Opinion
No. CV-08-4008034
October 1, 2010
MEMORANDUM OF DECISION
I. Statement of the Appeal
This is an appeal by Leonard Przekopski and Karen Przekopski (hereinafter the plaintiffs) from the decision of the defendant Town of Colchester Zoning and Planning Commissioner (hereinafter the Commission) to deny their application for a special exception to conduct an excavation operation as provided by § 11.8 of the Colchester Zoning Regulations and for a special exception to conduct earth materials, processing and recycling (EMPAR) as provided by § 11.22 of the zoning regulations.
II. Jurisdiction
The Commission is the duly established zoning authority for the Town of Colchester established under the provisions of Chapter 124 of the General Statutes of Connecticut with authority to issue special exceptions under the provisions of § 11 of the zoning regulations. Connecticut General Statutes § 8-8 governs appeals from the decisions of the Commission to the Superior Court. "A statutory right of 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 (1986).
a. Aggrievement
Connecticut General Statutes § 8-8(a)(1) limits appeals from a decision of the Commission to persons who are aggrieved. "Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . In order to have standing to bring an administrative appeal, a person must be aggrieved." (Citations omitted, internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664 (2006). Two distinct categories of aggrievement exist: classical and statutory. Here, plaintiffs have alleged statutory aggrievement. The standard for statutory aggrievement and appeals from the decision of the Commission is set forth in § 8-8(1). This section provides in part that: "Aggrieved" person includes any person owning land that abuts or is within a radius of 100 feet of any portion of the land involved in the decision of the Board.
"Aggrievement presents a question of fact for the trial court and the party alleging aggrievement has the burden of proving it." Bonjiorno Supermarket Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39 (2003). Plaintiffs may prove aggrievement by testimony at the time of trial. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308 (1991).
At trial, plaintiff Leonard Przekopski testified that he and plaintiff Karen Przekopski have owned the property for which the special exceptions were submitted prior to the time of such applications and have continually owned such property to the present date. He further testified that the applications for special exception were denied resulting in financial loss and such denial is the subject of this appeal.
From the testimony of Mr. Przekopski and the exhibits in the record, it is found that at all times relevant to these proceedings plaintiffs were the owners of property which is the subject of this appeal. It must further be found that plaintiffs are statutorily aggrieved and have standing to prosecute this appeal.
b. Timeliness and Service of Process
Section 8-8(b) provides that an appeal from the decision of the Commission shall be commenced by service of process in accordance with §§ (f) and (g) of said section within 15 days from the date that notice of the decision was published. The decision of the Commission was published on December 7, 2007.
Service was properly made upon the Commission by the marshal on December 26, 2007, which is more than 15 days from the date the notice of decision was published. Attached to the marshal's return is a statement by the marshal, under oath, that the process to be served was delivered to him personally on December 22, 2007, a date within the appeal period. Service on the Commission was made within 30 days of such delivery.
Under the provisions of Connecticut General Statutes § 52-593a, service was properly made upon the Commission within the time allowed by law. See Tayco Corp. v. Planning Zoning Commission, 294 Conn. 673 (2010).
III. Scope of Review
In deciding the issues presented by this appeal, the court is limited in its scope of review by statute and applicable case law. Review of the decisions of local zoning authorities is limited to a determination, principally on the record before the Commission, whether the Commission abused the discretion vested in it. Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 444 (1979); Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 110, cert. denied, 230 Conn. 949 (1996). This court can sustain the appeal only upon a determination that the action taken by the Commission was unreasonable, arbitrary or illegal. It must not substitute its judgment for that of the local Commission and must not disturb the decision of the Commission as long as honest judgment has been reasonably and fairly exercised. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995); Raczkowski v. Zoning Commission, 53 Conn.App. 636, 644-45 (1999). Conclusions reached by the Commission must be upheld by the court if they are reasonably supported by the record. Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 583 (1999). The question on review of the Commission's action is not whether the court would have reached the same conclusion, but whether the record before the Commission supports the decision reached. Id. Although the factual and discretionary determinations of the Commission must be given considerable weight, it is for the court to expound and apply governing principles of law. Domestic Violence Services of Greater New Haven, Inc. v. FOIC, CT Page 19554 47 Conn.App. 466, 470 (1998). Plaintiff bears the burden of proof to demonstrate that the Commission acted improperly. Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206; Raczkowski v. Zoning Commission, supra, 53 Conn.App. 640.
"The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . Where (as here) 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 [board] was required to apply under the zoning regulations . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Citations omitted; internal quotation marks omitted.). R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470 (2001).
