Opinion
No. CV-08-4008852
March 24, 2011
MEMORANDUM OF DECISION
I. Statement of the Appeal
By their complaint, Frances Mattison and Robert Mattison (hereinafter plaintiffs), appealed from the decision of the Zoning Commission of the Town of East Lyme (hereinafter the Commission) to deny plaintiffs' application for a special permit to operate a kennel at 98 Grassy Hill Road in the Town of East Lyme.
II. Jurisdiction
General Statutes § 8-8(b) governs appeals from decisions of zoning commissions to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82 (1989).
a. Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664 (2006). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39 (2003). A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703 (2001).
"Two broad yet distinct categories of aggrievement exist, classical and statutory. Classical aggrievement requires a two-part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . ."
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665. The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8-8(a)(1), which provides in relevant part: "In the case of a decision by a . . . planning and zoning commission . . . `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
In their complaint, plaintiffs allege that they are aggrieved by the Commission's decision in that they are the owners of the subject property and are deprived of the full and efficient use of the property by the decision of the Commission.
The evidence indicates that at all times relevant to these proceedings, plaintiffs were the owners of the property which is the subject of this appeal and were the applicants for the special permit, the denial of which by the Commission is the subject of this appeal. It is therefore found that plaintiffs are classically and statutorily aggrieved and have standing to prosecute this appeal.
b. Timeliness and Service of Process
Pursuant to General Statutes § 8-8(b), "An appeal shall be commenced by service of process in accordance with sections (f) and (g) of this section within 15 days from the date that notice of the decision was published as required by the General Statutes . . ."
Notice of the Commission's decision was published in the New London Day on August 7, 2008. This action was commenced by service of process on August 20, 2008. It is found then that service of process was properly made and this action was commenced within the time allowed by statute.
III. Scope of Review
In deciding the issues presented by this appeal, the court is limited in its scope of review by statute and applicable case law. Review of the decisions of local zoning authorities is limited to a determination, principally on the record before the Commission, whether the Commission abused the discretion vested in it. Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 444 (1979); Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 110, cert. denied, 239 Conn. 949 (1996). This court can sustain the appeal only upon a determination that the action taken by the Commission was unreasonable, arbitrary or illegal. It must not substitute its judgment for that of the local Commission and must not disturb the decision of the Commission as long as honest judgment has been reasonably and fairly exercised. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995); Raczkowski v. Zoning Commission, 53 Conn.App. 636, 644, 45 (1999). Conclusions reached by the Commission must be upheld by the court if they are reasonably supported by the record. Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 583 (1999). The question on review of the Commission's action is not whether the court would have reached the same conclusion, but whether the record before the Commission supports the decision reached. Id. Although the factual and discretionary determinations of the Commission must be given considerable weight, it is for the court to expound and apply governing principles of law. Domestic Violence Services of Greater New Haven, Inc. v. FOIC, 47 Conn.App. 466, 470 (1998). Plaintiffs bear the burden of proof to demonstrate that the Commission acted improperly. Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206; Raczkowski v. Zoning Commission, supra, 53 Conn.App. 640.
In this case, we are dealing primarily with the decision of the Commission to deny a special permit to plaintiffs. A special permit allows a property owner to put his property to a use which the regulations expressly permit under condition specified in the zoning regulations themselves. A.P. W. Holding Corporation v. Planning Zoning Board, 167 Conn. 182, 185 (1974).
"The basic rationale for the special permit . . . is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated . . . T. Tondro, [Connecticut Land Use Regulation (2d Ed. 1992)], p. 175; see also Barberino Realty Development Corp. v. Planning Zoning [Commission], 222 Conn. 607, 612-13 (1992). The requirements for a special permit are outlined in the zoning regulations of the [Town of East Lyme, § 25], and the commission may not impose additional conditions that are not within the regulations. See T. Tondro, supra, pp. 178-79; see also A. Aiudi Sons, LLC v. Planning Zoning Commission, 72 Conn.App. 502, 506, 806 A.2d 77 (although commission does not have discretion to deny special permit when proposal meets standards, it does have discretion to determine whether proposal meets standards in regulations), [aff'd, 267 Conn. 192, 837 A.2d 748 (2003)]. As a matter of law, general considerations enumerated in the zoning regulations are an adequate basis for denying an application for a special permit . . . A. Aiudi Sons, LLC v. Planning Zoning Commission, supra, 507." (Internal quotation marks omitted.) Smith-Groh, Inc. v. Planning Zoning Commission, supra, 78 Conn.App. 228-29." Yagermann v. Planning Zoning Commission, 92 Conn.App. 355, 361-62 (2005).
