Opinion
No. CV05 4001612
April 19, 2006
MEMORANDUM OF DECISION
The plaintiff, Raymond Liston, appeals from a decision of the defendant, the planning and zoning commission of the town of Pomfret (commission), approving the adoption of a new zoning map after a public hearing, and several continuations thereof, held pursuant to General Statutes § 8-3(c). The commission acted pursuant to General Statutes § 8-2 et seq. The plaintiff appeals pursuant to General Statutes § 8-8.
By way of background, the commission, on June 14, 2004, in connection with a comprehensive revision to Pomfret's zoning map and regulations, changed the zoning classification on three parcels of land (Hull parcels) from rural residential district to commercial business district. (Return of Record [ROR], Exh. 3, attachment, p. 5.) Notice of the commission's decision was published in the Norwich Bulletin on June 17, 2004. (ROR, Exh. 3, attachment, p. 5.) The plaintiff appealed (Appeal I) from that decision to the Superior Court. (ROR, Exh. 3, attachment, pp. 1-10.)
A motion for default for failure to plead in Appeal I was granted by the court, Riley J., on March 8, 2005. The plaintiff then moved for judgment on the default. The court, Riley, J., in rendering judgment in Appeal I, sustained the appeal and "reversed" the commission's June 14, 2004 decision to change the zoning classification on the Hull parcels from rural residential district to commercial business district.
While Appeal I was pending, the commission scheduled a public hearing "to consider the adoption of a revised, official zoning map for the entire town." (ROR, Exh. 2.) The proposed, revised zoning map (GIS map) was created using Geographic Information System technology (GIS) and it delineated six zoning districts. (ROR, Exh. 2.) The GIS map incorporates the revisions to the zoning map approved by the commission on June 14, 2004. (ROR, Exhs. 4, 5.) Notice of the public hearing was published in the Norwich Bulletin on January 17 and 24, 2005. (ROR, Exh. 2.) A public hearing was held on January 31, 2005. (ROR, Exhs. 4, 5.) The commission unanimously approved the adoption of the GIS map on January 31, 2005, with an effective date of February 18, 2005. (ROR, Exhs. 4, 5.) Notice of the commission's decision to approve the GIS map was published in the Norwich Bulletin on February 3, 2005. (ROR, Exh. 6.) The present case is an appeal from the commission's January 31, 2005 decision to adopt the GIS map.
As with the notice of the January 31, 2004 decision, the return of record contains a copy of the request for publication that was sent to the Norwich Bulletin and a facsimile transmission page indicating that the request was successfully sent. (ROR, Exh. 23.) The return of record does not contain an affidavit of publication.
See footnote 1, supra.
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). General Statutes § 8-8(a)(1) states, in relevant part, "[i]n the case of a decision by a zoning commission . . . `aggrieved person' includes any person owning land that abuts or is within a radius of 100 feet of any portion of the land involved in the decision of the board."
The plaintiff alleges that he is statutorily and classically aggrieved by the defendant's decision. At trial, the court determined that the plaintiff was statutorily aggrieved by the commission's decision, but only insofar as it relates to the zone change affecting the 25.5-acre parcel owned by Hull Forest Products which abuts the plaintiff's property. (See Pls. Exh. 2; Transcript, pp. 5-9.)
This parcel is also known as Assessment Parcel 18-A-16. (ROR, Exh. 3, p. 1.)
Although the plaintiff also alleges classical aggrievement, the trial transcript does not show that plaintiff offered any evidence at trial for the purpose of proving that he is classically aggrieved.
General Statutes § 8-8(b) provides, "any 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 subsection (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. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court."
General Statutes § 8-8(f)(2) further provides that, "[f]or 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. Such service shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal."
General Statutes § 52-57(b)(5) provides, in relevant part, that, "[p]rocess in civil actions against the following-described classes of defendants shall be served as follows . . . 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 . . ."
The commission published a notice of its decision to approve the GIS map in the Norwich Bulletin on February 3, 2005. (ROR, Exh. 6.) Two copies of process were served upon the assistant town clerk of the town of Pomfret on February 17, 2005. (Marshal's Return.)