Here, plaintiffs have appealed from the denial of their application for special exceptions. A special exception is also known as a special permit. Grasso v. Zoning Board of Appeals, 69 Conn.App. 230, 242 n. 7 (2002). Whether a zoning board, or commission, grants a special exception is essentially a discretionary process. Irwin v. Planning Zoning Commission, 244 Conn. 619, 626-27 (1998); Oakbridge/Rogers Avenue Realty, LLC v. Planning Zoning Board, 78 Conn.App. 242, 246 (2003). "A special permit (here, a special exception), allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . The proposed use, however, 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." Id. When ruling upon an application for a special permit (or here, a special exception), a planning and zoning board acts in an administrative capacity . . . [Its] function . . . [is] 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." (Citations omitted; internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 217 (2001). "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." (Citations omitted; internal quotation marks omitted." Irwin v. Planning Zoning Commission, 244 Conn. 619, 627-28 (1998). "Although . . . the zoning commission does not have discretion to deny a special permit when the proposal meets the standards, it does have discretion to determine whether the proposal meets the standards set forth in the regulations." Id., 628.
IV. Factual Background
The record indicates that the plaintiffs are the owners of contiguous parcels of land at 36 Pinebrook Road and 25 Westchester Road in the Town of Colchester. The total property consists of 111.9 acres.
On June 22, 2007, plaintiffs submitted to the Commission an application for a special exception under § 11.8 of the Colchester Zoning Regulations for the above property. The application stated that the property was in the Aquifer Protection Zone and the existing use was "farming, sand and gravel, top soil and recycling operation." The proposed uses were stated as "excavation/recycling." The property is located in the R-60 and R-40 residential zoning districts.
The application was filed under the provisions of stipulations in Docket Number CV06-4006341, Leonard Przekopski, Jr. v. Colchester Zoning Board of Appeals, dated February 21, 2007, and CV06-4006342, Leonard Przekopski, Jr. v. Colchester Zoning Board of Appeals, dated March 7, 2007.
Special exceptions are authorized under the zoning regulations by § 11 which defines special exceptions as follows:
DEFINITIONS. Special Exceptions are those uses, which, because of various special characteristics, cannot be distinctly classified or regulated in a particular zone without giving careful consideration in each case to the impact of such use upon neighboring uses and the surrounding area and the public need for such use in a particular location.
Plaintiffs' application requested a special exception under the provisions of § 11.8, which (together with subsections 11.8.1 through 11.8.10) covers special exceptions for excavations. The activity overview filed with the application indicates that a special exception under the provisions of § 11.22 was also being requested. Section 11.22 (together with §§ 11.22.1 through 11.22.12) covers earth material processing and recycling (EMPAR).
The Site Use Narrative attached to the application states in detail the activities proposed under the application. The excavation activity stated that no more than 45,000 cubic yards of sand and gravel would be excavated annually. The excavated material would be crushed, graded, stored and either sold or blended with the recycled material. The proposed recycling activity included soil manufacturing and wood material recycling. These activities were described in detail. Dust control and windblown sediment control and erosion and sediment control were also covered.
A public hearing on plaintiffs' application was scheduled for September 5, 2007. At plaintiff's request, the Commission voted to continue the hearing to the next meeting which was held September 19, 2007.
At the September 19, 2007 meeting, exhibits were introduced and parties at interest were heard. The Commission indicated that additional issues existed. It was voted to continue the public hearing to October 17, 2007, to allow ample time for plaintiffs and staff to address the areas of concern.
At the October 17, 2007 meeting, plaintiffs submitted a revised permit and drainage calculations. Parties at interest were heard after which it was voted to close the public hearing.
The Commission took up plaintiffs' application at a special meeting held November 28, 2007. After discussion, it was voted to deny plaintiffs' revised application. The Commission stated, on the record, the reasons for its denial, as follows:
The denial is based on the applicant not meeting the standards regarding development requirements for usage of this type. Further, the application does not meet the standards generally for special exception as described in §§ 11.5.2 to 11.5.7.
As a part of its reasons for denial of plaintiffs' special exceptions for excavation, the Commission identified §§ 11.8.2, 11.8.5 and 11.8.6 and stated the reasons for its finding of noncompliance by plaintiffs.
With respect to the denial of plaintiffs' application for a special exception for EMPAR, the Commission found noncompliance with §§ 11.22.3(C), 11.22.3(F), 11.22.3(G), 11.22.5(I), 11.22.10, 11.22.11 and 11.22.16.
Notice of the Commission's decision was published on December 7, 2007, and this appeal ensued.
Additional facts will be added as necessary.
