Opinion
No. CV 05-4008669
October 14, 2005
MEMORANDUM OF DECISION
This is an appeal from a decision of the Suffield Zoning and Planning Commission changing the zone of 54 acres, 25 acres Owned by the Town of Suffield and 29 acres owned by the plaintiff Harry Melnick, from residential R-25 zones to Planned Development Industrial Park Zone (hereinafter "PDIP zone").
The underlying facts are as follows.
The plaintiff, Harry Melnick (hereinafter "Melnick") purchased 29 acres in 1962. It fronts on East Street South and at all times was zoned residential. After plaintiff's purchase, the town of Suffield built a sewage treatment plant to the east of plaintiff's property. In 1986 or early 1987 the plaintiff had a contract to sell the property but the sale was thwarted by the Town starting a condemnation action to obtain access across the Melnick property from East Street South to the sewage treatment plant. This divided the plaintiff's property into two parcels, but the certificate of taking was amended to give the plaintiff the right to cross the access strip condemned by the town for the roadway, provided that crossing did not interfere with the town's use of the property. The condemnation action cancelled the sale the plaintiff had negotiated under the 1987 contract.
In August 2004, the plaintiff listed his property for sale with brokers. One of the brokers met with the director of economic development who indicated his concerns about any residential development on plaintiff's land. In September 2004, an interested purchaser of the plaintiff's land contacted the town CT Page 13351-ar planner, Philip Chester, to discuss current zoning and what development would be permissible in the R-25 zone. Mr. Chester confirmed that housing for people over 55 was a permitted use in that zone with a special exception. On December 9, 2004, plaintiff entered into a contract with Landquest, LLC for development of the property for over age 55 residential use. A representative of Landquest scheduled another meeting with the town planner on December 13, 2004 and at that meeting learned that the town was initiating a zone change of the property. The town planner admitted that only after interest had been shown in developing the plaintiff's property for intensive residential purpose, he had conceived the idea of proposing to the Commission that they consider re-zoning it. The Commission duly published legal notices, and public hearings on the zone change were held on December 20, 2004 and January 24, 2005.
The public hearing revealed the following.
The town planner, Mr. Chester, who had initiated the application for the zone change, explained that the subject 54 acres consisted of plaintiff's property (29 acres), the town sewage plant, the access road to the sewage plant, and some land to the south abutting other land already zoned PDIP. The use to which land zoned PDIP could be put included light industry, animal hospital, warehouses, medical and other professional offices. Mr. Chester indicated a concern about potential odor from the sewage treatment plant and also about an intersection of Boston Neck Avenue and East Street South. He concluded by asserting the application was consistent with the town's plan of conservation and development.
Attorney Robert A. Fuller, representing the plaintiff, presented a protest petition signed by the plaintiff to the effect that Mr. Melnick was the owner of over 20% of the land involved in the zone change and that, pursuant to Conn. Gen. Stat. § 8-3b, a two-thirds vote of the entire Commission would be required in order to enact the zone change. Mr. Fuller made the following points to the Commission: (1) Melnick's property is in an R-25 zone, no part of the Melnick property abuts a PDIP CT Page 13351-as zone, and the only access to the plaintiff's property is the portion that is located on East Street South which is not included in the proposed zone change; (2) a change to PDIP zone is not necessary for the town to continue to use the town owned land for the sewage plant because municipal uses are allowed in the R-25 zone; (3) the zone change would be detrimental to plaintiff's property because residential use is not allowed in the PDIP zone; (4) the plan of conservation and development does not recommend development of the plaintiff's property for industrial use; (5) the placing of the plaintiff's property in the PDIP zone is not an extension of the existing zone to the south so that a change in zone takes the plaintiff's property out of context with surrounding residential uses and amounts to spot zoning; (5) plaintiff's property was not re-zoned or proposed for re-zoning when the Commission revised the zoning regulations in 2004; (6) the zone change proposal occurred after interest was expressed by potential buyers to develop the property for active adult residences and re-zoning land for the purpose of stopping residential development is not a legitimate purpose for re-zoning.
