid "big box" stores.
Other zoning districts along Route 1, as established by the commission, are even more restrictive concerning floor area limitations and retail uses. (ROR 097, § 273-182; § 273-183; § 273-187; § 273-188; § 273-194; and § 273-200.)
The record overwhelmingly supports a finding that the challenged regulations and zoning map are in accordance with Guilford's comprehensive plan, and are reasonably related to the police powers contained in § 8-2 of the General Statutes.
CHANGES IN THE ZONING REGULATIONS AND THE ZONING MAP ARE NOT INCONSISTENT WITH GUILFORD'S PLAN OF DEVELOPMENT
Plaintiff's contention that the amendments to the regulations and the zoning map are inconsistent with Guilford's Plan of Development is not supported by the record.
Furthermore, even if inconsistency could be demonstrated, that fact would not serve as a basis for sustaining the appeal.
In voting the amendments on December 17, 2001, the commission made a specific finding that both the amendments to the regulations and those to the zoning map conformed to the comprehensive Plan of Development dated August 18, 1978, revised March 1991. (ROR 124.)
The commission made specific reference to § 2.7, which urges "avoiding regionally oriented major projects."
The commission clearly complied with General Statues § 8-3a (a), when it found that the amendments were consistent with the plan of development.
It is equally clear that the commission complied with the portion of § 8-2 of the General Statutes, which states: "in adopting . . . regulations the commission shall consider the plan of conservation and development prepared under section 8-23."
The record is replete with evidence to support a finding that the commission's action is consistent with the municipal plan of development.
However, even if the court believed that the challenged amendments were inconsistent with the plan of development, that finding would not aid the Plaintiff
A master plan of conservation and development, adopted pursuant to § 8-23, C.G.S., represents a commission's recommendations for the most desirable use of land. Furthery v. Zoning Commission, 159 Conn. 585, 598 (1970); Mott's Realty Corporation v. Town Plan Zoning Commission, 152 Conn. 535, 538 (1968).
"The commission shall prepare, adopt and amend a plan of conservation and development for the municipality. Such plan shall show the commission's recommendations for the most desirable use of land."
Although the plan of development is controlling as to municipal improvements and the regulation of subdivisions of land; Purtill v. Town Plan Zoning Commission, 146 Conn. 570, 572 (1959); Levinsky v. Zoning Commission, 144 Conn. 117, 123 (1956); the master plan does not control the zoning board in its enactment of zoning regulations, or changes of zone. In those instances, the plan is merely advisory. Lathrop v. Planning Zoning Commission, 164 Conn. 215, 223 (193); Sheridan v. Planning Board, 159 Conn. 1, 9 (1969).
Commentators have also discouraged the notion that the Master Plan of Development should control zoning decisions, arguing that any change in established law would restrict a zoning commission's flexibility in the control of land use and development. Robert A. Fuller, Land Use Law and Practice (second editions), § 4.4 p. 55 (1999).
A finding of inconsistency with the plan of development does not foreclose a determination that the commission's decision is supported by substantial evidence.
PLAINTIFF HAS FAILED TO DEMONSTRATE PREDISPOSITION OR BIAS BY THE COMMISSION OR ANY OF ITS MEMBERS
The Plaintiff claims that the Defendant Guilford Planning and Zoning Commission predetermined its action regarding the Plaintiff's property prior to the public hearing process.
While a Plaintiff may offer evidence at trial in support of a claim of predisposition; Lage v. Zoning Board of Appeals, 148 Conn. 597, 604 (1961); C K Real Estate, LLC declined the invitation to offer additional evidence.
No claim was made by the Plaintiff, either in its brief or at trial, concerning any predisposition by any individual commission member.
No evidence was offered concerning any alleged conflict of interest by a commission member, nor was any claim made that a commission member should have recused himself or herself from voting on the amendments, because of an interest in the outcome, financial or personal.
Section 8-11, Connecticut General Statutes.
There is no indication that the commission received any information ex-parte, without providing to the Plaintiff or others the right to cross-examine and rebut the information. Pizzola v. Planning Zoning Commission, 167 Conn. 202, 207 (1974).
The Plaintiff does not question the fundamental fairness of the public hearing process, or claim that the conduct of the hearings violated fundamentals of natural justice and fairness. Grimes v. Conservation Commission, 243 Conn. 266, 273 n. 11 (1997); Miklus v. Zoning Board of Appeals, 154 Conn. 399, 406 (1967).
There is a presumption of regularity in the proceedings of a commission. Rado v. Board of Education, 216 Conn. 541, 556 (1990); Murach v. Planning Zoning Commission, 196 Conn. 192, 205 (1985).
In order to prevail on a claim of predisposition, and to overcome the presumption that members of an agency acted properly, the plaintiff must show actual bias, not merely potential bias. OG Industries, Inc. v. Planning Zoning Commission, 232 Conn. 419, 429 (1995).
Evidence sufficient to maintain a claim of predisposition must demonstrate that the challenged commission members had actually made up their minds prior to the public hearing, regardless of any argument which might have been presented. Woodburn v. Conservation Commission, 37 Conn. App. 166, 175 (1995).
No such finding can even be suggested, based upon a complete review of the record.
The record reveals a comprehensive review of the zoning map and the regulations applicable to the western portion of Route 1 in Guilford.
The process was characterized by a give-and-take on many issues concerning land use, in which minority reports were permitted, and were sometimes heeded.
A special committee was formed to study land use along Route 1, and the commission availed itself of both public input, and professional expertise.
Despite an assertion in the Plaintiff's brief that evidence of predisposition would be forthcoming, none was offered at trial.
There is no basis for a finding that the hearing process was unfair, or that individual commission members did not act in an appropriate fashion.
The claims of predisposition are utterly without foundation.
CONCLUSION
The decision of the Defendant Guilford Planning and Zoning Commission to amend its regulations and zoning map is supported by substantial evidence in the record.
The Plaintiff's appeal is therefore DISMISSED.
Radcliffe, J.