Opinion
Nos. CV04-4001963S, CV06-4009492S
August 31, 2007
MEMORANDUM OF DECISION
The plaintiffs Theodore Martland ("Martland") and Martland Management, Inc. (collectively, the "plaintiff") bring this consolidated appeal from two decisions of the Woodbury Zoning Commission (the "Commission") involving proposed activity on the same real property. The plaintiff's motion to consolidate the two appeals was granted by the court on April 24, 2006 (Agati, J.).
FACTUAL BACKGROUND
On May 5, 2004, the plaintiff applied for a special permit for the removal of earth materials in connection with the excavation, dredging and maintenance of a portion of a 4.8-acre pond known as Riker Pond (the "Pond") situated on Quassuk Road, Woodbury, Connecticut. The proposed activity involved the excavation of approximately 17,000 cubic yards of soil from 1.2 acres of the floor of the Pond to convert the Pond from a "deep water marsh to an open water habitat." The plans called for the depth of the water in the Pond to be increased from approximately 2 feet to approximately 12 feet to promote a more diverse aquatic life. Approximately 3,000 cubic yards of the 17,000 cubic yards of soil removed from the Pond would be deposited as a top coat on the Berm to better promote the growth of plant life. The proposed activity also involved the creation of an unpaved road (the "Haul Road") to be used to move excavated materials from the site to a neighboring property owner's land (the "Tietz Property"). The Haul Road was to be created by the excavation of approximately 10,000 cubic yards of sand and gravel from an existing mound or berm of land running along the westerly side of the Pond (the "Berm"). The Berm is sloped and approximately 1,345 feet in length. The height of the Berm is irregular and varies at different points from approximately 3-5 feet to 18 feet above the water level of the Pond. Its width varies from 40 feet to 120 feet. The plaintiff presented evidence at the Commission's hearing that the excavation of earth materials from the Berm was necessary to reduce the irregular slope of the Berm in order to permit the safe passage of trucks and machinery to be utilized in the project. The removal of gravel would result in a reduction in the height of the Berm by approximately 8 feet at its highest point to minimal or no reduction in height of the Berm at its lowest point. The plaintiff's application also included the creation of an additional unpaved access way connecting to another neighboring property (the "Morris" property) to provide access for repairs to a dam and future maintenance of the Pond and dam. The Haul Road and maintenance roadway would be fully situated on the plaintiff's property and would not connect to any public road. Tietz would access the site from the Tietz Property and truck the earth materials overland to the Tietz Property rather than over Quassuk Road. The creation of the Haul Road was estimated to take from 28-40 days. The excavation, dredging and removal of the materials from the Pond was expected to take from 36 to 48 days.
In response to comments from the Commission at the hearings, the plaintiff modified the proposed activities by reducing the amount of sand and gravel to be excavated from the Haul Road. The Commission approved the application as modified and granted the special permit on September 28, 2004. In conjunction with the issuance of the special permit, the Commission recited its findings and imposed a number of conditions on the permit, [ROR, Exhibit B, Minutes of September 28, 2004 Meeting, p. 4-7], one of which the plaintiffs challenge. The challenged condition (the "Restoration Condition") provides that "Upon completion of the excavation of the pond, the applicant shall restore all disturbed areas above the water level to a condition comparable to the conditions that existed prior to the excavation of the pond." [ROR, Exhibit B, Minutes of September 28, 2004 Meeting, p. 7, item III g.]. The Restoration Condition also required that the plaintiff submit an extensive site restoration plan to be prepared by a licensed landscape architect (the "Site Restoration Plan") [ROR, Exhibit B, Minutes of September 28, 2004 Meeting, p. 5-6, item II a]. The Site Restoration Plan also required a survey of the "biota present on the areas surrounding the pond and shall be prepared by a certified biologist." The Plan further required that the landscaping plan "incorporate as closely as practicable the plants identified by the biologist" and that the plaintiff "re-create the soil characteristics that existed prior to the start of the activities authorized under this permit."
