Opinion
No. CV 03-0828489
November 9, 2004
MEMORANDUM OF DECISION
STATEMENT OF FACTS
The plaintiffs are individuals residing at 23 Stonybrook Drive, Avon, Connecticut. The plaintiffs are appealing the granting of a special exception and the approval of a site plan. The defendant, Carmon Co., LLC., was an applicant before the Town of Avon Planning and Zoning Commission and proposed the development of a 10,459 square foot funeral home building and related infrastructure on a lot which consists of 3.46 acres, which abuts the residential neighborhood in which the plaintiffs reside. The property is located in a neighborhood business zone ["NB Zone"] under the zoning regulations. The regulation provides:
The purpose of the Neighborhood Business Zone is to establish a district for small specialty stores, offices and other compatible land uses which furnish convenience goods and services for the daily needs of the residents of the neighborhood; do not generate large volumes of traffic; are compatible with the surrounding neighborhood; and which are located in buildings of residential design, scale, architecture, and exterior materials in order to preserve the residential character of the area. Regulations, Section VI(B)(1).
It is perhaps helpful to an understanding of the problem to review the history of the proposed funeral home project. On December 1, 2002, the applicants submitted an application for a regulation change to the defendant commission proposing to amend the requirement of maximum building floor area in the NB Zone to allow 2500 square feet as of right and up to a maximum of 6500 square feet by special exception. The applicant demonstrated compliance with the special exception criteria specifically referred to in the amendment. The commission approved the new regulation on February 4, 2003.
On December 24, 2002 the applicant submitted (A) an application for zone change regarding two of the three lots included in the property, changing the zone from residential (R30) to the new NB Zone; (B) a special exception application to permit a "10,459 square foot funeral home with residence in a neighborhood business zone"; (C) a special exception application for a "single family dwelling unit in association with the funeral home use"; and (D) a site plan application for a "funeral home with residence, parking and renovated existing building." This application faced significant public opposition, but on February 4, 2003, the commission unanimously approved the zone change application, conditionally approved the special exception application for the funeral home use by a vote of 4-3 and conditionally approved the special exception application for the dwelling under by a vote of 6-1. The special exception approvals were conditioned upon the submission of a site plan. The commission denied the site plan application which showed one building of 10,459 square feet.
On February 23, 2003, the applicant submitted a revised site plan for a funeral home with residence, parking and renovated existing building. On April 8, 2003, the commission approved the site plan. On May 1, 2003, the present plaintiffs appealed the decision. That appeal was filed on June 2, 2003, and was eventually withdrawn by the plaintiff on January 4, 2004 because new applications had been filed by the applicant rendering the appeal moot.
On July 1, 2003, the commission considered and approved an amendment to the regulations which among other things amended maximum building floor area requirements in Section VI(B) to permit greater square footage.
On July 15, 2003, the applicant submitted the application at issue before the court. That application requested a special exception to permit a building floor area greater than 2,500 square feet in each of two proposed buildings on the property and a site plan application for a funeral home and single-family dwelling unit consisting of 6,401 square foot building and a 3,809 square foot building on the property. On July 29, 2003 the commission held a public hearing on the special exception application and considered the site plan application.
Following the close of the public hearing the commission voted 4-2 in favor of the special exception allowing the maximum building floor area for each building to be greater than in 2,500 square feet. The commission then considered the site plan and approved the site plan by a vote of 5-1. The regulations clearly provided that required parking be on-site. The commission determined that there was adequate on-site parking, but nevertheless conditioned its approval of the site plan on the applicant's establishment of a "written agreement" with a neighboring church in a residential zone in order to permit off-site supplemental parking.
AGGRIEVEMENT
While the parties may not stipulate to aggrievement thus conferring jurisdiction on the court, they may stipulate to the facts which would constitute aggrievement. In the instant case the parties have stipulated that the plaintiff's primary residence is located well within 100 feet of the property which is the subject matter of the appeal. Accordingly, the plaintiffs are aggrieved within the meaning of Section 8-8(a).
