Opinion
No. CV 03 0081041S
January 24, 2006
MEMORANDUM OF DECISION
This is an administrative appeal from a planning and zoning commission's denial of an application for site plan approval proposing a large day care center. It involves such issues as whether traffic considerations can support a denial and explores the workings of deadline rules measuring the period between application and decision.
A BACKGROUND
On September 19, 2002, the plaintiff, Jalowiec Realty Associates, L.P. filed an application for site plan approval to the planning and zoning commission of Ansonia (commission). (Return of Record [ROR], Item 1.) Plaintiff sought to construct a day care center that would accommodate up to one hundred children. (ROR, Item 1.) The commission held two public hearings, on October 28, 2002 and November 25, 2002. (ROR, Items 14; 25.) On January 27, 2003, plaintiff's application was denied by the commission, with five members of the commission voting to deny the application, one member abstaining and one member absent. (ROR, Item 33, p. 7.) Plaintiff has appealed to this court and the matter was "tried" on October 3, 2005.
B JURISDICTION/AGGRIEVEMENT
In its appeal, plaintiff alleges that it is the owner of a contractual right to purchase the subject property. A plaintiff's ownership of "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" gives it the right to appeal a decision of a municipal zoning commission to the Superior Court. General Statutes § 8-8(a)(1) and (b). At trial on October 3, 2005, both parties stipulated that plaintiff owned a contractual right to purchase the subject property at the time the site plan application was filed and that it owned that right, continuously, until the plaintiff exercised its option to purchase the property. The parties further stipulated that plaintiff has continued to own the subject property, without interruption. Thus, from facts alleged and adduced, the court finds that plaintiff is statutorily aggrieved.
General Statutes § 8-8(a)(1) provides in relevant part, "In the case of a decision by a . . . combined planning and zoning commission . . . `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved into decision of the board." Section 8-8(b) provides in relevant part that "any person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3, may take an appeal to the superior court for the judicial district in which the municipality is located . . ."
Plaintiff also alleges in its complaint that it is classically aggrieved; however, the court need not address the issue since the plaintiff has proven statutory aggrievement. The court also finds, and there is no dispute that, the appeal has been timely filed pursuant to §§ 8-8(b) and 8-8(f)(1). General Statutes § 8-8(b) provides in relevant part: "[A]ny person aggrieved by any decision of a board . . . may take an appeal to the Superior Court for the judicial district in which the municipality is located. The 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 . . ." Section 8-8(f)(1) provides, in relevant part, that "[f]or any appeal taken before October 1, 2004, process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality . . ."
C SCOPE OF REVIEW Legal Standard
"In reviewing an appeal from an administrative agency, the trial court must determine whether the agency has acted unreasonably, arbitrarily, illegally or in an abuse of its discretion." (Internal quotation marks omitted.) Smith v. Zoning Board of Appeals, 227 Conn. 71, 80 (1993), cert. denied, 510 U.S. 1164 (1994).
In RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 468-70 (2001), our Supreme Court set forth the applicable scope of review for both an administrative body, such as the commission, and this court. As for the commission, "`[a] site plan may be modified or denied only if it fails to comply with the requirements already set forth in the zoning regulations . . .' General Statutes § 8-3(g) . . . If the application conforms to the zoning regulations, the [commission] cannot deny the application for subjective reasons that bear no relationship to zoning regulations . . . If the site plan is either denied or modified, the [commission] is required under § 8-3(g) to set forth the reasons for its decision." (Citations omitted.) Id. at 468-69.
As for this court, "[i]t is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) Id. at 470. "[T]he commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record . . . The [commission's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence . . . to support any such reason [however] must be substantial . . ." (Citation omitted; internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221 (2001). "The credibility of the 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 . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence 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 . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury . . . [It] is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . [It] is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Citations omitted; internal quotation marks omitted.) Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 697-99 (1993).
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420 (2002).
D THE COMMISSION'S DECISION
In response to a member's motion to deny the site plan application, which was subsequently adopted, the commission outlined the reasons for its decision as follows: (a) "the added traffic on a curved road [and] the poor sight line at Thomas Street"; (Third Supplemental Return of Record [Sup. ROR, 3], Exhibit [Exh.] E); (b) "the inadequate number of on-site parking spaces which may cause a traffic back up out onto Elm Street by people trying to enter the facility . . . with no place to park"; (Sup. ROR, 3, Exh. E); (c) the number of people combined with the fifteen-minute drop-off time "may create undue traffic hazards and undue traffic congestion"; (Sup. ROR, 3, Exh. E); (d) the public was also concerned about the size of the activity and its negative impacts on their quality of life and public safety, testifying to numerous existing traffic problems and hazards; (Sup. ROR, 3, Exh. E); (e) a letter from the chief of police also voiced "opposition and concerns for public safety due to traffic concerns [that] cannot be overlooked"; (Sup. ROR, 3, Exit E); (f) "[t]he applicant's letter of [November 1, 2002] to commissioner of transportation Byrnes c/c to the [commission] charging possible interference by certain individuals with the review process cast doubt on the accuracy of the reports sent to [the commission] and in effect poisoned this testimony"; (Sup. ROR, 3, Exh. E); (g) when the commission attempted to hire an independent traffic engineer to "clarify and address these traffic concerns the applicant refused to grant the commission an extension of time to enable this to take place"; (Sup. ROR, 3, Exh. E); (h) the size of the building was "totally out of character, nature and harmony with this neighborhood of modest size homes . . . [and] no transition zone to mitigate the intensity of the impact is possible"; (Sup. ROR, 3, Exh. E); (i) "[i]t does not enhance the appearance and attractiveness of the neighborhood, nor the community"; (Sup. ROR, 3, Exh. E); (j) "[t]here are no plans or space to erect noise barriers"; (Sup. ROR, 3, Exh. E); (k) "[t]he City of Ansonia has adequate existing sites available for day care facilities in commercial areas"; (Sup. ROR, 3, Exit E); (l) finally, the commission's expert believes that "[a]ny attempt by the commission to substantially modify the application may prove to be frustrating but, more importantly, it may be inappropriate." (Sup. ROR, 3, Exh. E.)
