Opinion
No. MMX-CV-07-4006983 S
May 22, 2009
MEMORANDUM OF DECISION
I. STATEMENT OF APPEAL
The plaintiffs, Peter Lent and Kelly Lent (Lents), appeal from the decision of the defendant, the town of Deep River planning and zoning commission (PZC) approving a special exemption application for a special permit and type 1 site plan requested by the defendant, Haynes-Aggregates-Deep River, LLC (Haynes) and the defendant, The Incarnation Center (Incarnation) allowing Haynes to excavate/quarry gravel on property owned by Incarnation known as 253 Bushy Hill Road in Deep River.
II. PROCEDURAL BACKGROUND
The plaintiffs are the owners of property known as 72 Rosemont Drive in Deep River. On September 14, 2006, Haynes and Incarnation filed an application with the PZC seeking a special permit and site plan to allow Haynes to excavate/quarry on property owned by Incarnation. (Return of Record [ROR], Item #1.) The property owned by Haynes and Incarnation are adjoining. (ROR, Item #1.) The application also states that Haynes and Incarnation had entered into an agreement to allow Haynes to quarry/excavate on the Incarnation property. (ROR, Item #1.) The application stated that rock would be drilled, blasted, and hammered on the Incarnation property and transported to the Haynes property to be processed (sorted, refined, screened, washed, and loaded). (ROR, Item #1.) The application's Statement of Use contains many of the other details of the proposed operation. (ROR, Item #1.) A hearing concerning the application was held on October 19, 2006. The application for special permit and site plan review was received at this hearing and the application was scheduled for a continuation of the public hearing on December 6, 2006. (ROR, Item #49.) On November 22, 2006, and November 29, 2006, a notice appeared in the Hartford Courant, a newspaper of general circulation in the Deep River area, giving notice of the continuation of PZC hearing to be held on December 6, 2006, concerning the application. (ROR, Item #10.) In addition to the December 6, 2006, hearing; (ROR, Item #50, Item #51); subsequent continuations were held on December 14, 2006; (ROR, Item #52); January 17, 2007; (ROR, Item #53, Item #54); February 8, 2007; (ROR, Item #55, Item #56); February 15, 2007; (ROR, Item #57); March 15, 2007; (ROR, Item #58, Item #59); and March 22, 2007. (ROR, Item #60, Item #61.) At some of these meetings there was only a short discussion of the application or it was brought up on some minor procedural matter. However, there were hearings where there was substantial discussion of the application. At the March 22, 2007 hearing, the members of the PZC voted unanimously (six to zero) to approve the application subject to twenty-three conditions. (ROR, Item #60, Item #61.) The application sought a twenty-five-year plan; the approval was for an initial three-year period renewable upon application to document the compliance with the conditions imposed. Also, a performance bond was ordered. (ROR, Item #60, Item #61.) On March 28, 2007, notice of the agency's decision was published in the Hartford Courant (ROR, Item #46.) By letter dated April 2, 2007, the PZC informed the applicants that it had approved the application. (ROR, Item #47.) On April 13, 2007, the PZC mailed the special permits to the applicants. (ROR, Item #48.)
The plaintiffs filed a brief in support of their appeal. The applicants filed a joint brief seeking dismissal of the appeal. The PZC also filed a brief seeking dismissal of the appeal. A trial was held before this court on April 6, 2009.
III. JURISDICTION
General Statutes § 8-8(b) governs appeals from decisions of planning and zoning boards to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
A. Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it," Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest . . .
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665.
The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8-8(a)(1), which provides in relevant part: "[i]n the case of a decision by a zoning board of appeals . . . `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 in the decision of the board."
The plaintiffs allege they are aggrieved by the PZC's decisions because they are the owners of property that abuts or is within 100 feet of the property involved in the PZC decision. (Appeal, ¶ 3.) Peter Lent testified at the trial that he and his wife, Kelly Lent, are the owners of the property that abuts the property owned by Incarnation. This testimony is uncontroverted. From this undisputed evidence, the court finds that the plaintiff's own the subject property and that the plaintiffs, therefore, are aggrieved by the PZC's decisions. As the court finds that the plaintiffs are statutorily aggrieved, it is not necessary to consider whether they are also classically aggrieved.
B. Timeliness and Service of Process
Pursuant to General Statutes § 8-8(b), an "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."