THE ISSUES
The plaintiffs raise claims concerning the standard or absence of a standard for parking and adequacy of the parking provided for the funeral home. The plaintiffs also claim that the approval of the special permit was invalid because the commission failed to specifically address the criteria for a special permit set forth in Section VII of the regulations, and specifically that the commission did not make the required "determination" that each criteria had been met. Finally the plaintiffs argued that the funeral home in both its use and size is fundamentally incompatible with the NB Zone.
The court notes that the commission had previously granted this same application a special exception to permit a "10,459 square foot funeral home with a residence in a Neighborhood Business Zone." This application had been unanimously approved by the commission on February 4, 2003 and that approval had never been appealed. While it is not entirely clear what the effect of the prior unappealed approval involving the same parcel and the same parties is, such approval appears noteworthy in considering compatability. In addition the court notes that at the argument before this court on September 20, 2004 where all sides were represented by extremely able counsel, counsel for the plaintiff, Attorney Manke, stated "Our main argument is not on the compatibility." Transcript, hearing September 20, 2004, page 69.
THE PARKING ISSUE
In zoning cases, the court's scope of review is limited. "The commission is entrusted with the function of interpreting and applying its zoning regulations . . . The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts . . . The plaintiffs have the burden of showing that the commission acted improperly . . . The trial court can sustain the [plaintiff's] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal . . . It must not substitute its judgment for that of the . . . commission and must not disturb decisions of local commissions as long as honest judgment has been reasonably and fairly exercised." (Internal quotation marks omitted.) 200 Associates, LLC v. Planning Zoning Commission, 83 Conn.App. 167, 171-72, 851 A.2d 1175 (2004).
The plaintiffs, the Mahers, claim that the Avon planning and zoning commission illegally created a new parking standard and illegally and arbitrarily applied that standard to the present application. Specifically, the Mahers argue that the existing parking regulations are impermissibly vague concerning funeral homes, which forced the commission to create a new standard for the purpose of this application, and thereby engage in illegal ad hoc rulemaking. The Mahers also argue that the commission's reliance on an existing category in the parking regulations to determine a standard for the funeral home was arbitrary and unreasonable. The commission and funeral home respond that the commission found that the existing regulations encompass funeral homes and applied the proper standard to determine the required amount of parking for a funeral home. They argue that the regulations need not provide specifically for every conceivable use of property and the commission's application of the existing regulations to a funeral home did not amount to the creation of a new regulation. They contend that the commission reasonably determined that the funeral home was sufficiently similar to the types of uses listed in one of the existing categories to justify the application of that category's standard to the funeral home.
The Supreme Court has held "that a commission's regulations must be reasonably precise in the subject matter and reasonably adequate and sufficient to give both the commission and those affected by its decision notice of their rights and obligations." Barberino Realty Development Corp. v. Planning Zoning Commission, 222 Conn. 607, 618, 610 A.2d 1205 (1992); see also Harris v. Zoning Commission, 259 Conn. 402, 429, 788 A.2d 1239 (2002). Moreover, "the burden of showing that regulations are unconstitutionally vague rests with the plaintiff" and "the plaintiff is required to show that the regulation complained of is impermissibly vague as applied to the facts of the particular case." Barberino Realty Development Corp. v. Planning Zoning Commission, supra, 222 Conn. 620. The Mahers specifically argue that, because the parking regulations do not specifically list "funeral homes" as a type of use, the regulations provide no standard for determining the required parking for that use. In determining the required parking, the Mahers assert, the commission created an entirely new standard. The commission and applicant respond that the regulations do provide sufficient guidance for determining the required parking through the "other" category and footnote one of the parking regulations, which provides that "[t]he Commission shall determine the required number of parking spaces for all uses not included in the above table, based on those criteria." (Return of Record [ROR], exhibit 19, p. VII-7).
