Opinion
No. 124066
May 16, 2003
MEMORANDUM OF DECISION
This an appeal by plaintiffs, John F. Fedus, Alyce Daggett, Rose Fedus, Mae Fedus and Steve Fedus, Jr., from a decision of the Colchester Zoning and Planning Commission to change the zone of certain property within the Town of Colchester.
For reasons hereinafter stated, the decision of the Commission to change the zone is affirmed.
This appeal is brought under the provisions of Connecticut General Statutes §§ 8-9 and 8-8. Section 8-8b limits appeals to persons aggrieved by the decision appealed from. Pleading and proof of aggrievement are essential to establish subject matter jurisdiction over an appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996). The question of aggrievement is essentially one of standing. McNally v. Zoning Commission, 225 Conn. 1, 5-6 (1993).
Two broad yet distinct categories of aggrievement exist, classical and statutory. Lewis v. Planning Zoning Commission, 62 Conn. App. 284, 288 (2001). Statutory aggrievement exists by legislative fiat. In cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation. First it must be determined if plaintiffs have established classical aggrievement. The fundamental test for determining classical aggrievement encompasses a well-settled, twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community of the whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specifically and injuriously affected by the decision. Harris v. Zoning Commission, 259 Conn. 402, 410 (2002).
Plaintiff, John F. Fedus, testified that he owned a parcel of land described as Lot 7-1 on a map 3-9 and 3-7 returned to court as a part of the record as item 2-C. He also testified that plaintiffs, Alyce Daggett, Steven Fedus, Jr., Mae Fedus and Rose Fedus, also had an interest in this property. Mr. Fedus testified that the tract was zoned as Industrial, but had been changed to Transitional Business District. He also testified that he owns Lot 9 as shown on the same map which had been in the R-60 residential zone before the change. Mr. Fedus also testified as to his ownership of other property which had been changed to Transitional Business District.
Alyce Daggett testified that she owned Lot 1, a four-acre lot at 4 McDonald Road. She confirmed that she also owned this property at the time of the zone change. According to her testimony, this property was changed from residential to transitional business.
The return of record contains a document entitled "Transitional Business District Properties as Identified in the PCD Effective 2/1/01, Public Hearing 11/7/01, 7:00 p.m." This document listed properties utilized by defendant Commission to give notice to property owners at the time of the zone change. The list includes the following: 3-9 Lot 7-1 John F. Fedus, et al, 35 Fedus Road. Also, 3-9 Lot 9, John F. Fedus, et al, 35 Fedus Road and 3-9 Lot 10, 35 Fedus Road, John F. Fedus, et al. The list also indicates that on Map 3-9, Lots 4 and 5 were listed together with the name of John F. Fedus and John F. Fedus, et al. Lot 2 (partial) on map 3-7 is listed under the name of John F. Fedus, et al. Alyce Daggett does not appear to be listed on the form.
In his testimony, Mr. Fedus used the present tense indicating that he and his relatives owned the property at the time of trial. The following testimony involving Lot 7-1 illustrates this point.
Q All right. You own that property?
A Yes, I do with four of my relatives.
From the evidence in the record and the testimony at trial, it must be concluded that at all times relevant to the issues involved here all plaintiffs had an interest in real property within the area subject to the zone change.
Proof of aggrievement is a prerequisite to the trial court's jurisdiction over the subject matter of this appeal. The burden of proof is on the plaintiffs to establish aggrievement, and unless this is proven, they have no standing to appeal. Beckish v. Manafort, 175 Conn. 415, 419 (1978). The establishment of classical aggrievement involves an analysis of the evidence in relation to a twofold test: "First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision; as distinguished from a general interest such as is the concern of all members of the community as a whole. Secondly, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision." Walls v. Planning Zoning Commission, 176 Conn. 475, 477-78 (1979). Here, there was evidence leading to the conclusion that all of the plaintiffs had an interest in the property subject to the zone change. Part owners of property are not precluded from establishing aggrievement. Hayden v. Zoning Board of Appeals, 26 Conn. Sup. 168 (1965).