General Statutes § 8-8(f) provides in relevant part: "Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows . . . (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57 . . ." General Statutes § 52-57(b) provides that "[p]rocess in civil actions against the following-described classes of defendants shall be served as follows . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
Notice of the ZBA's decision was published on March 28, 2007, in the Hartford Courant. (ROR, Item #46.) The plaintiffs commenced this appeal on April 11, 2007, within fifteen days from the date of publication, by service of process upon the board, by leaving two copies of the summons, citation and appeal with the town clerk of the town of Deep River. (Marshal return.) Accordingly, the court finds that this appeal is timely and that service of process was proper.
IV. SCOPE OF REVIEW
"It 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.) R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record." (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).
"Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law." (Emphasis in original; internal quotation marks omitted.) Trumbull Falls, LLC v. Planning Zoning Commission, 97 Conn.App. 17, 22, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006). "Because the interpretation of the regulations presents a question of law, [the court's] review is plenary." (Internal quotation marks omitted.) Id., 21.
The burden of proof to show that the PZC acted improperly is on the plaintiff. Village Builders, Inc. v. Town Planning and Zoning Commission, 145 Conn. 218, 221, 140 A.2d 477. (1958).
V. DISCUSSION
A. FACTUAL BACKGROUND
As a preliminary matter this court notes that a section of the transcript of the January 17, 2008, hearing date is missing and the word "inaudible" appears many times in the transcript. In a decision dated March 21, 2009, this court granted the defendant Haynes' motion to accept the minutes of the January 17, 2008 meeting to complete the record as sufficient evidence of the testimony and proceeding during the public hearing in lieu of a transcript.
Before addressing the issues raised by the parties, a detailed factual recitation is required. As stated earlier, the PZC approved a special exemption application for a special permit and type 1 site plan requested by Haynes and Incarnation allowing Haynes to excavate/quarry gravel on property owned by Incarnation.
[The summary in the paragraph that follows is taken, in part, from the transcript of the meeting held on December 6, 2006. (ROR, Item #51.) The transcript is not paginated. Therefore, this court is not able to note the specific page where each particular fact is found.] The defendant Haynes owns a fifty-acre parcel of property in Deep River on which excavating/quarrying of sand and gravel takes place. This property abuts land owned by Incarnation. There is a dispute in the record as to whether the size of the parcel owned by Incarnation is 550 acres, according to some witnesses, or 700 acres, according to Reverend Peter Larom, the executive director of the center. The proposed plan is for Haynes to excavate/quarry sand and gravel on twenty-five acres of the parcel owned by Incarnation. The only access to the twenty-five acres would be from the Haynes' property. The wetlands surrounding the twenty-five-acre parcel would be protected and also a six-foot high chain link fence would be placed around the perimeter of the twenty-five-acre parcel. The material would be taken from this twenty-five acre site and transported to the Haynes' property for processing and will be stock-piled there awaiting sale. No crushers or other processing equipment would be on the twenty-five-acre parcel. Blasting would be used in the excavation/quarrying process. The material would be taken off in four phases. As each phase approaches completion, the progress of reclaiming would begin. The quarrying/excavating would take place over a twenty-five-year period.
On October 19, 2006, a public hearing was held on the application. The only action that transpired at this hearing was a notation that the application was received, a suggestion that the applicants hold a public forum to address any concerns raised by their application, and a continuation of the hearing to address the application was set for December 6, 2006. (ROR, Item #50.) Notice of the December 6, 2006 hearing was given in the Hartford Courant. (ROR, Item #10.)
On December 6, 2006, counsel for Haynes and Incarnation made a presentation detailing a number of issues concerning the application. (ROR, Item #50, Item #51.) On many of the dates on which the public hearing was held various individuals made presentations on behalf of the application: counsel for Haynes, John Paul Garcia, a professional engineer and licensed land surveyor; John Hankins, a geologist and licensed environmental professional; Peter Heyman, a geotechnical professional engineer; Todd Harrington, technical manager of Maine Drilling and Blasting; David Jones, a certified residential appraiser from Norman Caine and Associates. (Item #50, Item #51, Item# 53, Item #55, Item #56.) These individuals addressed various aspects of the application including such areas as how the project would proceed, be safeguarded, and land reclamation; the effect of the plan on the water table and surrounding wells; the impact of blasting on the surrounding area; the impact of the proposal on the property values of adjacent properties and responded to concerns raised in a letter from Jacobson and Associates, the engineers for the PZC, dated December 4, 2006. (ROR, Item #14, Item #50, Item #51, Item #53, Item #55, Item #56.) Also, Reverend Peter Larom spoke on behalf of the application. He stated that the Incarnation Center is owned by the Episcopal Church and on the property are located buildings that are used as a conference center and summer camp. In addition, he stated that the plan would level a 120-foot sheer rock wall that runs approximately 1200 linear feet; (ROR, Item #50, Item #51); although in reality the rock wall is approximately 80 feet high. (ROR, Item #2, p. 1.)