The court agrees that the parking regulations provide sufficient guidance for the commission's determination of the required parking for a funeral home, and thus, that the commission did not engage in ad hoc rulemaking. The parking regulations state that their purpose is to provide "sufficient parking facilities off the street to serve all existing and proposed uses." (ROR, exh. 19, p. VII-6). The regulations further provide that the "parking spaces shall be provided on the same lot in sufficient number to accommodate the motor vehicles of all occupants, employees, customers, and any others normally visiting the premises at any one time." (ROR, exh. 19, p. VII-6). The regulations then include a table that provides minimum standards for several categories of uses, such as retail stores, offices, restaurants, and "other" uses. (ROR, exh. 19, p. VII-6 VII-7). The "other" category explicitly applies to "Theaters, Churches, Public Assembly, Recreation, etc." and requires one parking space for every four seats. (ROR, exh. 19, p. VII-7). The use of the phrase "et cetera" in the regulation indicates that the listed uses are not exclusive and that the category includes other similar uses.
The commission determined that a funeral home use fits within the "other" category. (ROR, exh. 18, p. 2). The court's review of the other possible categories, including financial institutions, gasoline stations and major grocery stores, reflects that a funeral home is most similar to the uses listed in the "other" category. These uses, i.e., churches, theaters, public assembly and recreation, reflect a shared pattern of periods of relative inactivity punctuated by periodic events with larger numbers of attendees, a pattern that also characterizes funeral homes. The similar nature of these uses indicates that the commission's application of the "other" category to funeral homes was reasonable. Further, the apparent similarities between the listed uses provided sufficient guidance to the commission about how the category should be interpreted and applied. Thus, the regulation is not impermissibly vague and the commission did not engage in illegal rulemaking when it applied the regulation to the present application.
Moreover, even if funeral homes did not fit within the "other" category, the regulations make clear that the commission could reasonably have applied the standard for that category to funeral homes. Footnote one of the parking regulations provides that "[t]he commission shall determine the required number of parking spaces for all uses not included in the above table, based on those criteria." Thus, the regulations direct the commission to use the existing categories and standards to determine the required parking for unlisted uses. Even if the "other" category did not use the phrase "et cetera," thereby indicating its inclusive nature, the standard provided for that category would nevertheless be the most appropriate criteria to be applied to funeral homes, as directed by footnote one, based on the similarities between the specified uses for the "other" category and funeral homes. In this way, the regulation again provided sufficient guidance to the commission in its determination of the appropriate standard in this case and was therefore not impermissibly vague.
In support of the argument that the parking regulations lack sufficient guidance, the Mahers rely upon a series of cases finding zoning regulations to be impermissibly vague. See, e.g., Ghent v. Planning Commission, 219 Conn. 511, 594 A.2d 5 (1991) (regulation permitting dead-end street only when through street "impractical"); Helbig v. Zoning Commission, 185 Conn. 294, 440 A.2d 940 (1981) (nonconforming uses shown by "sufficient proof" as the commission "may require"); Sonn v. Planning Commission, 172 Conn. 156, 374 A.2d 159 (1976) (allowing parallel streets only where "unusual topography or property lines"). In those cases, however, the pertinent regulations expressly applied to the relevant use but failed to provide a sufficiently clear standard to govern the use. In contrast, in this appeal, the regulation provides clear standards, such as the 1:4 ratio for the "other" category, but does not expressly apply to the funeral home use. The commission's determination that the funeral home was encompassed by the regulation was an act of interpretation in which the commission was required to determine, based on the facts, whether the existing standard should apply to a particular use. "In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." Irwin v. Planning Zoning Commission, 244 Conn. 619, 628, 711 A.2d 675 (1998). For the reasons previously discussed, the court may find that the commission reasonably exercised its discretion in concluding that the "other" category encompasses funeral home uses.
The Mahers also rely upon two other cases that the court finds inapposite. In North Rollingwood Property Owners Assn. v. City Plan Commission, 152 Conn. 518, 209 A.2d 177 (1965) the court found that where subdivision regulations expressly excluded apartments the commission lacked standards to apply to a plan for apartments. In this case, funeral homes are not clearly excluded and the language of the "other" category indicates its inclusive nature.
