Opinion
No. WWM-CV-08-4007556-S
February 5, 2010
MEMORANDUM OF DECISION
The plaintiff, Paul Hennen, has brought this appeal pursuant to General Statutes § 8-8, following a decision of the defendant, Pomfret planning and zoning commission (Commission), amending certain provisions of the Pomfret zoning regulations (Regulations).
A hearing was held on the complaint by the court on October 13, 2009. The plaintiff and the defendant submitted documentary evidence. The parties had submitted their briefs and the record closed on that date.
FINDINGS OF FACTS
The town of Pomfret first adopted its Regulations in February 2003. Prior to the adoption of the Regulations, there was no zoning in Pomfret and, therefore, there was no restriction on home-based uses, commercial or otherwise. The plaintiff agrees that at the time of their adoption, the Regulations permitted upon site plan review, certain home occupation uses in both the Rural Residential District ("RR District") and the Pomfret Street Residential District ("PSR District").
On February 22, 2008, the commission submitted its own application to amend §§ 4.2 and 5.2 of the Regulations and to add a new provision, § 12.17. (Ex. 1.) The amendments sought to allow certain commercial activities, known as "Home Based Business" that could be conducted as accessory uses to a residence. The proposed amendments apply only to properties situated in either the RR Districts or PSR Districts. The plaintiff owns property at 52 Putnam Road, which is located in the RR District.
A public hearing on the application was commenced on March 24, 2008, and it was continued to and concluded on March 31, 2008. (ROR 5, 11 and 12.) The public hearing took place over several hours and included testimony from numerous residents. At the time, the plaintiff was represented by counsel and submitted a statement in opposition to the proposed amendments. (ROR 37.) In addition, the plaintiff hired two experts who provided testimony in opposition to the application. Brian J. Miller, a certified land use planner and planning consultant, testified regarding his opinion that the proposal was not in conformity with a comprehensive plan of the town and submitted a written report to corroborate his opinion. (ROR 38.) Robert G. Stewart, a certified general appraiser with more than 20 years experience, testified that the passage of the proposed amendments would have a negative impact on the value of properties abutting a residence conducting a home-based business. (ROR 39.)
During the public hearings, the Commission received input from the community at large. Many of those persons had pre-existing home-based uses. They were in favor of the amendments. The board of selectmen and the democratic town committee were in favor of the amendments. After the close of the public hearings, the Commission met and deliberated on amendments for two days. On June 16, 2008, the Commission voted 5 to 2 in favor of the Home Based Business Amendment with two modifications; 1) increase the minimum lot size for conducting a Home Based Business; and (2) decrease the length of time that any piece of business equipment may idle on site.
The Commission did not give a formal statement of its findings or of its reasons for amending the Regulations. (ROR 15.) On June 20, 2008, notice of the Commission's decision was duly published in The Norwich Bulletin, a newspaper. This appeal followed.
Additional facts will be discussed, as necessary.
DISCUSSION Aggrievement
The court first must determine whether the plaintiff is aggrieved by the decision of the Commission. Aggrievement may be statutory and/or classical. The court notes that the issue was addressed in this case when the defendant filed a motion to dismiss. In its ruling, the court (Riley, J.) found that the plaintiff was statutorily aggrieved by the amendment to the Regulations.
The plaintiff owns property that is situated within one of the affected zones, and he is, therefore, statutorily aggrieved pursuant to General Statutes § 8-8(a)(1). "Statutory aggrievement exists by legislative fiat . . ." Lewis v. Planning Zoning Commission, 62 Conn.App. 284, 288 (2001).
Classical aggrievement requires a showing of a specific, personal, and legal interest in the decision of the agency and has specifically and injuriously affected that interest. Stauton v. Planning Zoning Commission, 271 Conn. 152, 157 (2004). The amendment, at issue, approved by the Commission is applicable to property located only in certain zoning districts, and the plaintiff's ownership of real estate in one of the affected zones gives him a specific interest in the decision. Timber Trails Corp. v. Planning Zoning Commission, 222 Conn. 380 (1992). Moreover, the plaintiff's claim, made at the public hearing and in the complaint that the Commission's decision will result in a diminution of the value of his property satisfies the specific injury prong of the classical aggrievement test. Therefore, the plaintiff is both statutorily and classically aggrieved, and he has standing to prosecute this appeal.
Standard of Review
When adopting or amending zoning regulations, the Commission acts in a legislative capacity. Arnold Bernhard Co v. Planning Zoning Commission, 194 Conn. 152, 164 (1984). When acting in such a capacity the Commission has broad authority to adopt amendments if the conclusions reached are supported by the record. Protect Hamden/North Haven from Excessive Traffic and Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 542-43 (1991). The Commission may amend the regulations "whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change . . ." and without a finding of a specific change of circumstances. Lee Lamont Realty v. Planning Zoning Commission, 112 Conn.App. 484, 491 (2009). However, the Commission's discretion is not unlimited; its decision must not be unreasonable or arbitrary. "Within these broad parameters, the test of the action of the Commission is twofold: (1) The [amendment] must be in accord with a comprehensive plan . . . and (2) it must be reasonably related to the normal police power purposes enumerated in General Statutes § 8-2 . . ."
