Opinion
No. LLI CV 08-4007819S
September 15, 2010
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiff, Optiwind, appeals from a decision of the defendant, the Planning and Zoning Commission of the town of Goshen ("the commission"), to deny the plaintiff's special permit application.
II FACTUAL BACKGROUND
On or about July 14, 2008, the plaintiff filed a special permit application with the commission for the purpose of erecting a wind turbine for the farming of wind energy on a 114-acre parcel of land located at 113 Brush Hill Road ("the premises") owned by the Woodridge Lake Sewer District. (Return of Record [ROR], Exhibit [Exh.] I.a.) The plaintiff's application was accepted by the commission at its meeting on July 22, 2008, at which time the commission scheduled a public hearing for September 30, 2008. (ROR, Exh. III.b.) At the meeting held on July 22, 2008, the commission also voted to approve the application of the plaintiff to install two temporary meteorological towers for wind speed measurement on the premises. (ROR, Exh. III.b.) Notice of the public hearing to be held concerning the plaintiff's special permit application appeared in the Waterbury-Republican on Tuesday, September 16, 2008, and Tuesday, September 23, 2008. (ROR, Exh. II.a.)
The commission held the public hearing on September 30, 2008. (ROR, Exh. III.d.) At the hearing, David Hurwitt, the vice president of marketing and business development for the plaintiff, spoke on behalf of the plaintiff in asking that the commission approve the application. (ROR, Exh. III.d, p. 2.) Also present and affiliated with the plaintiff were Russ Martin, Ted Chadwick and Bret Slycher. Id. Hurwitt testified that the plaintiff believed that the application met or exceeded every requirement for approval of the special permit. (ROR, Exh. III.d, p. 2.) Hurwitt addressed several issues regarding the proposed wind turbine that the plaintiff believed were of concern to members of the public including the visibility of the wind turbine and tower, the noise levels of the turbine once in operation and the negative effect the turbine might have on property values. (ROR, Exh. III.d, pp. 2-5.)
Hurwitt testified that the plaintiff made a "very careful effort to site the turbine in a spot where it is minimally visible to the community." (ROR, Exh. III.d, pp. 2-3.) In accordance with § 289 of the Planning and Zoning Regulations of the town of Goshen ("the regulations"), the plaintiff conducted a "balloon test" from September 13, 2008, through September 15, 2008. (ROR, Exh. III.d, p. 3.) Section 289 of the regulations requires that applicants or facility owners seeking approval of a special permit for a "wind facility" shall conduct certain tests in order to demonstrate a visual representation of the height and visibility of a proposed wind turbine tower. Section 289 provides in relevant part: "The Commission shall select between three and six sight lines, including from the nearest building with a view of the wind facility for pre and postconstruction view representations. Sites for the view representations shall be selected from populated areas or public ways within a 2-mile radius of the wind facility. View representations shall have the following characteristics: a. Within 21 days of filing for a Special Permit, the applicant shall arrange for a balloon test (with a balloon diameter of at least eight feet), or a crane test, at the proposed site to illustrate the height and position of the proposed tower. The date . . . time and location of such test shall be advertised in a newspaper of general circulation in the Town at least 15 days, but not more than 21 days, prior to the primary date of the test. The balloon or crane test shall be conducted for at least two days, one of which shall be a Saturday or Sunday. b. The applicant will submit photographs showing the tower imposed on the photograph with the tower height established in reference to a balloon flown to the proposed tower height at the site." (ROR, Exh. VI.) Hurwitt testified that the images prepared by the plaintiff during its balloon test demonstrate that the site chosen for the turbine would "be the optimal site in terms of minimizing visibility" of the tower. (ROR, Exh. III.d, p. 4.)
In addressing the concerns about the noise produced by the proposed wind turbine, Hurwitt noted that noise levels everywhere in town are regulated by the Torrington Area Health District ("TAHD"). (ROR, Exh. III.d, p. 4.) Hurwitt testified that the plaintiff worked with TAHD in regards to this project and a letter from TAHD, dated September 10, 2008, stated in part that "[g]iven the distances from adjoining property lines, it is unlikely that noise generated by the turbine will exceed the Torrington Area Health District standards." (ROR, Exh. III.d, p. 4.)
Hurwitt then addressed the concern over the wind turbine's impact on property values. Hurwitt identified three reports that the plaintiff also submitted to the commission concerning the effect of wind turbine on property values, each of which found that there was no support for the claim that wind turbines would negatively impact property values. (ROR, Exh. III.d, p. 5.)
The reports submitted by the plaintiff concerning the impact of wind turbines on property values were: The Effects of Wind Development on Local Property Values, prepared by Renewable Energy Policy Project in May 2003 (ROR, Exh. V.a); Impacts of Windmill Visibility on Property Values in Madison County, NY, completed by the Bard Center for Environmental Policy in April 2006; and Do Wind Facilities Affect Local Property Values?, completed by the Lawrence Berkley National Lab in June 2007. (ROR, Exh. I.b.)
Hurwitt concluded his remarks, before fielding questions from the commission, by stating the plaintiff's belief that the proposed wind turbine would have a significant positive environmental impact on Goshen and Connecticut. (ROR, Exh. III.d, p. 6.) Specifically, he noted that the installation of the wind turbine would reduce the need for fossil fuel based electricity at the Woodridge Lake Sewer District facility.
