Opinion
No. LLI CV-09-4008507S
July 18, 2011
MEMORANDUM OF DECISION
The plaintiff, Optiwind Corp., appealed from a decision of the Planning and Zoning Commission of the Town of Goshen ("commission" or "the defendant") that denied the plaintiff's application for a special permit to build a wind turbine/tower facility in the Town of Goshen. The appeal is denied.
Eight individuals moved to intervene as defendants, alleging that they are abutting landowners. They did not pursue that motion, however, and so they did not participate in the defense of this action.
I FACTS A Action Taken by the Commission
On July 14, 2008, the plaintiff applied with the commission for a special permit to build a wind tower intended to generate electricity. The plaintiff proposed to build the tower on property owned by the Goshen Lake Sewer District at 113 Brush Hill Road in Goshen.
The commission held a hearing on the application on September 30, 2008. The commission voted on the application at a subsequent meeting and rejected it unanimously. The commission appeared to base its decision on opponents' concerns regarding the noise, visibility and negative effects on property values if the wind tower were to be built. The plaintiff appealed the commission's decision to this court ("the first appeal"). In a decision filed on September 14, 2010, this court, Roche, J., upheld the commission's denial of the special permit application, concluding that the commission's decision was based on substantial evidence. Optiwind v. Planning Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 08 4007819 (September 15, 2010, Roche, J.). The plaintiff appealed Judge Roche's ruling and that appeal is pending.
On November 13, 2008, the plaintiff filed a second application for a special permit to build the same wind turbine/tower facility in the same location that was the subject of the first appeal. Return of Record ("ROR") I.a. The second application came before the commission for a hearing on January 20, 2009. ROR III.g. The parties were unable to complete their submissions at that hearing, so the commission continued the matter to February 24, 2009. ROR III.h. The parties were again unable to complete their submissions and the matter was continued again. On March 17, 2009, the commission heard additional evidence and closed the public hearing on that date. ROR III.i.
The commission then held a special meeting on April 20, 2009, to discuss the application in the presence of, and with the assistance of, its counsel. ROR III.j. At a second special meeting on May 4, 2009, the commission voted unanimously to deny the application for a special permit. ROR II.c. The commission found as follows: "The aforementioned Special Permit and Site Plan application to construct a 199' 11" wind turbine is denied for the following reasons: 1. That there will be adverse effects upon the existing and probable future character of the neighborhood or its property values. 521d + 282.1b. 2. This specific site is not appropriate for this specific use. 282.1a."
B Description of the Property
The plaintiff proposed to construct a wind turbine on a 114-acre property located at 113 Brush Hill Road in Goshen, Connecticut ("the property"). The property is currently used as a sewage treatment plant. The property is also used as a host for both power lines, which are present on the property pursuant to a right of way, and a telecommunications tower that is 185 feet tall. Much of the property consists of leaching fields, which are composed of a system of ridges and furrows. ROR III.g. at 4. The parties appear to agree that the property is located in a rural setting and is surrounded by private residences. The plaintiff notes, however, that the proposed wind turbine would be located 780 feet from the closest abutting property line and approximately 1,400 feet from the closest home. ROR I.e., Tab 9 at 2.
If constructed, the wind turbine would consist of a tower approximately 200 feet tall, with a cylindrical device, resembling a silo, affixed to the upper part of the tower. The "silo" would carry two sets of three fans, mounted vertically, with each set affixed to opposite sides of the silo. Thus, the silo would carry a total of six fans. ROR I.e at Tab 9. Each fan would be twenty-five (25) feet in diameter; the silo, including the fans, would have a width of ninety-five (95) feet and a height of seventy (70) feet. ROR III.g. at 113-15.
An illustration of the proposed wind turbine appears on the last page of the part of the submission designated as Tab 9. The page on which the illustration appears is not numbered.
A plaintiff's appraiser, Arthur Oles, characterized the silo, with the attached fans, as being "much larger than a house." ROR III.g at 115.