"When considering an application for a special [permit], a zoning authority acts in an administrative capacity, and its function is to determine whether the proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and statutes are satisfied . . . It has no discretion to deny the special [permit] if the regulations and statutes are satisfied . . . Quality Sand Gravel, Inc. v. Planning Zoning Commission, 55 Conn.App. 533, 537 (1999).
"When, as here, a zoning commission has not stated on the record the basis of its determination, the reviewing court must search the record to determine the basis for the commission's decision . . . A reviewing court may not substitute its own judgment for that of the commission. The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . The evidence, however, to support any such decision must be substantial . . . In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 452-53 (2006).
IV. Factual Background
The record indicates that on March 4, 2008, plaintiffs filed with the Commission an application for a special permit to open and operate a dog kennel at 98 Grassy Hill Road in the Town of East Lyme in the RU-80 zone. The application stated that it was being made under the provisions of § 3.2.3 of the East Lyme Zoning Regulations. Section 3.2.3 of the regulations authorizes kennels in the RU-80 rural district subject to the special permit requirements of § 25.
Section 25 sets forth the requirements for special permits. A public hearing on an application for a special permit is required under the provisions of § 25.4.3. A public hearing was scheduled on plaintiffs' application for June 5, 2008. At the start of the public hearing, a report concerning plaintiffs' application dated June 5, 2008 from William Mulholland, the zoning officer, was read into the record. The report stated that the subject property consisted of approximately 40 acres and that the proposed use was permitted under § 3.2.3 of the zoning code. The report stated that the applicant would have to conform with the requirements of §§ 25, 25.5 and 24, site plan review requirements and § 22, off street parking and loading. The memorandum further stated that § 25.5 required the kennel to be on not less than three acres and that no animals could be kept in any building less than 100 feet from the lot line. The report also stated the following:
"Further, I have reviewed the application for conformance with all the applicable zoning regulations and have found it to be generally compliant with the following exception:
1. Site Plan. The applicant will need exceptions (allowed under 24.7) for Sections:
(a) 24.6-C. Sidewalks — This section requires a sidewalk along the street frontage.
(b) 24.6-E. Landscaping and Buffers —
(2) Front Landscaping — This section requires a 6 — landscape strip along the street frontage.
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(3) Buffer Strip — This section requires a planted buffer strip along all property lines. Credit for existing vegetation is allowed under Section 24.6 E-1 and
2. The Commission will also have to determine the parking criteria for the number of parking spaces.
In conclusion, the Commission should carefully evaluate the application based on the Special Permit standards of Section 25. As the Commission is aware, when the board reviews special permits it acts in its administrative capacity. In order for the Commission to approve a Special Permit it must determine that (1) the proposed use of the property is expressly permitted under the zoning regulations; (2) the standards in the regulations are satisfied; (3) any conditions necessary to protect public health, safety, convenience and property values as provided by 8-2 of the General Statutes, can be established."
Donald Gerwick, a licensed professional engineer and land surveyor, representing plaintiffs, the applicants, addressed the Commission and introduced exhibits. He stated that the application was for a kennel for dogs and cats which was allowable by special permit in the RU-80 zone under § 3.2.3. Mr. Gerwick indicated compliance with the two specific requirements of the regulation. The first requirement was that the use be on a lot not less than three acres in area. This proposed kennel would be on a 33-acre parcel with a seven-acre area highlighted. The second requirement was that animals be kept in a building less than 100 feet from any property line. The distance here would be 150 feet and the fenced area where dogs might run would be more than 100 feet from any property line. It was stated that the facility would be a state-of-the-art kennel for 30 dogs and 30 cats with a doggie day care area. A maximum of 50 dogs could be anticipated.
Mr. Gerwick also described the layout of buildings, parking areas and lighting. It was indicated that traffic would be increased by about 40 trips per day by the kennel.