Proof of plaintiff's ownership of the property subject to the zone change was by parol evidence. No deeds were put into evidence. In situations, such as we have here, where title, or ownership of property is only collaterally involved, the best interest rule does not apply and ownership may be established by parol evidence from one qualified to speak. Farr v. Zoning Board of Appeals, 139 Conn. 577, 582-83 (1953).
There was evidence that plaintiffs owned land which had been zoned industrial and other land which had been zoned R-60. By the zone change now on appeal, this property had been changed to the Transitional Business District. There was also evidence that plaintiff, John Fedus, owns a 74-acre tract that was divided about in half by the zone change.
Mr. Fedus testified that he operated a gravel bank on a portion of the 74-acre tract. He stated that this property had been changed to the Transitional Business District and that gravel banks were not an allowed use in the new zone. A review of the zoning regulations, however, reveals that, although excavations are allowed in the industrial and R-60 zones by special permit, gravel banks do not appear to be specifically allowed in any district. Presumably, Mr. Fedus' gravel bank is a nonconforming use which will be unaffected by the zone change.
The zone change did not affect all property in the Town of Colchester. The direct effect of the zone change was limited to those persons who owned property in the zones changed to Transitional Business District. Plaintiffs have proven that they have substantial interest in land within the area subject to the zone change. In Harris v. Zoning Commission, 259 Conn. 402 (2002) at pp. 414-15, the Supreme Court in reviewing a similar factual situation stated, "In the present case, the trial court reasonably could have concluded from the evidence presented that the amendment, in practice, affects only a limited portion of land in the town, that the plaintiffs own some of the effective land, and that plaintiffs, therefore, have a specific personal and legal interest in the zoning commission's decision that the community as a whole does not share. Accordingly, the trial court properly concluded that the plaintiffs established the first prong of the two-part test for classical aggrievement." In this case, plaintiffs have shown by the evidence that they own substantial tracts of land within the area subject to the zone change. Plaintiffs have therefore demonstrated a specific personal and legal interest in the subject matter of the decision now before the court. This legal interest is distinguished from the general interest such as is the concern of all members of the Town of Colchester. It must be concluded then that plaintiffs have satisfied the first prong of the twofold test for classical aggrievement.
Plaintiffs claim that they are injuriously affected by the zone change. A comparison between allowable uses in the R-60 zone and the new Transitional Business District reveals significant differences. The transitional business zone allows all uses under § 4G of the regulations. This is the Business District B. Section 4G.1 states that the Business District B is designed to foster compatible business diversification. The R-60 zone in which some of the properties were formerly located, as partially stated in § 4 A.1 is designed to preserve a distinctly rural character and insure that costly sewer lines will not have to be extended to the area in the foreseeable future. The new business transitional zone would allow, by right, banquet, conferences and convention facilities (4G.2.3), hotel or motel (4G.2.4), theater building (4G.2.5), hospital or clinic (4G.2.6), as well as other uses not allowed in the area before the zone change.
The dimensional requirements in the area have also been altered as a result of the zone change. For example, the minimum lot size would be reduced from 60,000 square feet to 40,000 square feet. Minimum side and rear yard setback lines would also be altered by the zone change.
The zone change would also affect properties formerly in the industrial zone. A number of uses which were allowed by right in the industrial zone would not be allowed in the transitional business zone.
Considering all of the relevant evidence, it must be found that plaintiffs have established, beyond speculation, that they have been specifically and injuriously affected in their property and legal rights by the change in zone.
It must then be concluded that plaintiffs have proven both prongs of the two-prong test for classical aggrievement and it is therefore found that they are aggrieved and have standing to prosecute this appeal.
It would appear that there is authority for concluding that plaintiffs are statutorily aggrieved. Statutory aggrievement exists for a legislative fiat, not judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation. Cole v. Planning Zoning Commission, CT Page 6839 30 Conn. App. 511, 514-15 (1993).