After members of the commission asked a series of questions to the plaintiff's representatives, members of the public were able to participate in the hearing. Three members of the public — Bob Mosca, Eric Warwo and Keith Marcheski — spoke in favor of the application. (ROR, Exh. III.c.) Several members of the public, including Fran Goodhouse, Tom Mudrey, Susan Stansick, Elaine Frost, James Upton, George Schuster, Bill Gregware, Heidi Conig, June Greenwood, Leo Mayo and Brian Rose spoke in opposition to the plaintiff's application. (ROR, Exh. III.c.)
Bob Mosca is a resident of Goshen and the President of Woodridge Lake Sewer District. Mosca signed the preliminary agreement, clarification of the preliminary agreement, preliminary agreement overview and further clarification of preliminary agreement between Optiwind and WLSD on behalf of the WLSD.
At the close of the public hearing on September 30, 2008, the commission's chairman, Mark Fraher, announced that the decision on the application would be made at the commission's next regular meeting. (ROR, Exh. III.d, p. 58.) On October 28, 2008, at its regularly scheduled meeting, the commission unanimously denied the plaintiff's special permit application to erect the wind turbine. (ROR, Exh. II.b.) The minutes of the meeting state that prior to making its decision to deny the plaintiff's application for special permit, the commission reviewed all the comments, letters and petitions submitted at the public hearing. (ROR, Exhs. III.e.) The commission noted that the majority of concerns expressed by those in opposition to the application concerned the noise and visibility of the turbine and the negative effects on property values and wildlife. (ROR, Exhs. III.e; III.f, p. 7.) In granting a special exception, the commission noted, an applicant must meet the specific requirements of § 280 of the regulations as well as the general requirements of Article V, § 521 of the regulations. (ROR, Exhs. III.e; III.f, p. 4.) The commission unanimously voted to deny the plaintiff's application because it did not meet the requirements of §§ 521.d and 521.e of the regulations. (ROR, Exh. III.f, p. 28.) Notice of the denial of the plaintiff's application appeared in the Waterbury-Republican on Friday, October 31, 2008. (ROR, Exh. II.b.) The plaintiffs commenced the present appeal on November 13, 2008. On December 8, 2008, a motion to intervene was filed by several individuals who alleged that they were abutting property owners or owned property within one hundred feet of the premises and the court subsequently granted their motion. The hearing in this matter was held on July 1, 2010.
Section 521.d of the Goshen zoning regulations provides that a special permit shall not be granted unless the commission finds "[t]hat there will be no adverse effects upon the existing and future character of the neighborhood or its property values."
Section 521.e of the Goshen zoning regulations provides that a special permit shall not be granted unless the commission finds "[t]hat the proposed activity will not hinder the orderly and appropriate development of adjacent property."
The intervening defendants are Elaine Frost, Thomas Mudry, James Upton, William Gregware, Carol Gregware, Pamela Miller, Francis Goodhouse and Maureen Goodhouse.
III JURISDICTION
"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, 557 A.2d 545 (1989). General Statutes § 8-8(b) governs appeals from decisions of planning and zoning commissions to the Superior Court.
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, 899 A.2d 26 (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, 833 A.2d 883 (2003).
"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 . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected 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: "[i]n 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."
The plaintiff argues that it has proven that it was aggrieved by the decision of the commission to deny the special permit application. In its substituted complaint, the plaintiff alleged that at all times relevant to the application for special permit and this appeal it "has been and is a lessee of the premises" on which it applied for the special permit to construct and operate a wind turbine. The substituted complaint further alleges that the plaintiff is "aggrieved by the decision of the Commission . . . since it was the applicant for the special permit and site plan approval."
In support of its contention that it has been aggrieved by the commission's denial, the plaintiff submitted a copy of the deed of the premises, which shows that the premises is owned by the Woodridge Lake Sewer District ("WLSD") and a certification by a title searcher that WLSD continues to own the premises. Attached to its brief concerning aggrievement the plaintiff submitted to the court a memorandum from Joseph J. Poniatowski, commissioned by the plaintiff to conduct a title search of the premises, which states that upon examining the land records of Goshen regarding the premises Poniatowski determined that the property was owned by the Woodridge Lake Sewer District. Additionally, the plaintiff submitted to the court a certified copy of the warranty deed for the premises, which also indicates that WLSD is the owner of the premises.
The plaintiff additionally provided the court with a copy of the minutes of a WLSD meeting held on June 30, 2008, at which the WLSD approved a motion to enter a preliminary agreement with the plaintiff. As to the issue of aggrievement, Hurwitt testified that the plaintiff entered into a preliminary written agreement with WLSD, dated June 30, 2008, "establishing [the plaintiff's] rights" to the premises. In further support of this position, the plaintiff submitted several documents to demonstrate that an agreement had been entered between the plaintiff and WLSD for construction of the wind turbine on the premises by the plaintiff and that, accordingly, the plaintiff had a specific legal interest in the decision of the commission concerning the special permit application. These documents, which became plaintiff's Exhibit 1, consisted of a "preliminary agreement," dated June 30, 2008, a "clarification of preliminary agreement," dated December 16, 2008, a "preliminary agreement overview," dated February 17, 2009, and a "further clarification of preliminary agreement," also dated February 17, 2009.
