Opinion
No. CV 04 0093063S
September 7, 2005
MEMORANDUM OF DECISION
This is an appeal by neighbors from the decision of the defendant, Planning and Zoning Commission of the Town of Norfolk (the "Commission") to grant a special permit to the defendant, Yale Farm Golf Club, LP ("Yale") for construction of a private golf course and for earth excavation in connection with the construction of the course and related amenities ("the project").
I. Aggrievement
The plaintiffs are Catherine Gevers, Wheaton Byers, and Scott Asen. They each own residences in the Town of North Canaan which abut the land upon which the project is to be built. A small portion of the land of Ms. Gevers is located in the Town of Norfolk. The property of the other two plaintiffs is solely within the Town of North Canaan.
The Commission concedes that Ms. Gevers is aggrieved and has standing to appeal by virtue of owning land in the Town of Norfolk which abuts "any portion of the land involved in any decision." C.G.S. Section 8-8(a); Smith v. Planning and Zoning Board, 203 Conn. 317, 321 (1987). The Commission questions whether the other two plaintiffs have standing. The Commission argues that its authority only extends to land located in Norfolk, and, therefore, although Byers and Asen own land which abuts the parcel of land on which the project is to be built, they do not abut the portion of the land involved in the decision of Commission. There is no appellate authority for the Commission's position. In light of the broad interpretation which has been given by the Supreme Court to the words "any portion of any land involved in any decision," all three plaintiffs are found to be aggrieved. See, Caltabiano v. Planning Zoning Commission, 211 Conn. 662 (1989).
II. Standard of Judicial Review CT Page 12108
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission]. The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached. If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board. If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission. The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given. We previously have observed that [a] special exception allows a property owner to use his property in a manner expressly permitted by the local zoning regulations. Nevertheless, special exceptions, although expressly permitted by local regulations, must satisfy [certain conditions and] standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values [as required by General Statutes § 8-2] . . . Moreover, we have noted that the nature of special exceptions is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site . . . We also have recognized that, if not properly planned for, [such uses] might undermine the residential character of the neighborhood . . . Thus, we have explained that the goal of an application for a special exception is to seek permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district." (Citations omitted; internal quotation marks omitted.) Municipal Funding v. Zoning Board of Appeals, 270 Conn. 447, 453-54 (2004).
III. Facts
Yale proposes to build a private 18-hole golf course on a 780-acre piece of land which straddles the boundary between the towns of North Canaan and Norfolk. 245 acres are in North Canaan and 535 acres are in Norfolk. The clubhouse and supporting buildings, structures and parking will be in Norfolk. Six holes and portions of four others will be in North Canaan.
The portion of the project located in Norfolk is located in a rural residential zone. The Norfolk zoning Regulations ("the Regulations") provide that golf facilities operated either as a membership club or commercially, and including customary accessory services and eating facilities, are permitted in rural residential zones only by special permit.
The land on which the project is to be built is serviced by two public roads: Tobey Hill Road in North Canaan which becomes Spaulding Road in Norfolk, and Bald Mountain View Road (also referred to as Bald Mountain Road) in Norfolk. Both roads are rural two-lane town roads. Bald Mountain View Road, which is fed by Ashpohtag Road, is a dead end road terminating in Norfolk, a short distance from the North Canaan town line. It is connected to Tobey Hill Road by Limestone Road, a private road running through the project site.
The Commission held a lengthy public hearing, participated in a site walk, made all of the findings required for the approval of a special permit use, and then unanimously approved the application subject to numerous conditions. The decision of the Commission consumes 33 pages. Among the conditions of approval is a requirement that the main entrance to the property be from Tobey Hill Road and that the entrance from Bald Mountain View Road be closed during construction except for emergency vehicles. Following the completion of construction, Bald Mountain View Road is to serve as a low-use secondary entrance and exit road. The approval included provisions for overnight lodging for up to twelve (12) guest bedrooms for members of the club and their guests.