Connecticut General Statutes § 8-8 (a) (1) provides, in part: "In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission, or zoning board of appeals, `aggrieved person' includes any person owning land that abuts or is within a radius of 100 feet of any portion of the land involved in the decision of the board." In Timber Trails Corp. v. Planning Zoning Commission, 222 Conn. 374 (1992), plaintiffs appealed from a decision to increase lot size in a zone within which plaintiffs owned property. The Supreme Court determined that the plaintiffs were statutorily aggrieved. This conclusion was made without any analysis. The court concluded "as owners of land in zone B, the plaintiffs are aggrieved parties. See General Statutes § 8-8 (b)." Timber Trails Corp. v. Planning Zoning Commission, supra, 376, n. 3. In Lewis v. Planning Zoning Commission, 62 Conn. App. 284, 297 (2001), with facts similar to the case at bar, it was determined that the owners of land within the affected zone were statutorily aggrieved by a zoning amendment. See also Cole v. Planning Zoning Commission, 30 Conn. App. 511 (1993).
Based upon the above cases and the statute, it must be concluded that plaintiffs are statutorily aggrieved as well as classically aggrieved and have standing to prosecute this appeal.
In deciding the issues presented by the appeal, the Court is limited in its scope of review by statute and applicable case law. Review of the decisions of local zoning authorities is limited to a determination, principally on the record before the Commission, whether the Commission abused the discretion vested in it. Tazza v. Planning Zoning Commission, 164 Conn. 187, 191 (1972). This Court can sustain the appeal only upon determination that the action taken by the Commission was unreasonable, arbitrary and illegal; it must not substitute its judgment for that of the local Commission and must not disturb the decision of the Commission as long as honest judgment has been reasonably and fairly exercised. Baron v. Planning Zoning Commission, 22 Conn. App. 255, 257 (1990). Conclusions reached by the Commission must be upheld by the Court if they are reasonably supported by the record. Primerica v. Planning Zoning Commission, 211 Conn. 85, 96 (1989). The question on review of the Commission's action is not whether the court would have reached the same conclusion but whether the record before the Commission supports the decision reached. Id. Although the factual and discretionary determinations of the Commission must be given considerable weight, it is for the Court to expound and apply governing principals of law. Domestic Violence Services of Greater New Haven, Inc. v. FOIC, 47 Conn. App. 466, 470 (1998).
The basic question raised in this appeal is whether or not the Commission abused its discretion in amending the zoning regulations by changing the zone of land owned by plaintiffs to Transitional Business District.
In considering this issue, the Court is mindful that a zoning commission, when changing a zone, acts in a legislative capacity, and in so doing, it has broad discretion and the Court on appeal should not substitute its judgment for that of the commission unless the appellants prove that the commission's action was clearly arbitrary or illegal. DeMeo v. Zoning Commission, 148 Conn. 68, 75 (1961); Burnham v. Planning Zoning Commission, 189 Conn. 261, 266 (1983). A zoning commission has broad discretion when it acts within its prescribed legislative powers. First Hartford Realty Corporation v. Plan Zoning Commission, 165 Conn. 533, 540 (1973). The question on appeal is not whether the court would have reached the same conclusion as the agency, but whether the record before the Commission supports the decision reached. Burnham v. Planning Zoning Commission, supra, 189 Conn. 265.
The courts allow zoning authorities this discretion in determining the public need and the means of meeting it because the local authority lives close to the circumstances and conditions which create the problem and shape the solution. Burnham, id.
When exercising its legislative function, however, the Commission's discretion is not wholly unfettered. It must follow the law. Woodford v. Zoning Commission, 147 Conn. 30, 32 (1939).
The court is not bound to consider any claim not briefed. Shaw v. Planning Commission, 5 Conn. App. 520, 525 (1985); Moulton Brothers, Inc. v. Lemieux, 74 Conn. App. 357, 363 (2002). In their brief, plaintiffs have raised three issues: (1) plaintiffs claim that the Commission has failed to comply with the notice requirements of § 19.2.4 of the regulations; (2) the change of zone is "spot zoning;" and (3) the change of zone violates the new plan of development of the Town.