The chairman of the water treatment plant testified that there was a constant odor at the plant and an operator of the plant testified that the plant was at capacity and its capacity had to be increased which would increase the odor. Residents on East Street, however, testified that they were not offended by the odor and in fact one of them testified he had only smelled it a few times over the course of his living there. The potential purchaser of the property testified that a 900 foot area of wetlands between the sewage plant and the potential residential development acted as a buffer to the odor and that the prevailing winds were to the west, away from plaintiff's property. Several citizens testified that they opposed the zone change on the grounds that they did not want industrial land abutting their residential properties.
In response to the implication that the Commission was acting to avoid intensive residential development of the plaintiff's property, the chairman stated that he first heard of inquiries being made to the Town about this CT Page 13351-at type of development at the hearing itself.
The chairman of the water pollution authority stated that the authority was not for or against a zone change but that the driveway running from East Street South to the sewage plant did not meet the criteria of a public road. Moreover, that after September 11, 2001, the policy was adopted that waste water treatment plants must be secured, so that the road from East Street South to the plant had to be locked.
A representative of Landquest testified that the company was planning to build fifty active adult housing units on the plaintiff's property and that this was the highest and best use of the land.
After the public hearing closed on January 24, 2005, the Commission voted to approve the change in zone by a 5-1 vote and stated the reasons as follows: (1) the zone change will protect the public health, safety and welfare of the inhabitants of Suffield and the general public; (2) the zone change is authorized by C.G.S. § 8-2 and Suffield's zoning regulations; and, (3) the zone change is conformity with Suffield's comprehensive plan and its plan of conservation and development.
The plaintiff timely appealed that decision, and prior to the trial the plaintiff moved to present additional evidence. At the trial, the plaintiff himself testified to his ownership of the property subject to the zone change in order to establish aggrievement. The plaintiff then called a real estate broker who testified that the plaintiff's property was listed for sale in 2004 and there were several inquiries to purchase the land for residential purposes. After the zone change occurred in January 2005 there were no potential purchasers for the land. The plaintiff then called R. Bruce Hunter, a professional real estate appraiser who testified that as of January 24, 2005 the market value of the plaintiff's property, as zoned R-25, was $1,075,000.00 and that after the zone change to PDIP, it was $120,000.00, making the impact of the zone change a loss in value of $955,000.00. As of July 8, 2005, the market value of the subject property, as zoned R-25, was $1,100,000.00, its market value in a PDIP zone was $122,000.00, making the CT Page 13351-au loss in value caused by the zone change $978,000.00. He further testified the market for residential land in Suffield, particularly condos for adult housing, was very strong and that the market value for industrial land in Suffield was very weak.
The evidence clearly established that the plaintiff, is the owner of land included in the zone change, is aggrieved pursuant to Conn. Gen. Stat. § 8-8(a)(1) and as a consequence has standing to appeal. Winchester Woods Ass'n. v. Planning Zoning Commission, 219 Conn. 303, 308 (1991).
It is well-recognized that when a zoning commission acts on a zone change application, it acts in a legislative capacity. Primerica v. Planning Zoning Commission, 211 Conn. 95, 96 (1989). Acting in that capacity, the zoning commission has broad discretion but there are limits. "[T]he court can grant relief upon appeal in those cases where the local authority has acted arbitrarily or illegally and consequently has abused the discretion entrusted to it." Suffield Heights Corporation v. Town Planning Commission, 144 Conn. 425, 428 (1957). When a zoning commission makes a change of zone, it is required to give reasons for its actions, C.G.S. § 8-3. The question on appeal is whether any of the reasons given for it by the Commission are valid, reasonably supported by the record, and pertinent to the consideration to which the Commission was required to apply under the zoning regulations. First Hartford Realty Corporation v. Planning Zoning Commission, 165 Conn. 533, 543 (1973); Primerica v. Planning Zoning Commission, supra at 96-97. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached. Id.