C Procedural History
The plaintiff filed its appeal with this court on May 29, 2009. The parties each filed briefs in support of their respective positions and the matter was heard on April 15, 2011.
D Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). "[I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664-65, 889 A.2d 26 (2006).
The plaintiff does not contend that it has statutory standing to bring this action. However, standing may also be established upon a showing of classical aggrievement. "The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Denny v. Tomei, 129 Conn.App. 544, 548 (2011); see Hayes Family Ltd. Partnership v. Planning Zoning Commission, 98 Conn.App. 213, 219-23, 907 A.2d 1235 (2006), cert. denied, 281 Conn. 903, 916 A.2d 44 (2007); Pomazi v. Conservation Commission, 220 Conn. 476, 482-83, 600 A.2d 320 (1991) (a party is classically aggrieved if he establishes a specific personal and legal interest in the subject matter of the decision and there is a possibility that the specific legally protected interest has been specially and injuriously affected by the decision).
General Statutes § 8-8(a)(1) defines an "aggrieved person" in relevant part as "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."
The plaintiff is a lessee of the property who held, and continues to hold, the right to construct a wind turbine on the property but cannot do so due to the commission's denial of its special permit applications. Consequently, the plaintiff claims to have been specially and injuriously affected by the commission's decision. The plaintiff's agreement gives it a possessory right in the property, including the right to profit from the generation of electricity which, pursuant to the same agreement, would be sold to the Woodridge Lake Sewer District, the owner of the property. Plaintiff's Exhibit 3. The preliminary agreement was effective as of June 30, 2008, and has no express ending date. A subsequent clarification of the preliminary agreement supports the understanding that the preliminary agreement has not expired. Id.
In the first appeal, Judge Roche thoroughly explored the same claims of aggrievement that are raised in this appeal. Optiwind v. Planning Zoning Commission, supra, Superior Court, Docket No. CV 084007819. The defendant appears to have ignored the analysis by Judge Roche that led to his finding that the plaintiff is classically aggrieved. Indeed, the defendant's brief discussion of the issue of aggrievement makes no reference, at all, to the ruling by Judge Roche. For the reasons set forth above, and for the reasons articulated by Judge Roche in the first appeal, the court finds that the plaintiff is classically aggrieved.
E Issues Presented 1 The Plaintiff's Position
The plaintiff is of the view that the commission denied the original application for a special permit on the basis that the plaintiff had failed to introduce competent evidence regarding the effect that the proposed wind turbine would have on property values in Goshen. In order to remedy the perceived shortcoming in its original presentation, the plaintiff introduced reports from three appraisers and testimony from two of them, Bruce Hunter and Arthur Oles.
Bruce Hunter testified that, although there are no similar wind turbine projects in Connecticut, he inspected wind farms in other states. He also researched three studies regarding the impact of wind turbines on property values. Arthur Oles testified that he also reviewed studies regarding the impact of wind turbines on property values and, further, he had participated in a study that assessed the impact of high voltage transmission towers on the value of properties in two Connecticut towns, Brookfield and New Milford. He attempted to locate comparable situations, examining the effect of a microwave communications tower in Winchester, Connecticut. He, like Hunter, expressed the view that the wind turbine would not affect property values.
The plaintiff submitted a report by a third appraiser, Walter Kloss, who echoed the views of Hunter and Oles.
The plaintiff also presented testimony by a professional planner named Donald Poland. Poland testified that the wind turbine would not have an impact on future development in the area surrounding the property, nor would it affect traffic in that area.
The plaintiff recognizes that neighbors of the property offered testimony by appraiser Albert Franke, who critiqued the work of the plaintiff's three appraisers. Another appraiser hired by the neighbors, Andrew O'Hazo, testified that the wind turbine could adversely affect the value of neighboring properties at a level that could reach as high as thirty percent for some properties. Finally, the Commission retained its own appraiser, Robert Bartose. Bartose was supportive of the views expressed by the plaintiff's three appraisers. ROR III.i at 118.