This court will confine its search of the record to determine whether the record contains substantial evidence in support of those reasons. Ultimately, it will be determined that some of the proffered reasons for denial were not legitimate, but nonetheless, plaintiff's appeal cannot be sustained.
Plaintiff complains that in denying the application, the commission acted illegally, arbitrarily and in abuse of its discretion in that: (a) evidence and testimony was improperly received; (b) the commission did not have jurisdiction and lacked authority to consider and/or deny the application since there had been approval inferred by operation of law, General Statutes § 8-3(g) prior to the commission's decision; (c) the commission lacked the authority to consider offsite factors in deciding the application; (d) the application fully complied with all of the requirements of the city of Ansonia zoning regulations; (e) the commission engaged in illegal and defective procedures with regard to the scheduling, commencement and conduct of the hearing; (f) there was a predetermination of the application by the commission, or by one or more of its members; (g) the decision was not supported by evidence or testimony contained in the record; (h) the commission failed to provide the applicant a certificate of approval, despite demand after inferred approval had occurred pursuant to General Statutes § 8-3(g). (Appeal, ¶ 9.)
General Statutes § 8-3(g) reads in pertinent part that "[a]pproval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d . . ." General Statutes § 8-7d(b) reads in pertinent part that "[n]otwithstanding the provisions of subsection (a) of this section, whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for any building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan . . ."
While plaintiff's arguments address a number of the allegations in the plaintiff's appeal, not all are briefed. The court is not required to review issues that have not been briefed as they are not properly before the court and are deemed waived. Commissioner of Social Services v. Smith, 265 Conn. 723, 732-33 n. 11 (2003). The court also notes that plaintiff's brief did not track its allegations in its appeal. Therefore, the court has painstakingly attempted to match plaintiff's briefed arguments with the allegations of plaintiff's appeal.
E WHETHER EVIDENCE AND TESTIMONY WAS IMPROPERLY RECEIVED BY THE COMMISSION Arguments of the Parties
Plaintiff contends that the letter by the Ansonia chief of police that raised concerns about the facility's negative impact on emergency response vehicles; (ROR, Item 19); was merely based on minutes of the previous meeting. Plaintiff also argues that there was no merit to the commission's statement that plaintiff's expert testimony was poisoned by plaintiff's November 1, 2002 letter to the commissioner of the department of transportation; (ROR, Item 17), which plaintiff says had nothing to do with the plaintiff's application.
The commission basically argues that its decision was based on the plaintiff's failure to comply with the zoning regulations and that there was ample evidence to justify denial of the application.
Discussion
This court has concluded that the commission's decision to rely on an opinion expressed in the letter by the Ansonia chief of police; (ROR, Item 19); is not a proper basis for sustaining plaintiff's appeal, whether the letter was based solely on the minutes of the previous meeting or not. This court "is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 470. Additionally, "[t]he credibility of the witnesses . . . [is] solely within the province of the agency." (Internal quotation marks omitted.) Property Group, Inc. v. Planning Zoning Commission, supra, 226 Conn. 697.
Similarly, the commission's decision that plaintiff's letter to DOT; (ROR, Item 17); poisoned plaintiff's expert testimony can be proper if based on substantial evidence. On November 1, 2002, plaintiff sent a letter to DOT, copied to the commission, stating that it had come to plaintiff's attention that "certain individuals may have interfered with the department of transportation review process . . ." and that plaintiff was "requesting a fair and unbiased review of the project, site plans and traffic documents . . ." (ROR, Item 17.) Transcripts of the commission's November 25, 2002 hearing show that the commission was concerned about the letter and its implications. (ROR, Transcript, Item 26, pp. 22-24, 46-53.) One commission member stated that he found the letter very serious and was very concerned that there might have been some sort of undue influence during the review process. (ROR, Transcript, Item 26, pp. 22-23.) That same commission member later questioned whether tainted evidence was given to the commission itself. (ROR, Transcript, Item 26, p. 47.) Plaintiff, through Joe Jalowiec and its attorney, tried to address these concerns; (ROR, Transcript, Item 26, pp. 22-24, 47-53); and Mr. Jalowiec stated that no tainted evidence was submitted to the commission. (ROR, Transcript, Item 26, p. 47.)
The court must say that it is not impressed with the logic that seeks to connect plaintiff's letter to the department of transportation to the purported undermining of plaintiff's expert's credibility. However, it seems impliedly clear that this cannot be all that underlay the ostensible thought process, for it is also clear that plaintiff's expert's credibility was not accepted. This a commission can find for almost no countervailing reason beyond mere disbelief. See Property Group, Inc. v. Planning Zoning Commission, supra, 226 Conn. 697. Also, in traffic areas, commission thinking need not be subservient to "expert" thinking. See United Jewish Center v. Brookfield, 78 Conn.App. 49, 57 (2003). Finally, the police chief's concerns, despite their rather limited basis (in prior minutes) could legitimately found the commission's rejections of plaintiff's expert.
As a result, the court cannot uphold plaintiff's appeal on the strength of its claim that the decision was weak for having purported to connect plaintiff's DOT letter to the commission's disbelief in, inter alia, plaintiff's traffic submissions. Simply put, the commission was within its rights to decide, as it apparently did, that other evidentiary bases existed for its traffic-related denial of the application.
F WHETHER THE COMMISSION HAD JURISDICTION AND/OR LACKED AUTHORITY TO CONSIDER AND DENY THE APPLICATION SINCE INFERRED APPROVAL HAD ALLEGEDLY OCCURRED BY OPERATION OF GENERAL STATUES § 8-3(g) Arguments of the PartiesPlaintiff argues that its application must be deemed approved by operation of law since the commission failed to render a decision within the time constraints set by statute and by the Ansonia zoning ordinances. Plaintiff contends that the commission was bound by the sixty-five-day limit of General Statutes § 8-7d to grant or deny plaintiff's site plan application. It argues that the automatic approval section of General Statutes § 8-3(g) was triggered on December 5, 2002 and that the commission had fifteen days from that date to issue the certificate of approval. Plaintiff also contends that its own refusal to extend the mandatory time frame for the commission to act on the application was a statutory right of plaintiff and not a proper basis for denial.