The plaintiff's claim that the Commission acted arbitrarily and in abuse of its discretion in amending the Regulations 1. The plaintiff's claim that the amendments are not in conformity with a comprehensive plan. General Statutes § 8-2 requires that all zoning regulations be adopted and amended "in accordance with a comprehensive plan." Generally, this comprehensive plan "is to be found in the zoning regulations and the maps of the zones adopted pursuant to them." Mott's Realty Corporation v. Town Planning Zoning Commission, 152 Conn. 535, 540 (1965). A determination of the appropriateness of the Commission's action begins with an examination of the Regulations themselves to determine what comprehensive plan is envisioned for land use in the town.The defendant asserts that it sought the amendments for a variety of reasons. First, the existing definition of permitted home occupations was too narrow in that it would not permit, much less recognize, a number of home occupations that existed and/or would be desirable uses within the relevant zones. Second, the Commission was concerned that there were few development or other use options for owners of the larger existing properties within the RR and PSR Districts under the 2004 Regulations, other than housing subdivisions. Because the 2004 zoning Regulations encouraged the development of multiple two-acre housing lots, rather than allowing one to use his or her property to conduct some other type of home-based business, increased traffic on local roads was likely and, ultimately, was not consistent with the town's desire to keep larger properties whole. Third, the Commission expressed its concern over the inability of many existing home-based businesses, uses that necessarily became non-conforming upon the adoption of the Regulations, to reasonably expand.
The proposed text amendments took over eighteen months to draft. During that time, the Commission held several public workshops.
Public hearings on the proposed amendments were held on March 24 and 31, 2008, the public hearing on the Home Based Business amendment was opened, but not discussed on March 24, 2008. However, the public hearing was continued to March 31, when the Home Based Business amendment was fully discussed by the public and the Commission. Because of the relationship between the two amendments and the fact that the public often commented on both amendments during each public hearing, the defendant did not object to plaintiff's request to supplement the Record in this appeal with the March 24 hearing transcript.
The Regulations, as amended, allow commercial uses in the residential zones. The definition contained in the amendments allows dwellings and out-buildings to be used "for business purposes." (ROR 8, § 12.17.) The list of specific examples of businesses allowed includes contractor, internet-based business, insurance agent, logger, and serviceman, among others. The amendment further allows the "home based business" to be conducted in a separate building which could be as large as 1,500 square feet. (ROR 8, § 12.17.1.) The amendment also permits storage of commercial and industrial equipment, as well as bulk fuels and lubricants at residential sites. In addition, the amended Regulations allow up to "10 unique pieces of commercial and industrial vehicles, trailers and equipment in any combination may be stored on any residential property of 10 acres or more." (ROR 8, § 12.17.9.) Bulk diesel fuel may be stored on site up to 1,000 gallons, and equipment may be fueled and re-fueled on site, next to residences and residential uses. (§ 12.17.9(f).)
In Malafronte v. Planning Zoning Bd, 155 Conn. 205, 209 (1967), our Supreme Court held that, "when enacting or amending its regulations, a local zoning authority acts in a legislative capacity." It must, therefore, be free to modify its regulations whenever time, experience and responsible planning for contemporary or future conditions reasonably indicate the need for a change. Connecticut courts have held "on many occasions that courts cannot substitute their judgment for the wide and liberal discretion vested in local zoning authorities when they have acted within their prescribed legislative powers." First Hartford Realty Corp. v. Plan Zoning Comm'n, 165 Conn. 533, 540 (1973).
Courts "must not disturb the decision of a zoning commission unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally." Burnham v. Planning Zoning Comm'n, 189 Conn. 261, 266 (1983). "Every intendment is to be made in favor of the validity of [an] ordinance and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt." Harris v. Zoning Comm'n, 259 Conn. 402, 425 (2002). If the zoning commission has not set forth formal reasons for approving a zoning amendment, the trial court must search the existing record to determine if the commission was justified in its actions. "If any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld." Parks v. Planning Zoning Comm'n, 178 Conn 657, 662-63 (1979).
The Commission's ability to legally amend the Regulations must be exercised within its statutory authority. General Statutes § 8-2 grants local zoning commissions the authority to create or amend regulations governing the use of land and to "provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit . . ." The Commission did this. Although plaintiff alleged in his complaint that the Commission's decision was illegal, he has not briefed the issue and it, therefore, is deemed abandoned by the plaintiff. Cybulski v. Planning Zoning Comm'n, 43 Conn.App. 105, 109 fn.3 (1996), Shaw v. Planning Comm'n, 5 Conn.App. 520, 525 (1985).
It is well established that the comprehensive zoning plan for a given town is found within the scheme of the town's zoning regulations themselves. Whittaker v. Zoning Bd. of Appeals, 179 Conn. 650, 656 (1980). As the plaintiff admits, the town's existing regulations, those in effect at the time the amendment was proposed, already provided for certain home-based businesses. The prior regulations also listed those home-based businesses as uses permitted "as of right" with only the need for site plan approval. The evidence reflects that the list of permitted uses included in those earlier regulations was not meant to be exhaustive. As Chairman Hinchman acknowledged, "It's impossible to sit down and think of everything that could come up . . . That is the reason the wording is as it is. It allows for other [home-based businesses] other than those we thought of that might be reasonable, especially with technology and new things coming into the home. It's impossible coming up with a comprehensive list of everything . . ." (ROR 57 at 46-47.)