In Blakeman v. Planning Commission, 152 Conn. 303, 206 A.2d 425 (1965) the court held that the commission was not required to apply a regulation controlling the grade of slope on a "local street" to a proposed intersection because of the different circumstances presented by intersections. The court approved the commission's use of its judgment in determining whether intersections are sufficiently similar to a "local street" to justify application of the same standards. Similarly, the commission in this case properly used its judgment to determine that funeral homes are sufficiently similar to the listed uses in the "other" category to justify application of the same standards.
The Mahers next assert that the application of the standard provided in the "other" category to the funeral home was arbitrary and unreasonable. The Mahers argue that a funeral home is inherently different from the uses listed in the "other" category because a funeral home's eating is portable and the other uses rely on fixed seating. The Mahers argue that this difference is significant because the number of parking spaces required for uses in the "other" category depends upon the number of seats in the facility. Uses in the "other" category must provide one parking space for every four seats. (ROR, exh. 19, p. VII-7). While the court questions the assumption that all theaters, churches and facilities for public assembly or recreation utilize fixed seating, even if the Mahers were correct, the court would not be persuaded by this argument.
The commission's finding that the parking satisfied the regulations relied on the fact that the applicant proposed a maximum number of seats. (ROR, exh. 18, p. 2). Although the seating may not be fixed in place, the number of chairs that may be used at one time is limited. Applying the maximum number of possible seats, the commission determined that the 1:4 ratio of parking spaces to seats was satisfied. (ROR, exh. 18, p. 2). "Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). Use of the maximum number of seats, in the absence of fixed seats, effectively serve the purpose of determining the maximum number of attendees and was a reasonable exercise of the commission's judgment.
The Mahers further assert, however, that this reliance on maximum seats was arbitrary because the number of people attending a service at the funeral home may on occasion exceed the maximum number of seats, based on the applicant's testimony that as many as 500 people could be at the funeral home for an unusual event. (ROR, exh. 15, p. 22). The Mahers argue that a more accurate measure of the required parking would be the square footage of the building, which reflects how may standing people the building could accommodate. This argument could easily be made about other uses listed in the "other" category, such as churches or theaters, where holidays or special events sometimes bring overflow crowds with standing attendees. Thus, this attack applies generally to the category's use of a seat-based measure for all uses, not just funeral homes. To the extent that the argument constitutes a challenge to the regulation itself, the town possesses considerable discretion to determine how best to meet its zoning needs. "[T]he power to determine what are the needs of a town with reference to the use of the real property located in it and to legislate in such a manner that those needs will be satisfied is, by statute, vested exclusively in the zoning commission . . . [C]ourts cannot substitute their judgment for the wide and liberal discretion vested in local zoning authorities, when they have acted within their prescribed legislative powers . . . Courts can interfere only in those extreme cases where the action taken is unreasonable, discriminatory or arbitrary." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 425, 788 A.2d 1239 (2002). While a standard based on square footage might measure the possible need for parking more accurately, the town's regulations are not required to achieve perfectly their goals to be sustained by this court.
The seating-based standard used in this case left no doubt as to the precise number of parking spaces required, based on the maximum number of seats. The use of maximum seats to determine required parking provides a reasonable measure of the usual parking needs of the facility. "A regulation must only be reasonably sufficient to identify the criteria to be evaluated in [its] reinforcement . . . since it would be impossible to establish one standard which would adequately cover all future cases." Harris v. Zoning Commission, supra, 259 Conn. 433. The town's use of a seat-based measure of parking needs is neither unreasonable nor arbitrary and therefore must be sustained.
In conclusion, the town did not and was not required to establish a parking standard specific to funeral homes because it could reasonably be determined that funeral homes are sufficiently similar to the uses encompassed by an existing category. The parking standard for that category of uses contains clear criteria to guide the commission and to inform those affected of their rights and obligations. The town's application of the seat-based standard to the funeral home constituted a reasonable interpretation of the existing regulations and was reasonably targeted to meet the normal parking needs of the proposed facility. Therefore, the parking regulations are not impermissibly vague as applied to the funeral home and the commission's application of the regulations was not arbitrary, unreasonable or illegal.