The plaintiffs' first Complaint alleges that the Commission acted illegally, arbitrarily and abused its discretion by imposing the Restoration Condition. On October 5, 2005, the plaintiffs submitted an application to the Commission to amend the Special Permit to delete the Restoration Condition (the "Second Application"). Following duly noticed public hearings on the Second Application conducted on November 22, 2005 and December 13, 2005, the Commission voted unanimously at its meeting on January 24, 2006 to deny the Second Application for lack of any new information that would support an amendment of the conditions on the Special Permit. On February 8, 2006, the plaintiffs appealed the denial of the Second Application alleging in the second complaint that the Commission acted illegally, arbitrarily and abused its discretion in denying the plaintiffs' application to remove the Restoration Condition. As noted, the plaintiffs' motion to consolidate both appeals was granted on April 24, 2006.
The plaintiff and defendant have both filed consolidated briefs on the issues before the court.
AGGRIEVEMENT
"[P]leading and proof of aggrievement are prerequisites to the 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). "[T]he party alleging aggrievement bears the burden of proving it." Harris v. Zoning Commission, 259 Conn. 402, 410, 788 A.2d 1239 (2002). "Aggrievement presents a question of fact for the trial court." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665. 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." Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001)
At trial, the plaintiff Martland produced a certified copy of a warranty deed evidencing ownership of the subject property. As the owner of the property affected by the Commission's decisions, the court finds that the plaintiff is aggrieved and may pursue the appeals.
TIMELINESS AND SERVICE OF PROCESS
General Statutes § 8-8(b) provides, in part, that an "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 the notice of the decision was published as required by the general statutes."
The court finds, and the defendant presented no evidence to the contrary, that the appeals are timely and that the proper parties were served.
STANDARD OF REVIEW
"The Superior Court's scope of review [on appeal from a zoning board's decision] is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).
"The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 223 Conn. 198, 206, 658 A.2d 559 (1995). The Court may not substitute its judgment for that of the local authority. Frito-Lay, Inc. v. Planning and Zoning Commission, 206 Conn. 554, 572-73 (1988), Raybestos-Manhattan, Inc. v. Planning and Zoning Commission of the Town of Trumbull, 186 Conn. 466, 469 (1982).
If the record indicates that the board reasonably exercised its judgment following a hearing, the Court must be cautious about disturbing the board's decision. Raybestos-Manhattan, Inc. v. Zoning Commission, supra at 469.
"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).
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
When the zoning body has made known on the record the reasons for its actions, "the reviewing court ought only to determine whether the assigned grounds are reasonably supported by the record or whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." Fedorich v. Zoning Board Of Appeals, 178 Conn. 610, 613 (1979), quoting First Hartford Realty Corporation v. Plan and Zoning Commission, 165 Conn. 533, 543 (1973). The evidence however, to support any such reason must be substantial. Huck v. Inland Wetlands and Watercourses Agency, 203 Conn. 525, 540 525 A.2d 940 (1987).
"This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury . . . The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration." (Internal quotation marks omitted.) Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 73 Conn.App. 442, 458, 807 A.2d 1089, cert. denied, 262 Conn. 928, 814 A.2d 379 (2002).
"Substantial and competent evidence is that which carries conviction. It is such evidence as a reasonable mind might accept as adequate to support a conclusion. It means something more than a mere scintilla and must do more than create a suspicion of the existence of the fact to be established." (Internal quotation marks omitted.) Board of Education v. Commission on Human Rights, 176 Conn. 533, 538, 409 A.2d 1013 (1979).
DISCUSSION
Section 5.2.8 of the Regulations permits the "removal and deposition of earth materials" but any such activity "must receive a Special Exception and site plan approval in accordance with Section 10 of the Woodbury Zoning Regulations."
Section 10.4 of the Regulations is entitled " Criteria for Decision" and provides in pertinent part as follows: "In reviewing the application for Special Exception or Permit, the Commission and/or Board shall consider the following criteria and shall make finding (sic) that the use as proposed would not be inconsistent with the public welfare or would not impair the integrity of these Regulations, and would fully safeguard the appropriate use of land in the immediate neighborhood."