V. Analysis
Briefs were properly submitted by each of the parties at interest. The Court is not bound to consider any claim of law not properly briefed. Shaw v. Planning Commission, 5 Conn.App. 520, 525 (1998).
a.
Plaintiffs have raised certain issues in their briefs which are not germane to the issues now before the court. Plaintiff Karen Przekopski claims that the Commission made a finding that plaintiffs' excavation and EMPAR operations were not grandfathered. The brief correctly states that the purpose of the hearing was not to adjudicate whether or not plaintiffs' proposed activities preexisted the zoning regulations, but that the Commission was required to act administratively to consider the application. A review of the record, however, fails to disclose that the Commission made a finding that the requested operation was not grandfathered in. This "finding" was part of a staff memorandum from Adam Turner to the Commission dated November 28, 2007. This finding was not incorporated into the decision of the Commission.
Despite the claim in plaintiff Karen Przekopski's brief that the Commission was not authorized to make any finding that the excavation and EMPAR activities were grandfathered. Both plaintiffs claim that these activities preexisted the zoning regulations and that the Town has no authority to limit them. Plaintiff Karen Przekopski relies on the provisions of Connecticut General Statutes § 8-2a, which provides that municipalities may not prohibit the continuation of legal preexisting nonconforming uses. It is argued by both plaintiffs that while the municipality may have a right to regulate a nonconforming use, it cannot abrogate the property owner's right to the use. Ammirata v. Zoning Board of Appeals, 65 Conn.App. 606, 613 (2001).
In the complaint and in their briefs, both plaintiffs claim that they are entitled to conduct the requested activities as of right because they consist of a prior nonconforming use. This claim, however, was not brought before the Commission. There were some general statements at the public hearings to the effect that plaintiffs had been conducting excavation work on the property in the past. There was, however, no evidence as to where these activities had been conducted on the property, the extent of such activities or the dates and times involved. The as of right claim was not included in the application and was not properly raised at any public hearing. As plaintiff's attorney stated at the public hearing held September 7, 2007:
Now, we're here this evening basically for the purpose of seeking two special exception permits. One for excavation and one for earth materials processing to recycling.
At both public hearings and in conferences with staff prior to the hearing, plaintiffs were attempting to show compliance with the regulations and no `as of right' claim was made. When an applicant before a commission fails to present the claim before the commission, the applicant is not entitled to judicial review of the issue not properly presented before the commission. Upjohn Co. v. Planning Zoning Commission, 224 Conn. 82, 89 (1992).
Plaintiffs have presented a number of citations in support of their position that they are entitled to special exceptions because of prior use. While these citations correctly state the legal principles argued, they are not relevant to the issues now before the court.
Ammirata v. Zoning Board of Appeals, 65 Conn.App. 606 (2001), and Taylor v. Zoning Board of Appeals, 65 Conn.App. 687 (2001), are both appeals from cease and desist orders in which the extent of the nonconforming use was a necessary issue. DiBlasi v. Zoning Board of Appeals, 224 Conn. 823 (1993), is an appeal from the denial of a change in use. Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221 (1995), was an injunction action against the defendant and an appeal from an amendment to the zoning regulations. Cioffoletti v. Planning Zoning Commission, 24 Conn.App. 5 (1991), was an appeal from an amendment to the zoning regulations. Bauer and Cioffoletti are quite different from the case at bar since plaintiffs here are not attacking the zoning regulations but are claiming that they are in compliance with and entitled to the special exceptions requested.
The principal issue before the court is whether or not the Commission's actions in denying plaintiffs' application for special exceptions was unreasonable, arbitrary or illegal. Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206. The Commission has stated its reasons for denying the special exceptions. In such case, the court must go no further than the reasons stated. 200 Associates, LLC v. Planning Zoning Commission, 83 Conn.App. 167, 177 (2004). If any one of the reasons given by the Commission for the denial of plaintiffs' application is founded in the regulations and supported by the evidence, the appeal must be dismissed. Weatherly v. Town Plan Zoning Commission, 23 Conn.App. 115, 119 (1990).
Although plaintiffs have filed one petition for a special exception, they are actually seeking authority to conduct two separate activities, both authorized by the regulations under § 11. The activities sought are excavation and EMPAR. In denying plaintiffs' application, the Commission considered the activities separately and stated the reasons for denying each activity separately.
b.
The Commission addressed the requested activities separately but found that the bond requirements for both were inadequate.
With respect to the special exception for excavation, § 11.8.5 provides:
11.8.5. At the conclusion of the operation or of any substantial portion thereof, the whole area where excavation has taken place shall be reclaimed by grading, covering with at least four (4) inches of top soil and stabilized with vegetation to prevent erosion and to restore or improve the appearance of the area.