Process was served upon the commission within fifteen days of the publication of the commission's decision in conformance with § 8-8(b). Two copies of process were served upon the assistant town clerk of the town of Pomfret at that time in conformance with §§ 8-8(f)(2) and 52-57(b)(5).
"Ordinarily, zoning authorities act in either a legislative or an administrative capacity." Burke v. Board of Representatives, 148 Conn. 33, 38, 166 A.2d 849 (1961). The determination of whether a zoning authority is acting in a legislative or administrative capacity is important "as it implicates the scope of judicial review." Blakeman v. Planning and Zoning Commission, 82 Conn.App. 632, 643, 846 A.2d 950, cert. denied, 270 Conn. 905, 853 A.2d 521 (2004). "[A] decision upon an application for a change of zone . . . [requires] the trial court to review a decision made by the commission in its legislative capacity." Burnham v. Planning Zoning Commission, 189 Conn. 261, 265, 455 A.2d 339 (1983).
"We have often articulated the proper, limited scope of judicial review of a decision of a local zoning commission when it acts in a legislative capacity . . . [T]he commission, acting in a legislative capacity, [has] broad authority . . . In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the 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 . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function . . . This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally . . . Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment . . . The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission. Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion . . . Within these broad parameters, [t]he test of the action of the commission is twofold: (1) The zone change must be in accord with a comprehensive plan . . . and (2) it must be reasonably related to the normal police power purposes enumerated in [General Statutes §] 8-2 . . ." (Citations omitted; internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 542-44, 600 A.2d 757 (1991). "In contrast, when acting in an administrative capacity, a zoning commission's more limited function is to determine whether the applicant's proposed use is one which satisfies the standards set forth in the regulations and the statutes." (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 505-06 n. 10, 636 A.2d 1342 (1994).
The commission exercised a legislative function when it decided whether to adopt the GIS map, which is a revised, official map in an electronic format. Thus, the commission was permitted to exercise broad discretion in making its decision. See Blakeman v. Planning and Zoning Commission, supra, 82 Conn.App. 643. The role of the court is to determine whether the commission's decision was reasonably supported by the record. See Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, supra, 220 Conn. 542-44; see also Kaufman v. Zoning Commission, 232 Conn. 122, 153, 653 A.2d 798 (1995). The court may not disturb the commission's decision unless the plaintiff establishes that the commission acted illegally, arbitrarily or in abuse of its discretion. See Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, supra, 542-44.
In the present appeal, the commission did not state the reasons for its decision on the record. "Section 8-3 of the General Statutes requires a board, whenever making changes in zoning regulations, to state upon its records the reason why such change is made . . . Only reasons which motivated the board as a collective body should be stated . . . While, however, a failure to comply with § 8-3 hinders appellate review of the board's action . . . the provision is directory only, so that failure to comply with it does not render the board's action void. Failure to state reasons merely places a burden on the court to search the record to see whether the board was justified in granting the petition." (Citations omitted; internal quotation marks omitted.) Morningside Assn. v. Planning Zoning Board, 162 Conn. 154, 156, 292 A.2d 893 (1972). "Where . . . the commission assigns no reason for its action, the court is left to surmise and conjecture as to what the reasons may be, unless the record discloses a reasonable basis for the action taken. There is then cast on the court the burden, made necessary by the commission's omission, of searching the record to discover sufficient reason to support the decision under review." Zieky v. Town Plan Zoning Commission, 151 Conn. 265, 268, 196 A.2d 758 (1963).
Preliminarily, the plaintiff argues that the commission's decision was actually the enactment of a new zoning map for the entire town rather than simply an adoption of the previous zoning map in the new GIS format. The plaintiff contends that the manner in which the court considers this appeal rests on the disposition of this issue.
The historical background of the present appeal is relevant in considering the plaintiff's preliminary claim. The commission proposed a revision to the Pomfret zoning map, including a zone change to the Hull parcels, in March of 2004. (ROR, Exh. 3.) A public hearing was held on the change on March 22, 2004, and a continuation of the public hearing was held on March 29, 2004. (ROR, Exh. 3.) The commission voted to adopt the revised zoning map on June 14, 2004 and published notice of its decision on June 17, 2004. (ROR, Exhs. 3, 4.) The plaintiff appealed from the June 14, 2004 decision to the Superior Court.