IV. Discussion A. Traffic
C.G.S. § 8-2 provides, in part, that municipal zoning regulation "shall be designed to lessen congestion in the streets . . ." In compliance with that dictate, § 180-44 of the Regulations sets forth the general standards for the Commission to apply in taking action on all special use applications. § 180-44A(3) provides:
"Traffic. Vehicular and pedestrian traffic projected as a result of the use, including traffic to and from and in the vicinity of the use, will not be hazardous or detrimental to the character of the zone or the neighborhood. In making its determination with respect to this criterion, the Commission shall consider the proposed location, the size and layout of the special use permit use, its nature and the intensity of operations involved and its relation to local streets providing access to the site. The Commission shall give due consideration to any recommendation by the Board of Selectman regarding the adequacy of any town road proposed to be used for access."
The plaintiffs argue that the Commission acted illegally and arbitrarily and in abuse of its discretion in making it a condition of approval that all construction traffic flow though Toby Hill Road rather than being shared with Bald Mountain View Road. Two of the plaintiffs live on Tobey Hill Road in North Canaan near the entrance to the project. They argue that there will be heavy construction traffic for approximately two (2) years which will impose an unequal and unconstitutional burden on them as opposed to the residents of Norfolk living on Bald Mountain View Road who will be spared.
This is an interesting argument because it is not based upon a claim that the project should have been rejected for failure to comply with § 180-44a(3). The plaintiffs' argument is, it seems, that the project could have been approved if the construction traffic had been shared between Toby Hill Road and Bald Mountain View Road. This argument is based, in part, on the assumption that Toby Hill Road and Bald Mountain View Road are equally poor roads. But there is evidence in the Record from which the Commission could conclude that Bald Mountain Road is simply inadequate to handle construction traffic while Toby Hill Road is capable of handling such traffic. The Commission was entitled to use this evidence to fashion its plan for traffic during construction.
The Commission is allowed to impose conditions on a special permit necessary to protect public safety as required by C.G.S. § 8-2. Housatonic Terminal Corporation v. Planning and Zoning Board of City of Milford, 168 Conn. 304-07 (1975). This court can not sit in judgment of those conditions if there is substantial evidence in the record which supports them, even if the court might have viewed the evidence differently. Here, the Commission made the following specific findings, a]l supported by substantial evidence in the Record: 1) "The neighborhood most affected by traffic from the proposed golf course facility is in the vicinity of Ashpohtag Road and Bald Mountain Road," 2) "Bald Mountain Road is a dead end road terminating in Norfolk a short distance from the North Canaan town line. This dead end road currently has a very low volume of traffic. The Commission has determined that a substantial increase in traffic generated by this Special Use could have a detrimental impact on this neighborhood," 3) "The Town of Norfolk and the Applicant propose to retain Bald Mountain Road as a dead end road. Currently there is no dead end turn-around at the terminus of Bald Mountain Road. The Applicant recognizes that a dead end turn-around is needed. However, no design or construction plan has been provided as part of the Applications. The design of this dead end turn-around is critical to the Commission's objective that Bald Mountain Road will remain a dead end road and will not become a corridor for traffic to and from North Canaan via the primary access road to the golf course from Tobey Hill Road."
The Board of Selectmen of the Town of Norfolk voted to accept the "pre and post construction proposals put forth by the Yale Farm Golf Club" and that Bald Mountain View road should be closed during construction except for emergency vehicles. This amounts to an implicit recommendation that Tobey Hill Road be the sole access to the project site during construction. In accordance with the dictates of § 180-44a(3), the Commission was required to give "due consideration" to this recommendation of the Board of Selectmen.
I am not persuaded that the plaintiffs have been denied equal protection of the law. "While the equal protection clauses prohibit the commission from drawing irrational classifications, the commission is not constitutionally required to treat all landowners identically without regard to relevant differences among them. In order for the regulation to withstand an equal protection challenge, the distinctions employed by the commission must be based on natural and substantial differences, germane to the subject and purpose of the regulation, between those within the class and those whom it leaves untouched. The equal protection clauses are offended only if the classification rests on grounds wholly irrelevant to the achievement of the commission's objectives. In scrutinizing the regulation under the rational relationship standard, moreover, we must indulge every legal presumption and reasonable inference of fact in its favor. If there is a reasonable ground for upholding the regulation, we must assume the commission intended to place it upon that ground." (Citations and internal quotation marks omitted.) Mario v. Fairfield, 217 Conn. 164, 175 (1991). Here, the decision to approve the Tobey Hill Road entrance and to close the Bald Hill Mountain View entrance during construction was based upon natural and substantial differences in the capacities of the two roads. There is a rational relationship between the purpose of advancing the requirement of § 180-44A(3) that the traffic to and from and in the vicinity of the site not be hazardous or detrimental to the character of the zone or the neighborhood. There is substantial evidence in the Record supporting the Commission's decision.
