Opinion
No. CV 03 0481855 S
June 24, 2005
MEMORANDUM OF DECISION
The plaintiff operates a restaurant on the shoreline in West Haven. It filed two applications, a coastal site plan review and a site plan modification. The aim of the applications was to permit the construction of an outdoor patio and this entailed some modification of the parking lot area. The intent was to construct the patio on the shoreline side of the restaurant. Between the restaurant and the sound there is a public easement about 45-foot wide containing a 25-foot cement sidewalk. The site plan envisages a patio parallel to the shore and at its closest it would be 9"3' from the easement. The defendant Commission held two hearings on the site plan applications in the summer of 2003. On August 12, 2003 both applications were approved but the Commission placed seven conditions on the approval. The plaintiff is only appealing condition 7 which says "the patio set back from the boardwalk shall be increased to 22 feet 6 inches and run parallel to the easement from the southeast corner of Jimmies Restaurant Structure."
The plaintiff claims this condition finds no justification in city zoning regulations and its implementation "is not supported by Connecticut case law or State statute."
(1)
A finding of aggrievement is necessary for the court to have jurisdiction under § 8-8(b) of the general statutes to entertain an appeal from the actions of a local zoning commission. The plaintiff owns the subject premises and is the applicant involved in the site plan application to the commission. Section 8-8(a)(1) defines an "aggrieved person" as "any person owning 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." Jimmies is an "aggrieved person" and an "aggrieved person may take an appeal" to Superior Court (§ 8-8(b)).
(2)
The court will now review the general principles it will apply in reviewing the zoning authority action.
Section 8-3(g) of the General Statutes says that "A site plan may be modified or denied only if it fails to comply with the requirements already set forth in the zoning or inland wetlands regulations," Norwich v. Norwalk Vault Co., 208 Conn. 1, 13 (1988); Kosinstra v. Lawlor, 177 Conn. 420, 426 (1979); Borden v. Planning Zoning Comm., 58 Conn.App. 399, 408 (2000). This would also mean that a condition cannot be added to a site plan by the local agency if it is not authorized also by the zoning regulations, Upjohn Co. v. North Haven Zoning Board of App., 4 CLR 122 (1991). As Fuller says in Land Use Law Practice, 2d ed, Conn. Practice Volume 9 at § 22.20, pp. 514-15: "Presumably a site plan can be approved with a condition, provided that the condition is in compliance with a provision already contained in the regulations. This is equivalent to modification and approval of the plan. The agency would not be allowed to attach a condition not authorized by the regulations as this would expressly violate the statute."
All of the foregoing follows from the fact that "In ruling upon a site plan application, the planning commission acts in its ministerial capacity rather than its quasi-judicial or legislative capacity," Allied Plywood v. Planning Zoning Commission, 2 Conn.App. 506, 512 (1984). It also follows that "If the application conforms to the zoning regulations, the board cannot deny the application for subjective reasons that bear no relationship to zoning regulations," RR Pool Patio v. Planning Zoning Commission, 257 Conn. 456, 469 (2001), also see Smith-Groh, Inc. v. Planning Zoning Commission, 78 Conn.App. 216, 226 (2003).
The court will now try to make some observations about the decisional process. Common sense would seem to indicate that in deciding whether a particular application complies with the zoning regulations the zoning commission can exercise some discretion in interpreting applicable provisions in those regulations — this is necessarily involved in any interpretative process because the commission has knowledge and experience in dealing with the regulations, their purpose and interrelationship. But fairness would require that at the hearing stage the commission should directly reference the regulations it believes are applicable to the application before it and its interpretation of those regulations. See general principle to this effect set forth in Feinson v. Conservation Commission, 180 Conn. 421, 428-29 (1980), also see Parsons v. Bd. Of Zoning Appeals, 140 Conn. 290, 292-95 (1953).
When it comes to actually rendering a decision § 8-3(q) states that "A decision to deny or modify a site plan shall set forth the reasons for such denial or modification." Apparently in reference to this language Fuller again makes two insightful comments. At § 6.3, page 147 he says that:
When a zoning commission denies an application, it should assign specific reasons for the denial, and the reasons must be keyed to the provisions in the existing regulations, identifying the section numbers or language relied upon.