The plaintiff asserts the following grounds for this appeal:
1. The record does not support the reasons given by the Commission for the zone change; CT Page 13351-av
2. The purpose of the zone change was to preclude development of plaintiff's property for residential uses;
3. The zone change was prejudged and predetermined by the Commission;
4. The change of zone was illegal because it amounted to spot zoning;
5. The change of zone drastically reduced the value of plaintiff's property and amounted to inverse condemnation.
Each of these grounds will be dealt with by the court below, seriatim.
1. Reasons for the Zone Change
The Commission assigns basically two reasons for the zone change: First, the zone change would protect the public health, safety and welfare of the inhabitants of Suffield and the general public and secondly, that the zone change is in conformity with the Suffield comprehensive plan and its plan of conservation and development. As to the first reason, it is clear from the record that the public health and safety concerns were to protect a residential development from the odors emanating from the sewage plant. The record supports this reason. The chairman of the water pollution authority testified that the sewage plant issued an odor and the chairman of the Commission stated he smelt it on the plaintiff's land. An operator of the plant said the plant had reached its capacity and needed to increase it, even though the plant would not expand beyond its present boundaries. The residents on East Street South did not find the odor offensive and the developer pointed out that a 900 foot buffer between the plant and the residential development would ameliorate much of the odor. However, the Commission accords the appropriate weight to the credibility of the witnesses and determines issues of fact. Here the record supports the reason given by the Commission to protect the public health and safety of the inhabitants of Suffield. CT Page 13351-aw
The second reason given by the Commission for the zone change is that the zone change conforms to the Town comprehensive plan and to its plan of conservation and development. A comprehensive plan consists of the zoning regulations themselves and the zoning map which has been established pursuant to those regulations. Loh v. Town Plan Zoning Commission, 161 Conn. 32, 35 (1971); Burnham v. Planning Zoning Commission, 189 Conn. 261, 267 (1983). Zoning regulations and the zoning map were revised by the Commission as recently as 2004. As indicated on the zoning map, the PDIP zone does not abut the Melnick property. Moreover, the zoning map shows the Melnick property completely surrounded by the R-25 zone.
The purpose of zoning is to stabilize property uses. "Ordinarily changes in zone should not be made unless some new condition has arisen which substantially alters the character of the area. Before a zoning board re-zones property, there should be proof either that there was some mistake in the original zoning or that the character of the neighborhood has changed to such an extent that a reclassification ought to be made." Damick v. Planning Zoning Commission, 158 Conn. 78, 84 (1969).
The Melnick property has been adjacent to the sewage plant for almost forty years without any change in its zone. The only change in circumstances in the record that would warrant the zone change is evidence of the expansion of the operation of the sewage plant that would increase the odor emanating from it. This is sufficient to justify the zone change.
The requirement that a zone change be in accordance with the comprehensive plan is "generally satisfied when the zoning authority acts with the intention of promoting the best interests of the entire community." First Hartford Realty Corp. v. P Zoning Commission of Bloomfield, 165 Conn. 533, 541 (1973). The court concludes that the Commission so acted in this case.
The town's plan of conservation and development is general in nature and provides for several objectives: on the one hand, for senior housing and on the other, CT Page 13351-ax for balancing residential and commercial/industrial development. It is "merely advisory." Avalon Bay Communities, Inc. v. Orange, 256 Conn. 557, 575 (2001). This court concludes the Commission's decision conforms to that plan.
Moreover, the law is that if the records support any one of the reasons given by the Commission; its decision must be upheld. Primerica v. Planning Zoning Commission, supra, 96.