For these reasons, the Commission did not act illegally or in abuse of its discretion in approving the special permit application with the condition that Bald Mountain View Road be closed during construction to all but emergency traffic.
B. Lodging
The plaintiffs argue that the Commission abused its discretion by approving the use of two guest cottages for the temporary lodging of up to twelve members and guests. § 180-24B(11) of the Regulations provides that "golf . . . or similar recreation facilities operated either as a membership club or commercially, and including customary accessory services and eating facilities . . ." may be permitted after receipt of a special use permit. The Commission supported this part of the approval by determining that temporary lodging is a customary accessory service at a membership golf course at which many members are not expected to reside locally. There was evidence in the Record from which the Commission could have found that 1) this will be a high-end private course designed by an architect with an international reputation, 2) "world class" golf courses located in relatively remote areas normally provide overnight accommodation for their non-resident members. On the other hand, the Record also reflects that 1) only 1% of golf courses in the nation had guest facilities, and 2) that the course architect had never designed one with guest facilities, and 3) that there are no courses in Connecticut with such facilities.
A fair summary of the evidence is that although overnight guest accommodations are not a customary accessory service of most membership golf courses, they are customary at a handful of elite "world class" courses with a "national" membership. Should the application be measured against all membership courses or only against the few elite "world class" courses with a "national" membership? I do not believe that the case law permits this court to substitute its judgment for the Commission's determination that overnight accommodations are a customary accessory service at courses of the kind aspired to by Yale.
In Lawrence v. Zoning Board of Appeals, 158 Conn. 509 (1969) the Supreme court reviewed a trial court reversal of a decision of the local zoning board that raising chickens and goats was not an accessory use to a dwelling. The Supreme Court reversed the trial court. It stated the law with respect to accessory uses. An accessory use is a use which is incidental to a permitted use. The word "incidental" incorporates two concepts: 1) the use must not be the primary use of the property but rather one which is subordinate and minor in significance, and 2) the use must be attendant or concomitant. The word "customarily" means commonly, habitually and by long practice established as reasonably associated with the primary use. Id. at 511-13. "The instant case called for a determination by the board of whether the raising of chickens and goats was an accessory use one which is subordinate and customarily incidental to property located in the center of town and used for residential purposes. Such a determination is one peculiarly within the knowledge of the local board." Id. at 514. The trial court was in error in that "it merely substituted its discretion as to the application of the ordinance to Lawrence's situation for that of the board." Id. at 515.
In Beit Havurah v. ZBA, 177 Conn. 440 (1979) the Supreme Court gave further guidance. The issue was whether overnight use at a place of worship should be considered an accessory use. The trial court upheld the town's determination that overnight use was not a permitted accessory use. The Supreme Court reversed. The plaintiff was a nontraditional synagogue with nontraditional needs including provisions for overnight accommodations at religious festival lasting more than one day. Id. at 449. The court did not compare the plaintiff against all places of worship but evaluated the claim on the specific kind of house of worship.
Here, the Commission was acting within its discretion to evaluate the proposal for overnight accommodations against the small number of elite "world class" courses. Although it is possible to question how a course in Norfolk, Connecticut, could ever become one which could be compared to the handful of elite "world class" courses such as Augusta National, it is the Commission's judgment on this issue which counts, provided that there is substantial evidence to support it. There is substantial evidence in the Record which supports the Commission's decision.
IV. Conclusion
For the reasons given, the appeal is dismissed.
BY THE COURT,
John W. Pickard