At § 21.11, page 468 he says of the agency resolution of a site plan application that:
with a modification the resolution should indicate how the change makes the site plan conform to the existing regulations, See also RJR Pool and Patio, supra, 257 Conn. At p. 469.
(3)
The court will now turn to the specific facts of this case and the legal positions taken by counsel.
In 1989 the plaintiff quit claimed to the City of West Haven "absolutely" and "forever" "An easement for the benefit of each and every resident of the City of West Haven for the purposes of a pedestrian and bicycle right of way or promenade over the following described parcel . . ." which is then set forth in survey or measurements. The easement runs through land or a lot owned by the plaintiff. There is no dispute between the parties that the rear property line for these coastal properties is the high tide line. The set back from the high tide line is 140 feet. The rear set back requirement in the regulations is fifty feet.
The regulations define set back as follows:
Section 1-3.2
Set back: The horizontal distance from any street or lot line to any building, structure or use, measured in a straight line from the and perpendicular to such street or lot line.
The plaintiff argues that the set back requirement should run from the high tide rear property line and that there is no mention in the regulations of any set back running from an easement. If this position is accepted then the condition requiring a 22.6-foot set back from the easement for this patio would clearly be an improper condition finding no basis in the regulations.
However, the defendant argues that the defendant Commission "could properly find here . . . that the set back should be from the `street' line." The Land Use Regulations in the definition section define "street" as
a public way or way open to the public use or other right of way giving access to a lot, but not excluding an alley for service use only.
The defendant points out that the plaintiff itself referred to the easement in a 1973 grant to the City and in the previously mentioned quite claim deed as a perpetual "right of way."
If the easement is considered a "street" the defendant's position would seem to be that the plaintiff should consider itself lucky since the set back from the easement should be 50 feet not the 22.'6" feet set forth in the condition. The condition does not satisfy the plaintiff since a 22'6" set back would throw off all the building plans for the patio and its connection to the main restaurant.
The problem presented here is that, as noted, the statue says where "a site plan is denied or modified the commission shall set forth for such denial or modification," (8-3g) (emphasis by court). Nowhere does the commission give as its reasons for the action it took in imposing the condition that it relied on the definition of "street" in its regulations, concluded the easement was a street and any set back should run from the easement not the high tide line. In response to an inquiry from plaintiff's counsel at the haring Chairman Panza did say:
"Commissioner Panza: "The boardwalk is an easement to the public. The question I have in my mind is where does the set back begin. Are you allowed to build right on the easement?"
The court does not agree with the defendant that there was any extensive discussion of the set back regulations or more accurately of the regulation deemed to be dispositive here — the definition of "street." Also the observation or query made by Mr. Panza cannot be held to be the collective decision of the Commission regarding the action it took in this matter, West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, (1994) "Individual reasons . . . by certain members are not available to show the reason for or the grounds of the Commission's decision," id. p. 514.
In response to this the defendant in its brief says: "While the Commission could have articulated its reasons in a more concise manner, this is why our courts have consistently held that the (trial) court (on appeal) must search the record to find the Commission's reasons and uphold the decision if the record supports any of its reasons." In fact the court in Smith-Groh v. Greenwich, 78 Conn. App 216, 227 (2003) applied this "well settled principle of judicial review" to a site plain denial. The court, citing an earlier case, from which it quoted it said "that where the commission has failed to state its reasons, the court is obligated to search the record for a basis for its action."
All of this is true despite the statutory language that says the commission must set forth its reasons for a denial or modification of a site plan. Also see Gagnon v. Inland Wetland Watercourses Comm., 213 Conn. 604, 606-08 (1990) which despite the language in § 22a-42a (one of provisions regulating inland wetland agencies) requiring local agencies to spell out the reasons for a ruling on a permit for a regulated activity, says that a court must "search the record," for the basis of a decision by such an agency where no reason for its action is given.
In this case, however, the "search the record" admonition is not necessarily that helpful.
For one thing if what the commission meant to rely on is some conclusion derived from the regulations that the easement is a "street" how does this square with explicit provision in the same regulations that the set back be 50 feet from the street (easement). The defendant commission had no power to alter and reduce the set back requirement to 22' 6" feet. It would be an odd result if on the one hand we have a legal regime dictating that these local commissions can only deny or modify a site plan if such action is authorized by the local zoning regulations but then we permit a trial judge to resolve a case involving a site plan by approving a set back provision not in compliance with those regulations.