Members of the public also spoke at these proceedings, some in support of the plan; some against. Peter Lent, an abutting landowner and one of the plaintiffs; Deborah Brown a resident of 27 Rosemont Drive; Gary Mislick, a former owner of the property presently owned by Haynes, John Olson, a residential neighbor of the Haynes' property; John Wichtowski, a resident of 75 Rosemont Drive; Maureen Douglas, a resident of Bushy Hill Road; Kevin Adamczyk, a resident of 67 Rosemont Drive; Renne Filippides, a resident of 61 Rosemont Drive; Gengi Proteau, a resident of 23 Rosemont Drive; counsel for the plaintiffs; Bill Sweeney, a regulation analyst for TCORS and former city planner; and Richard Nargot all spoke in opposition to the plan. They collectively raised the following concerns: the resulting noise from blasting and the potential for damage to buildings from the blasting; the possible negative effect of the blasting on wells; the possible lowering of property values if the application was approved; the non-conformance of the plan with the 1992 Plan of Development; the potential for Haynes in the future to buy more land from Incarnation or for Incarnation to subdivide the property; the ignoring of traffic impacts; the reductions of the landscaping buffer in violations of certain regulations; if the plan was approved it would run with the land and concerns as to what would happen if Haynes was sold; and if a 501c(3) organization can enter into a lease with a business. (ROR, Item #50, Item #51, Item #53, Item #55, Item #56.) In addition to the comments at the public hearing, letters were received by the PZC from other individuals expressing their opposition to the plan. (ROR, Item #50, Item #55.)
Members of the public spoke in favor of the application. A neighbor, a member of the board of the center, an employee of the Deep River highway department and an owner of buildings close to the Haynes property all spoke in favor of the application. (ROR, Item #50, Item #51, Item #53.)
Bruce Glowac, a representative of Regional School District #4, also spoke at the hearing.
He reviewed the agreement presently in place between the District and Haynes concerning a school located near the property and hoped that the agreement would continue into the future. (ROR, Item #55, Item #56.)
Various commission members made statements or asked questions. The chairman, Jonathan Kastner, asked no substantive questions and his only comments, with a few minor exceptions, pertained to the way the hearing would be conducted and other administrative matters. (ROR, Item #50, Item #51, Item #53, Item #54, Item #55, Item #56, Item #59, Item #60, Item #61.)
The PZC deliberated on March 17, 2007 and March 26, 2007. On March 26, 2007, the PZC voted unanimously (six to zero) to approve the plan for an initial period of three years renewable upon an application to determine if there is compliance with the conditions of the approval. (ROR, Item #60, Item #61.) The PZC imposed twenty-three conditions. (ROR, Item #55, Item #56.) Rather than list the conditions this court has attached to this decision the conditions as Appendix A.
B. ISSUES RAISED
In support of his appeal, the plaintiffs make the following arguments in their brief:
Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided." Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 109 n. 3, 682 A.2d 1073 (1996).
(1) the participation by the chairman of the PZC, Jonathan Kastner was illegal;
(2) the PZC failed to adequately record the hearing held on January 17, 2007;
(3) the approval of the application was an improper expansion of a pre-existing use;
(4) the PZC failed to state its reasons for its decision; and
(5) the PZC's decision failed to comply with its regulations.
(1) Was the participation by the chairman of the PZC, Jonathan Kastner, illegal?
The plaintiffs state in their brief the following: "The illegal participation of the Commission Chairman, Jonathan Kastner, a full-time Deep River town employee, created a conflict of interest in violation of C.G.S. § 8-19 and § 8-4a and the September 9, 1970 Deep River Ordinance establishing the Planning and Zoning Commission and the Zoning Board of Appeals." (Plaintiffs' brief, p. 2.)
The argument of the plaintiffs can be summarized as follows: Mr. Kastner (Kastner) is a full-time employee of the town of Deep River. As such his participation as a member of the PZC violates both state statutes and a municipal ordinance creating "the perception of an unfair decision making process"; (Plaintiffs' brief p. 7); and, as such, the decision of the PZC should be invalidated. General Statute § 8-19, General Statute § 8-4a, General Statute § 7-421(e) read together do not allow municipal employees to serve as members in the town in which they reside unless the municipality adopts a town ordinance authorizing such membership. The plaintiffs have argued in their brief that Kastner is a full-time employee of the town of Deep River. The Return of Record, contains no information to confirm or deny that Kastner is a Deep River municipal employee. However, in the briefs filed by the defendants they tacitly acknowledge or assume arguendo that Kastner is a municipal employee. For the purpose of this decision, this court will also assume arguendo that Kastner is a Deep River municipal employee.