The amendment, at issue, not only contemplates changes in appropriate home-based uses, but it actually enhances the Commission's ability to regulate them. As noted above, the amendment requires that any new home-based use (or expansion of an existing use) meet stringent special permit criteria. (Regulations §§ 4, 5, 12.20 and 13.) For example, an applicant for a home-based business must demonstrate, among other things, that the business will not change the residential character of the neighborhood, create excessive noise, odors, illumination or other nuisance conditions, create unreasonable health or safety hazards and that the proposed use is appropriate for the designated location. In contrast, under the previous regulations, a home-based business need only establish that its plan comports with the then-existing regulations. See General Statutes § 8-3(g) (requiring that zoning commissions approve any site plan that meets existing regulations). As noted above, the 2004 Regulations were lacking in comprehensive standards and conditions for approving home-based business uses.
The court does not agree that the amendment is clearly not in conformance with Pomfret's comprehensive plan. The plaintiff relies upon the "Purpose" espoused under Section 5 of the prior zoning regulations. Contrary to plaintiff's assertion that it applies to all residential districts, that purpose statement only applies to and falls under the PSR District — a special district purposely distinguished from the RR District in which plaintiff's property lies. The statement is expressly confined to the PSR District. It actually states: "The purpose of this district is to foster development that is compatible with the design and historic character of the existing development and to encourage the continuation of school and agricultural uses that exist in the district."
2. The plaintiff's claim that the adoption of the amendment does not constitute a valid exercise of the police powers contained in § 8-2 of the General Statutes.To be valid, any zoning regulation or amendment adopted by the Commission must be a proper exercise of the police powers contained in § 8-2 of the General Statutes. That section provides, in part, that zoning regulations must promote the public welfare and protect property values.
The plaintiff argues that the amendment will have the effect of lowering property values. He relies solely upon the testimony and report of Stewart, an appraiser. The Commission was not obligated to agree with the testimony of Stewart.
Stewart's report focused on a comparison of the amendment with existing home-based uses in surrounding towns. (ROR 39.) While critical of some of the amendment's provisions, he agreed that the immediately surrounding towns had similar regulations. After comparing the amendment to the regulations in surrounding towns, Stewart, without any further market analysis or comparable sales data, concluded that "[d]epending on a specific use, its location, and its visibility from abutters this negative impact on surrounding property values could be as high as 15%-20% or more." (Emphasis added.)
The criteria upon which his "conclusion" depends are the same criteria upon which each and every special permit application for a Home Based Business must be evaluated under the amendment. Thus, for each and every incoming application, the use proposed, its location, and its visibility from abutters will be analyzed, and the application may be denied if deemed unsuitable. There are appropriate safeguards in the defendant's special permit approval process. Those safeguards will ensure that property values will not be affected by a special permit application. (ROR 14; ROR 15.)
A zoning commission is "not required to give credence to any witness, even an expert witness." Pelliccione v. Planning Zoning Commission, 64 Conn.App. 320, 331 (2001). "In determining whether a zone change was patently arbitrary, the court cannot test, "the credibility of the witnesses and the determination of issues of facts are matters solely within the province of the agency." Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).
An amendment, "must serve the public interest in the zoning development of the community." Kimball v. Court of Common Council, 148 Conn. 97, 102 (1961). Here, the Amendment serves the interest of the citizens of Pomfret. The prior zoning regulations permitted certain home-based uses within residential zones. The town of Pomfret has always contemplated appropriate home-based uses in residential zones. The amendment still allows for home-based businesses in residential zones and also requires that such uses undergo more scrutiny and meet more stringent criteria. In passing the instant application, the court is unable to conclude that the defendant was responding solely to an individual complaint. Considering the entire record, the court concludes that the plaintiff was acting on behalf of the citizens of the town of Pomfret, as required by the statute.
General Statutes § 8-2 requires that a zoning commission consider and weigh a myriad of factors, in addition to the preservation of property values, when adopting or amending regulations. That statute provides: "Such regulations shall be made in accordance with a comprehensive plan and in adopting such regulations the commission shall consider the plan of conservation and development prepared under section 8-23. Such regulations shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality."
The preservation of property values is one factor to be considered by the Commission. General Statutes § 8-2 mandates that a zoning commission balance all of the relevant criteria and that it ultimately adopt regulations that are in the public interest and meet the overall development goals of the town. Gideon Assocs. v. Coventry Planning Zoning Comm'n, 2003 Conn.Super. LEXIS 2118 (Conn.Super.Ct. July 23, 2003).
In adopting the change of the Regulations, the defendant acted reasonably and did not abuse its discretion. The amendment was in accord with the comprehensive plan and it was a valid exercise of the police powers vested in the commission by § 8-2 of the General Statutes. The appeal is dismissed.
It is so ordered,