2. Preclusion of Residential Development
The plaintiff contends that the purpose of the zone change was to preclude development of the Melnick property for residential uses and this was an improper basis for the Commission's decision. There is evidence in the record that after the town planner was notified that developers were interested in utilizing the Melnick property for active adult housing, he initiated the application for the zone change of the Melnick property to PDIP. However, there is no evidence that the Commission itself was so motivated. The chairman of the Commission made it very clear at the public hearing that the first time he heard of an intended use of the Melnick property for adult housing was at the hearing itself. As a consequence, the court draws the inference that the Commission did not vote for the zone change on the pretext of precluding development of the Melnick property for adult housing.
3. Prejudgment and Predetermination
The plaintiff assets that the Commission prejudged and predetermined the application and decided to re-zone the plaintiff's property regardless of objections to reclassification and any evidence presented in opposition to the zone change. The instant case is distinguishable from Marmah, Inc. v. Greenwich, 176 Conn. 116 (1978), relied upon by the plaintiff. In Marmah, the zoning commission amended its zoning regulations specifically to prohibit the landowner's intended use of the property. In this case before the court, while there is some suspicion that the town planner initiated the zone change application in response to developers' CT Page 13351-ay interest in developing Melnick's property for adult housing, there is no evidence that the Commission itself either knew of developers' interest or determined prior to its decision to adopt the zone change in order to block the intended use of Melnick's property.
4. Spot Zoning
The plaintiff contends that the change of zone of the plaintiff's property from residential to PDIP constitutes spot zoning. Spot zoning is defined as "the reclassification of a small area of land in such a manner as to disturb the tenor of the surrounding neighborhood." Morningside Association v. Planning Zoning Board, 162 Conn. 154, 161 (1972). Two elements must be satisfied before spot zoning can be said to exist. "First, the zone change must concern a small area of land. Second, the change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole." Langer v. Planning Zoning Commission, 163 Conn. 453, 461 (1972).
With respect to the size of the land subject to the zone change, it is 54 acres of which 25 acres are owned by the Town of Suffield, consisting of the sewage treatment plant and access to the plant, and about 29 acres owned by the plaintiff Harry S. Melnick. In Morningside Association v. Planning Zoning Board, supra, 6.5 acres of land met the size standard for spot zoning. In Levinsky v. Zoning Commission, 144 Conn. 117 (1956), an area 569 feet by 672 feet met that standard. In Guerriero v. Galasso, 144 Conn. 600 (1957) two lots met the standard. In Damick v. Planning Zoning Commission, 158 Conn. 78, 84-85 (1969), the court held 19.5 acres to be spot zoned. While it is hard to put an arbitrary limit on size, the 54 acres implicated in the zone change in the instant case, or even the 29 acres owned by the plaintiff is beyond the limits of a small area.
As for the second element of spot zoning, plaintiff argues, that the zone change "disturbs the tenor of the surrounding neighborhood." Langer v. Planning Zoning Commission, 163 Conn. 453, 461 (1972). However, the Commission found that the sewage plant, although in a CT Page 13351-bz residential zone, should properly be in the PDIP zone, and the Melnick property, adjacent to the sewage plant, should not be developed for residential housing for health reasons. The change was thus not out of harmony with the comprehensive plan and was for the good of the community as a whole. Michel v. Planning Zoning, 28 Conn.App. 314, 319-20 (1992); Malafronte v. Planning Zoning Board, 155 Conn. 205, 211 (1967). As a consequence, the court concludes that the zone change did not constitute spot zoning.
5. Inverse Condemnation
The plaintiff claims that the change of zone to PDIP so drastically reduced value of his property as to amount to inverse condemnation. On this issue additional evidence was permitted at the hearing of this appeal, pursuant to Conn. Gen. Stat. § 8-8k and Cioffoletti v. Planning Zoning Commission, 209 Conn. 544, 551 (1989).