Also it is not fair to the plaintiff applicant to permit such a result. Immediately prior to Commissioner Panza's query to himself as to where the set back begins, the attorney for the plaintiff at the hearing asked what the reasons for a 22'6" set back from the easement could be. Presumably he was aware of the 50-foot set back requirement and could not fathom where the commission conceived the set back would run from. The attorney could have speculated that the 22'6" set back was being required for aesthetic reasons having nothing to do with the regulations purported equation of this easement with a "street." If he had known some judge, months later, would be wandering through the record trying to ascertain whether this easement/boardwalk could be anything other than a "street" under the regulations, he might reasonably at the hearing have sought to present evidence that other businesses had nothing approaching a 22'6" set back imposed on them as a historical reason why the commission should not interpret the regulation in this way.
There is another problem. The court finds that the defendant's argument that under the regulations this easement was a street to be quite persuasive, except, however, for one observation. In the regulations street is defined as a "public way" or "right of way" which gives access to a lot not excluding "an alley for service use only." Could an argument not be made that as ordinarily conceived a street has access to adjacent lots by driveways or paths thus an easement cannot be a "street" unless from it to adjacent lots such paths or walkways also run? The court is not aware of the actual factual situation concerning the foregoing observation. The record appears to be silent on this; if the commission was as a group or individually contemplating the easement equals street equation it would only seem appropriate that plaintiff's counsel should have been made explicitly aware of it so he could have explored the foregoing concern. Also although the trial court and the Appellate Court have the primary power to interpret zoning regulations the whole process contemplates the courts will have available to it the interpretation given its own regulations by the local zoning agency which is familiar with them, Woods v. Zoning Board of Appeals, 258 Conn. 691, 699 (2001). That process was not allowed to operate here.
The question then presents itself as to what should now be done. Section 8-80 allows the court to modify a decision of the zoning agency. It does not appear to permit, by its wording, a remand to the agency for further consideration, Gunsberg Devel. v. Litchfield PCZ, 33 CLR 169, (2002) (Pickard, J.); but see Lombardo v. Stratford ZBA, 2003 Ct.Sup. 7547 (Gallagher J.). The court does not believe there is any basis in the record in light of the zoning regulations to uphold condition (7) and its 22'6" set back. Therefore, it cannot uphold such a condition.
The court does have the power to modify a zoning agency decision on a site plan but only believes it would have the authority to modify the set back downward from 22'6" if the regulations gave it that authority which, under any scenario offered, they do not.
Should the court itself impose a 50-foot set back based on a conclusion that the set back should run from the easement which is a street? Neither side is asking for that relief. In Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146 (1976) at page 153 it says:
"Generally, when the court finds the actions of an administrative agency to be illegal it should go no further than to sustain the appeal . . .' For the court to go further and direct what action should be taken by the zoning authority would be an impermissible judicial usurpation of the administrative functions of the authority.' When it appears, however, that the zoning authority could reasonably reach only one conclusion, the court may direct the authority to do what the conclusion requires . . ."
The case does not speak in mandatory terms regarding modification and frankly for reasons discussed the court does not feel it would be appropriate or fair to both sides based on this record to reach such a result.
The court will simply find that the commission had not authority to impose condition (7) on the site plan approval and the imposition of this 22'6" set back requirement is illegal with no basis in the zoning regulations.
Corradino, J.
End Notes
(1) The court does not agree or attach any weight in reaching its decision to the plaintiff's argument that various city agencies and staff had no difficulty with and went along with the plaintiff's proposal for a 9'3" set back, Laufer v. Conservation Commission, 24 Conn. App 708, 712 (1991).
(2) The plaintiff spent some time in this brief in which it sought to dispel other possible reasons why condition (7) was justified but the defendant commission's brief seems to confine its argument to the issue of whether the easement is a street.
(3) There is a point to Commissioner Panza's observation that, under the plaintiff's view that the set back runs from the rear high tide property line, theoretically an owner adjacent to the easement could build right to the easement. But he never articulated that this led him to conclude the easement/boardwalk was a "street" under the regulations. Even if Panza's observation should have led plaintiff's counsel at the hearing, and this court in its search of the record, to conclude that was the thrust of his observation, that would not permit a 22'6" set back from the easement.