Section 10.4 further requires that "The Commission and/Board shall consider the following:"
e. Uses In, Adjacent To, or Impacting Residential Areas: In addition to the above, the Commission shall find that, in the case of any proposed use to be directly adjacent to, or served by way of, a residential district:
1. The location and size of such use, and the nature and intensity of operations involved in or conducted in connection therewith, shall be such that both pedestrian and vehicular traffic to and from and in the vicinity of the use will not be hazardous or inconvenient to, or detrimental to the character of the said residential district or in conflict with the traffic characteristics of the neighborhood.
2. The location and height of buildings, the location, nature and height of walls and fences, and the nature and extent of landscaping on the site shall be such that the use will not hinder or discourage the appropriate development and use of adjacent land and buildings or impair the value thereof.
3. Consideration shall be given to the architectural design of buildings and the preservation of the character of the neighborhood.
4. Consideration shall be given to the preservation and enhancement of existing topographic and/or vegetative buffers between adjoining properties. (Emphasis added.)
The purpose of Section 10.4e is plainly stated in the Regulations. It requires that the Commission make additional findings when reviewing special permits for proposed "uses" in residential districts which could result in harm to the characteristics of the neighborhood. Subsection 1 is essentially a use or operations restriction which requires a finding that the "nature and the intensity of the operations involved" not create traffic which would be hazardous or detrimental to the neighborhood. Subsection 2 is essentially a building restriction and requires a finding that the size and location of buildings and other site improvements not aversely affect the development or value of adjacent land. Subsections 3 and 4 do not neatly fit into the Section 10.4e requirement that "findings" be made in that they are both framed in terms of the matters to which the Commission is to give "consideration."
The proposed activity does not involve the construction of any buildings or other improvements nor does it seek approval of an ongoing use, the hours of operation, type of business use or other aspects of which might be of detriment to the neighborhood. Accordingly, Subsections 2 and 3 are not applicable to the present case.
The record shows that at its meeting on September 28, 2004, the Commission made the following six findings in connection with its issuance of the special permit:
No. 1 confirms that " Provided that all of the conditions below are satisfied the Commission finds that all criteria for the issuance of a Special Exception have been met." (Underlining in original.)
No. 2 confirms that the granting of the ". . . Permit will not result in a violation of the zoning regulations of the Town of Woodbury."
No. 3 confirms that the "proposed excavation activities" will not impact any body of water other than as approved by the Woodbury Wetlands Inland Wetlands and Watercourses Agency.
No. 4 confirms that the activities, as conditioned, "will not cause unreasonable pollution, impairment or destruction of the public trust in the air, water, land or other natural resources of the Town of Woodbury."
No. 5 sets forth the Commission's agreement with the "finding" made by its contract engineer, Land-Tech Consultants, in the firm's letter dated July 21, 2004 in which the firm offered its opinion that much of the requested "grading" was unnecessary but acknowledged that some of the work "would be required to create a level surface and to provide grades that will accommodate heavy machinery."
No. 6 provides that "As stated on the record the proposed activity has the potential to impact residential properties and as such should be conditioned to the extent that it minimizes such impacts in accordance with Section 10.4.e.4 of the Woodbury Zoning Regulations." [ROR, Exhibit B, Minutes of September 28, 2004 Meeting, p. 3.]
Finding No. 1 confirms that, subject to satisfaction of the conditions on the permit, all the " Criteria for Decision" for the issuance of a special permit set forth in Section 10.4, including Section 10.4e, were found to have been met.
It is clear from the language of Finding No. 6 that Section 10.4.e.4 of the Regulations provided the basis and reasons for the Commission's imposition of the Restoration Condition. Since the Commission, in its findings, has made known the reasons for its decision to impose the Restoration Condition, for the Commission's decision to be upheld, the court must find substantial evidence in the record to support the Commission's decision.