2 The Commission's Position
The commission begins its analysis with Section 280, et seq., of the Goshen zoning regulations. In particular, Section 282.1 provides in relevant part that "[n]o wind facility shall be erected, constructed, installed or modified so as to change bulk or height, without first obtaining a special permit from the Goshen Planning and Zoning Commission." ROR VI. Section 521 provides in relevant part: "A Special Permit shall not be granted unless the Commission finds the following . . . 521.d: That there will be no adverse effects upon the existing and probable future character of the neighborhood or its property values."
The plaintiff's evidence included an acknowledgement that the wind turbine is expected to generate what it termed "white noise." ROR III.g at 24. The plaintiff's representative, David Hurwitt, expressed his personal view that white noise is "not a bad thing." ROR III.g at 25. The plaintiff's professional planner, Donald Poland, stated in a report that he found it "hard to imagine" that the wind turbine would adversely affect the existing and probable future character of the neighborhood or its property values. ROR I.e. Tab 10 at 6. The defendant argues that Poland has no special qualifications that would permit him to offer an opinion about adverse effects on a rural, residential neighborhood, particularly when the facility at issue is a type of wind turbine that has never been erected in this state.
The commission also points out that there is evidence in the record that it is not possible to determine the level of noise that will be generated by the wind turbine since it is the first of its kind. ROR 1.e, Tab 4, sheet 3.
The defendant also rejects the views of the plaintiff's three appraisers. The defendant notes that appraiser Bruce Hunter acknowledged that, in this case, it is impossible to conduct a traditional appraisal, in which the appraiser examines similar sales involving similar uses, because the situation presented in this case is unique, not only in Goshen, but in the entire state. His comparisons involved, instead, studies involving wind turbines in other states. In each case, however, those studies involved traditional three-bladed wind turbines.
As was noted, the plaintiff's third appraiser, Walter Kloss, did not testify. See note 4, supra.
One of the plaintiff's appraisers, Arthur Oles, largely replicated Hunter's testimony and expressed his view that "you're going to barely see this tower." ROR III.g at 72. The commission disagrees with Oles' claim, citing to simulated views of the tower that are in the record. See ROR 1.e, Tab 6, sheets 1 and 2.
In response to the plaintiff's presentation, a number of neighbors who live near the property testified in opposition to the application, expressing their view that the wind turbine would be inconsistent with the rural and historic character of their community. An appraiser, Albert Franke, was critical of the reports offered by Hunter and Oles. Franke testified that he had reviewed seven studies that were in conflict with the conclusions reached by Hunter and Oles. An attorney, Pearly Grimes, advised the commission that he had found several reports which demonstrated that wind turbines do lower property values. ROR V.ggg.l; ROR III.h at 74-76. The commission also considered a report from Matthew Stanczyk, an engineer, who stated that the sound levels from the proposed wind turbine could not be properly evaluated and could rise to a level above that which is considered to be mere "white noise." ROR IV.xxx.
After the public hearing concluded, the commission held a special meeting on May 4, 2009. One commissioner stated that he did not find the applicant's appraisers to be convincing. ROR III.k at 14. A second commissioner stated that the situation cited in the applicant's appraisals did not present a fair comparison to the situation proposed for Goshen. ROR III.k at 18. A third commissioner expressed his concern that the proposed wind turbine is substantially different than the wind turbines that were considered by the appraisers. ROR III.k at 18. The chairman of the commission expressed his concern about the unique and different appearance of the proposed wind turbine. ROR III.k at 19-20. The commission then voted unanimously to deny the application for a special permit, relying specifically on the provisions of Sections 282 and 521 of the Goshen zoning regulations.