The commission and the intervening defendants argue that the plaintiff has failed to submit evidence proving that it has been aggrieved by the commission's decision to deny the special permit application and, therefore, that the plaintiff's appeal should be dismissed. The commission specifically argued that the plaintiff failed to establish that WLSD owned the premises, failed to establish that the plaintiff had a valid agreement with WLSD and failed to submit documents that establish a valid lease for the premises. The commission and intervening defendants contend that the documents submitted by the plaintiff constitute nothing more than an "agreement to agree," and do not demonstrate that the plaintiff had a legal interest in the subject matter of the commission's decision that would rise to the level necessary to show aggrievement. Both the commission and intervening defendants note in their briefs that the preliminary agreement reached between the plaintiff and WLSD explicitly states only that the plaintiff and WLSD will "agree to work together in good faith during the next ninety (90) days to establish and agree to a formal agreement. The formal agreement is required prior to the installation of the wind turbine." The defendants argue that if WLSD and the plaintiff did not reach a final agreement, then the plaintiff would not have any legally enforceable rights to compel its use of the premises for the wind turbine and therefore would not possess a legal interest necessary to show aggrievement. The commission and intervening defendants argue that since no formal agreement has been entered, the plaintiff cannot meet its burden of demonstrating aggrievement.
The commission and intervening defendants additionally argue that the preliminary agreement expired prior to the making of a formal agreement. The defendants point to the explicit language in the preliminary agreement, which states that the "term of this preliminary agreement, shall begin on June 1, 2008" and that the plaintiff and WLSD "agree to work together in good faith during the next ninety (90) days to establish and agree to a formal agreement." The intervening defendants argue that since the preliminary agreement required a formal agreement to be entered within ninety days after the term of the preliminary agreement commenced and since no such formal agreement was entered by the plaintiff and WLSD, the plaintiff no longer had an interest in the premises sufficient to establish aggrievement after September 30, 2008. Since it is not enough for a party to have an interest in the premises sufficient to establish aggrievement only at the time of the application, but must have a specific legal interest in the subject matter of the appeal throughout the course of the appeal, the intervening defendants argue, the plaintiff in the present case cannot establish aggrievement because the preliminary agreement expired prior to the commencement of a formal agreement term.
First, regarding the issue of ownership of the premises, this court finds that the evidence submitted by the plaintiff — the certified copy of the warranty deed of the premises and Poniatowski's memorandum concerning the title search conducted of the premises — is sufficient to establish that WLSD was the owner of the premises.
Additionally, this court finds that the evidence submitted, including Plaintiff's Exhibit 1, consisting of the preliminary agreement between the plaintiff and WLSD and the three addendums to the preliminary agreement, is sufficient to demonstrate that the plaintiff has a legal interest in the subject matter of the commission's denial of the special permit application. While the defendants are correct that the preliminary agreement states that a "formal agreement is required prior to the installation of the wind turbine," they ignore the fact that the same agreement provides that "WLSD does hereby agree to provide Optiwind the land necessary to erect a wind turbine on the WLSD property." This explicit language, in a contract signed by officers of the plaintiff and WLSD respectively, constitutes a potentially enforceable legal interest for the plaintiff in WLSD's land for the purpose of erecting a wind turbine on the premises. The fact that the preliminary agreement does not grant the plaintiff the right to construct or install the wind turbine on the premises prior to the establishment of a formal agreement, which would invariably not be established until after zoning approvals were granted or any appeals were finalized, does not eliminate the contractual right acquired by the plaintiff, and agreed to by WLSD, the owner of the premises, "to erect a wind turbine on the WLSD property." Since the preliminary agreement extended to the plaintiff the legal interest to build such a wind turbine, and the subject matter of the commission's decision centered on an application for a special permit to construct a wind turbine, the plaintiff can demonstrate a specific, legal interest in the subject matter of the commission's decision, and can show that the commission's decision has specially and injuriously affected that specific personal or legal interest.
In addition to contending that the preliminary agreement did not convey to the plaintiff a legal interest sufficient to establish aggrievement, the defendants argue that the language in the preliminary agreement suggests that the agreement expired ninety days after June 30, 2008, because no formal agreement was entered into by the plaintiff and WLSD. Consequently, the defendants argue, the plaintiff did not possess a legal interest in erecting a wind turbine on the premises at the commencement of this appeal and therefore cannot show aggrievement, which requires that a party be aggrieved throughout the pendency of an appeal. This court disagrees with the defendants' contention. The preliminary agreement does not state that it will expire after ninety days if no formal agreement is established between the plaintiff and WLSD, but only states that "Optiwind and WLSD agree to work together in good faith during the next ninety (90) days to establish and agree to a formal agreement." This contract provision in no way states that the failure of the parties to reach a formal agreement within ninety days after the entering of the preliminary agreement terminates the preliminary agreement or causes it to expire. The provision only provides that the parties must "work together in good faith" during that ninety-day period. Nothing about this language suggests that the plaintiff's contractual right to erect a wind turbine on the premises ceases to be effective after ninety days should there be no formal agreement between the plaintiff and WLSD. The clarification of the preliminary agreement, dated December 16, 2008, and signed by representatives of the plaintiff and WLSD states clearly that the parties did not intend for the preliminary agreement to expire after ninety days and provides: "Optiwind and WLSD do hereby agree that the current agreement has not expired and the parties continue to work together in a spirit of good faith to establish and sign a final agreement for the siting of an Optiwind wind turbine at the WLSD site . . . This preliminary agreement shall remain in effect until the final agreement has been signed." The defendants argue that the preliminary agreement expired prior to this clarification, but the court disagrees and finds that the clarification of the preliminary agreement was unnecessary to show that the preliminary agreement had not expired.