OFF-SITE PARKING CT Page 17033
The court agrees that if the commission relied upon off-site parking to fulfil the parking requirements for the funeral home such reliance is a violation of its regulations. However, the court is not convinced that the commission unlawfully relied on the off-site parking. The court finds that the record supported the determination that the parking spaces available on the site were adequate to meet the needs. The commission could reasonably have found that no off-site parking was required to meet the requirements of the regulation. However, the transcript makes clear that Mr. Cannon and his attorney indicated that the proposed funeral home would have "the ability to use the [adjacent] West Avon Congregational Church if indeed we ever had a situation where there is an extremely significant funeral." Record 16 at 14-15, 18, 50. The commission appears to have adopted this offer to avoid excessive congestion at a "extremely significant funeral." The court has some serious question about the commission's right to impose as a condition of approval parking in addition to the parking which it finds necessary. Indeed the court is not entirely convinced that this condition is enforceable. Nevertheless, the record is adequate to allow the commission to determine applying a sufficiently precise standard and that on-site parking fulfils the requirement of the regulation.COMMISSION'S ADHERENCE TO CRITERIA REQUIRED BY THE REGULATION
Section VIII requires the commission to make a "determination" that the criteria for a special exception have been met. The plaintiffs argue "this requirement of specific articulation that each criterion has been met is an important check on subjective decision making by the Commission when reviewing compliance of a proposed use and site plan with general standards. Some restraint is needed." (Plaintiff's brief at page 23). Unfortunately, the plaintiff cites no authority for this proposition and the court is aware of none. The motion to approve the application was made at the meeting of July 29, 2003. The minutes of that meeting are found in record 15 page 30. Those minutes indicate:
In response to Mr. Stan's question of whether anyone wanted to make a motion, no one spoke up. He stated that normally as Chairman he would not do it, but that he would move it along for App. #393 6, the Special Exception for maximum building floor area greater than 2,500 square feet. He said he believed that the applicant had demonstrated all of the Special Exception Criteria" . . . Mr. Frey seconded Mr. Stan's motion to approve App #3936. In response to Mr. Kushner's question, Mr. Starr indicated that when referring to the Special Exception Criteria, he was referring to the specific standards in the NB Zone as well as Section VIII of the Zoning Regulations, which is the general Special Exception Criteria. Mr. Thompson cited the architectural detail as well as the landscape plan as reasons for approving the greater building floor area. Mr. Frey cited the attractiveness of the plan. Those reasons were added to the motion and the second.
That motion passed by a vote of 4-2.
It is true that the commission did not follow a practice of itemizing and separately approving each criteria. Our Supreme Court held in Samperi v. Inland Wetlands Agency, 226 Conn. 579 (1993), in examining Connecticut General Statutes Section 22a-41b which prohibits an inland wetlands agency from issuing a permit for regulated activities unless it finds there is no feasible and prudent alternative, that the section does not require the agency to make the findings explicitly or to itemize each alternative it reviewed in arriving at the findings. While the plaintiff would probably argue that the specificity of the local regulation should produce a different result than that arrived at in Samperi the court declined to adopt that position.
COMPATIBILITY
Finally the plaintiff argues that the funeral home is fundamentally incompatible with the neighborhood business zone. Section VI.B allows uses which are "compatible land uses which furnish convenience goods and services for the daily needs of the residents of the neighborhoods; do not generate large volumes of traffic; are compatible with the surrounding neighborhood . . ."
In examining this discretionary standard the question is not whether the court would arrive at the same decision but whether based upon all the material contained in the record the commission could have arrived at the decision which it did concerning compatibility. The commission was within its rights in arriving at this discretionary decision. For the foregoing reasons the appeal is dismissed.
BY THE COURT
Kevin E. Booth, J.