(a) Any municipality may create by ordinance a planning commission, which shall consist of five members, who shall be electors of such municipality and whose terms of office and method of election or appointment shall be fixed in the ordinance. The ordinance may provide that members may be municipal employees if the municipality has adopted an ordinance authorizing such membership pursuant to the provisions of subparagraph (C) of subdivision (2) of subsection (e) of section 7-421.
Any town, city or borough, unless otherwise provided by special act, may by ordinance or by vote of its legislative body designate its zoning commission or its planning commission as the planning and zoning commission for such municipality, and such commission shall thereupon have all the powers and duties of both a planning commission and a zoning commission and shall supersede any previous planning commission or zoning commission, as the case may be.
(e) Any municipal employee shall have the right to serve on any governmental body of the town in which such employee resides except any body which has responsibility for direct supervision of such employee. Notwithstanding the provisions of this subsection, (1) no such employee shall serve on any of the following unless such employee is permitted to serve pursuant to the provisions of a municipal charter or home rule ordinance or serves because of membership on the legislative body of the municipality: (A) Any board of finance created pursuant to chapter 106 or any special act or municipal charter; (B) any body exercising zoning powers pursuant to chapter 124 or any special act or municipal charter; (C) any body exercising land use powers pursuant to chapter 125a or any special act or municipal charter; (D) any body exercising planning powers pursuant to chapter 126 or any special act or municipal charter; or (E) any body regulating inland wetlands and watercourses pursuant to chapter 440 or any special act or municipal charter; and (2) any municipality may, by ordinance adopted by its legislative body, authorize such employees to serve on (A) any body exercising zoning powers pursuant to chapter 124 or any special act or municipal charter; (B) any body exercising land use powers pursuant to chapter 125 or any special act or municipal charter; (C) any body exercising planning powers pursuant to chapter 126 or any special act or municipal charter; or (D) any body regulating inland wetlands and watercourses pursuant to chapter 440 or any special act or municipal charter.
APPENDIX A 1. No processing of material on Incarnation property.
2. Pre-blast surveys shall be provided of all structures on Rosemont Drive as well as all other structures within 2,000 feet of the outer boundary of the entire operation as shown on the map entitled "STRUCTURES WITHIN 2,000 FEET OF THE EXISTING ANI) PROPOSED QUARRY LIMITS dated January 2007 Figure 1" prepared by Fuss O'Neill. Follow up pre-blast surveys shall be conducted prior to the application for renewal of the permit. The pre-blast surveys will be provided to the ZEO for the file. The applicant shall notify all homeowners of the pre-blast survey in writing to be sent by certified mail, return receipt requested, and the green cards should then be submitted to the ZEO.
3. Applicant shall adhere to the "Blasting Plan for Incarnation Center, Inc. 253 Bushy Hill Road, Ivoryton, CT dated January 17, 2007" prepared by Maine Drilling Blasting, Inc.
4. Every blast shall be measured by three seismographs, to be located in accordance with current standards, one on Rosemont Drive, one at John Winthrop Middle School, and one at Plattwood Industrial Park, a written report of the results shall be submitted to the ZEO at the end of the month.
5. Seismological test reports to be submitted to Planning and Zoning Commission once a month.
6. Sedimentation and Erosion Control plan shall be updated annually, reflecting current conditions.
7. No vehicular ingress or egress from area to be mined other than through Haynes' existing operation.
8. State-of-the-art dust control methods are to be used at all times.
9. All blasting and excavation are to maintain pattern of stepping so that vertical face never exceeds 30 feet. All faces must be stepped at all times.
10. All wells within 2,000 feet of the outer boundary of the entire operation as shown on the map entitled "STRUCTURES WITHIN 2,000 FEET OF THE EXISTING AND PROPOSED QUARRY LIMITS dated January 2007 Figure 1" prepared by Fuss O'Neill, are to be guaranteed by Haynes or their successor, along with any other wells on Rosemont Drive which are outside the 2,000-foot perimeter.