The defendants point to JZ, Inc., Dunkin Donuts v. Planning Zoning Commission, 119 Conn.App. 243, 987 A.2d 1072, cert. denied, 296 Conn. 905, 992 A.2d 329 (2010), and Goldfeld v. Planning Zoning Commission, 3 Conn.App. 172, 486 A.2d 646 (1985), to support their position that the plaintiff cannot show that it has been aggrieved throughout the appeal, however, the facts of the present case are easily distinguished from these Appellate Court cases. In JZ, the Appellate Court reversed the trial court's decision to sustain the plaintiff's appeal of the commission's denial of a special use permit, concluding that the plaintiff was not aggrieved. The plaintiff had entered into a contract to purchase certain real property but the zoning approval for a special permit was made a condition of the sale. JZ, Inc., Dunkin Donuts v. Planning Zoning Commission, supra, 245. The agreement, entered into on July 25, 2006, specifically provided that the closing of title "shall take place on or before thirty (30) days following satisfaction of all conditions precedent . . . but in no event later than one year" from the date the agreement was signed. Id. The plaintiff's special permit application was denied on November 21, 2007, more than a year after the agreement was signed and the plaintiff appealed the commission's decision. Id. The trial court sustained the plaintiff's appeal, first finding that the plaintiff had been aggrieved. Id. The Appellate Court disagreed, concluding that the plaintiff had not been aggrieved because the purchase and sale agreement had expired one year after being signed as the closing of title had not yet occurred, as required under the agreement and, therefore, the plaintiff was not aggrieved at the time it commenced the appeal. Id., 246. The preliminary agreement between WLSD and the plaintiff in the present case contained no similar provision that would terminate the agreement. While the preliminary agreement provided that the parties would work in good faith to reach a final agreement during the ninety days after entering the preliminary agreement, no contractual language terminated the plaintiff's rights to build a wind turbine if a final agreement was not reached after the ninety days had passed.
Similarly, in Goldfeld, the Appellate Court held that the trial court's finding of aggrievement had been clearly erroneous. Goldfeld v. Planning Zoning Commission, supra, 3 Conn.App. 176. In Goldfeld, the plaintiff entered into an agreement to purchase an approximately 102-acre parcel of land on December 9, 1975, conditioned on the approval of an application before the commission to rezone the land. Id., 174. The plaintiff applied for the zoning change on September 29, 1977, the commission denied the application on December 7, 1977, and the plaintiff appealed. Id. A new contract, dated December 1, 1978, which completely superceded the original contract, changed the plaintiff's status from a purchaser to a holder of an option to purchase the land, an option that terminated on November 30, 1980, except that it could be extended by the plaintiff to May 30, 1981, if his appeal had been decided by the trial court and if there was a further appeal pending. Id., 175. On October 31, 1981, the option agreement was amended to provide that the option would expire on June 30, 1982. Id. The trial court rendered its judgment on August 10, 1982, finding aggrievement and sustaining the plaintiff's appeal. Id. The appellate court reversed the decision of the trial court, holding that the plaintiff failed to show aggrievement throughout the appeal. Id., 178. The court determined that the plaintiff's option to purchase the property terminated on either November 30, 1980, or, at the latest, May 31, 1981. Id., 177. The court further noted that the plaintiff's interest was "revived on October 31, 1981, but that resurrection lasted only until June 30, 1982, some six weeks before the trial court's judgment in this case." Id. Accordingly, there was an interruption in the plaintiff's interest in the property and, therefore, the trial court erred in finding that the plaintiff was aggrieved. Id. In the present case, unlike Goldfeld, there was no contractual language terminating the plaintiff's right, secured in the preliminary agreement, to build a turbine on the premises. The provision requiring the plaintiff and WLSD to work in good faith over the ninety days following the entering of the preliminary agreement to enter a formal agreement did not contain language that indicated a termination of the preliminary agreement if such formal agreement was not entered. The plaintiff in the present case contracted for the right to use WLSD's land to construct a wind turbine. That legal interest has not terminated since the entering of the preliminary agreement.
For the foregoing reasons, this court disagrees with the commission's assertions and finds that the plaintiff has demonstrated that it was aggrieved by the commission's denial of the special permit application.
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 subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." General Statutes § 8-8(f) provides in relevant part: "Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows . . . (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57 . . ." General Statutes § 52-57(b)(5) provides that in an action against a town commission, process must be served "notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the . . . commission . . ."
The commission published notice of its decision to deny the plaintiff's application for a special permit to erect the wind turbine in the Waterbury-Republican on Friday, October 31, 2008. (ROR, Exh. II.b.) The plaintiffs commenced the present appeal on November 13, 2008, by service of two copies of process on the Goshen town clerk, Barbara L. Breor. Accordingly, the court finds that the plaintiff's appeal was timely and that service of process was proper.