Members of the public spoke in favor of and against the application. Mr. and Mrs. Maher, abutting property owners, spoke against granting the application. Those opposed to the application stressed noise problems, which would result from the kennel, traffic problems and that the proposed kennel would not be in keeping with the orderly development of the district.
Francis Buckley, III, a professional appraiser with experience in appraising veterinary hospitals and kennels, testified and submitted a report indicating that the proposed kennel would have a devastating effect on property values in the area.
Attorney Paul Geraghty, representing the Mahers, spoke against the application. He stated that a commercial kennel would not be appropriate in the area and pointed out potential health, safety and property value problems if the application were granted.
At the conclusion of the hearing, the matter was continued to the next meeting of the Commission.
At the next meeting of the Commission held June 19, 2008, the hearing was continued to a subsequent meeting of the Commission to be held July 10, 2008.
At the July 10, 2008 continuation of the public hearing, Mr. Gerwick addressed the Commission. In response to sanitary issues raised at the previous meeting, he introduced a letter from Ledge Light Health District approving the proposed kennel operation. He also introduced a sanitary management plan with changes.
The disastrous effect on property values resulting from the kennel as testified to by Mr. Buckley at the last hearing was also addressed by Mr. Gerwick who pointed out the existence of high priced homes in the vicinity of a kennel in the Town of Salem.
Concerning the issue of noise raised at the previous hearing, Mr. Gerwick stated that Bennett M. Brooks of Brooks Acoustic Corp. performed an acoustical engineering study to evaluate potential sound emissions from the proposed kennel and any impact that such sound would have on the surrounding neighbors as well as a noise control program for the kennel. The study was placed in evidence.
A letter from the architect was also submitted. Plaintiff Frances Mattison also spoke concerning state regulations as did other representatives of the public, some speaking in favor of the application and some opposed.
Attorney Geraghty also spoke. He stated that the Commission should not approve the application because it was incomplete and does not comply with the requirements of § 25.4.1.1. He also stated that the kennel does not comply with state regulations. After further input and discussion, it was voted to close the public hearing.
Plaintiffs' application was taken up by the Commission at a special meeting held July 31, 2008. After discussion, upon motion properly made and seconded, it was unanimously voted to deny plaintiffs' application for a special permit.
Notice of the decision was published on August 7, 2008. This appeal followed.
Additional facts will be stated as necessary.
V. Analysis 1.
Plaintiffs have appealed from the denial of their application to operate a kennel on their property at 98 Grassy Hill Road in East Lyme. The term "kennel" is not defined in § 1 of the zoning regulations. The property on which plaintiffs seek to operate their kennel is in their RU-80 zoning district. Under the provisions of § 3.2.3, kennels are allowed in the RU-80 zone by special permit subject to the requirements of § 25. The only specific requirements for kennels are found in § 25.5. This section requires that kennels be on not less than three acres and that no animals be kept in any building less than 100 feet from any lot line.
The applicant would also have to comply with § 24.6-C Sidewalks, 24.6-E Landscaping and Buffers, or obtain exceptions under § 24.7. Compliance with these provisions could be waived. The Commission would also have to determine parking criteria.
The record clearly indicates, and it does not appear to be in dispute, that plaintiffs' application not only complies with but exceeds the specific requirements of § 25.5. The property on which the kennel would be located is almost 40 acres in area and the building within which the animals would be kept would be 150 feet from the property line.
Section 25.2 provides that uses permitted by special permit, such as the proposed kennel, are unique, have special characteristics and should be considered on an individual basis. Here, plaintiffs have complied with the specific requirements of § 25.5. The Commission was then required to balance this compliance with the more general requirements of § 25.4.1 to determine whether or not the proposed use should be allowed in the RU-80 zone.
Section 25.4.1 which sets forth the standards applicable to all special permits provides as follows:
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25.4.1 The location and size of the use, the nature and intensity of the operations involved, the size of the site in relation to it and the location of the site with respect to the existing and future streets giving access to it, shall be such that it will be in harmony with the orderly development of the district and the location, nature and height of buildings, walls and fences will not discourage the appropriate development and use of adjacent land and buildings or impair the value thereof.