11. The well guarantee for municipal properties (such as John Winthrop Middle School and Plattwood Park) located within the 2,000 feet of the outer boundary of the entire operation as shown on the map entitled "STRUCTURES WITHIN 2,000 FEET OF THE EXISTING AND PROPOSED QUARRY LIMITS dated January 2007 Figure 1" prepared by Fuss O'Neill, should be reviewed and approved by the Planning and Zoning Commission, Commission Engineer, and Commission Attorney.
12. Blasting will be conducted Monday through Friday between the hours of 2:30 p.m. and 4:00 p.m.
No blasting may be conducted on weekends or legal holidays.
13. To preserve integrity of ledge, no more than 30% of slope area may be created by backfill.
14. Provide ZEO with trip log for 2006 to use as a benchmark for future years to ensure trip levels remain relatively constant.
15. Stumps are to be disposed of properly and may not be buried anywhere in the Town of Deep River.
16. Applicant is to request State to erect "trucks entering" warning signs on Rte. 80, east-and west-bound.
17. Applicant is to request that the State reinstate the turning lane on the east-bound direction of Route 80 at Woodbury Road.
18. In absence of any Connecticut standards regarding perchlorate, the applicant shall adhere to the recommendations of the Massachusetts Department of Environmental Protection. Should standards be developed by Connecticut, adhere to the stricter of the two.
19. While levels of perchlorate seem to be most evident when blasting occurs below groundwater levels, test surface water downstream for perchlorate before work begins and semi-annually thereafter.
20. A base elevation of 175 feet shall be maintained of naturally occurring, undisturbed soils on the Incarnation Camp property.
21. Complete restoration of Phase 1 will be required before the permit for Phase 3 is granted. Complete restoration of Phase 2 will be required before the permit for Phase 4 is granted. A subsequent phase is not to be started until a report is made to the ZEO to allow for inspection
22. Prior to any work, the operator shall post a performance bond in an amount to be determined by Commission's engineer for each phase. Ten percent of the entire bond will be posted as a cash bond.
23. All blasts are to be "announced" by the use of a reverse 911 system or other means, with all homes on Rosemont Drive, all homes/businesses within the 2,000 foot boundary as shown on the map entitled "STRUCTURES WITHIN 2,000 FEET OF THE EXISTING AND PROPOSED QUARRY LIMITS dated January 2007 Figure 1" prepared by Fuss O'Neill, the First Selectman's office, John Winthrop Middle School, or who so desire, shall be notified. The announcements are to be made between the hours of 9:00 a.m. and 4:00 p.m., and shall be made 12-24 hours before the blast. Individuals have the option to opt out of the notification if request is made in writing to Haynes with a copy to the LED. It would be the responsibility of a new homeowner to contact Haynes to be added to the list.
The plaintiffs rely on Daly v. Town Planning and Zoning Commission, 150 Conn. 495, 191 A.2d 250 (1963), and Nazarko v. Conservation Commission, 50 Conn.App. 584, 717 A.2d 850 (1998), to support their argument that Kastner's "improper participation in the decision making process . . . is sufficient to invalidate a Commission's actions." (Plaintiffs' brief p. 7.) In Daly, the board of appeals denied a variance to allow a broadcasting company to erect a radio broadcasting antenna on land which the company had contracted to buy from a cemetery association. Subsequently, the commission unanimously voted to amend the regulations to make the proposed use a permitted use in the zone where the land was located. One of the members of the commission was the president of the cemetery association and had appeared before the board of appeals in support of the request for a variance. The Daly court emphasized that "[t]here is nothing before us to indicate that any improper influence was exerted by [the commissioner] or his associates . . . The evil is not in influence improperly exerted but rather in the creation of a situation tending to weaken public confidence and to undermine the sense of security of individual rights which the property owner must feel will always exist in the exercise of zoning powers." Id., 500.