The commission argues that its decision was made within the sixty-five-day window of § 8-7d because plaintiff submitted a revised site plan at the commission's October 28, 2002 meeting. Thus, the commission contends that the sixty-five-day period began to run when the application was considered at the commission's next meeting on November 25, 2002 and that the submission of a revised site plan essentially constituted a time waiver by plaintiff.
Discussion
Section 8-3(g) states in relevant part that "[a]pproval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d . . ." Section 8-7d(b) provides in relevant part that "whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for any building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan . . ." "[T]hese sections imposed a mandatory time frame of sixty-five days on local site plan approvals." SSM Associates, L.P. v. Planning Zoning Commission, 211 Conn. 331, 335 (1989). The question for the court is when the sixty-five-day period began to run.
This court has come to be persuaded that the midstream further submissions of plaintiff fall within the ambit of a revised application. These further submissions began another sixty-five-day clock. "[Section] 8-7d(b) governs the time constraints for decisions on site plan applications where no public hearing is required." October Twenty-Four, Inc. v. Planning Zoning Commission, 35 Conn.App. 599, 601 (1994). While "[§] 8-7d(a) sets the time constraints for the rendering of decisions on zoning applications in which a public hearing is required . . . Local zoning regulations determine if a public hearing is required for review of a particular application. If no public hearing is required, the time constraints of [§ 8-7 (b)], rather than those of [§ 8-7(a)], control." Id. at 601-02. Additionally, if no public hearing is required, "[t]he time at which a commission decides to hold a discretionary hearing is of no consequence in calculating the time for a decision under § 8-7d(b)." Id., 604-05. A review of the Ansonia zoning ordinance reveals no requirement that the commission hold a public hearing regarding site plan approval. (Sup. ROR, 3, Exh. A.) The commission's voluntary decision to hold a public hearing did not stop the running of the sixty-five-day clock.
Therefore, the court must determine whether the commission's ultimate denial of the site plan was rendered within the original sixty-five-day period or, if no, another sixty-five-day period was triggered. The specific issue of whether the submission of a revised site plan triggers another sixty-five-day period was addressed by the Appellate Court in University Realty, Inc. v. Planning Commission, 3 Conn.App. 556 (1985).
In University Realty, the trial court found that the planning commission failed to issue a decision on the plaintiffs' application within the time constraints of §§ 8-3(g) and 8-7(b). Id. at 557. This was so even though the plaintiffs had submitted a revised site plan after the planning commission held a meeting considering the plaintiffs' original application. Id. In upholding the trial court's decision, the court noted that "[Section 8-7d](c) furnishe[s] the measuring device for . . . [§ 8-7d](c) by providing, inter alia, that 'the date of receipt of [an] . . . application . . . shall be the date of the next regularly scheduled meeting of such commission . . . immediately following the official receipt by such . . . commission of such . . . application . . .'" (Emphasis in original.) Id. at 562-63. The court noted that "the statute focuses on the receipt of the application, not the accompanying site plan." Id. at 562. As such, "the sixty-five-day clock period for the plaintiffs' application . . . started to run [on] the day of the next regularly scheduled meeting of [planning commission] following the submission of the plaintiffs' application to the [planning] commission or its agent." Id. at 563-64. Therefore, the clock began to run after official acceptance of the original application, not the revised site plan. Id. at 564. It is important to note that the Appellate Court limited the case to its facts and stated that it did
not dismiss the possibility that a revised site plan may be submitted to a zoning authority which differs so substantially from the original that it could itself constitute a revised application, triggering a new sixty-five-day period . . . [The] record, however, [did] not support such a finding. Since [the record did] not contain the original site plan, [the court had] no basis for such a comparison. Furthermore, the [planning] commission . . . did not rely on that ground for its denial of the plaintiffs' application.
Id. at 564 n. 7.
In the present case, plaintiff's original application was filed with the clerk's office on September 19, 2002; (ROR, Item 1;) and "received" by the commission at its next regularly scheduled meeting on September 30, 2002. (Sup. ROR, Exh. B, p. 3.) Therefore, for the purposes of § 8-7d(b), the commission had sixty-five days from September 30, 2002 to act. The application was not denied until January 27, 2003; (Sup. ROR, 3, Exh. E;) leaving the commission's decision outside the sixty-five-day window, unless substantial evidence exists in the record that the plaintiff submitted "a revised site plan . . . [to the commission] which [differed] so substantially from the original that it could itself constitute a revised application, triggering a new sixty-five day period . . ." (Emphasis added.) University Realty, Inc. v. Planning Commission, supra, 3 Conn.App. 564 n. 7.
At the time of trial, the original site plan was not before the court because the record contained only the revised site plan, date stamped October 19, 2002. (Sup. ROR, 3, Exh. C.) Even if the original site plan was before the court and the changes created a revised application, the revised site plan was officially accepted at the commission's October 28, 2002 public hearing and the sixty-five day clock would have expired on or about January 2, 2003, some twenty-five days before this denial of January 27, 2003. (Sup. ROR, 3, Exh. E.)
However, submissions later than October 19, 2002 implicate another temporal deadline. Plaintiff did submit a revised map changing the radius and entrance of the proposed facility at the commission's October 28, 2002 hearing. (ROR, Transcript, Item 26, p. 54; Sup. ROR, 3, Exh. D.) Additionally, at that same meeting, plaintiff submitted a detailed traffic impact study; (ROR, Items 4; 26, p. 54;) a letter from a licensed real estate broker and appraiser; (ROR, Item 6; Transcript, Item 26, p. 54;) a letter from the Ansonia fire department; (ROR, Item 7; Transcript, Item 26, p. 54;) a letter from plaintiff's civil engineer to the department of transportation and a letter from the department of transportation to plaintiff's civil engineer dated October 25, 2002; (ROR, Item 9; Transcript, Item 26, p. 54;) and a letter regarding water utilities for the plaintiff's proposed facility. (ROR, Item 10; Transcript, Item 26, 54-55.) (These items were not included in the original application.) (ROR, Item 1.)