The commission decided to consider the adoption of the GIS map, which was based on the revised zoning map adopted on June 14, 2004, and issued a legal notice on January 17, 2005, and January 24, 2005, for a hearing to be held on January 31, 2005, "to consider the adoption of a revised, official zoning map for the entire town . . . Because of the comprehensive scope and nature of the proposed revised GIS map, all lots and parcels of land within the Town may be entirely or partially rezoned by the proposed amended GIS map, and all land within the town shall be subject to rezoning within one of the six zoning districts by vote of the Commission following the conclusion of the hearing . . ." (ROR, Exh. 2.)
The public hearing on the GIS map was held on January 31, 2005. (ROR, Exhs. 4, 5.) Notwithstanding the language contained in the January 17, 2005 legal notice of the public hearing; (ROR, Exh. 2); the record reflects that the town planner did not think that the proposed adoption of the GIS map involved zone changes to any property and, presumably, this view was shared by the commission. (ROR, Exhs. 4, 5.) This, however, is not so. When judgment entered on Appeal I, the court sustained the plaintiff's appeal and reversed the commission's June 14, 2004 adoption of a new zoning map as it pertained to the Hull parcels, including Assessment Parcel 18-A-16. Thus, when the commission adopted the GIS map on January 31, 2005, based on the map previously adopted on June 14, 2004, it effectively changed thue zoning designation of the Hull parcels from residential to commercial. In other words, notwithstanding what the commission may have intended, it effectively undertook a zone change on the Hull parcels on January 31, 2005, as if the June 14, 2004 zone change had never occurred.
The minutes of the January 31, 2005 public hearing indicate that James Rabbit, the Pomfret town planner, stated that "the digital map is identical to the previous. There are not proposed changes, no properties proposed to be rezoned. The language in the Legal Notice is due to the hand drawn lines on the original map. The width of a pen can change location of the line. The GIS electronic map could slightly change that line. It's the width of the line only that may modify hand drawn map but it is making the map more accurate. The two exclusions, Liston property and the property just north of it, voted for the last map out of the Pomfret Street district to Rural Residential remain the same." (ROR, Exh. 4.)
The transcript of the January 31, 2005 public hearing indicates that Rabbit stated, "This map as it appears has been digitally created. For all intents and purposes it is identical to the map that was previously adopted by the Commission. There are no proposed changes in zones. There [is] no property that [is] proposed to be rezoned. Plan (inaudible) that zoned residential, it will stay residential. If Commission adopts, there will be no change. If you own land in Pomfret Residential — it will still be Pomfret Residential. Commercial Business — no changes. Rural Residential — no changes. Reason we needed to state language in the Legal Notice is that the map depicts 1" as 1000' — dependant on width of the pen that line can differ whether using a pencil or a marker. Reproduce that hand drawn [map] on computer that line could, that thickness, could slide east or west, north or south. All intents and purposes, if your property is zoned within a district, it will remain all within a district. If you're in the Pomfret School zone — you will still be in the Pomfret School zone. If you're in the Rural Residential zone, you will still be in the Rural Residential zone. The Commission, thru the use of (inaudible) does not propose to rezone any parcels in town unless the width of the line modifies how the zone plays out. Some people here, I know, (inaudible) Mr. Liston — his property is in the Rural Residential zone. He will remain in the Rural Residential zone. Property line won't change. The lines will be more accurate based on GIS . . . I can clarify that at the last Public Hearing we had a map similar to this that was hand drawn. That map was the subject of the Public Hearing. When the Commission approved the six zones — it was with 2 exclusions. They were Mr. Liston's property and the property just to the North of Mr. Liston's property, which were in Pomfret Street zone. Based on input at that Public Hearing based on what the Commission heard and what was adopted — Mr. Liston's property and Bob Woods property were taken out of the Pomfret Street zone and put in Rural Residential. The map adopted by the Commission (inaudible) zone to zone — property to property. The only difference is that this was professionally drawn and this was computer generated. I hope I clarified language in the Legal Notice. The intent this evening is no proposals to rezone (inaudible)." (ROR, Exh. 5.)
The court's order of judgment dated March 8, 2005, states that the plaintiff's motion for judgment after default is granted, that the plaintiff's appeal is sustained and that the decision of the commission to change the zoning classification of the Hull parcels is reversed.