In Nazarko, abutting property owners appealed a decision by the commission which had granted an application by a sportsman club to relocate a skeet shooting range on certain of its property on the ground that a town selectman who had been appointed as an ex officio member of the commission failed to disqualify himself from the proceedings despite having a personal interest in the outcome because the selectman was a member of the sportsman club, owned the only gun shop in the town, and may have sold guns and shotgun shells to fellow members. In Nazarko, the court stated "[T]he appearance of impropriety created by a public official's participation in a matter in which he has a pecuniary or personal interest is sufficient to require disqualification. See General Statutes §§ 8-11 and 8-21. This prophylactic rule serves the salutary purposes of promoting public confidence in the fairness of the decision-making process and preventing the public official from placing himself in a position where he might be tempted to breach the public trust bestowed upon him. See Thorne v. Zoning Commission, [ 178 Conn. 198, 203-205, 423 A.2d 861 (1979)]. Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 649-50, 474 A.2d. 752 (1984). The test is not whether the personal interest does conflict but whether it reasonably might conflict. Petrowski v. Norwich Free Academy, 199 Conn. 231, 241, 506 A.2d 139, appeal dismissed, 479 U.S. 802, 107 S.Ct. 42, 93 L.Ed.2d 5 (1986). A personal interest, we have said, is a personal bias or prejudice which imperils the open-mindedness and sense of fairness which a zoning official in our state is required to possess. Fletcher v. Planning Zoning Commission, supra, 158 Conn. 506." (Internal quotation marks omitted.) Nazarko v. Conservation Commission, supra, 50 Conn.App. 548.
In this case there has been no evidence that Kastner has a personal interest in the outcome of the PZC's vote to approve the application — financially or any other way. Daly and Nazarko are not the proper analytical tools to analyze the issue. Rather Murach v. Planning and Zoning Commission, 196 Conn. 192, 491 A 2d. 1058 (1985), addresses this issue and its ruling is dispositive of the plaintiffs' claim. In Murach, a member of the commission, who was a paid employee of the New London fire department voted in favor of a zone reclassification that came before the New London PZC. Abutting property owners appealed the PZC decision to the trial court arguing that because the commission member was a paid municipal employee and thus statutorily prohibited from being on the commission, the PZC's decision was invalid. The trial court upheld the decision of the PZC. The Supreme Court affirmed the trial court's decision. The Supreme Court in Murach stated, "we have not always adhered to a per se rule of invalidation when a member of a board or commission had a conflict of interest that should have counseled disqualification in a matter upon which the member should not have participated. See Dana-Robin Corporation v. Common Council, supra, 214; Luery v. Zoning Board, 150 Conn. 136, 146-47, 187 A.2d 247 (1962). We note at this juncture that the trial court neither found, nor do the plaintiffs contend, that Nunes [the New London municipal employee] had any personal or financial interest in this particular zoning reclassification." Murach, supra, 202. As stated earlier, there is no evidence that Kastner had any personal or financial interest in the outcome of the PZC's decision. The plaintiffs state in their brief that the "[i]llegal participation of Mr. Kastner . . . created the perception of an unfair decision making process." (Plaintiffs' brief p. 7.) How? The plaintiffs state that on two different occasions the voters of Deep River defeated a proposed ordinance allowing Kastner to serve as a member of the PZC. Assuming arguendo that this is correct, the plaintiffs do not show how this would affect Kastner's participation on the commission. This case basically pits one property owner in Deep River against another property owner. Does the fact that the ordinance allowing Kastner to sit as a PZC member put him in a position where he gives the appearance of improperly favoring one property owner over another? No arguments have been advanced by the plaintiffs to address these questions. Rather, the plaintiffs argue that the fact that Kastner is a member of the PZC requires sustaining their appeal. That is, this per se violation is enough to invalidate the decision of the PZC. This goes contrary to the holding in Murach. What is required under CT Page 8248 Murach is the showing that Kastner has some type of personal bias or financial interest. The plaintiffs do not do this. Rather, they merely assert that there is a perception of unfair decision-making. They do not state what those perceptions may be and what they are based on. They cannot point to a single piece of evidence to show any personal bias or financial interest.
The plaintiffs then go on to argue that Kastner was present and participated in all the public hearings and that this participation invalidated the decision of the PZC. In Murach, one of the factors relied on by the Supreme Court was the trial court's finding that Nunes' only participation in the decision of the PZC was that he made the motion to approve the zone reclassification, "He (Nunes) made no additional statements in any attempt to influence or sway the other member of the commission" Murach, supra, 196 Conn. 204-05. A reading of all the transcripts and the minutes show that Kastner's role was to be in charge of the hearings. He facilitated the hearings, explained the procedures to be followed to the public, determined when to take a break, and attended to other administrative matters. He asked no substantive questions of the individuals who testified at the hearing and did not advocate for a position. Kastner made only two statements that expressed what may be construed as an opinion on substantive issues. One was on March 15, 2007, when he stated "Well, I, not to be different from anybody I find myself in the same boat of being [in favor of the application] with a ton of conditions." (ROR, Item #59, p. 54.) There is no way that this statement can be viewed as an attempt to influence the commission. The other was when he expressed a preference that the initial period for the application be five years, "I would leave the 5 [the initial review period] myself." (ROR, Item #61, p. 46.) The commission voted in favor of a three-year initial approval. The fact that the commission approved the plan for only three years, contrary to Kastner's preference, is indicative of how little influence, in fact, that Kastner wielded over the commission. Finally, all six members of the PZC voted in favor of the application. Even if Kastner were to be disqualified, a majority of the commission voted in favor of the application.