"The phrasing of [§ 8-7d(c)] suggests that if the application is filed with the agency's office on the day of a regularly scheduled meeting to be held that same evening, the application is not officially received at that meeting, but at the next one." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 18.2, p. 403. Therefore, the commission's decision must be deemed issued in a timely fashion if plaintiff's submissions on October 28, 2002 constituted "a revised application, triggering a new sixty-five day period . . ." University Realty, Inc. v. Planning Commission, supra, 3 Conn.App. 564 n. 7.
The submissions of plaintiff at the commission's October 28, 2002 meeting make this case factually different than University Realty, Inc. Id. Here, the commission relied on plaintiff's traffic impact study in its denial of the application. Thus, unlike University Realty, where the commission was time-barred from rendering a decision, the Jalowiec material, submitted on October 28, 2002, was more central to the commission's decision.
The court finds substantial evidence in the record that the submission of plaintiff's revised map and traffic impact study, combined with the other items submitted at the October 28, 2002 meeting, constituted a revised application thus triggered a new sixty-five-day period. The commission's next regularly scheduled meeting was held on November 25, 2002; (ROR, Item 23; Transcript, Item 26;) therefore, the commission's decision on January 25, 2003; (Sup. ROR, 3, Exh. E;) was rendered within the sixty-five-day-period required by § 8-7d(b).
Even though the commission's decision was rendered within the required sixty-five-day period, the commission cited plaintiff's refusal to grant the commission an extension of time to hire its own independent traffic engineer as a basis for denying plaintiff's site plan application. (Sup. ROR 3, Exh. E.) Section 8-7d(b) provides in relevant part that "[t]he applicant may consent to one or more extensions of such period, provided the total period of any such extension or extensions shall not exceed sixty-five days or may withdraw such plan or application." "[T]he sixty-five day requirement is] for the protection of the applicant . . . This is apparent from the fact that it vests solely in [t]he applicant the power to consent to one or more extensions." (Citation omitted; internal quotation marks omitted.) University Realty, Inc. v. Planning Commission, supra, 3 Conn.App. 565. While the commission may have relied on their personal knowledge regarding street safety and traffic congestion; United Jewish Center v. Brookfield, 78 Conn.App. 49, 57 (2003); the commission's decision to deny plaintiff's application because "the applicant refused to grant the commission an extension of time"; (Sup. ROR, 3, Exh. E;) cannot be deemed based on substantial evidence.
Since the commission's decision was rendered within the required sixty-five-day period, the appeal cannot be sustained on the plaintiff's claim that the commission lacked authority in the temporal sense to consider and deny the application.
G WHETHER THE COMMISSION LACKED THE AUTHORITY TO CONSIDER OFFSITE TRAFFIC FACTORS AND WHETHER THE COMMISSION'S DECISION WAS SUPPORTED BY EVIDENCE OR TESTIMONY CONTAINED IN THE RECORD Arguments of the PartiesPlaintiff's first argument contends that TLC Development, Inc. v. Planning Zoning Commission, 215 Conn. 527 (1990) prevents the commission from considering offsite traffic condition and urges that Friedman v. Planning Zoning Commission, 222 Conn. 262 (1992) ostensibly against plaintiff's contention, is distinguishable. Furthermore, plaintiff argues that since the entrance to the proposed facility is from Elm Street, a state highway, the department of transportation has exclusive jurisdiction to regulate the driveway and preempts any determination by the commission. Additionally, plaintiff contends that there is no evidence that the one-way exit onto Thomas Street, a city street, would cause any traffic concerns. Plaintiff also argues that any site line problems are the result of the city's failure to enforce its own regulations prohibiting the placement of hedges.
Plaintiff's next argument attacks the commission's failure to give credence to plaintiff's expert testimony. Plaintiff argues that it supplied expert testimony that the proposed day care facility would create no significant traffic impact and that the opponents and public officials who spoke against the facility presented no credible evidence to rebut that expert testimony. Furthermore, plaintiff contends that if the commission didn't believe plaintiff's experts, the commission had the burden of showing evidence in the record to support its decision and no such evidence exists. Finally, plaintiff notes that if the commission "chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience, to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative proceedings"; Feinson v. Conservation Commission, 180 Conn. 421, 428-29 (1980); which it submits was not done in this case.
The commission argues that TLC Development, Inc., supra., 215 Conn. 527, is distinguishable since the Ansonia zoning regulations allow the commission to consider offsite traffic conditions. It points to section 510.2.2 of the Ansonia zoning ordinance and contends that "[t]he intention of the site plan approval is `[t]o regulate vehicular and pedestrian access to the property in such a manner as to avoid undue hazards and undue traffic congestion of any public or private street.' "(Defendant's memorandum, p. 15; Sup. ROR, 3, Exh. A.) Additionally, the commission argues that section 100.6 of the Ansonia zoning ordinance states "that the purpose of the commission is to . . . [p]romote the most beneficial relation between the uses of land and buildings and the circulation of traffic throughout the city, having a particular regard to the avoidance of congestion in the streets and the provisions of safe and convenient traffic access appropriate to the various uses of land and buildings throughout the city." (Defendant's memorandum, pp. 14-15; Sup. ROR, 3, Exh. A.) As such, the commission maintains that these ordinances combined with other ordinances making reference to traffic conditions, permitted them to examine offsite traffic considerations when it denied the plaintiff's site plan application.
As for plaintiff's claims that its actions were against the weight of the expert testimony, the commission argues generally that its function is to decide whether a particular section of the zoning regulation applies and the manner in which it applies, stating that the regulations require the plaintiff to satisfy the criteria the commission referenced in its denial.