The file indicates that on November 1, 2002, plaintiffs filed a reply brief to the brief filed by defendant on October 15, 2002. Defendant's motion to strike the reply brief was granted by the court (Hurley, J.T.R). The reply brief, having been stricken, was not considered by the court.
I.
Plaintiffs claim that the Commission has failed to give notice as required by § 19.2.4 of the regulations.
Connecticut General Statutes § 8-3 (a) requires that before the boundaries of a zoning district may be changed, a duly warned public hearing must be held. In addition to such required public hearing and notice, the statute provides that a zoning commission may, by regulation, provide for "notice by mail to persons who are owners of land which is involved in or adjacent to land which is the subject of the hearing." The defendant Commission has in its regulations provided for such discretionary notice by § 12.2 entitled, "Procedures for Zone Change." Section 19.2.4, which it is claimed the Commission violated in the matter now before the court provides as follows:
19.2.4 All property owners within five hundred (500) feet of the proposed change shall be notified by the applicant by certificate of mailing or certified mail. The applicant shall bring proof of such notification to the Commission.
Section 19.2.5 of the regulations provides as follows:
19.2.5 The provisions of § 19.2 shall not apply in the case of amendments to the Town's zoning regulations and/or zoning map initiated by the Colchester Zoning and Planning Commission.
It is obvious from a reading of § 19.2 that the notice provision of § 19.2.4 was drafted to cover applications for changes of zone submitted by private parties. Such parties were required by the regulation to file an application with map and give notices to designated property owners by certified mail. It is equally obvious that changes of zone initiated by the Commission were exempt from such notice requirements. The Commission would still be required to comply with the public notice requirements of Connecticut General Statutes § 8-3 (a).
The record indicates that by letter dated August 7, 2001, Attorney Ronald A. Goldstein filed with the Commission a proposed amendment to the zoning regulations to establish a Transitional Business District. The application was filed on behalf of James Przyborowski. After discussing the proposal with members of the Town's staff, the attorneys submitted a revised proposed amendment on August 30, 2001.
Both the interim zoning enforcement officer and the interim planner reviewed the proposed change to the regulations and communicated their position with proposed changes to the Commission. The proposed amendment was reviewed by the Commission at its meeting held September 5, 2001, and it was voted to consider the amendment at a public hearing to be held September 19, 2001.
The Przyborowski amendment was considered at a public hearing, as scheduled, on September 19, 2001. The amendment was discussed by staff and the applicant spoke in favor of it. No one spoke in opposition and it was voted to continue the public hearing to October 3, 2001.
At the October 3, 2001 meeting, the proposed amendment was further considered with staff input and Attorney Goldstein speaking in favor of the change. There was no opposition and it was voted to close the public hearing. Action on the amendment was postponed to allow for a revision.
At the Commission meeting held October 17, 2001, the revised amendment was considered, and upon motion duly made and seconded, it was voted, without opposition, to amend the zoning regulations to include § 4.1 Transitional Business District.
The Commission's approval of the Przyborowski application to amend the zoning regulations to establish the Transitional Business District is not the subject matter of this action. This is an appeal of the decision of the Commission to change the zone of plaintiff's property.
The distinction between the two actions was made clear at the public hearing by a speaker who stated:
Just a little history on this. At the last meeting, we approved a transitional business district that was brought before us so we had new regulations for that and this public hearing and zone change is an effort to now rezone those areas as designated on the Plan for Conservation and Development to transitional business district.
The change of zone, which is the subject of this appeal, was scheduled for a public hearing to be held November 7, 2001. The legal notice published in compliance with Connecticut General Statutes § 8-3 (a) indicates that the applicant for the zone change was the "Zoning and Planning Commission, Town of Colchester." There is nothing in the record to indicate that there was any other applicant. Paragraph 1 of plaintiff's complaint alleges that the Colchester Zoning and Planning Commission proposed the change in zone. It must then be concluded that the change in zone was proposed by the Commission itself.