Therefore, the plaintiffs have not maintained their burden of proof on this issue.
(2) Did the PZC fail to adequately record the hearing held on January 17, 2007?
The plaintiffs basically claim that because the term "inaudible" appears frequently in the transcript of January 17, 2007, and the transcript omits entirely the testimony of various witnesses the decision is voidable and this court should either sustain the appeal or remand the case to the PZC for a de novo hearing.
This issue has been addressed by this court in response to the defendant Haynes' motion to accept the minutes of the January 17, 2008 meeting to complete the record as sufficient evidence of the testimony and proceeding during the public hearing in lieu of a transcript. The court granted the motion and accepted the PC minutes of its January 17, 2007, hearing; (ROR, Item #53); as sufficient evidence of the testimony and proceeding during the public hearing in lieu of a transcript.
Therefore, the plaintiffs have not met their burden of proof on this issue.
(3) Was the approval of the application an improper expansion of a pre-existing use?
The plaintiffs' argument can be distilled to the following. The quarrying activity on the Haynes' property is an existing nonconforming use. The trucking in of material from the Incarnation property and the processing of this material would expand this non-conformity and is therefore non-permissible.
The defendants argue that the assertion of the plaintiffs that quarrying activities on the Haynes' property are a nonconforming use is incorrect and, therefore, that the cases relied on by the plaintiffs are not applicable.
The defendants are correct.
The Haynes' property is located in a commercial industrial park zone and the Incarnation property in an R-80 zone. (ROR, Item #1.) The Zoning Regulations of the Town of Deep River (regulations) Section 14.10.51 note that earth filling and removal are permitted in both a commercial industrial park zone and an R-80 residential zone, if a special permit is obtained. (ROR, Item #69.) Therefore, the quarrying operation is a preexisting permitted use not a nonconforming use. This point is succinctly stated by the zoning enforcement officer (ZEO) of Deep River, Cathie Jefferson, during the March 15, 2007 meeting of the PZC. A commission member, Nancy Fischbach, referred to the regulations and was quoting those portions of the regulations dealing with nonconforming use. Ms. Jefferson corrected her and stated, "That is not correct. That is not a nonconforming use. Mining is a conforming use or a permitted use. It is a permitted use in that area. The part of it that is non-conforming is that they have a pre-existing non-conforming site condition but the use itself is conforming. So one of the things they aren't doing is that they are not expanding a non-conforming, they are actually expanding a conforming use in order to eliminate the non-conformities that are existing on the site. (Emphasis added.) (ROR, Item #59 pp. 13-14.) Jefferson goes on to state that there are conditions that are in place now, that pre-date the adoption of the zoning regulations that are non-conforming. (ROR, Item #59 p. 32.) Conditions such as the sheer rock wall referred to by Reverend, Larom that would be eliminated. Many of the twenty-three detailed conditions imposed by the PZC will remedy many of the nonconformities so that the site will be in compliance with current regulations protecting the public. An example of this was mentioned by Nancy Fischbach when she stated, "This, [the proposed plan] gives us an opportunity to manage the traffic in a way we can't now because we don't have a permit for them [Haynes]." (ROR, Item #59 p. 35.)
Therefore, the plaintiffs have not met their burden of proof in claiming that the plan permits the expansion of a pre-existing nonconforming use.
(4) Did the PZC failed to state its reasons for its decision and if so does this require that the plaintiffs' appeal be sustained?
The plaintiffs argue that the PZC did not formally state its reasons for its decisions. They cite as authority General Statute § 8-3c(b) that the PZC must state the reasons for its decision to grant the application on the record. This is accurate. However, Clifford v. Planning Zoning Commission, 280 Conn. 434, 452-53, 908 A.2d 1049 (2006), Samperi v. Inland Wetlands Agency, 226 Conn. 579, 628 A.2d 1286 (1993), and Mohican Valley Concrete v. Zoning Board of Appeals, 75 Conn.App. 45, 815 A.2d 145 (2003), establish the following: when the reasons for a decision by a commission are not specifically stated the trial court must examine the record to see if the record discloses substantial evidence to support the commission's decision. The substantial evidence test has been likened to the substantial evidence test as applied in the review of jury verdicts. A reviewing court may not substitute its own judgment for that of the commission and may only sustain an appeal if the commission's decision is unreasonable, arbitrary or illegal. The fact that the commission may have been presented with contradictory evidence from which could be drawn two different conclusions does not mean that a commission's decision is not supported by substantial evidence.