In connection with this section, the Commission found:
Certain phases of the property will be open for over 20 years. Indeed over 80% of the site is not scheduled to be closed for almost 10 years. The restoration plan lacks specificity and generally underestimates the amount necessary to achieve reclamation. The Plan does not address the impact of large pit areas remaining open for long periods of time.
Section 11.8.6 concerning the necessity of bonds for excavation states as follows:
11.8.6. Before a permit for an excavation is issued, the applicant shall post a bond in the form of cash or passbook savings in an amount approved by the Commission as sufficient to guarantee conformity with the provision of the permit issued thereunder. Additionally the owner(s) shall grant a written easement to the Town of Colchester to allow reclamation work in the case of forfeiture. This bond must be sufficient to re-grade a partially excavated site, to purchase and spread top soil for at least four (4) inch cover over the excavation site and purchase a plant stabilizing vegetation over the excavation site. If the reclamation work has not been completed within one year of the expiration of a non-renewed excavation permit, the bond shall be called and reclamation completed by the Town of Colchester or its designated contractor(s). When reclamation work has been completed, the (10) percent of the bond shall be held for an additional year to ensure full reclamation.
The Commission decided that the bond estimates provided by plaintiffs in connection with § 11.8.6 were not sufficient and stated:
The bonding estimate provided for reclamation is greatly insufficient and significantly underestimates the probable cost of site restoration.
Applicant proposes to bond only 5.9 acres at a rate far below what the Town Engineer estimates. In addition the bonding does not include the other phases which remain open for long periods of time.
With respect to the EMPAR, § 11.22.11 of the regulations states:
11.22.11. Upon the expiration of a Special Exception Permit issued pursuant to this section, any area where the operation has been permitted and has taken place shall be reclaimed by grading and covering with at least four (4) inches of topsoil and stabilized with vegetation to prevent erosion. The Permit holder shall restore or improve the appearance of the area. If no activity in connection with an Earth Materials Processing and Recycling Operation is conducted within a two (2) year period, such operation shall be deemed to have terminated.
Section 11.22.12 of the regulations covers bond requirements for EMPAR and provides:
Section 11.22.12. Prior to the issuance of a Special Exception Permit for the permitted operation, the applicant shall post a cash bond, in an amount approved by the Commission prior to the granting Special Exception approval and in consultation with the Town Engineer, as sufficient to guarantee conformity with the provisions of the permit issued thereunder. The bond must be sufficient to re-grade the site, to purchase and apply topsoil for at least a four (4) inch cover over the site and purchase and apply a plant stabilizing vegetation over the site. Additionally, the owner(s) shall grant a written license to the Town of Colchester to allow reclamation work in the case of forfeiture. If the reclamation work has not been completed within one (1) year of the expiration of a non-renewed permit or the conclusion or termination of an operation, the bond shall be called and reclamation work shall be completed by the Town of Colchester or its designated contractor(s). When reclamation work has been completed (either by the Town, its contractor(s) or the applicant), ten (10%) percent of the bond shall be held for an additional two full growing seasons to ensure full reclamation which, may be released provided an 80% survival rate of the vegetation is achieved.
In connection with these two sections, the Commission found that:
The application has no adequate overall restoration plan, makes inadequate provision for bonding, and unreasonably proposes to limit the Town's ability to perform reclamation work. See section on Excavation Decision 11.8.5 and 11.8.6 for more detail.
Sections 11.8.5 and 11.22.11 set forth the requirements that at the conclusion of any activity granted under §§ 11.8 and 11.22, the areas involved would have to be restored. The regulations also require the applicant to post a bond in an amount approved by the Commission sufficient to guarantee such restoration.
The activities which plaintiffs desire to conduct under the special exceptions are extensive. The record indicates that the excavation Phase I could take up to 20 years to complete.
Plaintiffs' bond estimate was not submitted until the meeting of October 17, 2007. This was a handwritten document submitted by Milone MacBroom, Engineers, dated October 17, 2007. This appears to be in the amount of $17,930. The Town engineer in his review indicated that this estimate significantly underestimated the probable cost of restoration. One substantial element of any restoration effort would be the cost and application of topsoil to provide the required four-inch cover over the affected areas. Plaintiffs did not include the cost of the topsoil in their bond estimate stating that a sufficient amount of topsoil would be retained on the property for restoration. Plaintiffs' attorney requested that the top soil be accepted in lieu of a cash bond. The Commission rejected this substitution by their finding. The regulations are quite specific as to what the Commission may accept as a bond. Section 11.8.6 requires the bond to be in the form of cash or a passbook savings account. Section 11.22.12 requires a cash bond. In view of the extensive activities contemplated and the times involved, the requirements appear to be reasonable.
