Opinion
No. CV 98-035 35 06 S
January 7, 2005
MEMORANDUM OF DECISION PLAINTIFF'S APPEAL FROM THE DECISION OF THE BRIDGEPORT PLANNING AND ZONING COMMISSION
The plaintiff, Nine State Street LLC, appeals from the decision of the defendant Planning and Zoning Commission for the City of Bridgeport (hereinafter the Commission), in which the Commission denied an application for the construction of an asphalt product facility at 1095 South Avenue in Bridgeport. The Commission denied the plaintiff's request for a special permit. For reasons set forth herein, the plaintiff's appeal is denied.
I. Procedural History
The plaintiff owns property located at South Avenue in Bridgeport, Connecticut. The defendants are the planning and zoning commission (Commission) and Seaside Village Homes, Inc. (Seaside Village), an association with members whose property abuts that of the plaintiff. On January 12, 1998, the plaintiff filed an application with the Commission wherein it sought approval for construction of an asphalt plant. The plaintiff submitted a petition for approval of a site plan review, soil erosion and sedimentation control review, coastal site plan review and a special permit.
The Commission held a hearing on March 23, 1998. By decision dated May 5, 1998 the Commission approved the site plan, granted in part and denied in part the soil erosion and sediment control plan, and denied the coastal site plan and special permit request. (R.O.R. nn)
On May 10, 1998, the commission published a public notice of its decision in a newspaper having a general circulation in the municipality. The plaintiff served and filed a timely appeal. Nine State Street v. Planning And Zoning Commission, CT Page 245 270 Conn. 42, 45, (2004).
II. Facts of the Case
The plaintiff owns property located in Bridgeport, Connecticut. The property is located in a heavy industrial zone; an asphalt production facility is an industrial use. (R.O.R. Exhibit 1a, page 2) The property has approximately 1.8 acres. (R.O.R. Exhibit 1a, page 10)
In place of the existing facility, the plaintiff proposed construction of an asphalt plant, adjoining office, a storage dugout and a storage garage. (R.O.R., Exhibit 1a, page 10-11). Additionally there would be a 350-truck parking queue region. (R.O.R. 1a at page 21). The application further provided for landscaping and a fifteen-foot buffer zone between the plant and the adjoining residential property that would include white pines. (R.O.R. 1a, page 3).
The property consists of an 80 foot by 700 foot parcel. (R.O.R., Exhibit 1gg). The 700-foot length of the property is adjacent to Seaside Village. The plant would be located 20 feet from Seaside Village, a planned garden community and 35 feet from the nearest of the approximately 257 homes in Seaside Village. Furthermore, the plant's emission stack would be located 80 feet from residences. (R.O.R. gg)
The proposed asphalt plant was designed for the manufacture of heated asphalt. The manufacturer would heat rushed stone with such intensity that the stone would eventually liquify. The manufacturer then would add petroleum to the liquid. The product becomes "a very thick oil . . . thicker than number 2 heating oil [which] . . . is also heated and . . . [with the stone aggregate] combined in the mixer." The production itself generates emissions containing harmful particles and vapors. The product "is deposited either directly into the truck or it goes into [one of two] . . . storage silos." (R.O.R. 1a, pages 11-12; R.O.R. 1gg, pages 2-3). The plant would operate six days a week; each day 50 to 100 trucks would accept asphalt for delivery to other locations. (R.O.R. Exhibit 1a at 9, 18)
Several neighbors testified in opposition to the proposed manufacturing process, citing proximity to housing, truck congestion and general detriment to the community. However, the Commission also received information concerning the adverse health consequences which would result from the proposed manufacturing. (R.O.R. Exhibit 1, ff) Children and elderly residents of the area, already at risk from high ozone and carbon monoxide levels, had an exceptionally high asthma level. (R.O.R. at 1ff). The Commission received expert testimony that stack emissions from asphalt plants in residential areas necessarily impact the local population. (R.O.R. gg) The Commission also received testimony that the noise level from the plant alone would exceed state regulations. (R.O.R. gg). The additional noise from the queued trucks further increased that noise level. (R.O.R. gg).
