Opinion
No. CV 06 401 58 24
November 27, 2007
MEMORANDUM OF DECISION
The plaintiffs, Cross Hill Associates and R and R Properties, appeal from a decision of the defendant, the Planning and Zoning Commission of the town of Monroe (commission), in which the commission granted a request for a special exception permit. The plaintiffs filed identical briefs on May 17, 2007, and at trial on October 9, 2007, their cases were consolidated.
The plaintiffs are business owners in Monroe and are abutting neighbors of the proposed construction site. (Return of Record [ROR], Exhibit 4.) The plaintiffs are challenging the granting of a special exception permit, which allowed the defendant, Stop and Shop Supermarket Co., to construct a 70,586-square-foot retail building. (ROR, Exhibit 4.) The property is located in a DB-1 zone. (ROR, Exhibit 4.) The defendant applied for the permit on January 4, 2006. (ROR, Exhibit 4.) A hearing was scheduled by the commission for January 19, 2006. (ROR, Exhibit 12.) The plaintiffs attended the public hearing along with their representative, Attorney Whitehead, but were not able to produce their traffic expert at that time. (ROR, Exhibit 12.) On February 16, 2006, a continued hearing was conducted and the traffic engineer filed a report and testified on behalf of the plaintiffs. (ROR, Exhibit 12.)
This appeal was tried to this court on October 9, 2007. The plaintiffs appeared, as well as the attorneys for the commission and the defendant.
General Statutes § 8-8 governs an appeal from a decision of a zoning board of appeals. An appeal to the court from an administrative body exists "only under statutory authority . . . Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed." (Internal quotation marks omitted.) Nine State Street, LLC v. Planning Zoning Commission, 270 Conn. 42, 46, 850 A.2d 1032 (2006).
A person must be aggrieved in order to have standing to maintain an administrative appeal. Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). Pleading and proof of aggrievement are prerequisites to the court's jurisdiction over a plaintiff's appeal. Id., 664. Aggrievement is a factual question for the trial court. Id., 665.
Here the plaintiffs allege aggrievement as the owners of abutting parcels of land. At trial on October 9, 2007, the plaintiffs testified and this court found the plaintiffs to be aggrieved.
General Statutes § 8-8(b) provides that "[an] appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes."
General Statutes § 8-8(f)(2) further provides that "[f]or any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57." Section 52-57(b) states that "[p]rocess . . . shall be served as follows: (5) against a board . . . provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board . . ."
The commission published notice of its decision in the Connecticut Post on March 20, 2006, and, on March 28, 2006, the appeal was commenced by serving two copies upon the town clerk. (ROR, Exhibits 8 and 35.)
Accordingly, the proper parties were served in a timely manner.
"A special exception allows a property owner to put his property to a use which the regulations expressly permit under the conditions specified in the zoning regulations themselves." Shell Oil Co. v. Zoning Board of Appeals, 156 Conn. 66, 68, 238 A.2d 426 (1968). "The zoning regulations, and not the board, determine what uses may be allowed as special exceptions. The function of the board in this connection is to determine whether or not a proposed use falls within one of the special exceptions expressly permitted by the regulations." Jeffery v. Planning Zoning Board of Appeals, 155 Conn. 451, 461, 232 A.2d 497 (1967).
"When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity." (Internal quotation marks omitted.) Irwin v. Planning Zoning Commission, 244 Conn. 619, 627, 711 A.2d 675 (1998). "Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 697, 784 A.2d 354 (2001).
"In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) Id. "Although a zoning commission or board possesses the discretion to determine whether a proposal meets the standards established in the regulations, it lacks the discretion to deny a special permit if a proposal satisfies the regulations and statutes . . . [G]eneral considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit." (Citation omitted; emphasis in original; internal quotation marks omitted.) Oakbridge/Rogers Avenue Realty, LLC v. Planning Zoning Board, 78 Conn.App. 242, 247, 826 A.2d 1232 (2003).