Discussion
Our Supreme Court examined whether a planning and zoning commission could consider offsite traffic conditions in TLC Development, Inc., supra, 215 Conn. 527. There the Branford planning and zoning commission denied the applicant's site plan based on offsite traffic conditions. Id. at 528-29. The Supreme Court determined that regulations relied on by the planning and zoning commission in denying the site plan application could only serve as a basis for modification of the application. Id. at 532. "Thus, offsite traffic considerations should not have served as the basis for denying the plaintiff's site plan application." (Emphasis added.) Id.
The Supreme Court revisited the issue two years later in Friedman v. Planning Zoning Commission, supra, 222 Conn. 262. There, the Rocky Hill planning and zoning commission denied the applicant's site plan for failure to submit an offsite traffic study. Id. at 263-64. In upholding the denial, the Court explained that "the language of a given zoning regulation may, by its textual content, limit the scope of the use of traffic considerations . . . [and] once a zoning authority establishes that a particular use within a zone is permitted . . . a conclusive presumption arises that such a use in general, does not adversely affect the traffic within the zone. Neither of these tenets, however precludes an examination into the special traffic consequences of a given site plan when the applicable zoning regulations permit it." Id. at 266. (Emphasis added.)
In Konover Development Corp. v. Planning Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. CV 97 0138403 (August 18, 1999, West, J.), the court examined whether the Waterbury commission could examine the traffic consequences of a site plan. In examining the Waterbury zoning regulations, the court found that the regulations required "traffic generation information of all applicants, and applicants are informed by the regulations that the commission may require a traffic study evaluating the impact of the proposal on streets serving and/or affected by the development." (Internal quotation marks omitted.) Id. Additionally, the plaintiff's proposed development was in close proximity to a heavily traveled road and the plaintiff discussed the improvements and traffic impact with the planning and zoning commission. Id. "The commission was entitled to review and consider the offsite traffic information because the plaintiff presented this traffic and improvements information . . . as part of the site plan application, the regulations provide notice that traffic is a factor for consideration and traffic was one of the major topics discussed throughout consideration of this application." Id. As such, it was proper for commission to consider offsite traffic conditions in its denial of the applicant's site plan. Id.
With the teaching of TLC Development, Inc. and Friedman in mind, this court has become persuaded that the zoning ordinances at issue in this case permit the commission to examine offsite traffic considerations. Section 510.2.2 of Ansonia zoning ordinance states that "[i]t is the intent of this section to provide for administrative site plan review in order to achieve the following objectives: To regulate vehicular and pedestrian access to the property in such a manner as to avoid undue hazards and undue traffic congestion of any public or private street." (Sup. ROR, 3, Exh. A, p. 61.) Furthermore, § 720.12.4 of the Ansonia zoning ordinance states that "[t]here shall be safe and adequate provision for boarding and off-boarding of children from motor vehicles without hazards to pedestrians and traffic." (Sup. ROR 3, Exh. A, p. 93.) Additionally, the facts of this case are similar to Konover Development Corp. v. Planning Zoning Commission, supra, Superior Court, Docket No. CV 97 0138403. The plaintiff submitted a traffic study to the commission at its October 28, 2002 meeting; (ROR, Items 4 and 14, p. 11); and the proposed entrance to the facility is off a publicly maintained highway. (ROR, Item 4, p. 4.) Likewise, the traffic considerations were repeatedly discussed during both sessions of the public hearing. (ROR, Transcript, Item 15, pp. 13-26, 30-31, 35-37, 39-40, 45-55, 58, 60-62, 65-67; Transcript, Item 26, pp. 4-7, 9, 12-20, 31-36, 39-41.) The court finds that it was proper for the commission to examine the offsite traffic conditions created by the proposed facility.
Further regarding offsite traffic conditions, plaintiff argues that the department of transportation has exclusive jurisdiction to regulate the proposed Elm Street entrance since it is a state highway. "The state traffic commission (which is within the department of transportation) regulates the use of state highways." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 49.16, p. 512, citing, General Statutes § 14-298. "General Statutes § 14-311 preempts the authority of [planning and zoning commissions] to condition site plan approval on the [applicant] making modification to a state highway which were not authorized by the state traffic commission." Compounce Associates, L.P. v. Southington, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 89 0043603 (June 28, 1991, Holzberg, J.) ( 4 Conn. L. Rptr. 262).
General Statutes § 14-311 provides in relevant part that "(a) No person, firm, corporation, state agency, or municipal agency or combination thereof shall build, expand, establish or operate any . . . development generating large volumes of traffic, having an exit or entrance on, or abutting or adjoining, any state highway or substantially affecting state highway traffic within this state until such person or agency has procured from the state traffic commission a certificate that the operation thereof will not imperil the safety of the public.
* * *
"(d) In determining the advisability of such certification, the State Traffic Commission shall include, in its consideration, highway safety, the width and character of the highways affected, the density of traffic thereon, the character of such traffic and the opinion and findings of the traffic authority of the municipality wherein the development is located . . ."
In Compounce, the applicant sought approval to increase the size of its parking lot by approximately 2,000 spaces. Id. The applicant was granted a certificate of approval from the state traffic commission conditioned on the plaintiff substantially widening the affected highway to accommodate the increased traffic. Id. After gaining approval from the state traffic commission, the applicant went before the defendant local body to seek approval for the increased lot. Id. The defendant denied the application after it determined that approval of the application would adversely affect traffic and that additional modification of the affected highway, beyond that required by the state, would be required. Id. In sustaining the applicant's appeal, the court noted that "it would defeat the purpose and intent of § 14-311 to allow the defendant to deny the [applicant's] application because of the [applicant's] refusal to undertake road modifications more extensive than those required by the state traffic commission." Id.
The present case is distinguishable from Compounce. The record here does not indicate that the commission denied the application because plaintiff refused to make modifications to its site plan beyond that required by the state. Rather, the commission was concerned with staggered arrival times and the required drop-off time for each child and the volume of traffic if plaintiff's experts were not correct in their calculations. (ROR, Item 15, pp. 18-22, 30.) These concerns are unlike those expressed in Compounce as plaintiff has not been required to make any change beyond that suggested by the state.