As noted above, the imposition by the Commission of the conditions on the special permit were expressly imposed "in accordance with Section 10.4.e.4" which requires that consideration be given to buffers between adjoining properties. It is also clear from a reading of the transcript that the Commission considered the Berm to be a buffer "between adjoining properties."
The Commission argues in its brief that the Restoration Condition was necessary to "protect the public health, safety, convenience and property values" and was "a direct result of consideration given to a topographic feature that functioned as a vegetative and noise buffer between adjoining properties." For the Commission's decision to be upheld, the court must find substantial evidence in the record to support the Commission's reasons for imposing the Restoration Condition on the permit as a buffer.
The combined transcripts of the public hearings and Commission meetings are lengthy. The record related to the First Application consists of transcripts of public hearings held on June 22, July 13, and July 27, 2004 and minutes of meetings of the Commission on June 22, July 13, July 27, August 10, September 14, and September 28, 2004. The return of record related to the First Application also included the minutes of the March 8, 2004 meeting of the Inland Wetlands Agency at which the Agency approved the plaintiff application. The minutes of this meeting, although included in the record are not pertinent to this appeal. The record related to the Second Application consists of transcripts from public hearings held on November 22 and December 13, 2005 and minutes of Commission meetings held on October 11, October 25, November 8, November 22, and December 13, 2005 and also on January 10 and January 24, 2006.
The Pond project required additional approvals from the U.S. Army Corps of Engineers, the State of Connecticut Department of Environmental Protection and the Woodbury Inland Wetlands Agency, copies of which are all included in the record.
The record includes correspondence from the plaintiff to the Commission dated January 28, 2003 (Exhibit D) which asserts that in the "early 90's" the plaintiff received approval from the Inland Wetlands Agency to create a "work road" on the Berm in the event that additional work on the dam was required but the Commission denied the plaintiff's application "based upon perceived added truck traffic on Quassuk Road." That assertion was uncontroverted in the record.
There is also reference in the record to a prior application which was voluntarily withdrawn.
With permission and in the presence of counsel to the parties, the court conducted a site walk on the property and the surrounding neighborhood. The property is located in a tranquil rural setting and is heavily treed. From the walk along the top of the Berm, no homes were visible except the plaintiff's daughter's home situated to the South of the Pond. There was evidence of significant beaver activity. At the time of the visit, there was no noticeable noise except an occasional automobile on Quassuk Road.
THE BERM AS A NOISE BUFFER
The regulation of excessive noise is governed by Chapter 442 of the Connecticut General Statutes entitled "Noise Pollution Control." "On the basis of the statutes, the fact that the legislature addressed the means by which a municipality could adopt noise pollution control enactments and those statutory provisions regarding such local enactments in particular, we are left to conclude that the legislature has undertaken to preempt that field of legislation and to require that local efforts aimed at noise pollution control comply with the requirements it has enumerated by statute." (Citation omitted) Berlin Batting Cages v. Planning Zoning Commission, 76 Conn.App. 199, 217, 821 A.2d 269 (2003).
Although the purpose of Chapter 442 as stated in § 22a-67(b) is, in part, to "establish a means for effective coordination of . . . noise control" and "to authorize the establishment of state noise emission standards . . ." § 22a-73 authorizes municipalities to adopt their own ordinances regulating noise pollution provided they are in conformity with state noise standards and are approved by the Commissioner of the Department of Environmental Protection.
A review of the Regulations shows that the Town of Woodbury has not adopted any noise regulation pursuant to § 22a-73. Accordingly, the Commission did not address the issue of noise pursuant to any local noise regulation but, as noted, the Commission relied on Section 10.4.e.4 of the Regulations.