F The Standard of Review
When presented with an appeal from a decision by a zoning board, "[j]udicial review . . . differs depending on whether the court is reviewing a factual or a legal determination. When the administrative agency has made a factual determination, the scope of review ordinarily is expressed in such terms as substantial evidence or sufficient evidence . . . Under this standard, the [c]onclusions reached by [the board] must be upheld by the [reviewing] court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] . . . The question is not whether the [reviewing] court would have reached the same conclusion . . . but whether the record before the board supports the decision reached . . . If a [reviewing] court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citation omitted; emphasis in original; internal quotation marks omitted.) Rapoport v. Zoning Board of Appeals, 301 Conn. 22, 32-33, 19 A.3d 622 (2011). A trial court must determine whether the board's act was "arbitrary, illegal or an abuse of discretion . . . 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." (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Zoning Board of Appeals, 107 Conn.App. 861, 867, 946 A.2d 916 (2008 ); Hoffer v. Zoning Board of Appeals, 64 Conn.App. 39, 41, 779 A.2d 214 (2001).
"It is well established that it is the exclusive province of the trier of fact to make determinations of credibility, crediting some, all, or none of a given witness' testimony. Additionally, [a]n administrative agency is not required to believe any witness, even an expert." (Citation omitted; internal quotation marks omitted.) Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 830, 955 A.2d 15 (2008). It is the applicant for a special permit who must bear the burden of establishing that it has met all conditions imposed by the regulations. Whisper Wind Development Corp. v. Planning Zoning Commission, 32 Conn.App. 515, 521, 630 A.2d 108 (1993), aff'd, 229 Conn. 176, 640 A.2d 100 (1994). When, as here, the matter involves an application for a special permit, "[t]he proposed use . . . must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience, and property values." (Internal quotation marks omitted.) Irwin v. Planning Zoning Commission, 45 Conn.App. 89, 96, 694 A.2d 809 (1997), rev'd on other grounds, 244 Conn. 619, 711 A.2d 675 (1998). "The zoning [commission's] action must be sustained if even one of the stated reasons is sufficient to support it." (Internal quotation marks omitted.) Whisper Wind Development Corp. v. Planning Zoning Commission, supra, 522.
The commission cited to three zoning regulations in the course of denying the plaintiff's application for a special permit. The three relevant regulations are as follows:
(1) "That the proposed activity will not create any conditions that could endanger public health, safety and welfare." Town of Goshen Planning and Zoning Regulations § 521.a.
No wind facility shall be erected, constructed, installed or modified so as to change bulk or height, without first obtaining a special permit from the Goshen Planning and Zoning Commission ("the Commission"). The construction of a Wind Facility shall be permitted in RA5 and RR zoning districts subject to the issuance of a Special Permit, provided that the use complies with all requirements set forth in section 3, 4, 5 and 6. All such Wind Facilities shall be constructed and operated in a manner that minimizes any adverse visual, safety, and environmental impacts. No special permit shall be granted unless the Commission finds in writing that:
(2)a. the specific site is an appropriate location for such use;
(3)b. no material adverse effect on the neighborhood has been shown . . . Town of Goshen Planning and Zoning Regulations § 282.1a and 2821.b. ROR VI.
In this case there was extensive testimony and documentary evidence from neighbors of the property that the proposed wind turbine would be a highly unattractive structure and that it would adversely affect the rural and historic character of their neighborhood. The neighbors objected, further, that the visual impact of the proposed wind turbine would adversely affect their property values. Finally, the neighbors objected on the basis of the level of noise that could be generated by the wind turbine.
The presentations in opposition to the wind turbine came from the homeowners whose property abuts the proposed site of the wind turbine, as well as from their representative, Attorney Pearly Grimes. ROR III.g, at 107 et seq.; ROR III.h. at 38-150; ROR III.i. at 4-66. The documentary and photographic evidence submitted in opposition to the wind turbine was extensive. See, e.g., ROR IV.a, IV.s, IV.aa, IV.dd, IV.kkk, IV.tt, IV.hhh, IV.qqq, IV.rrr, IV.sss, IV.xxx, IV.eeee, IV.hhhh, V.o, V.ii, V.kkk, V.ooo.12. Indeed, evidence submitted by the plaintiff could be interpreted as supporting the neighbors' objections regarding the potential visual impact of the wind turbine. ROR I.e Tab 6, sheets 1, 2.