This commission denied the application based on the apprehension that the number of people, combined with the fifteen-minute drop-off time "may create undue traffic hazards and undue traffic congestion." (Sup. ROR, 3, Exh. E.) Plaintiff was aware of the commission's and communities' concerns over the proposed facility's potential impact on traffic, especially given the size of the facility, the number of children and the drop-off time. (ROR, Transcript, Item 15, pp. 18-26, 30-31, 35-37, 39-40, 45-55, 58, 60-62, 65-67; Transcript, Item 26, pp. 4-7, 9, 12-20, 31-36, 39-41.) As discussed more thoroughly further in this section, "a commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety, traffic congestion or local property values." United Jewish Center v. Brookfield, supra, 78 Conn.App. 57. This court "is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 470. As a result, this court is unable to hold that it has been persuaded that the commission was without a substantial basis for the denial to the extent it was founded upon offsite traffic concerns. (Sup. ROR, 3, Exh. E.)
As noted, plaintiff also argues that there is no evidence that the one-way exit onto Thomas Street would cause any traffic concerns and that any site line problems are the result of the city's failure to enforce its own regulations. Plaintiff's civil engineer testified that (currently existing) hedges, which may present site line difficulty, were in violation of the regulations and he also testified that the he did not measure the site line, but that there had been no accidents at the intersection. (ROR, Transcript, Item 15, 5-6; Transcript, Item 26, p. 15-18.) There is, however, evidence in the record that at least one of the commission members examined the site line at the intersection in question. (ROR, Transcript, Item 26, p. 16.) "[A] commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety, traffic congestion or local property values." United Jewish Center v. Brookfield, supra, 78 Conn.App. 57. And, as discussed earlier, at length, it was proper for the commission to examine the offsite traffic, including upon adjacent streets. See Newington Properties, L.P. v. Newington, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0549891 (May 30, 1996, Holzberg, J.) (planning and zoning commission's decision to deny site plan application based, in part, on fact that increased volume of traffic will result in backup along adjacent streets was sustained). This court "is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 470. Thus, this court cannot hold that it is satisfied that the commission acted without a substantial basis for its denial to the extent it rested on the added traffic and poor sight lines. (Sup. ROR, 3, Exh. E.)
The court must next address plaintiff's arguments that the commission's decision was against the weight of the expert testimony. "Recent decisions of [the Supreme] [C]ourt . . . have evidenced a trend toward investing zoning commissions with greater discretion in determining whether [a] proposal meets the standards contained in the regulations." (Internal quotation marks omitted.) Crabtree Realty Co. v. Planning Zoning Commission, 82 Conn.App. 559, 569, cert. denied, 269 Conn. 911 (2004). As for the credibility given to witnesses, "an administrative agency is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 597 (1993). "[A] lay commission acts without substantial evidence when it relies on its own knowledge and experience concerning technically complex issues . . . [W]e recognize that an administrative agency is not required to believe any of the witnesses, including expert witnesses . . . [but] it must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge." Bain v. Inland Wetlands Commission, 78 Conn.App. 808, 816-17 (2003) quoting Tanner v. Conservation Commission, 15 Conn.App. 336, 340-41 (1988) (no substantial evidence existed when administrative agency disregarded unanimous contrary expert opinion when dealing with complex issues). Although, "[i]t is well established that lay members of a commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety, traffic congestion or local property values . . . If, however, the commission relies on its special knowledge outside the scope of that of an ordinary trier of fact, it must afford the plaintiff a fair opportunity to respond." (Citation omitted.) United Jewish Center v. Brookfield, supra, 78 Conn.App. 57.
This court "is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 470. There is nothing in the record to indicate that the commission relied on any "special knowledge outside the scope of that of an ordinary trier of fact"; United Jewish Center v. Brookfield, supra, 78 Conn.App. 57; as it was within their discretion to "rely on personal knowledge concerning matters readily within their knowledge, such as street safety, [and] traffic congestion . . ." Id.
Even if the commission was acting outside its personal knowledge, the commission questioned the credibility of the testimony related to the reports sent to the commission. (Sup. ROR, 3, Exh. E.) "[T]he commission would have been entitled to deny an application because it did not believe the expert testimony, however, the commission had the burden of showing evidence in the record to support its decision not to believe the experts-i.e., evidence which undermined either the experts' credibility or their ultimate conclusions." Kaufman v. Zoning Commission, 232 Conn. 122, 156-57 (1995). As discussed above, transcripts of the commission's November 25, 2002 hearing show that the commission was concerned about the implications of questioning the traffic reports sent to the commissioner of transportation. (ROR, Transcript, Item 26, pp. 22-24, 47-53.) Furthermore, the commission also had a letter from the Ansonia chief of police questioning the proposed facility's impact on traffic. (ROR, Item 17.) As such, substantial evidence exists in the record for the commission to rely on its personal knowledge related to traffic safety and congestion and to discredit the plaintiff's evidence related to the reports it submitted.
Furthermore, as discussed above, "[t]he [commission's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given"; (internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, supra, 258 Conn. 221; and the court has determined that several of the reasons given by the commission were supported by substantial evidence in the record. Accordingly, the plaintiff's appeal cannot be sustained on the grounds that the commission lacked the authority to consider offsite traffic factors or that it was not supported by evidence or testimony contained in the record.
H FURTHER REGULATION-BASED CLAIMS RE PARKING, LOT SIZE AND NEIGHBORHOOD CHARACTER Arguments of the Parties
Against the commission's expressions of parking inadequacies, plaintiff first argues that the proposed daycare facility has more parking spaces planned than is required by the ordinance. It maintains that the facility is only required to have parking for fifteen staff members and the proposal calls for twenty-nine spaces. Plaintiff also notes that the finding that the plan calls for an "inadequate number of on-site parking spaces . . ." (Sup. ROR, 3, Exh. E;) is contrary to the expert testimony. Plaintiff further argues that a site plan application cannot be denied on the basis that the use does not fit into the general harmony of the neighborhood. It contends that since the use is permitted, the commission is prevented from investigating the proposed use's impact on property values and the general harmony of the use in the district. Plaintiff maintains that there is nothing in the record to indicate that the proposed use is outside the character of the district.