The record contains only sparse references to noise, which, for the most part, concerned noise generated during the drainage phase of the project. The plaintiffs, in support of the application, submitted a letter from the State of Connecticut Department of Motor Vehicles concerning the decibel levels of noise generated by trucks removing earth materials from the site [ROR, Exhibit D]. Following a description of the drainage phase of the project by the plaintiff's professionals at the June 22, 2004 public hearing, a member of the public inquired about the noise level and hours of operation of the drainage pumps. [ROR, Exhibit C, 1, p. 43.] In its approval of the permit, the Commission's only specific reference to noise is set forth in Specific Condition III, (f) which provides that "If evening pumping is required, the Permittee shall employ the use of `silent' electric pumps . . ." [ROR, Exhibit B-6, pg 7.]
The first mention of the Berm acting as a potential noise barrier appears on page 59 of the transcript of the second public hearing on July 13, 2004. After debating drainage issues and issues concerning the history of the Pond with the plaintiffs' professional geologist and challenging the accuracy of the plaintiffs' permits from the U.S. Army Corps of Engineers and the State of Connecticut Department of Environmental Protection, a member of the public expressed a general concern about the possibility of environmental damage and increased noise resulting from reducing the contours of the Berm.
Mr. Roundy: "I don't see that this pond needs improvement. I think it's naturally taking care of itself . . . I believe the removal of the berm . . . will cause not only a tremendous amount of temporary noise to the neighborhood and the community, but also, because of the removal of the berm, which — and the vegetation on the top of the berm — provides a substantial buffering area of noise both from the activities at Young's Nursery, and also the mining operation next door at Mr. Tietz's location . . . And, not only would we have to endure the temporary noise — the pumps, heavy equipment, so on and so forth, but I think it would, on a permanent basis, increase the noise on the neighborhood in general — particularly in the summer months with the lack of foliage on the trees on the berm as it exists now." [ROR, C-2, p. 58-59.]
The only other suggestion that the Berm might function to reduce noise on a permanent basis appears on page 47 of the third public hearing on July 27, 2004. After expressing opposition to the project on the basis of the Pond's history, its "scenic character" and other environmental concerns similar to those of Mr. Roundy, a second resident raised the prospect of the Berm's influence on noise reduction.
Mr. Leavenworth: "This pond plays a part of the scenic role in the setting of that area of Quassuk Road. And the berm behind it is a part of the scenic character. We have discussed . . . the removal of the berm opening out to noises that come from the nursery operation . . . And also the activity of the Tietz sand and gravel operation, which is very close by, with the berm acting at a — as a buffer. Just on the other side of the pond, we have one of the most densely populated sections of Woodbury, with multi-unit buildings." [ROR, C-3, p. 45-48.]
The defendant cites Rhudy v. Fairfield University, 2000 WL 1269296, at **6 (Conn.Super.Ct. Aug. 18, 2000) in support of its argument that a berm can be a legitimate and effective tool "to further the peaceful coexistence of various types of land uses in close proximity to each other." The facts in Rhudy, however, were very different from the facts of the present case. In Rhudy, the court ordered the defendant university to erect a buffer to shield noise and light from a newly built athletic field. Prior to issuing its order, the court conducted a visit to the site and was "impressed by the close proximity" of the athletic field, finding it to be only 71 feet from plaintiff's property line. Additionally, the court noted that the newly expanded use of the field was especially egregious having increased from an infrequently used practice field to a full-scale athletic facility, in operation approximately 130 nights per year, with flood lights, loud speakers and seating for 500 spectators. Most importantly, what distinguishes Rhudy from the present case is that in Rhudy it was the court, drawing upon its inherent powers to grant legal and equitable remedies that imposed the buffer, not a local zoning body acting within the limitations of the authority granted by General Statutes § 8-2. Moreover, in Rhudy, the court was provided by the plaintiff's noise and lighting experts with forensic evidence of measurably offensive levels of noise and light pollution upon which the court could base its decision.
In Cole v. Planning and Zoning Commission, 40 Conn.App. 501, 671 A.2d 844 (1996), the Appellate Court upheld the judgment of the trial court which sustained a zoning commission's denial of a special permit for the operation of a sawmill. Cole is distinguishable from the present case in that in Cole, the zoning regulations prescribed minimum standards specifically designed to limit the commercial use of a sawmill operation in a residential zone and further provided that the noise levels "emanating therefrom must not exceed the decibel readings for such use established by the [town's] Noise Control Regulations." Id.