Plaintiffs concede that this is the only area in which the Commission could exercise its discretion to determine if the proposed kennel met the requirements of the regulations. The Commission did not state its reasons for denying the special permit, but from the transcript of the Commission's meeting held July 31, 2008, during which the issues were discussed and the objections voiced at the public hearing, the reasons may be discerned.
In their brief, plaintiffs state that the concerns over approval of the application fell into four basic categories: (1) noise; (2) diminution of surrounding property values; (3) sanitary concerns; and (4) traffic issues on Grassy Hill Road. To this, must be added the concern expressed at the public hearing and during the Commission's deliberation as to whether the proposed kennel would be in harmony with the orderly development of the district.
a.
There was concern expressed by members of the public about increased traffic which would be produced on Grassy Hill Road as a result of the proposed kennel. The concern focused on the rural aspect of the road with its twists and turns and the potential for accidents. Mr. Gerwick, plaintiffs' engineer, indicated that operation of the kennel would result in 40 additional trips per day on the highway. There was, however, no direct evidence that this additional traffic would result in accidents or dangerous conditions on Grassy Hill Road.
Plaintiffs also point out that although one of the purposes for which zoning was adopted in East Lyme was the lessening of congestions on the public highway, there is nothing in § 25 which specifically authorizes the Commission to consider traffic issues in connection with special permits.
b. CT Page 7769
Concerns were also expressed at the public hearings concerning sanitary problems which might result from the proposed kennel. With 50 dogs in residence and their necessary byproducts, sanitation was an issue which had to be addressed by plaintiffs. Mr. Gerwick testified that the kennel would be a state-of-the-art facility. The record also indicated that the kennel was designed to meet the standards of the Connecticut Department of Health and that it had been approved by the Ledge Light Health District.
There was no substantial evidence in the record to substantiate any fear about sanitary conditions which might result from the existence of the kennel as proposed.
c.
Dogs bark. There are numerous and various events which cause dogs to bark. Barking dogs can be annoying. These are factors which are understood by all and need no scientific or expert testimony. In their design and proposed operation of the kennel, plaintiffs have attempted to minimize the effect of noise emanating from the operation.
Plaintiffs point out that in the design and construction of the kennel sound-dampening panels will be utilized. Noise reducers would be placed between the two fences. Also, the initial chain link fence would be replaced by a solid vinyl fence to disrupt noise. The use plan proposed by plaintiffs would also be designed to reduce the barking of dogs.
An acoustical engineering study prepared by Bennett and Brooks of Brooks Acoustics Corporation was presented to the Commission. The study reviewed the noise control program and reached certain conclusions favorable to plaintiffs' application. One conclusion was that "with a reasonable degree of engineering certainty, the proposed kennel would have little or no impact on the surrounding residential neighborhood." No scientific evidence was introduced to rebut the conclusions of the Brooks study. Plaintiffs argue that the neighbors and others who expressed concern about the noise which might be produced by the kennel were merely statements of apprehension and speculation.
The neighbors' concerns about noise and dogs barking, however, go beyond mere apprehension and speculation. With 50 dogs on the premises, some in outside runs and some in transit, common sense indicates that there would be barking and noise emanating from the kennel. This is a matter of knowledge and experience requiring no expert testimony. Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 296 (2008).
While Mr. Brooks is qualified to speak on acoustics and levels of noise which might be produced by the kennel, his opinion on the impact on the surrounding neighborhood is beyond his area of expertise.
At the meeting of July 31, 2008, the Commission discussed the acoustic report. Certain aspects of the report were criticized. For example, the report assumed a flat surface. Members of the Commission, however, were aware that there were differences in elevation between the subject property and neighboring property. These differences in elevation would reduce the effectiveness of the vinyl fences and increase the noise level on the neighboring properties.
There was substantial evidence in the record to indicate that noise, the barking of dogs, audible in the area, would occur if the kennel were approved. Plaintiffs went to considerable effort to reduce the level of such noise by the proposed construction and use procedures. The level of effort indicates the seriousness of the problem.
d.
Section 25.4 which sets forth the standards applicable to all special permits requires that the subject of a special permit not impair the value of adjacent land and buildings.