These included diminished property values, diminished business development, and interference with other manufacturing facilities. (R.O.R. 1a at 50, 53; R.O.R. gg.)
In a written decision the Commission denied the special permit application, finding
1. There is no need for an asphalt plant in the proposed location.
2. The proposed development did not contain adequate safeguards to protect the abutting residentially developed area. There are no safeguards that would be adequate enough to protect a residential area being so close to an asphalt plant.
3. The proposed asphalt plant would be too intense of an operation to be 20 feet from a residential area, would be incongruous with residential uses and create an inconvenience to residents in the area resulting in detrimental impacts.
(R.O.R., Exhibit 1, nn)
The Commission also denied the coastal plan application, finding that the proposed plant would adversely impact coastal and environmental resources, waterfront resources, future water-dependent development activities and scenic public vistas. The Commission further determined that the application was not consistent with "waterfront resources or unique characters of the site." (R.O.R. nn).
IV. Aggrievement
Connecticut General Statutes § 8-8(b) provides that "any person aggrieved by any decision of a board may take an appeal to the superior court . . ." Proof of aggrievement is an essential prerequisite for a zoning appeal. Connecticut Resources Recovery Authority v. Planning Zoning Commission, 225 Conn. 731, 739 n. 12, 626 A.2d 705 (1993). The plaintiff is the record owner of subject property. As such, the plaintiff is aggrieved. Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).
IV Timeliness
The plaintiff served and filed a timely appeal. Nine State Street v. Planning And Zoning Commission, 270 Conn. 42, 45 (2004).
V Standard of Review
The standard of review of a zoning commission or board is firmly established
Courts are not to substitute their judgment for that of the board and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . We, in turn, review the action of the trial court." Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49, 206 A.2d 110 (1964) . . . The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs. Horvath v. Zoning Board of Appeals, 163 Conn. 609, 316 A.2d 418 (1972).
(citations omitted) Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654 (1980)
"In reviewing an appeal from an administrative agency, the trial court must determine whether the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (internal quotations omitted; citations omitted) Smith v. Zoning Board of Appeals, 227 Conn. 71, 80, 629 A.2d 1089 (1993), cert. denied, 114 S.Ct. 1190 (1993). "The burden of proof is on the plaintiff to demonstrate that the Commission acted improperly." Spero v. Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991).
Furthermore, in cases such as the present one, where the zoning authority has set forth reasons for its decision this court "may only determine if the reasons given are supported by the record and are pertinent to the decision, and the authority's action must be sustained if even one of the stated reasons is sufficient to support it." (Internal quotation marks omitted.) Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 111 cert. denied, 239 Conn. 949 (1996).
"When the court reviews decisions of land use agencies it cannot substitute its discretion for the evidentiary findings of the agency if they are reasonably supported by the record." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1993) § 33.9, p. 584. "It is not the function of the court to adjudicate the facts. The court can do no more, on the factual questions presented, than to examine the record to determine whether the ultimate findings were supported, as the statute requires, by substantial evidence." Persico v. Maher, 191 Conn. 384, 408-09, 465 A.2d 308 (1983).
"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). "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 . . ." Samperi v. Inland Wetlands Agency, 226 Conn. at 587-88.
The substantial evidence rule should not be confused with a battle of experts. Rather, any agency decision must be based on reliable evidence made public and the applicant must have an opportunity to respond to agency concerns. Strong v. Conservation Commission, 28 Conn.App. 435, 440, 611 A.2d 427 (1992). Although an agency cannot capriciously ignore the testimony of experts, that agency is not bound by the same.
VI Discussion
The plaintiff raises a number of issues in its appeal. It argues first that the Commission acted illegally, arbitrarily and in an abuse of discretion when it denied the permit.
The plaintiff suggests that the fact the Commission approved the site plan automatically negates the Commission's finding that the proposed plant was not compatible with other structures in the vicinity or the character of the surrounding area.