The commission's stated intent, as articulated at the public hearing on January 31, 2005, was to re-adopt, in the GIS format, the zoning map that was previously adopted on June 14, 2004. The GIS map, then, reflects the June 14, 2004 changes to the zoning map, including the zone changes on the Hull parcels. The June 14, 2004 zone changes to the Hull parcels, including the zone change to Assessment Parcel 18-A-16, which abuts the plaintiff's property, were invalidated by the entry of judgment on Appeal I. The commission's January 31, 2005 decision, then, was not merely the adoption of the June 14, 2004 zoning map in a new format. It effectively changed the zoning classification on the Hull parcels from rural residential district to commercial business district. Accordingly, for purposes of this appeal, the commission's decision to adopt the GIS map was a decision to amend the zoning map.
The plaintiff further argues that the record does not support the commission's decision. The plaintiff cites the case of Kloter v. Zoning Commission, 26 Conn.Sup. 495, 227 A.2d 563 (1967), in support of his argument. An examination of the facts of Kloter v. Zoning Commission is worthwhile in analyzing the present case.
The individual defendants in Kloter v. Zoning Commission obtained an option to purchase several parcels of land and hoped to obtain a change of zone on the parcels. A meeting was subsequently held at the home of the commission secretary where two of the individual defendants and three of the other commissioners were in attendance. The public was not given notice of the meeting. The individual defendants provided the commissioners with detailed information regarding their proposals for the parcels of land at the meeting.
The individual defendants then took title to the parcels of land. The commission subsequently held a hearing on an application for a zone change submitted by the individual defendants. Counsel for the plaintiff asked the commissioners who attended the nonpublic meeting to disqualify themselves because the plaintiff had not been given an opportunity to examine the individual defendants, but the commissioners refused to do so. The commission denied the application submitted by the individual defendants without prejudice because it lacked certain information from the state highway department regarding road patterns and ramps. The individual defendants submitted a second application for a zone change based on the advice of the commission chair. The chair then wrote to the state highway commissioner (state) inquiring as to the information that was lacking when the commission considered the previous application submitted by the individual defendants. The state essentially responded that further study and analysis were required.
A hearing was then held on the second application and the application was approved at a subsequent meeting where two of the commissioners and the commission secretary who were present at the nonpublic meeting were in attendance. The court noted that there was no testimony given by the individual defendants at the hearing on the second application regarding planned operations, changed conditions, or considerations pertaining to public health, safety, convenience or property values. The only evidence supporting the application consisted of letters from the two planning agencies and one other entity, all of which were in response to correspondence received from the chairman of the commission.
Considering the lack of evidence presented at the second hearing, the court stated that: "The conclusion is inescapable that the information obtained by the commission at the ex parte meeting . . . and the public hearing [on the first application] . . . was taken into consideration by the commissioners in arriving at their conclusions following the . . . public hearing [on the second application] and that, in effect the latter hearing was merely a continuation of the previous public hearing after a recess of several months." Id., 500. "The impropriety in this procedure is that the information unfolded and revealed at those sessions was not exposed to public perusal and potential criticism at the . . . public hearing [on the second application] and furthermore this data, amassed by the commission, should have been placed on the record to afford the opponents of the zone change an opportunity to ascertain whether the subordinate facts justified the commission's conclusions . . ." Id. The court then held that the public hearing on the second application, in view of the events that it previously outlined, was "woefully lacking" in fulfilling the purpose of public hearings as set forth in Couch v. Zoning Commission, 141 Conn. 349, 356-57, 106 A.2d 173 (1954), "and violated the `fundamentals of natural justice.'" Id., 501-02.
The court also noted that one of the individual defendants stated in court "that his failure to testify at the zoning hearing was due to his already having supplied the commission `detailed' information at the . . . [nonpublic] meeting . . ." Kloter v. Zoning Commission, supra, 26 Conn.Sup. 501.