Michael Maher, who owns property adjoining the proposed kennel, retained the services of Francis Buckley III, a professional appraiser. Mr. Buckley testified at the June 5, 2008 hearing and submitted a report. In his testimony, Mr. Buckley stated that in the past five or six years, he had appraised a dozen veterinary hospitals, dog kennels, or a combination of the two. He stated that the operation of a dog kennel emits a great deal of noise primarily the barking of dogs. He gave examples of when this would normally occur.
It was noted in Mr. Buckley's report that the proposed kennel building would be 188.1 feet from Mr. Maher's property. In the report, Mr. Buckley stated:
It is my professional opinion that a commercial kennel situated adjacent to your property at 104 Grassy Hill Road, would represent the introduction of external obsolescence. I can also state, without hesitation, that the presence of a commercial dog kennel next door to your property would have a very serious and possibly devastating effect on the market value of your property.
Mr. Buckley further stated that if Maher's property were placed on the market subsequent to the construction of the kennel, he would have difficulty getting interested buyers to even look at the interior of his home. The report also stated that the value of other residential properties would be drastically reduced.
Plaintiffs argue that Mr. Buckley's report was not a real estate appraisal. This is correct, but as an appraiser, Mr. Buckley must have knowledge of external obsolescence and those things which might affect the market value of the property. He could testify as to those factors.
At the public hearing held July 10, 2008, Mr. Gerwick attempted to disprove Buckley's opinion by stating that there were valuable residential properties in close proximity to a kennel in Salem. However, there was no evidence as to how Mr. Gerwick arrived at the value of these properties.
It is also argued that Mr. Buckley's report is based upon incorrect data. His report indicates that the kennel has "what appears to be 72 plus or minus cages for the housing of dogs." Plaintiffs argue that this is more than double the actual amount. The number of cages stated by Mr. Buckley in his report was no doubt based upon an examination of the plans submitted with plaintiffs' application. In his testimony, Mr. Buckley stated that he was originally dealing with 30 dogs. He stated that the doggy day care would add another 20 resulting in 50 dogs. This is consistent with Mr. Gerwick's testimony as to the number of dogs which might be on the premises. Any discrepancy with respect to the number of cages does not appear to be of great importance. The important factor is the number of dogs that would be in the kennel.
Buckley's testimony and report were also criticized by plaintiffs arguing that he cannot be considered an expert on when dogs bark. In his testimony and in his report, Mr. Buckley did give his opinion as to things which would cause the dogs to bark. It is true that Mr. Buckley cannot be considered a dog psychologist or an expert in those matters which might cause them to bark. However, this merely goes to the weight to be afforded his testimony. Matters of common knowledge do not require the testimony of an expert. The use plan which plaintiffs propose to reduce barking at the kennel is directed towards some of the events mentioned by Mr. Buckley.
Mr. Buckley's testimony and his report must be considered as substantial evidence that the proposed kennel would impair the value of adjacent land.
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e.
The standards applicable to all special permits as set forth in § 25.4.1 contains the following language:
The location and size of the use, the nature and intensity of the operations involved, the size of the site in relation to it and the location of the site with respect to the existing and future streets giving access to it, shall be such that it will be in harmony with the orderly development of the district . . .
The property for which the special permit has been requested is in the RU-80 rural district. The general description and purpose of this district is stated in § 3 of the zoning regulations as: "Outlying areas of town generally characterized by agricultural or open land, with sparse population and served by local roads. It is the purpose of these regulations to preserve the rural character of RU-80 Districts."
During the public hearing, concern was expressed by the public that the proposed kennel would not be in harmony with the orderly development of the district as required by § 25.4.1. During their discussion of plaintiffs' application at the July 31, 2008 meeting, members of the Commission also expressed their concern over the intensity of the proposed activity and that the kennel would not be in keeping with the rural character of the zone.
The doggie daycare operation at the kennel would involve up to 20 dogs and would be the major contributor to the 40 additional trips per day on the highway which could be anticipated. While there is no evidence that the additional traffic would cause a dangerous situation on the highway, it does not appear that this additional traffic would be in keeping with the orderly development of the zone.