IV SCOPE OF REVIEW
General Statutes § 8-2(a) provides, in part, that local regulations "may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a . . . commission . . . whichever commission . . . the regulations may . . . designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values."
"When ruling upon an application for a special [permit], a planning and zoning [commission] acts in an administrative capacity . . . Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The . . . trial court [must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal . . . Although a zoning commission or board possesses the discretion to determine whether a proposal meets the standards established in the regulations, it lacks the discretion to deny a special permit if a proposal satisfies the regulations and statutes." (Internal quotation marks omitted.) Kilburn v. Plan Zoning Commission, 113 Conn.App. 621, 626-27, 967 A.2d 131 (2009). When a commission functions in "an administrative capacity, a reviewing court's standard of review of the commission's action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion . . . In determining whether a zoning commission's action was illegal, arbitrary or in abuse of its discretion, a reviewing court's principal inquiry is whether the commission's action was in violation of the powers granted to it or the duties imposed upon it." (Citations omitted; internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 440, 908 A.2d 1049 (2006).
"[A] local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it." (Internal quotation marks omitted.) Trumbull Falls, LLC v. Planning Zoning Commission, 97 Conn.App. 17, 29, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006). "[D]ecisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing." (Internal quotation marks omitted.) Garlasco v. Zoning Board of Appeals, CT Page 18063 101 Conn.App. 451, 456, 922 A.2d 227, cert. denied, 283 Conn. 908, 927 A.2d 917 (2007). "Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [commission] was required to apply under the zoning regulations." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 51 n. 8, 808 A.2d 1107 (2002).
"In reviewing a decision of a zoning board [or commission], a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the commission] must be upheld by the trial 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 [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 . . . If a trial court finds that there is substantial evidence to support a zoning [commission's] findings, it cannot substitute its judgment for that of the [commission] . . . The [commission's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Loring v. Planning Zoning Commission, 287 Conn. 746, 756, 950 A.2d 494 (2008).
V DISCUSSION
The plaintiff argues that the commission's denial of the plaintiff's special permit application should be overturned because the decision was not supported by substantial evidence, was plagued by procedural irregularities and ignored expert evidence.
A Whether the Site Plan Application was Automatically Approved
As a threshold matter, the court must determine whether the site plan, which accompanied the plaintiff's special permit application, was automatically approved due to a failure of the commission to act upon the site plan within sixty-five days of its filing. The plaintiff contends that it did not file a single application for a special permit to construct a wind turbine on the premises, but instead filed two applications, one for a special permit and another for site plan approval, submitting both to the commission on July 14, 2008. In its brief, the plaintiff argues that at the direction of staff members of the town of Goshen, the plaintiff checked two boxes on the application zoning application, one marked "Special Permit" and the other marked "Site Plan Approval." (ROR, Exh. I.a.) The plaintiff states that the commission, at its meeting on October 28, 2008, unanimously denied the plaintiff's special permit application, but took no action on the site plan application. The plaintiff further argues that pursuant to General Statutes § 8-7d, which provides in relevant part that "whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for any building, use or structure, a decision on an application for approval of such site plan shall be rendered not later than sixty-five days after receipt of such application," the commission's failure to act on the site plan within sixty-five days rendered the site plan application automatically approved. (Emphasis added.)
This court finds that the plaintiff's position is without merit. The plaintiff's application to erect a wind turbine for the farming of wind energy on the premises was filed pursuant to § 282.1 of the regulations, which provides that the "construction of a Wind Facility shall be permitted in RA5 and RR zoning districts subject to the issuance of a Special Permit." (Emphasis added.) (ROR, Exh. VI.) Section 510 of the regulations provides that "applications for Special Permits shall be accompanied by a Site Plan, as prescribed in ARTICLE IV of these Regulations." It is correct that when a commission fails to act within sixty-five days after receiving a site plan application that site plan is automatically approved if that site plan approval is the only requirement to be met under the zoning regulations for the use the applicant seeks. That, however, is not the case in the present case. In the present case, the issuance of a special permit is required for applicants seeking to construct a wind facility, and without the issuance of that special permit, pursuant to § 282.1 of the regulations, the plaintiff cannot erect its wind turbine facility. Here, the site plan approval is a required component of a special permit application pursuant to § 510 of the regulations. Since the special permit was denied by the commission, there was no automatic approval of the plaintiff's site plan because site plan approval was not the only requirement to be met in the plaintiff's application to erect a wind turbine on the premises.
B Whether the Denial was Flawed because of the Participation of an Alternate Member
The plaintiff contends that because Fred Zuck, an alternate member of the commission, participated in the commission's deliberations in violation of General Statutes § 8-1b and that his participation had a profound effect on the voting members of the commission, the denial issued by the commission was procedurally flawed. Based on this argument, the plaintiff seeks a remand to the commission. The plaintiff points to a single Superior Court case, Weiner v. New Milford Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 94 0066607 (May 23, 1995, Pickett, J.) ( 14 Conn. L. Rptr. 245), in which the trial court remanded a land use appeal to the zoning commission due to the improper participation in deliberations by an alternate member of the commission. In Weiner, which centered on the commission's denial of the plaintiffs' special permit application to operate a flea market, the court noted that the alternate member "participated in the discussion and . . . he had a persuasive impact on the voting members." Id. While a single Superior Court case is not controlling, the holding in Weiner suggests that a remand to the commission would be proper if it is determined that in the present case Zuck participated in the proceedings after the commission began its deliberations and that Zuck's participation had a profound effect on the voting members.