Based on all of the foregoing evidence, this does not appear to be a case in which the neighbors opposed the application because the proposed structure is merely nontraditional. Instead, the opposition is largely based on the neighbors' view that the proposed structure is not only non-traditional, but also singularly unattractive. The commission was entitled to agree with the neighbors on this issue. Cf. Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 428, 941 A.2d 868 (2008).
In Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, supra, 285 Conn. 381, the plaintiff proposed to build a two-story temple in a farming and residential area. Our Supreme Court found that although the proposed structure was not of a type typically found in New England, it was "generally attractive, relatively modest and not entirely out of character for a place of religious worship in [the] neighborhood." Id. The foregoing description does not apply, in any favorable respect, to the structure proposed by the plaintiff in this case.
The commission held two special meetings to consider the evidence submitted, the first on April 20, 2009, and the second on May 4, 2009. It is clear from the records of those proceedings that the commission members carefully and thoughtfully reviewed the evidence that had been presented. See, e.g., id. at 14-32. The decisions reached at the conclusion of those meetings reflect a commission that acted fairly, for valid reasons, and it based those decisions on substantial evidence. Spectrum of Connecticut, Inc. v. Planning Zoning Commission, 13 Conn.App. 159, 163, 535 A.2d 382, cert. denied, 207 Conn. 804, 540 A.2d 373 (1988).
As was discussed, supra, the commission, and not this court, is the proper entity to decide the credibility of the witnesses who came before it. The commission, similarly, is the entity authorized to decide whether to credit the photographs, visualizations, appraisals and reports that were presented to it, so long as the commission does not abuse its discretion in choosing to accept that evidence. The commission was entitled to credit the homeowners' opinions as to whether the proposed wind turbine would have an adverse effect upon the character of the neighborhood and that it would lower their property values. "It is undisputed that homeowners are qualified to testify as to their personal opinion regarding the value, or diminution in value, of their properties." (Emphasis added; internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 364, 788 A.2d 496 (2002); see Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, supra, 285 Conn. 436-40, 443.
The commission was equally entitled to credit the evidence that raised concerns about the sound levels that would be generated by what is, in effect, a prototype wind turbine. The commission was not required to accept the plaintiff's belief that the wind turbine would only produce "white noise" and that white noise is "not a bad thing." Further, the commission was entitled to credit the homeowners' appraisers as opposed to the plaintiff's appraisers. See Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, supra, 285 Conn. 443. Finally, the visualizations, alone, were sufficient to support the commission's conclusion that the specific site proposed by the plaintiff is not an appropriate site for the proposed wind turbine in the Town of Goshen. The commission, in relying on the foregoing evidence, did not abuse its discretion when it denied the plaintiff's application for a special permit. The commission's action was clearly based on substantial evidence.
There is no basis on which this court can properly disregard the evidence that supports the commission's decision. Although the parties have good faith, conflicting views as to which evidence is most compelling, there is unquestionably evidence in the record that supports one, if not all, of the multiple reasons stated by the commission for its decision. See Rapoport v. Zoning Board of Appeals, supra, 301 Conn. 33.
II CONCLUSION
The plaintiff concludes its brief by extolling the virtues of developing renewable resources, such as wind power, for the generation of energy. It argues that "[n]ew, exciting technologies will be needed to generate power and jobs." The plaintiff may be correct about the foregoing assertions. However, as the plaintiff itself acknowledged at oral argument, the court's opinion about the most desirable form of energy generation is irrelevant to this appeal. The court cannot substitute its judgment for that of the commission on the basis of the court's personal views regarding the most desirable means of generating electricity.
The commission's denial of the plaintiff's application for a special permit to build a wind turbine on the property was based on substantial evidence. The appeal is overruled.