Most importantly, the court confirmed that the record showed that the commission reviewed and considered the noise levels in arriving at its decision. Id., 512.
More recently, in Berlin Batting Cages, supra, the Appellate Court sustained the trial court's ruling that the town's noise ordinance was ineffective since the town had not obtained the required approval from the state. In Berlin Batting Cages, the town, like the defendant in the present case, argued that its decision was sustainable under the town's land use regulations enacted pursuant to Connecticut General Statutes § 8-2. The court rejected the town's argument, concluding that "§ 8-2, which grants local zoning commissions the authority to promulgate regulations, does not govern noise pollution laws. In fact, § 8-2, which sets forth in nearly exhaustive detail the types of regulations that local zoning commissions may promulgate, does not even mention noise or noise pollution." Berlin Batting Cages, supra, 218.
This case closely parallels Elm Street Builders v. Town of Bethany, No. CV93 0345171S (Nov. 4, 1993) [10 Conn. L. Rptr. 335], where the court observed that "[T]he town has left the court very little to examine in support of the town's position. Largely, the commission appears to have been attempting to rely on its own knowledge and familiarity with the location in imposing conditions upon the developer. Commissions must be mindful of the Supreme Court holding in Feinson v. Newtown, 180 Conn. 421 (1980) in which the court held:
. . . if an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience, to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative proceedings. Feinson at 429.
The only testimony concerning the role that the Berm might play in reducing the effects of off-site noise came from the two lay opponents of the application who, despite lengthy discussion of other objections to the project over the course of the several public hearings, briefly raised only speculative harms. Despite a transcript that shows that the Commission was very vocally active during the hearings, no member of the Commission followed the two opponent's remarks with a question or a comment about noise.
Other than the general concerns expressed by two opponents of the project, the record in the present case is devoid of any evidence that the Berm as it presently exists functions as a noise barrier or that the effectiveness of the Berm would be impaired by the alteration of its existing contours. Neither of the two letter reports in the record from the Commission's consultant engaged to review the project makes any reference to noise.
In some instances, the members of a zoning commission may rely on their own knowledge or expertise in determining issues of a noncomplex nature. In Feinson v. Conservation Commission, 180 Conn. 421, 429 A.2d 910 (1980), the issue before the Supreme Court was "whether, on a subject as technically sophisticated and complex as pollution control, commissioners who have not been shown to possess expertise in this area may rely on their own knowledge, without more, in deciding to deny a license to conduct a regulated activity." Id., 427.
It is well established that lay members of a commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety, traffic congestion or local property values. Id., 427-28. If, however, the commission relies on its special knowledge outside the scope of that of an ordinary trier of fact, it must afford the plaintiff a fair opportunity to respond. Id., 428-29. "The sparsity of reliable evidence in this record is underscored by the fact that the commission, in relying on its own knowledge and experience, acted in a manner which placed its data base beyond the plaintiff's scrutiny. Nowhere in the public hearing, or at any other time and place, was the plaintiff afforded a fair opportunity to hear the commission's fears and to attempt to allay them . . . If an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience, to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative proceedings." Id., 428-29; see also T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 409-10.
In the present case, no member of the Commission professed to have any specialized knowledge or expertise concerning matters involving excessive noise. But, as stated in Lord Family of Windsor, LLC v. Inland Wetlands and Watercourses Commission, 103 Conn.App. 354 (2007) "Even if the vice chair was a qualified pollution expert, [e]vidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." (Citations omitted.) Id., 363-64.
As pointed out in United Jewish Center v. Brookfield, 78 Conn.App. 49 (2003) "Our Supreme Court also has stated that [d]ue process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act . . . and to offer rebuttal evidence . . . The purpose . . . is to allow parties to prepare intelligently for the hearing." (Citations omitted; internal quotation marks omitted.) Id., 58.