Attorney Geraghty argued before the Commission that the East Lyme Zoning Regulations authorized kennels but not commercial kennels. He pointed out that Connecticut General Statutes § 22-327 defines "commercial kennels" and "kennel" separately as two distinct uses. The definitions are:
(3) "Commercial kennel" means a kennel maintained for boarding or grooming dogs or cats, and includes, but is not limited to, any veterinary hospital which boards or grooms dogs or cats for nonmedical purposes;
(7) "Kennel" means one pack or collection of dogs which are kept under one ownership at a single location and are bred for show, sport or sale.
The applicable zoning regulations here did not define the term "kennel" and do not differentiate between a commercial kennel and a kennel. Clearly, however, plaintiffs' proposed operation would be a commercial kennel as defined by the statute and would be subject to the requirements of § 22-344.
The kennel, as proposed by plaintiffs, would introduce a substantial commercial activity into the area particularly with the doggie daycare operation. This would not be in keeping with the rural character of the R-80 district or be in harmony with the orderly development of the district.
The intensity of the project, commercial in nature, involving up to 50 dogs with the increase in traffic and the negative effect it would have on property values in the area constitutes substantial evidence that the proposed kennel would not be in harmony with the orderly development of the district.
2.
The Commission points out that the deed by which the plaintiffs acquired the property, on which they seek to establish a kennel, contains a covenant that restricts them from "developing the property in a manner inconsistent with its classification as farmland pursuant to § 1076 for a period of eight years." The covenant will remain in effect until 2013.
Kennels are specifically excluded from the definitions of "farm" in § 1.19 of the zoning regulations. It is argued that if the Commission were to grant the application, it would be sanctioning a use which would be in conflict with the deed restriction.
"[A municipal planning commission] is not a court of law, its authority is stringently limited. It can only apply its regulations to the proposals which appear before it. It cannot make law." Gagnon v. Municipal Planning Commission, 10 Conn.App. 54, 57, cert. denied, 203 Conn. 807 (1987).
In Moscowitz v. Planning Zoning Commission, 16 Conn.App. 303, 311-12 n. 8, (1988), the Appellate Court noted: "[A] planning commission cannot base its denial of subdivision approval on the existence of a deed restriction if the application otherwise meets the regulations . . . The responsibility of enforcing restrictive covenants in deeds is allocated to neighboring landowners, not to a municipal commission." (Citations omitted.)
Subsequently, a decision of the Superior Court stated: "When a land use agency reviews applications to it, it cannot properly consider private property interests and deed restrictions." Lunn v. Darien Zoning Board of Appeals, Superior Court, judicial district of Fairfield, Docket No. 299972 (February 25, 1994, Fuller, J.). "Thus, [t]he law is well established that restrictive covenants in a deed as to the use of property are distinct and separate from provisions of zoning law and have no influence or part in the administration of zoning law." (Internal quotation marks omitted.) Anniello v. Vernon Planning and Zoning Commission, Superior Court, judicial district of Tolland, Docket No. CV 93 52916 (August 14, 1995, Klaczak, J.).
In sum, "[r]estrictive covenants and zoning regulations are two entirely separate and unrelated limitations on the use of property . . . Zoning ordinances regulate the use of land through the exercise of the police power in accordance with a comprehensive plan for the entire community . . . [and are] entirely divorced in concept, creation, enforcement and administration from restrictions arising out of agreements between private parties . . . Restrictive covenants have no influence or part in the administration of a zoning law . . . and thus, a zoning board may not deny a special permit on the ground that the use will violate a restrictive covenant . . . [I]f a property owner is otherwise entitled to a . . . special [permit], it should be granted, notwithstanding private covenants which would prohibit the proposed use." (Citations omitted; internal quotation marks omitted.) Schieffelin v. Westport Planning Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV 92 29 94 89 (October 4, 1993, McKeever, J.).
The restrictive covenant in plaintiffs' deed would not be an appropriate reason for denying plaintiffs' application for a special permit.
VI. Conclusion
It must be concluded that there is substantial evidence in the record to support the decision of the Commission. The provisions of § 25.4.1 have not been complied with. There is substantial evidence in the record that the proposed kennel would impair the value of adjacent land and that it would not be in keeping with the orderly development of the district.
Accordingly, the decision of the Commission is upheld and the appeal is dismissed.