In Couch v. Zoning Commission, 141 Conn. 349, 106 A.2d 173 (1954), the defendant commission sought to increase the number of areas zoned for commercial use in the town of Washington. The commission engaged in a number of meetings and discussions on the issue. At one of the meetings, the commission received a petition signed by residents requesting that certain property be zoned for business. A public hearing was held on the petition where the attendees had ample opportunity to express their views. The commission, after discussing the issue among themselves, concluded that certain limited sections of land should be zoned for business and voted to establish business districts in those areas. The meeting minutes reflected the reasons for the commission's decision. A public hearing on the proposed business districts was subsequently held where people spoke in favor of and against the plan. The commission then met in executive session, voting to approve the plan for the reasons set forth in the minutes of the prior meeting.
The trial court, in sustaining the appeal of the commission's decision in Couch v. Zoning Commission, partially relied upon the commission's vote to establish the business districts before the public hearing occurred. Couch v. Zoning Commission, supra, 141 Conn. 355. The Supreme Court, in reviewing the trial court's decision in that appeal, set forth the purpose for conducting public hearings on zoning decisions. "The purpose of the requirement of a public hearing is obvious. The alteration of zonal boundaries may seriously affect the property rights of those owning land within or near the area involved. Hearings play an essential role in the scheme of zoning and in its development . . . They furnish a method of showing to the commission the real effect of the proposed change upon the social and economic life of the community . . . Hearings likewise provide the necessary forum for those whose properties will be affected by a change to register their approval or disapproval and to state the reasons therefore . . ." Id., 356-57. "If the public hearing was had merely to comply with a statutory requirement and if the commission had theretofore resolved that, regardless of what might be developed by those in attendance, the zones were to be established as previously determined, the action of the commission might well be classified as arbitrary. The ultimate decision to effect a change in boundaries had to await the hearing, at which the public were privileged to express themselves." Id., 357. The Supreme Court ultimately set aside the judgment of the trial court and remanded the case with direction to dismiss the appeal, reasoning that, "[w]here it appears that an honest judgment has been reasonably and fairly exercised after a full hearing, courts should be cautious about disturbing the decision of the local authority." Id.
In the present appeal, the record reflects that counsel for the plaintiff was given an opportunity to address the commission at the public hearing on January 31, 2005. (ROR, Exhs. 4, 5.) The record further reflects that the commission was aware of the plaintiff's concerns when it convened a special meeting following the public hearing on January 31, 2005. (ROR, Exh. 4.) Finally, the record contains the letter prepared by counsel for the plaintiff outlining the plaintiff's concerns regarding the zone change. (ROR, Exh. 3.) The letter was presented to the commission at the public hearing on January 31, 2005, and counsel for the plaintiff was given the opportunity to address the concerns that were contained in the letter. (ROR, Exhs. 4 and 5.) The letter states the following objections to the proposed rezoning: 1) the change would encourage commercial uses that are out of character with the area of town in which they are located; 2) the change does not further the goals and objective of the Pomfret plan of conservation and development; 3) the change will create nonconformities in two of the three Hull parcels; 4) the change could potentially introduce commercial traffic onto residential streets and alter the scenic qualities of Route 97; 5) the permitted uses and yard requirements in the commercial business zone are inconsistent with the stated purpose of that zone; 6) the supplemental regulations for development in a commercial business zone are inadequate; and 7) the rural residence designation is more appropriate for the Hull properties. (ROR, Exh. 3, pp. 1-5.)
In the special meeting held on January 31, 2005, following the public hearing, commissioner Allegretti moved to adopt the GIS map, but then inquired as to whether the plaintiff's request was required to be considered on that evening. (ROR, Exh. 4.) Rabbit responded that testimony was received. (ROR, Exh. 4.) It was further stated that the plaintiff's action was on file and was reviewed by the chair. (ROR, Exh. 4.) It was also stated that the commission might want to review the suit as well as other documents submitted on the plaintiff's behalf. (ROR, Exh. 4.) Commissioner Blackmer stated that the documents submitted that evening were not relevant to changing the map from hand drawn to GIS. (ROR, Exh. 4.) Commissioner Schad stated that the plaintiff's concerns had been considered in the past. (ROR, Exh. 4.) The commission then voted to pass the motion to adopt the GIS map. (ROR, Exh. 4.)
It is not possible to determine from the record whether Rabbit was referring to the public hearing on the June 2004 zone change or the January 31, 2005 public hearing.