Although in their brief, plaintiffs claim that the Commission failed to comply with the requirements of § 19.2.4 of the regulations with respect to notice by certified mail to those owning property within 500 feet of the zone change, it is clear that the Commission was not required to make such notification. Section 19.2.5 specifically exempts the Commission from such requirement.
The Commission did, by letter dated October 23, 2001, provide what it called a courtesy notice to property owners it deemed to be affected by the zone change. The notice stated that the Commission was proposing a zone change to transitional business district. This notice was not required by statute or by regulation.
There was evidence that Alice Daggett had an interest in property within the area of the zone change and that she did not receive the courtesy notice. This, however, does not appear to be a significant error. The only notice requirement which the Commission was obligated by law to follow was that mandated by § 8-3 (a). This notice requirement has been observed and plaintiff has raised no claim that the notice was defective.
It must then be concluded that plaintiffs have failed to prove that public notice given by the Commission in connection with the zone change was in any way defective.
II.
Although plaintiffs have failed to allege it in their complaint, in their brief, they claim that the change of zone to Transitional Business District was classic spot zoning. The Commission, in its brief, has responded to this claim and it will be considered by the court. In their brief, plaintiffs mention a commercial development characterized as a huge shopping center. There is nothing in the record reflecting such activity. Such assertions of fact without a basis in the evidence are improper and cannot be considered. In Re Roshawn R., 51 Conn. App. 44, 59 (1998). "Spot zoning is the reclassification of a small area of land in such a manner as to disturb the tenor of the surrounding neighborhood." Morningside Association v. Planning Zoning Board, 162 Conn. 154, 161 (1972). "Two elements must be satisfied before spot zoning can be said to exist. First, the zone change must concern a small area of land. Second, the zone change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole." Michel v. Planning Zoning Commission, 28 Conn. App. 314, 319 (1992).
Plaintiffs have the burden of proof with respect to the claim of spot zoning. In prosecuting this claim, they are hampered by the fact that they failed to raise the claim before the Commission at the public hearing and the record returned to court is sparse with respect to substantial matters. One of the elements of spot zoning is that the area rezoned is small. Plaintiffs claim that the area rezoned here is small. Although plaintiffs claim that the boundaries of the zone have been artificially drawn, they failed to place in the record the actual size of the area which has been rezoned.
Case law on the question as to whether an area is too small so as to constitute spot zoning is not of particular assistance. In Pelchat v. Planning Zoning Commission, 162 Conn. 603 (1971), it was decided that rezoning a lot less than 150 feet square was spot zoning. In Kutcher v. Planning Commission, 138 Conn. 705 (1952), it was decided that it was not spot zoning to rezone a small tract where the new zone was appropriate to the area.
Although the record fails to show the actual area of land involved in the zone change in this case, documents in the record do give sufficient information for the court to make a determination as to whether the area is so small as to constitute spot zoning.
Twenty-two separate lots were identified as being within the area of the zone change. To this list must be added the property of plaintiff Alice Daggett, which was omitted from the list. Plaintiff John Fedus testified that one tract owned by him partially within the area of the zone change was 74 acres in area. Testimony of Alicia (presumably the interim ZEO) at the public hearing indicates that large tracts of land were included in the zone change. The area described in the legal notice together with the tax assessor's maps in the record also show the magnitude of the area involved in this zone change.
From this evidence, it must be concluded that plaintiffs have failed to prove that the area involved was so small as to constitute spot zoning.
The second element which must be satisfied before spot zoning can be found is that the zone change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole. Michele v. Planning Zoning Commission, 28 Conn. App. 319.
The comprehensive plan is 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 property. The comprehensive plan is found in the scheme of the zoning regulations themselves and the zoning map established pursuant to those regulations. First Hartford Realty Corporation v. Plan Zoning Commission, 165 Conn. 533, 541 (1973).