Under Connecticut law, inverse condemnation can occur under one of two tests: (1) the practical confiscation test, where the land is zoned so it cannot be used for any reasonable purpose, or (2) under the balancing test where the value of the land is so significantly reduced as to have no meaningful value under its current zoning. Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 151; D'Addario v. Planning Zoning Commission, 25 Conn.App. 137, 143 (1991). Because plaintiff concedes that his property had some value even after rezoning to the PDIP zone, this case does not involve the practical confiscation test. Utilizing the balancing test, consideration is given to the degree of reduction in value of the land, the nature and degree of public harm to be prevented and to the alternatives available to the landowner, and the financial affect on the owner is balanced against the health, safety and welfare of the community. D'Addario v. Planning Zoning Commission, Id. at 143. If an inverse condemnation is proven in an administrative appeal, the court has the power to set aside the decision of the agency although it cannot award monetary damages. Cumberland Farms, Inc. v. Town of Groton, 247 Conn. 196, 217 (1998). CT Page 13351-ba
In this case, the plaintiff provided the testimony of a real estate appraiser at the hearing of this appeal who testified that the market value of the plaintiff's 29 acres in an R-25 zone as of the date of the zone change of January 24, 2005 was $1,075,000.00 and that its market value after the zone change to PDIP was $120,000.00, meaning a diminution in value as a consequence of the zone change of $955,000.00. This amounted to an 88% loss in value, and compares with the 85% reduction in value which constituted confiscation in Chevron Oil v. Zoning Board of Appeals, supra.
However, the record reveals that the plaintiff contracted to sell his property to Landquest, LLC. A representative of Landquest at the Commission hearing refused to divulge the contract price because it was a confidential offer and constituted proprietary information. That price, however, is a more accurate determination of value than the plaintiff's appraiser's testimony. Moreover, at the Commission hearing, plaintiff's own real estate expert testified that industrial land in Suffield had a value of approximately $20-22,000.00 per acre. At $21,000.00 an acre, the plaintiff's 29 acres had a value of $609,000.00. Because the plaintiff has not revealed the price for which he was selling his property to Landquest, the court cannot determine what the actual loss to him would be as the result of the zone change.
The plaintiff also attempted to show that there was 1,400 acres of industrial land in Suffield and the market for it was weak. The Commission, however, found an undetermined amount of that industrial land was wetlands and that some of it had already been sold so that there was no more than 400 acres of land available for industrial purposes. The inference was that there was a demand for industrial land in Suffield and it was marketable.
Furthermore, the financial affect on the land-owner must be balanced against the health, safety and welfare of the community. Samp Mortar Lake Co. v. Town Planning Zoning Commission of the Town of Fairfield, 155 Conn. 310 (1977). The town's economic development commission CT Page 13351-bb endorsed the zone change in a letter to the Commission, stating:
A change of zone from residential to planned development industrial park makes sense for several reasons. The area proposed for the zone change borders land already zoned PDIP and it is a natural extension of the current zone. The WPCA is a processing facility that is better categorized in a PDIP zone than a residential zone. Land in the vicinity of the WPCA, if developed residential, could result in nuisance complaints due to odors, noise or lighting from the WPCA operations. This land could make an attractive business park if access is provided by the current WPCA roadway . . . A new business park could provide additional tax diversification for the community.
As a consequence, the court concludes that the plaintiff has failed to establish its financial loss as a result of the zone change and, furthermore, that whatever that loss, it is outweighed by the benefits of protecting the health and providing tax diversification for the entire community.
6. CONCLUSION
The plaintiff's attorney, Robert Fuller, deserves his reputation as the premier zoning authority in Connecticut. He wrote a superb brief. What clearly permeated it was his passion to do justice for his client. That passion resonates with this court.
The hardest case a judge has to decide is one the outcome of which he hates. This is such a case. If the plaintiff prevails in the inevitable appeal, this court will rejoice with him.
In another context this court has written, "The art of judging is a judge using his mind to find valid ways to implement the stirring of his heart." In this case the court has found no valid ways to do that. The record and the law granting broad discretion to zoning commissions acting in a legislative capacity to change zones mandates the result. As a consequence the court adjudges that the appeal is dismissed. CT Page 13351-bc
Satter Robert, Doing Justice, p. 51 (Simon Schuster, 1990).