Plaintiff also argues that at the time of the application, § 720.12.2 of the Ansonia zoning ordinance specifically provided for an exception to the twelve-child-limit on parcels greater than three acres. (Second Supplemental Return of Record [Sup. ROR, 21, Exit A; Exh. B, p. 8.)
On March 7, 2002, plaintiff, through its attorney, requested that the commission change § 720.12.2 of the Ansonia zoning ordinance to read: "[t]he maximum number of children to be cared for shall be specific and if located in a residential district shall not exceed 12 unless the facility is an adjunct to an existing public or private school, place of religious worship, neighborhood facility of the City of Ansonia, nursing home, non-profit membership club, multifamily dwelling or a parcel of land not less than 3 acres." (Emphasis added.) (Sup. ROR, 2, Exh. A.) The stated purpose of the amendment, as articulated by the plaintiff, was "to exempt parcels of land not less than three acres from the twelve children maximum [of § 720.12.2]." (Sup. ROR, 2, Exh. A.) On May 20, 2002, the proposed amendment was adopted by the commission. (Sup. ROR, 2, Exh. B, p. 8.) The commission denied plaintiff's application on January 27, 2003. (ROR, Transcript, Item 33, p. 7.) The commission removed the three-acre exception to § 720.12.2 on March 31, 2003. (Sup. ROR, 2, Exh. E.) As plaintiff's site plan application was filed on September 19, 2002; (ROR, Item 1); and the property at issue consists of 3.438 acres; (Sup. ROR, Exh. C) plaintiff's application met the three-acre exception of § 720.12.2 at the time the application was filed. The court notes the poor drafting of the amendment as adopted. However, as plaintiff's stated purpose of the amendment was to exempt parcels greater than three acres and the commission treated the amendment as exempting all parcels greater than three acres, this court will do the same.
The court also notes that immediately following the denial of plaintiff's site plan application, the commission received a petition to remove the three-acre exception from § 720.12.2 and scheduled a public hearing for its next regularly scheduled meeting. (ROR, Transcript, Item 33, p. 7.) As previously noted, the exemption was subsequently removed on March 31, 2003. (Sup. ROR, 2, Exh. E.) The practical effect of this amendment, since plaintiff's appeal is to be denied, is to shut and lock the door behind plaintiff, preventing plaintiff from renewing or modifying its site plan to address the commission's concerns in a smaller, but larger than twelve-child, center.
The commission counters that the facility would result in traffic and other safety hazards. It contends that the evidence indicated that there would be a significant backup of automobiles due to the limited number of parking spaces and maintains that plaintiff cannot assure that the children would arrive in the proposed staggered fashion. Additionally, it contends that "since the drive would be a designated fire lane, operation of the day care center would result in repeated violations of the city's parking ordinance and a serious fire hazard." (Defendant's memorandum, p. 20.) The commission also argues that plaintiff provided the commission with incomplete and misdirected traffic study information. It contends that plaintiff has not demonstrated that acceptable site lines are available for motorists and did not provide the commission with any analysis or summary of accident conditions on nearby roadways. Finally, the commission argues that since the plaintiff never obtained a required sewer permit, approval would have resulted in violation of the zoning regulations.
The plaintiff's failure to obtain a sewer permit was not one of the grounds stated in the commission's denial of the plaintiff's site plan application. As this "court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision"; (internal quotation marks omitted) Harris v. Zoning Commission, 259 Conn. 402, 420 (2002); the court will not consider the whether the plaintiff's failure to obtain a sewer permit was a proper reason to deny the application.
Discussion
"A site plan may be modified or denied only if it fails to comply with the requirements already set forth in the zoning . . . regulations . . ." RR Pool Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 468 quoting General Statutes § 8-3(g). In the present case, the § 720.12.3 of the Ansonia zoning ordinance states in relevant part that "[t]he facility . . . shall be provided with one . . . off-street parking space for each staff person and each consultative person expected to be on the premises." (Sup. ROR, 3, Exh. A, p. 93.) The proposed daycare facility envisioned approximately fifteen employees; (ROR, Item 1, p. 3); but the site plan has twenty-nine parking spaces. (ROR, Transcript, Item 15, p. 4.) Therefore, the plaintiff has more than complied with the requirements of the zoning regulations and the commission's denial of the site plan application based on an inadequate number of parking spaces is not supported by substantial evidence.
The court now addresses plaintiff's claims that the commission lacked the authority to consider the proposed daycare facility's impact on property values and whether it fits into the general harmony of the neighborhood.
Just as a zoning commission may exercise its discretion to deny a special permit application on the basis of general conditions if those conditions are enumerated in the zoning regulations . . . it also has the discretion to deny a site plan on the basis of general conditions if site plan denial is specified in the regulations. General Statutes § 8-3(g) provides in relevant part: "The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed . . . use . . . with specific provision of such regulations . . . A site plan may be modified or denied only if it fails to comply with the requirements already set forth in the zoning . . . regulations . . ." (Citation omitted; emphasis in original.)
A. Aiudi Sons, LLC v. Planning Zoning Commission, 72 Conn.App. 502, 515, aff'd on other grounds, 267 Conn. 192, 196 (2004).