The comprehensive plan for the Town of Colchester includes the zoning regulations themselves and the zoning map enacted pursuant to the regulations. Burnham v. Planning Zoning Commission, supra, 189 Conn. 267. At the time of the action, which is the subject of this appeal, the zoning regulations included the new transitional business district, which was not yet reflected on the zoning map. It would be logical for the Commission to incorporate this new district into the zoning map. A letter from Alicia Lathrop, interim ZEO, dated September 17, 2001, stated that the Plan of Conservation and Development (PCD) recommended a transitional area "to provide orderly transition between less intensive, that is, residential uses, and the more intensive business and commercial areas." Ms. Lathrop then stated that the PCD identified as appropriate to the transitional uses property located in "close proximity to (1) Norwich Avenue/Chestnut Hill/Route 2, Exit 21 interchange, and (2) the New London Road, Route 11, Route 2, Exit 20 interchange." This description is not significantly different from the area included in the zone change.
"The requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interest of the entire community." First Hartford Realty Corp. v. Plan Zoning Commission, supra, 165 Conn. 541. A review of the record, including the discussions at the public hearing and the various memoranda from staff leads to the conclusion that in making the zone change the Commission acted with the intention of promoting the best interest of the Town of Colchester. Plaintiffs have provided no credible evidence to the contrary.
The second element, which must be satisfied before spot zoning can be found, is that the zone change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole. Considering all of the factors involved, it must be found that plaintiffs have failed to prove the second element of spot zoning that the zone change is out of harmony with the comprehensive plan.
III.
Although it is not alleged in the complaint, in their brief, plaintiffs claimed that the change of zone violated the new plan of development of the Town. Connecticut General Statutes § 8-3 requires that a commission, such as the defendant Commission in making a decision to change the boundaries of a zone, "shall take into consideration the plan of conservation and development." This plan, referred to as the PCD, is not to be confused with the comprehensive plan previously discussed, which the Commission is required to follow. The plan of development or PCD is merely advisory. First Hartford Realty Corporation v. Plan Zoning Commission, supra, 165 Conn. 542.
A review of the record clearly indicates that the Commission followed the legislative requirement and took into consideration the PCD. The initial statement made by the unidentified man at the public hearing, previously quoted, was to the effect that the change of zone was an effort to rezone in conformance with the PCD. The interim ZEO, in her presentation to the Commission, made several references to the PCD and indicated that the proposed zone change was in accordance with that document. It must be concluded that in making the zone change, the Commission not only considered the PCD, but attempted to follow it. Plaintiffs may disagree with the way in which the Commission acted in following the PCD, but it must be found that the Commission followed the law as required by § 8-3.
IV.
In voting to change the zone of the area within which plaintiffs own property, the Commission was exercising a legislative function. Kutcher v. Town Planning Commission, 138 Conn. 705, 709 (1952). In performing its legislative function, the Commission has much broader authority than with administrative decisions. Section 1.6 R Fuller Land Use and Practice (1999). "Zone change is a legislative decision, and as such, is subject to the most minimal judicial review." P. 152 Tondreau, Connecticut Land Use and Regulation 2nd Ed. (1992). "When zoning authorities act within their prescribed legislative powers, they have a wide and liberal discretion. The courts cannot interfere with its exercise unless it clearly appears that it has been abused. DeMeo v. Zoning Commission, supra, 148 Conn. 75. Conclusions reached by the Commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of witnesses and the determination of issues of fact are matters solely within the province of the agency. 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) (citations omitted). In the present case, it must be found the plaintiffs have failed to prove that the Commission abused its discretion or acted illegally in making the zone change. The record shows that the Commission acted within its prescribed legislative powers and with proper motives in making the zone change.
Accordingly, judgment is rendered in favor of the Commission affirming the decision granting the zone change.
Joseph J. Purtill Judge Trial Referee