This application was discussed during eight meetings of the PZC. At some of those meetings the application was the only item of discussion — taking up to two and one-half or three hours. The transcripts and minutes for those meetings are detailed and lengthy. A range of items were discussed from the effect of blasting to how the plan would affect property values (see discussion above). The commission heard from a number of professionals, neighbors, and other interested individuals. It reviewed numerous detailed lengthy reports. A series of maps were also reviewed by the commission. The commission members (with the exception of Kastner) asked a number of pointed and detailed questions that demonstrated insight into the testimony they heard and the materials presented to them. They engaged in a lengthy and lively debate exploring the issues after which they approved the application adding twenty-three specific, precise, detailed, conditions to protect the interests of the neighbors and the rest of the town. They approved the plan for an initial three-year period renewable upon an application to determine if there was compliance with the conditions of the approval. They ordered a performance bond to be posted. Finally on page two of the Special Permit Notice under the heading "reasons" the commission stated its reason "Meets the conditions set forth in the Deep River Zoning Regulations" and goes on to state the information and evidence it relied upon. (ROR, Item #48, pp. 2-3.)
This court concludes that there is substantial evidence in the record to support the commission's decision and therefore, the plaintiffs have not met their burden of proof on this issue.
(5) Did the PZC's decision failed to comply with its regulations?
The plaintiffs claim that the PZC violated the provisions of the Section 1.1 and Section 10.4 of the regulations; (ROR, Item #69); when it approved the plan. Section 1.1 states the purpose of the regulations — i.e. to promote orderly development, protect the environment, enhance the appearance of the town, etc. (ROR, Item #69.) Section 10.4 of the regulations provides specific criteria that the PZC must take into account in determining if an application should be granted. Those criteria concern generally such matters as traffic, landscaping and buffering, public safety, the environment, property values, etc. (ROR, Item #69.) The plaintiffs argue that the quarrying activities sought by the plaintiffs are inconsistent with this plan for a number of reasons: it does not preserve the rural quality of Deep River, it does not buffer residential areas from industrial activity, and it raises safety issues concerning the plaintiffs and their neighbors.
The plaintiffs are incorrect.
To briefly restate what was covered in response to issue #4 raised by the plaintiffs, the PZC spent many hours listening to testimony, reviewing documents, and discussing the application. It covered in detail all the criteria contained in Section 10.4 of the regulations in order to implement in objectives on Section 1.1 of the regulations. The conditions imposed by the PZC (see Appendix A) address those criteria, as well as other concerns raised by those who opposed the application.
Of the twenty-three conditions:
Nine concern blasting including, pre-blasts surveys; measurement of tests blasts which are to be monitored by a seismograph at three different locations; days of the week and times at which blasting can take place (Monday through Friday between 2:30 p.m. and 4:00 p.m.); testing of water if perchlorate is used and if perchlorate is used it must be in compliance with the recommendations of the Massachusetts Department of Environmental Protection; the notification of certain residents of blasts using a reverse 911 system; etc. (ROR, Item #60,);
Four concern aspects of traffic including, ingress and egress only through the Haynes property, trip logs, and signs to be erected. (ROR, Item #60.);
Two concern wells, including guarantee of certain wells. (ROR, Item #60.);
Five concern landscaping including erosion control, stump burying, restoration, etc. (ROR, Item #60.)
The plaintiffs then argue that the PZC "failed to credit the evidence of well failures, or the concerns regarding blasting amount, proximity to neighboring homes or safety." (Plaintiffs' brief p. 14.) The plaintiffs make no reference to specific examples of their claims. Many experts testified before the PZC, some in favor of the application, some critical of the application. This, to use a well worn cliche, is a classic "battle of the experts." In this case the PZC credited the applicants' experts and so they won the battle. As long as there is substantial evidence upon which the agency could have based its decision, and in this application this court has ruled that there was substantial evidence, a reviewing court will not disturb the decision of the PZC.
The plaintiffs have failed to maintain their burden of proof in regards to this issue.
VI. CONCLUSION
None of the arguments raised by the plaintiffs as to why this court should sustain this appeal are successful. Therefore, the appeal is dismissed.