On appeal, "[t]he Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "Courts are not to substitute their judgment for that of the board . . . and the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing." Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206. "The trial court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board's] findings . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Internal quotation marks omitted.) Oakbridge/Rogers Avenue Realty, LLC v. Planning Zoning Board, supra, 78 Conn.App. 247.
These are administrative appeals from a final decision of the commission, granting Stop and Shop's application for a special exception permit. The plaintiffs appeal on the basis that the commission acted illegally, arbitrarily and in abuse of its discretion in that: (1) the commission did not hold a proper hearing on Stop and Shop's application, precluding evidence and testimony beyond traffic issues; and (2) the commission ignored the testimony and report of the plaintiffs' traffic expert. (Complaint, ¶ 10.)
The General Statutes address the procedure for granting special exception permits in the General Statutes § 8-3c(b). That statute provides in relevant part: "The zoning commission or combined planning and zoning commission of any municipality shall hold a public hearing on an application or request for a special permit or special exception, as provided in section 8-2, and on an application for a special exemption under section 8-2g . . . Notice of the time and place of such hearing shall be published in a newspaper having a substantial circulation . . . at such hearing any party may appear in person and may be represented by agent or by attorney."
The following grounds were also included in the appeal but were not briefed by the plaintiffs: (1) the commission was predisposed in favor of Stop and Shop; (2) Stop and Shop's application was incomplete; (3) the commission would not find the application would not be detrimental to property values in the neighborhood; (4) the commission did not find that the streets were adequate for the proposed traffic changes; (5) the commission did not find adequate off-street parking would be provided.
The plaintiffs allege that the commission's improper conduct violated their common-law right to fundamental fairness. "While proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence . . . nevertheless, they cannot be so conducted as to violate the fundamental rules of natural justice . . . Due process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act, to cross-examine witnesses and to offer rebuttal evidence. The commission could not properly consider additional evidence submitted by an applicant after the public hearing without providing the necessary safeguards guaranteed to the opponents of the application and to the public. This means a fair opportunity to cross-examine witnesses, to inspect documents presented and to offer evidence in explanation or rebuttal." (Citations omitted; internal quotation marks omitted.) Pizzola v. Planning and Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974).
"The only requirement [in administrative proceedings] is that the conduct of the hearing shall not violate the fundamentals of natural justice." Grimes v. Conservation Commission, 243 Conn. 266, 273, 703 A.2d 101 (1997). "The burden is on the plaintiff to show that the commission acted improperly." Id., 278.
In this case, the plaintiffs have not met their burden of proving a violation of fundamental fairness. First, the facts do not support their claim. Here, the plaintiffs had notice of the hearing and advice and representation of counsel. At the first hearing, the plaintiffs were unprepared to put forward a traffic engineer. At the continued hearing, however, on February 23, 2007, they were allowed to both file a report and have their expert testify. In their appeal, they claim that they were not allowed to bring forward evidence or testimony and that they were foreclosed from bringing forth evidence outside of the issue of traffic. The plaintiffs did put forth evidence and testimony at the second hearing. (ROR, Exhibit 12.) Consequently, the plaintiffs have not met their burden.
There is no evidence in the record that the plaintiffs took issue with the project for reasons other than traffic, and the plaintiffs did not brief other issues included in the appeal.
The plaintiffs rely on the Grimes case for support. At issue in Grimes was whether the plaintiff was provided notice of a hearing, which allegedly was held contemporaneously with a site inspection. As a result, the present case is easily distinguished from Grimes. In Grimes, there was inadequate notice to the aggrieved parties and an unconventional hearing; the fundamentals of fairness were clearly at issue. Nevertheless, the Grimes court ultimately determined that the special notice sought by the plaintiff would be "unnecessarily burdensome." Grimes v. Conservation Commission, supra, 243 Conn. 281. Likewise, in the present case, providing the plaintiffs with a third opportunity to present evidence and rescinding the special permit for the defendants would be an extraordinary measure in light of the commission's compliance with the procedures.
Based upon the foregoing reasons, the plaintiffs' appeal is dismissed.