General Statutes § 8-1b provides: "Any town, city or borough, in addition to such powers as it has under the provisions of the general statutes or any special act, shall have the power to provide by ordinance for the appointment or election of alternate members to its zoning commission or combined planning and zoning commission. Such alternate members shall, when seated as herein provided, have all the powers and duties set forth in the general statutes or any special act relating to such municipality for such commission and its members. Such alternate members shall be electors and shall not be members of the zoning board of appeals or planning commission. Such ordinance shall provide for the manner of designating alternates to act."
At issue in Komondy v. ZBA, Superior Court, judicial district of Middlesex, Docket No. CV 07 4006628 (August 17, 2009, Jones, J.) [ 48 Conn. L. Rptr. 389], also cited by the plaintiff, was whether a zoning board of appeals acted improperly by allowing an alternate member of the board "to participate in the public hearing and board discussion, in derogation of the statute that regulates when an alternate may participate in decision-making." The court identified the statements made by the alternate member as follows: "She primarily posed questions to the town's attorney and to obtain clarification of the rule of law applicable to the issues, as well as questions to the applicant as to the status of the insurance coverage for the fire, and the use of insurance funds from the fire . . . [The alternate] remained silent until she made a comment about the fact that the Board did not know if the [the applicant] had another place to live. Directly thereafter, she made an error in arguing that allowing a variance might open the town up to long term risk. Thereafter, her comments are not as argumentative. She suggested that there is a possibility of construction delays, asserted that one cannot talk oneself into a hardship (which is immediately refuted by another Board member), and asked for clarification about the logistics of the fiscal relationship between the [the applicants] and their insurance company. Her final assertion is that this matter should be decided because the Board chose to hear it in the first place, which does not speak to whether the variance itself should be granted." The court in Komondy found that overall the alternate member's comments did "not appear to echo a sentiment that was inconsistent with the sentiments raised by the other members. At the end of the meeting, the seated members of the board articulated their reasoning, none of which seem to be influenced by" the alternate member. Accordingly, the court did not remand the appeal on the ground that the board's procedures were improper because the alternate member "did not materially participate in the deliberation in a way that had a `profound' effect upon the voting members."
In the present case, as in Komondy, the plaintiff has failed to demonstrate that Zuck's comments had a profound effect on the deliberations of the voting members of the commission. Zuck's first comments at the October 28, 2008, commission meeting, during which the commission denied the plaintiff's application, simply stated the number of petitions the commission received in opposition to the application and that the major concern of these petitions was increased noise levels, views of the wind turbine, decreased property values and impact to wildlife. (ROR, Exh. III.f, p. 7.) The plaintiff puts great weight on Zuck's statement that he "personally wouldn't want to build a house next to a structure that was, that windmill, I just think that would have an averse effect on future development." (ROR, Exh. III.f, p. 15.) Zuck does not appear to speak at any other time during the course of the meeting on October 28, 2008. The plaintiff's argument, that Zuck, an alternate member of the commission, made statements that had a profound impact on the deliberations of the other voting members of the commission is thin.
It is highly unlikely that the commission, having sat through a public hearing during which only three residents spoke in favor of the application, one of whom was an officer of WLSD, and during which several members of the public voiced opposition to the application was influenced by two short statements by Zuck. Public sentiment against the application was strong enough at one point during the hearing that the chairman had to instruct those present to hold their applause. (ROR, Exh. III.d, p. 26.) In order to deny the application for special permit, the commission need only point to a section of its own regulations with which the application was not in compliance. The commission voted unanimously to deny the special permit application on the grounds that it did not comply with § 521.d, which prohibits the issuance of a special permit unless "there will be no adverse effects upon the existing and probable future character of the neighborhood or its property values" and § 521.e., which prohibits the issuance of a special permit unless "the proposed activity will not hinder the orderly and appropriate development of adjacent property." (ROR Exh. III.f, p. 27.) Zuck's statement expressing his view that he "wouldn't want to build a house next to" the proposed windmill was made only after the chairman of the commission raised the issue of the special permit conflicting with § 521.d. (ROR Exh. III.f, p. 15.) This court does not believe that Zuck's single comment, made after the issue of neighborhood character and property values were raised, had a profound impact on the commission's subsequent unanimous vote. As to compliance with § 521.e of the regulations, Zuck makes no statements at all, but the chairman voiced concern that the wind turbine's approval "hinders that development potential" in the area. For the foregoing reasons, this court finds that Zuck's statements did not have a profound effect on the deliberations and that the commission's denial was not flawed by Zuck's limited participation.
C Whether the Commission's Denial was Supported by Substantial Evidence
The plaintiff argues that the commission's stated reasons for denying the special permit application, namely that the application failed to comply with §§ 521.d and 521.e of the regulations, were not supported by substantial evidence in the record. This court is bound by the substantial evidence rule, according to which conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. This court finds that the record supports the conclusion reached by the commission to deny the plaintiff's special permit application on the grounds that the application did not meet the requirements of §§ 521.d and 521.e.