"Judicial review of administrative process is designed to assure that administrative agencies act on evidence which is probative and reliable and act in a manner consistent with the requirements of fundamental fairness." Feinson, 429.
In the present case, the minutes of the June 22, 2004 meeting [ROR, B-1, p. 3-7] indicate that "Dr. Martland was asked to provide the following information at or before the next Zoning Commission meeting" [consisting of ten requests]. None of the requests referred to noise or requested information concerning the subject of noise.
The minutes of the following Commission meeting on July 13, 2004 [ROR, B-2, p. 1-4] also contain no reference to any discussion or question or comment from any Commission member concerning noise.
At the various hearings, the primary concern of the members seemed to focus on the length of the plaintiff's proposal and other issues. Substantial portions of the transcripts reflect discussion of the geological history of the Pond, its biota and a curious interest in what effect the proceeds from the sale of the sand and gravel removed from the Berm would have on the cost of the project. Nowhere in the transcript, however, does an expression of concern or question from a Commission member concerning noise appear. Moreover, there is no reference to noise in either of the two letter reports from the Commission's consultant engaged to review the project. [ROR, Ex. E, Items 1 and 2.]
The record discloses that on the matter of the Berm's effect on reducing off-site noise, which was the stated reason for the Restoration Condition, the Commission was presented only with the speculative general concerns of two lay persons. "A special permit may be denied only for failure to meet specific standards in the regulations, and not for vague or general reasons." (Citations omitted.) Bethlehem Christian Fellowship v. Planning and Zoning Commission of Morris, 73 Conn.App. 442, 807 A.2d 1089 (2002). Absent some reliable evidence in the record tending to show that if the Berm was not restored to its natural condition, the noise would increase to a level which would cause harm to the public health, safety convenience or property values as provided in General Statutes § 8-2, the Commission could not logically conclude that any such harm or risk would occur.
THE BERM AS A VEGETATIVE BUFFER
The defendant also argues that the Restoration Condition was required to ensure that the Berm continues as a "vegetative" buffer. The flaw in this argument is that the record does not contain any evidence that the Berm presently functions in that capacity. In fact, the only evidence in the record contradicts the defendant's argument.
At the June 22, 2004 public hearing, the plaintiffs' geologist testified that the present composition of the Berm is a "very sandy, gravely mix that doesn't really support vegetation all that well. We're going to be putting back two feet of the muck that's coming out of the pond, which is high in organic content. With that two feet deep, we'll be able to support vegetation along the berm. So, we'll be able to better vegetate the berm." [ROR, C-1, p. 14.]
A review of the record fails to establish any reason or need for a vegetative buffer or any evidence that it would be necessary to restore the Berm to its natural condition in order to protect the public health, safety, convenience or property values.
DECISION
General Statutes § 8-2(a) provides, in relevant part, that local zoning regulations "may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values . . ." (Emphasis added.)
"As a creature of the state, the . . . [town . . . whether acting itself or through its planning commission,] can exercise only such powers as are expressly granted to it, or such powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation. In other words, in order to determine whether the [condition] in question was within the authority of the commission to [impose], we do not search for a statutory prohibition against such an [action]; rather, we must search for statutory authority for the [action]." (Citations omitted.) Builders Service Corporation v. Planning Zoning Commission, 208 Conn. 267, 274-75, 545 A.2d 530 (1988).
"A special permit, . . . permits an applicant to put his property to a use which is expressly permitted under the regulations so that the conditions under which a special exception is allowed must be found in the regulations and cannot be altered; and if a condition is imposed by a commission without being warranted by the regulations, it is void." (Citation omitted.) Beckish v. Planning Zoning Comm., 162 Conn. 11, 291 A.2d 208 (1971).
A thorough review of the record fails to show any substantial evidence or reliable factual basis from which the Commission could conclude that the failure to restore the Berm to its original natural contours would result in any increase in noise or that the Restoration Condition was necessary to provide a "vegetative" buffer. Accordingly, the court concludes that there is no substantial evidence in the record to show that the Restoration Condition was necessary to protect the public health, safety convenience or property values as provided in Connecticut General Statutes § 8-2(a) and the Commission acted arbitrarily and abused its discretion by the imposition of the Restoration Condition on the special permit.