As one reviews the Ansonia zoning ordinances with Aiudi in mind, one notes that § 510.2.3 states that "[i]t is the intent of this section to provide for administrative site plan review in order to achieve the following objectives: To determine whether or not the proposed use will be of such a nature, character, and intensity as to harmonize with the neighborhood, accomplish, where applicable, a transition in character between areas of unlike character, protect nearby residential areas and property values, and preserve and enhance the appearance and attractiveness of the community." (Sup. ROR, 3, Exh. A, p. 61.) Section 720.12.4 states that "[i]n addition to the general intent of site plan review under section 510.2, the use shall be located in a building and on a lot having such size, shape, landscaping, outdoor play yard space and parking as to be in harmony with and conform to the character of the neighborhood." (Sup. ROR, 3, Exh. A, p. 93.) Likewise, § 510.2.4 states that "[i]t is the intent of this section to provide for administrative site plan review in order to achieve the following objectives: To determine whether or not off-street parking and loading will be suitably designed, paved and drained in such a manner as to promote traffic safety and protect the public health." Additionally, § 510.2.5 states that "[i]t is the intent of this section to provide for administrative site plan review in order to achieve the following objectives: To determine that potential nuisances, including . . . noise, will be minimized." Therefore, one must conclude that the commission was empowered to deny the plaintiff's application based on the general considerations of the character of the neighborhood, the impact of property values or noise if the commission's decision was based on substantial evidence.
The commission denied the plaintiff's site plan application even though plaintiff's architect testified that the building was designed "[w]ith the local neighborhood in mind . . . in keeping with the architectural character of the nearby homes"; (ROR, Transcript, Item 15, p. 12;) and the plaintiff submitted a letter from a licensed real estate broker and appraiser stating that the proposed daycare facility "would not have a negative impact on the surrounding property values in [the] area." (ROR, Item 6.) As discussed more thoroughly below, "a commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety, traffic congestion or local property values." United Jewish Center v. Brookfield, supra, 78 Conn.App. 57. Additionally, public testimony before the commission indicated both a concern about the proposed daycare facility's negative impact on the character of the neighborhood, the quality of life, local property values and public safety. (ROR, Transcript, Item 15, pp. 35-40, 45-54, 58-63; Transcript, Item 26, pp. 4-7, 9-14.) The commission was also presented with a letter from a local realtor, who based on his experience as a realtor and his familiarity with the area, stated that "residential property values . . . will be adversely affected by commercial creep . . . of commercial enterprises into a residential neighborhood." (ROR, Item 18.)
This court is compelled to rule that there has been a "substantial evidence" bais for the commission to conclude, as it did, that the size of the building was "totally out of character, nature and harmony with this neighborhood of modest size homes . . . [and] no transition zone to mitigate the intensity of the impact is possible"; (Sup. ROR, 3, Exh. E;) and "[i]t does not enhance the appearance and attractiveness of the neighborhood, nor the community." (Sup. ROR, 3, Exh. E.)
The commission also denied the plaintiff's application because "[t]here are no plans or space to erect noise barriers . . ." (Sup. ROR, 3, Exh. E.) When asked about potential noise barriers, plaintiff's architect stated that there would be a fifteen-foot natural buffer and a minimum four-foot high wood fence surrounding the play area which would "eliminate any particular noise that the children [would] make." (ROR, Transcript, Item 15, p. 32.) However, the commission disregarded plaintiff's expert; see Property Group, Inc. v. Planning Zoning Commission, supra, 226 Conn. 697; and chose to rely on its personal knowledge. See United Jewish Center v. Brookfield, supra, 78 Conn.App. 57. "[T]he lay person has his or her own concept as to what is noisy and to what degree noise may be acceptable in particular circumstances, and no particular expertise is needed to aid them if they have their own personal knowledge." Swaim v. Norwalk, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0151026 (May 5, 1998, D'Andrea, J.). Additionally, to justify their concerns, at least one member of the public was concerned about the proposed facility's impact on tranquility of the neighborhood. (ROR, Transcript, Item 15, p. 36.) One cannot say, based on the slender package before the commission, that the commission was without a "substantial evidence" basis for noise being among the several bases for its denial.
The commission's denial of plaintiff's application on its finding that the public was also concerned about the size of the activity and its negative impacts on their quality of life and public safety, testifying to numerous existing traffic problems and hazards; (Sup. ROR, 3, Exh. E,) befalls a different fate. There are no "requirements already set forth in the zoning . . . regulations"; (internal quotation marks omitted) A. Aiudi Sons, LLC v. Planning Zoning Commission, supra, 72 Conn.App. 515; requiring plaintiff to satisfy public concerns over the quality of life and public safety. (Sup. ROR, 3, Exh. A.) The testimony goes more towards the weight of the evidence in favor of the commission's decision not to believe plaintiff's experts. Similarly, the commission's reason that "[t]he City of Ansonia has adequate existing sites available for day care facilities in commercial areas . . ."; (Sup. ROR, 3, Exh. E;) finds no basis in the Ansonia zoning ordinance. (Sup. ROR, 3, Exh. A.) Finally, the commission's denial of the application on that the basis that commission's expert believes that "[a]ny attempt by the commission to substantially modify the application may prove to be frustrating but more importantly, it may be inappropriate;" (Sup. ROR, 3, Exh. E;) is not supported by the Ansonia zoning ordinance. (Sup. ROR, 3, Exh. A.) The plaintiff testified, through Joe Jalowiec, that the proposed facility would need seventy-five children to break even. (ROR, Transcript, Item 26, pp. 14-15.) While modification of the number of children at the facility may have limited the number below the plaintiff's breakeven point, it would have been up to the plaintiff to withdraw the application or not proceed with the venture. See General Statues § 8-7d(b) ("applicant may withdraw such plan or application"). Therefore, the commission's denial of plaintiff's site plan application in reliance upon the public's concern about their quality of life and public safety, the existence of other available sites for daycare facilities and the belief of the commission's expert that modification may prove frustrating or inappropriate is not supported by substantial evidence in the record.
Thus regarding the arguments discussed in this section (adequacy of parking, lot size, noise and "character") as to which many of the plaintiff's contentions are found to be well taken, it must, nonetheless, be held that the appeal cannot be sustained due the legitimacy of the commission's decision in reliance upon other rationale and regulations.
For the foregoing reasons, the appeal is dismissed.