Plaintiffs also sought the benefit of an existing bond from S Z. The amount of this bond was unknown and its location was also unknown.
In arriving at their conclusion that the bonds to be submitted by plaintiffs were inadequate, the Commission relied upon the Town engineer which it was entitled to do.
In the event of a default by plaintiffs and it became necessary for the Town to use the bond to restore the land, authority to enter onto the property would be required. To facilitate this entry, plaintiffs submitted a Restoration License. The Commission found that in addition to inadequate bonding, the plaintiffs unreasonably proposed to limit the Town's ability to perform the reclamation work.
The restoration license provided that the Town could enter the property for the reclamation work only if certain conditions were complied with. These conditions were:
(1) The Property Owners are provided written notice of the default condition at least sixty (60) days prior to the Town's use of the license and the Property Owners have failed to cure the default condition within the notice period.
(2) The Property Owners are provided an annotated Site Plan of the Property, signed by a Professional Engineer, illustrating the location(s) on the Property where restoration and/or stabilization are required at least sixty (60) days prior to the Town's use of this license.
(3) The Property Owners are provided a statement signed by a Professional Engineer, currently registered in the State of Connecticut, prior to the exercise of this license that the default condition identified in the Written notice continues to exist.
The staff report of November 28, 2007, stated that the Town was not required to provide the sixty-day notice, prepare an annotated site plan or a site plan provided by a registered engineer. The report found that these conditions jeopardized the public's health, safety and welfare should emergency situations or conditions occur that needed immediate mitigation.
The Commission's finding that the conditions imposed by the license unreasonably limited the Town's ability to perform reclamation work in the event of a default is not an abuse of discretion. Under the license offered by plaintiffs, entry could not be made in the event of an emergency and the Town would be in the impossible position of being required to prepare detailed engineering documents without access to the property.
c.
Section 11.22.3(G) of the regulations provides that for a special exception for EMPAR to be granted:
11.22.3(G) The site shall have direct frontage on and have approved vehicular access to a collector or arterial street as defined by the Town of Colchester.
In finding that defendant did not comply with this section, the Commission stated:
While the site has direct frontage on and provides vehicular access from Westchester Road, which is defined as a collector road by the Town of Colchester, the site also has direct frontage on and provides vehicular access from Pinebrook Road, which is not defined as a collector road. As the applicant has chosen to utilize a one-way drive system, with reduced internal roadway widths, the egress is a primary access and must be on a collector or arterial roadway. As Pinebrook Road is not a collector or arterial roadway the application does not meet the criteria of 11.22.3.
The property is located in residential districts. Photographs in evidence show the existing roadways to be narrow country roads. Vehicles serving the proposed operations would most likely be heavy dump trucks. During heavy traffic operations, plaintiffs anticipate more than 100 trips per day. The vehicles would enter from Westchester Road and exit using Pinebrook Road. This system would mean that only those trucks exiting the site would use Pinebrook Road. However, as the Commission stated in its decision, Pinebrook Road is not a collector or arterial roadway as required by § 11.22.3(G).
The determination that plaintiffs' application is not in compliance with § 11.22.3(G) is supported by substantial evidence in the record.
VI. Conclusion
By their application, plaintiffs have proposed substantial operations which have the potential for serious harm to the area. These operations would extend over a protracted period of time. The necessity for adequate bonding and the ability to perform the remedial work which could become necessary are of vital importance and are set forth in § 11.8.6 and § 11.22.12 of the regulations. The Commission's finding that plaintiffs have not complied with these regulations is supported by substantial evidence in the record. The Commission's decision that plaintiffs have failed to comply with the requirements of § 11.22.3(G) is also supported by substantial evidence in the record.
The Commission also set forth other reasons for denying plaintiffs' applications. It was determined that the site plan for excavation did not show adequate measures to guard against erosion and sedimentation based upon the recommendations of staff. Also, § 11.22.5(I) requires compliance with the performance standards of § 3.7.6.B of the regulations concerning offensive odors. The Commission found that there was no significant evidence that operations would not generate offensive odors. Considering past problems in the property and the type of material which would be trucked onto the property, this was a proper concern.
Where, as here, the court has found that the denial of plaintiffs' application was founded on sections of the regulations and supported by substantial evidence, the appeal must be dismissed. Weatherly v. Town Plan and Zoning Commission, supra, 23 Conn.App. 119.
Accordingly, plaintiffs' appeal is dismissed.