The plaintiff has also claimed that the Commission's determination that the Berm constitutes a "buffer between adjoining properties" within the ambit of Section 10.4.e.4 was unreasonable since the location of the Berm is not near the boundaries of the property where a "buffer" would be located but runs along the West side of the Pond which is situated in the middle of the property. [Since the court has found the Restoration Condition to be invalid for other reasons, it is not necessary to address this alternative claim.]
SEVERABILITY
Having found that the Commission acted arbitrarily and that the Restoration Condition was invalid the court must determine if there are sufficient grounds to support the approval of the special permit without the Restoration Condition.
"The imposition of a void condition . . . does not necessarily render the whole decision illegal and inefficacious." Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 66, 574 A.2d 212 (1990). "The dispositive consideration in determining whether modification or reversal is in order is whether the illegal conditions are an `integral' part of the part of the zoning authority's decision." Floch v. Planning Zoning Commission, 38 Conn.App. 171, 173 (1995).
The Supreme Court has reasoned that a condition imposed by a zoning authority is severable from a variance that is otherwise valid, if the removal of the condition "would in no way destroy the value or effectiveness of the variance." Langer v. Planning Zoning Commission, 163 Conn. 453, 459, 313 A.2d 44 (1972)
General Statutes 8-8(f) provides in part: "The court, upon an appeal taken under subsection (a) of this section and after a hearing thereon, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from."
"If the decision is otherwise supported by sufficient grounds as found by the board, a modification of the decision may be decreed with a view toward ending further litigation." Parish of St. Andrew's Church v. Zoning Board of Appeals, 155 Conn. 350, 354-55, 232 A.2d 916 (1967).
At the public hearings, the duration of the drainage and hauling activity on the site appeared to be of interest if not concern to the public and the Commission. The plaintiffs' engineer testified that to remove the sand and gravel from the Berm to create the accessway would require an estimated 667 truck trips at 2-3 trips per hour for 28-40 days. [ROR, B-1, p. 4.] Nonetheless, the Commission found the plaintiff's plan to be acceptable and approved the project activities. The special permit sought by the plaintiff was for a limited purpose and activity which was to be conducted over a limited period of time. Oddly, the Commission went further and imposed the Restoration Condition which essentially required that the 10,000 cubic yards of sand and gravel removed to create the accessway be returned to the site and that the Berm be restored to its natural height, width and condition. The Restoration Condition would presumably require, at least, the same volume of heavy truck traffic as the excavation and would significantly extend the duration of the project activity. It strikes the court as counterintuitive to require that the excavation and earth moving activity, which appeared from the record to be the most objectionable, be extended to allay nothing more than a speculative concern.
In the present case, the Restoration Condition is invalid because the Commission was without the authority to impose it. The Restoration Condition requires activity and conditions far beyond that which is required by the Regulations for the approval of the proposed Pond improvement project. Since the apparent and sole reason for the imposition of the Restoration Condition was to address the vague concerns of two opponents to special permit. In its findings and approval of the special permit, the Commission specifically found that the Application conformed to the Regulations. [ROR, Exhibit B, Minutes of September 28, 2004 Meeting, p. 3.] Since the decision to approve the special permit without the Restoration Condition is supported by the record and the findings of the Commission, the special permit is sustained.
CONCLUSION
The plaintiff's appeal is sustained and the decision of the Commission is hereby modified to delete the Restoration Condition (Specific Condition III. g.) and all provisions of the Site Restoration Plan (General Filings (sic) II. a.) The special permit and all other conditions are sustained.
In accordance with the forgoing, by denying the plaintiff's Second Application to remove the Restoration Condition, the Commission acted illegally, arbitrarily and in abuse of its discretion and the plaintiff's appeal from the Commission's denial of the Second Application is also sustained.