A site plan is a plan filed with a zoning commission or other municipal agency or official to determine the conformity of a proposed building use or structure with specific provisions of the zoning regulations. It is a physical plan showing the layout and design of a proposed use, including structures, parking areas and open space and their relation to adjacent uses and roads, and containing the information required by the zoning regulations for that use. The agency has no independent discretion beyond determining whether the plan complies with the site plan regulations and applicable zoning regulations incorporated by reference. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations . . ." (Citations omitted; internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning Zoning Commission, 46 Conn.App. 566, 570, 700 A.2d 67, cert. denied, 243 Conn. 935, 702 A.2d 640 (1997). "In reviewing and approving site plans the commission acts in an administrative capacity . . ." Norwich v. Norwalk Wilbert Vault Co., 208 Conn. 1, 12, 544 A.2d 152 (1988); see also Carr v. Bridgewater, 224 Conn. 44, 54, 616 A.2d 257 (1992).Konover Development Corporation v. Planning and Zoning Commission of the Town of Watertown, No. CV97-0138403S, Superior Court, Judicial District Of Waterbury (August 18, 1999, West, J.).
The Commission approved the plaintiff's site plan. However, it denied the special permit application. "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, supra, p. 175; see also Barberino Realty Development Corp. v. Planning Zoning, 222 Conn. 607, 612-13, 610 A.2d 1205 (1992)." Smith-Groh, Inc. v. Greenwich, 78 Conn.App. 216, 229, 826 A.2d 249 (2003).
The Commission also denied the coastal site plan application.
The power of the commission to require that the plaintiff file a coastal site plan and impose conditions on its approval is derived from the Coastal Management Act (act), General Statutes §§ 22a-90 through 22a-112. The act delegates the administration of the state-wide policy of planned coastal development to local agencies charged with responsibility for zoning and planning decisions. With respect to review of a coastal site plan, [p]roceedings before planning and zoning commissions are classified as administrative . . . The court's function was to determine on the basis of the record whether substantial evidence has been presented to the [commission] to support its findings . . . Furthermore, a reviewing court cannot substitute its judgment as to the weight of the evidence before the commission and on factual issues material to the reasons for the commission's decision because it is within the province of the commission to determine the credibility of witnesses . . . Not only is a reviewing court prohibited from substituting its judgment for that of the commission, but the decision of the commission must be sustained if an examination of the record discloses evidence that supports any one of the commission's reasons . . . 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." (Citations omitted; internal quotation marks omitted.)
Pinchbeck v. Planning And Zoning Commission, 69 Conn.App. 796, 799, 796 A.2d 1208 (2002)
Turning to the issues presented, Bridgeport zoning regulations delineate special permit and coastal plan requirements. The Commission may not impose additional conditions that are not within the regulations. A. Aiudi Sons, LLC v. Planning Zoning Commission, 72 Conn.App. 502, 506, 806 A.2d 77, cert. granted on other grounds, 262 Conn. 919, 812 A.2d 861 (2002). "As a matter of law, general considerations enumerated in the zoning regulations are an adequate basis for denying an application for a special permit . . ." Id. at 507.
The court has examined the record to determine if there is substantial evidence for the denials. At the public hearing, there was little if any public support for the project. Most members of the public who spoke at the hearing opposed the project for the reasons indicated previously. In addition to the views expressed by the public, the record contains other evidence that supports the Commission's determinations.
Although the project may have complied with the site plan, there was substantial evidence in the record to support each of the Commission's findings. Accordingly, the commission was justified in denying the plaintiff's applications.
The plaintiff also suggests that the actions taken by the Commission were illegal because the Commission was improperly influenced by public opinion. In support of this extraordinary proposition, the plaintiff cites the fact that the Commission had to caution the public to remain in control during the public hearing.
There is no evidence that the Bridgeport Planning and Zoning Commission decided this application solely upon the basis of public opinion. The court must presume that each application is considered on its own merits after an appropriate hearing. The fact that there may be strong public opinion does not mandate a presumption that the public can coerce an improper, arbitrary or illegal Commission decision. Indeed, an aroused public is the essence of the democratic process.
The plaintiff's appeal is dismissed.
Dewey, J.