Section 521.d of the regulations provides that a special permit cannot be granted unless the commission finds "[t]hat there will be no adverse effects upon the existing and probable future character of the neighborhood or its property values." Section 521.e of the regulations provides that a special permit cannot be granted unless the commission finds "[t]hat the proposed activity will not hinder the orderly and appropriate development of adjacent property."
At the public hearing on September 30, 2008, several members of the public testified in opposition to the plaintiff's application including James Upton, an owner of property near the premises, who testified that the proposed wind turbine would "change the landscape dramatically and . . . affect the value of [his] property drastically." (ROR, Exh. III.d, p. 37.) Additionally, Upton contended that the photographs of the balloon test submitted by the plaintiff were deceptive because they were taken at a time of year when the trees are in full bloom and that if the photographs were taken during the winter "we [would have] a better view of how, how unattractive this could be." (ROR, Exh. III.d, p. 37.)
Upton also indicated that he had located a report that focused on the effect on property values of a wind turbine erected in Lincoln Township, Wisconsin. (ROR, Exh. III.d., p. 38.) The report, Upton continued, shows that land value in the vicinity of the wind turbine decreased after its erection and that "stray voltage . . . infected livestock and people's health and the taste of water in the area where these wind towers are out there in Wisconsin." (ROR, Exh. III.d., p. 38.) Upton submitted an excerpt of this report to the commission, which details how "Town of Lincoln zoning administrator Joe Jerabeck compiled a list of properties that have been sold in the township and their selling prices." (ROR, Exh. IV.o.) The report claims that sales within one mile of the windmills erected in Lincoln prior to the construction of the windmills "were 104 percent of the assessed values, and properties selling in the same area after construction were at 78 percent, a decrease of 26 points . . . Sales more than 1 mile away prior to construction were 105 percent of the assessed values, and sales of properties 1 mile or more after the construction of the turbines declined to 87 percent of the assessed value, an 18 percent decline." (ROR, Exh. IV.o.)
The report purports to be "[p]repared by Elise Bittner-Mackin for presentation to the Bureau County, Illinois, Zoning Board of Appeals regarding the 54.5-MW 33-turbine Crescent Ridge wind facility proposed for Indiantown and Milo by Stefan Noe (Illinois Wind Energy)" and the report deals with the alleged problems with wind turbines that went online in Kewaunee County, Wisconsin, in June 1999.
It is quite clear that the commission considered Upton's testimony, or at least the report he submitted, during its deliberations. Commission member Peter Kaufman, in discussing whether the application complied with the provision in § 521.a of the regulations, which prevents the commission from granting a special permit where the proposed use would "create any conditions that could endanger public health, safety and welfare" questioned whether "concerns about stray voltage" were enough to reject the application on the grounds that it was not in compliance with § 521.a. (ROR, Exhs. III.f, p. 12; VI.) Additionally, in discussing whether property values would be negatively affected by the erection of the wind turbine, town planner Martin Connor stated that "you had studies both ways that were presented." (ROR, Exh. III.f, p. 15.)
Many neighboring homeowners expressed opposition to the proposed wind turbine on the grounds that it would decrease their property values. George H. Schuster and Patricia Schuster, of 574 Beach Street, submitted a letter to the commission voicing opposition to the plaintiff's application, stating that the wind turbine will "have an adverse effect on other town residents, neighbors, as well as property values." (ROR, Exh. IV.d.) Jarrod Upton, of 50 Brooks Road, submitted a letter to the commission opposing the wind turbine and stating "I can only assume property values in the immediate vicinity will also suffer." (ROR, Exh. IV.f.) Suzanne Potters, of 411 Beach Street, stated in her letter to the commission that her property "looks out over the site for the proposed [turbine] and we would have a direct and unobstructed view of the tower . . . The proposed Wind Tower would be 70 feet wide and 200 feet in height. It would extend above the tree line and would be significantly wider than any tree in the area . . . The property values of the surrounding community would be adversely affected." (ROR, Exh. IV.g.) Nate Upton, who lives at 50 Brooks Road, voiced his strong opposition to the proposed wind turbine in his letter to the commission. He stated that the "proposed Wind Turbine is 200 [feet] tall and over 70 [feet] in Diameter. Much, much larger than the current cell tower [also located on the premises]. Not only will this Turbine ruin the landscape and produce noise, but without a doubt will again lower the value of my property." (ROR, Exh. IV.h.) Andrew and Heidi Koenig, of 38 Brush Hill Road, state in their letter to the commission that they felt "after doing some research that the noise that [the turbine] will create will [be a] hindrance [on the] quality of life at our address. This would ruin our vistas of our wonderful town of Goshen . . . not to mention that my property values will only go down." (ROR, Exh. IV.q.) Elaine Frost and Thomas Mudry, residents of Beach Street, opposed the wind turbine on the grounds that "[p]roperty values in our neighborhood would be adversely affected." (ROR, Exh. IV.r.)