There was some confusion on the part of the town planner and, perhaps, the commission, as to whether the commission's action actually involved zone changes. The public hearing, however, was properly noticed as involving the possibility of rezoning all of the lots and parcels in the town, giving the public the opportunity to attend the meeting and voice any concerns regarding zone changes. While the question of whether or not the GIS map should be adopted may have been an open question on January 31, 2005, the record does not reflect that the question of the zoning classification of the Hull properties was also an open question at that time. The town planner suggested that the commission might want to review the documents submitted by counsel for the plaintiff as well as the plaintiff's pending suit. (ROR, Exh. 4.) It appears, however, that the commission believed that it was unnecessary to consider any of the documents because they were irrelevant in deciding the motion that was before the commission that evening. (ROR, Exh. 4.)
The record does not reflect that the commission intentionally disregarded principles of justice when it conducted its public hearing on January 31, 2005. Because of the commission's mistaken belief that they were merely adopting the same map in a new format, however, the purpose of a public hearing was not met. The commission appeared to believe that it had already decided the issue raised by the plaintiff and that it did not require further consideration at that point in time. See Couch v. Zoning Commission, supra, 141 Conn. 356-57.
The issue of whether the commission's decision was supported by the record is closely related factually to the issue of whether the hearing was properly conducted. Counsel for the plaintiff asked the commission to incorporate the record related to the adoption of the June 14, 2004 zoning map into the record of the January 31, 2005 proceedings, but there is no evidence that the commission agreed to do so. Accordingly, there is no basis upon which the court may consider whether the earlier record supports the commission's January 31, 2005 decision. Therefore, the court is in the position of determining whether the zone change of the property abutting the plaintiff's property is reasonably supported by a rather sparse record, containing only two zoning maps, various notices of publication, the minutes of the January 31, 2005 public meeting and special meeting, a transcript of the January 31, 2005 public meeting, a letter submitted to the commission at the public hearing by counsel for the plaintiff and a copy of the Pomfret zoning regulations.
The zoning regulations of the town of Pomfret (regulations) contain a section relating to the commercial/business designation that was assigned to the Hull parcels. (Supplemental ROR, Exh. 8, § 9.) The regulations state, in relevant part, "[t]he purpose of this zone is to foster development in an open and park-like setting with suitable landscaping, and preservation of natural features and open space." (Supplemental ROR, Exh. 8, § 9, p. 16.) A search of the record does not show that the commission possessed any information pertaining to or considered any of the purposes of the commercial/business zone in arriving at its decision on January 31, 2005.
The zoning regulations also contain a section on nonconforming uses, buildings and lots. The regulations state, in relevant part: "Such non-conforming use, building or lot may be continued according to the requirements of these Regulations." (Supplemental ROR, Exh. 8, § 11, p. 22.)
The Pomfret town planner, speaking at the public hearing on January 31, 2005, stated that the Hull parcels that were rezoned had always been in commercial use. (ROR, Exh. 4.) Counsel for the plaintiff stated at the public hearing on January 31, 2005, that the plaintiff did not object to the current nonconforming use of the Hull parcels as a sawmill. (ROR, Exh. 4.)
Even if the commission believed that the Hull parcels were in commercial use at the time of the adoption of the GIS map, this does not provide justification for effectively changing the zoning classification of the Hull parcels from residential to commercial. First, the record reflects that Assessment Parcel 18-A-16, which abuts the plaintiff's property, was not a nonconforming parcel. (ROR, Exh. 3, p. 1.) The nonconforming parcel, where a sawmill is operated, is Assessment Parcel 18-A-7. (ROR, Exh. 3, p. 1.) Also, the record does not contain any evidence that the zone change was in conformity with the comprehensive plan or that the commission even considered that issue. See Allin v. Zoning Commission, 150 Conn. 129, 135, 186 A.2d 802 (1962).
Based on the evidence of the proceedings of January 31, 2005, and in view of the court's ruling on Appeal I, the commission was mistaken as to the nature of the decision it made on January 31, 2005. Furthermore, the record does not disclose any reasonable basis for the commission's decision on that date. Accordingly, the commission's decision was arbitrary and the plaintiff's appeal is sustained as to the abutting parcel owned by Hull Forest Products, also known as Assessment Parcel 18-A-16.