The plaintiff submitted three reports concerning the impact of wind turbines on property values, The Effects of Wind Development on Local Property Values, prepared by Renewable Energy Policy Project in May 2003, Impacts of Windmill Visibility on Property Values in Madison County, NY, completed by the Bard Center for Environmental Policy in April 2006, and Do Wind Facilities Affect Local Property Values?, completed by the Lawrence Berkley National Lab in June 2007 (ROR, Exh. I.b.) None of these reports involved property in Connecticut, none was prepared by a licensed real estate appraiser and none was prepared by an individual who appeared to testify at the public hearing concerning the plaintiff's applicant.
In his comments concerning the studies regarding property values, Connor stated: "You certainly had testimony from the neighborhood that they felt it was going to be detrimental to the property values. You had also testimony from the applicant that . . . he said would indicate otherwise. [The plaintiff] didn't have any professional experts testify before the Commission either way, so the Commission really has to use their own judgment as to, you know, what they feel on that aspect of it . . . [Y]ou didn't have an appraiser here to testify one way or the other so really it's left up to the Commission." (ROR, Exh. III.f, pp. 5, 16.)
The commission argues that testimony of local residents is an appropriate basis upon which a commission can evaluate impacts on local property values, and points to Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 941 A.2d 868 (2008), for support. In Cambodian, a religious society appealed to the trial court from the decision of the defendant planning and zoning commission denying the society's application for a special exception to construct a temple for religious worship on its property. Id., 384. The commission denied the society's application for special exception on the grounds, inter alia, "the increase in traffic congestion, as well as the traditional Buddhist design of the proposed temple, was inconsistent with . . . the regulations, which [provide] that `[t]he proposed use shall not substantially impair property values in the neighborhood.'" Id., 387. The society argued that there was not substantial evidence that the temple would negatively impact property values and "presented a report by . . . a real estate appraisal firm, in which that firm opined that `[the proposed temple] will have no impact on the "[quiet] enjoyment," utility, or market value of the surrounding properties.' In reaching this conclusion, the firm had used a `matched pair analysis' under which it compared sales of residential properties in other . . . neighborhoods [in the same town] near existing religious facilities to sales of similar properties where there was no religious facility. It also used a `comparative market analysis' pursuant to which it examined the impact of similarly intense nonresidential uses on residential neighborhoods." Id., 442.
The court in Cambodian noted that "the commission also heard evidence that a family in the neighborhood of the proposed temple had been forced to move as a result of past activities there. When that residence was sold, realtors had inquired whether it was near the society's property, leading the family to believe that the location had made it more difficult to sell the property. In addition, the commission heard evidence that a potential purchaser had canceled plans to buy a property when he learned that the property was near the proposed temple. The commission concluded that the society's appraisal report was of little value because the comparable sales on which the report relied were in the vicinity of churches that had `far fewer members than the participants expected at the temple' and lower levels of continuous activity. It further concluded that `[t]he specific examples provided by the neighbors [were] more persuasive.' Accordingly, the commission concluded that the level of activity at the proposed temple would substantially impair neighboring property values." Id., 442-43. The Supreme Court further noted that the "credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] . . . Accordingly, the commission was not required to credit the appraisal firm's conclusion that the proposed temple would have no effect on property values. Similarly, the commission was entitled to credit the anecdotal reports that past activities on the society's property had made neighboring properties less desirable . . . Moreover, it is reasonable to conclude that the effect of the activities on the sale of neighboring properties would continue if the activities were allowed to continue. [The court concluded] that the commission's determination that the disruptive activities would significantly impair property values was supported by substantial evidence." (Citation omitted; internal quotation marks omitted.) Id., 443.
In the present case, the only support the plaintiff has submitted to the commission for its proposition that the proposed wind turbine will have no negative impact on property values in Goshen and in the area immediately surrounding the turbine comes in the form of three studies, none of which were supported by the testimony of those who conducted the studies at the public hearing. In its own brief, the plaintiff notes that there was "some indication that the Commission wanted property value reports more specific to Goshen or to Connecticut. At the time this application was filed, no such reports existed because no wind turbines were operating in Connecticut or in Goshen." In weighing the record to determine whether the application complies with § 521.d, which prohibits the approval of a special permit unless the commission finds that the proposed use will have no adverse effects on property values, the commission essentially had to make a determination based on the testimony of residents in close proximity to the proposed wind turbine, and the excerpt of the report submitted by Upton, or the three out-of-state studies concerning the effects of wind turbines on property values submitted by the plaintiff. As articulated in Cambodian, the credibility of the witnesses and the determination of issues of fact are matters solely within the province of the commission and, in the present case, the commission found the testimony of its residents, who almost universally voiced their belief that the wind turbine would negatively impact property values, more credible. In the present case, at its meeting on October 28, 2008, the commission denied the "special permit application to erect a wind turbine to farm wind energy [on the premises] on the basis that Sections 521.d and 521.e were not met." (ROR, Exh. III.f, p. 26.) This court cannot put itself in the position of fact finder and must dismiss any land use appeal if the commission's denial was based on substantial evidence that the proposed use was in violation of the municipal regulations. In the present case, the court finds that the commission's denial of the special permit application was supported by substantial evidence in the record that the proposed use would violate § 521.d of the regulations.
VI CONCLUSION
For the foregoing reasons, the plaintiff's appeal of the commission's decision is dismissed. The court finds that there is substantial evidence in the record to support the commission's denial of the plaintiff's special permit application.