Opinion
FBTCV176064000S
03-13-2019
Jane RABA et al. v. WESTPORT PLANNING & ZONING COMMISSION et al.
UNPUBLISHED OPINION
File Date: March 14, 2019
OPINION
WELCH, J.
The plaintiffs, Jane Raba and Nidal Abisaab, appeal from the action of the Westport Planning & Zoning Commission (commission) approving a text amendment to the zoning regulations. The plaintiffs contend that the text amendment improperly delegates variance authority to the commission contrary to General Statutes § 8-6 which specifically delegates the authority to vary zoning regulations to a zoning board of appeals. They further submit that the text amendment violates the uniformity requirement mandated by General Statutes § 8-2.
I
FACTS
The defendant, 556 Post Road East Associates, LLC, is the owner of real property known as 556 Post Road East, Westport, Connecticut upon which a nonconforming automobile dealership is located. The property is located partially within a Residence A Zone district and partially within the General Business Zone district. (ROR, exh. 11.) Pursuant to the Town of Westport Zoning Regulations (regulations), automobile dealerships are prohibited in both districts. The Town of Westport Zoning Regulations further provide in § 6-1.2 that "[N]o non-conforming use of buildings, structures or land shall hereinafter be extended, expanded or relocated on the same lot." (ROR, exh. 35.)
The plaintiffs are the owners of property known as 10 Rayfield Road, Westport, Connecticut, which is within 100 feet of the defendant’s property located at 556 Post Road East, Westport, Connecticut. (Exh. 1 and exh. 2.) On or about November 23, 2016, Redniss & Mead, Inc., on behalf of 556 Post Road East Associates, LLC, filed a petition with the commission for a text amendment to the regulations. The proposed amendment sought to amend two sections: First, the amendment sought to amend § 5-2 by defining the terms "automobile," "automobile dealership, new" and "automobile dealership, used"; Second, the proposed amendment sought to add a new section, § 6-6.2 entitled "Non-Conforming Automobile Dealerships." (ROR, exh. 2 and exh. 5.) Along with the proposed amendment, Redniss & Mead, Inc. also submitted a proposed demonstration plan depicting potential implementation of the text changes relative to the property located at 556 Post Road East. (ROR, exh. 11.) The proposed amendments were as follows:
Amend § 5-2 "Specific Terms," by adding:
Automobile: Any wheeled vehicle that is powered by a fuel or battery source including cars, motorcycles, sport utility vehicles, trucks, and vans, but excluding mobile homes, trailers, campers, and farming or other heavy equipment.
Automobile Dealership, New: An automobile distribution business that sells new and/or used vehicles at the retail level, based on a dealership contract with an automaker or its sales subsidiary, and does not include wholesale sales, but may include vehicle servicing.
Automobile Dealership, Used: An automobile distribution business that sells used vehicles at the retail level and does not include wholesale sales, but may include vehicle servicing.
6-6.2 Non-Conforming Automobile Dealerships
Notwithstanding the above, on lots with a minimum of one hundred fifty (150) feet of frontage on the Post Road and fifty (50) feet of residentially zoned frontage, a minimum of thirty thousand (30, 000) square feet of land zoned both GBD and Residence A, and legally used as an Automobile Dealership (New or Used) at the time of the effective date of this section (Section 6-6.2) of the zoning regulations, where the Planning and Zoning Commission makes a finding and that the redevelopment significantly improves the streetscape and public safety, a non-conforming building and its uses may be allowed full or partial redevelopment or renovation, in the nonresidential portion of the lot, provided the redevelopment shall result in no increase of building coverage, total coverage, or floor area, except as provided below and subject to the standard herein.
Redevelopment shall be pursuant to Special Permit and Site Plan review, consistent with § 34, § 35, § 43 and § 44, except that where nonconformities legally exist, such nonconformities may be maintained, reduced, and/or reorganized, subject to the approval of the Planning & Zoning Commission and the standards outlined below:
6-2.2.1 Building Coverage shall not be increased, except to accommodate new building faç ade materials and/or entryways.
6-2.2.2 Exemptions from calculated floor area may include:
a) internal vehicular queuing and drop-off for customer vehicle servicing;
b) up to 3 showroom display vehicles, each not to exceed a (9′ x 18′) dimension;
6-6.2.3 Existing first floor area being removed and/or exempted under this section may be relocated to the second floor, above and up to the face of the existing floor below which may or may not conform to setback standards.
6-6.2.4 Legally nonconforming display, employee and visitor parking spaces may be maintained or reorganized, provided that overall front landscaping is enhanced to the satisfaction of the Planning & Zoning Commission.
6-6.2.5 Existing conforming or legally non-conforming signage may be updated in its current location and/or located to a more appropriate location as determined by the Planning & Zoning Commission.
6-6.2.6 Notwithstanding § 32-8, grading within five (5′) of a front property line may be allowed for removal, installation, and/or relocation of curb cuts, driveways, landscaping, sidewalks and parking subject to the approval of the Planning & Zoning Commission. (ROR, exh. 5.)
The Commission scheduled a public hearing on the petition to be held on January 19, 2017. In accordance with General Statutes § 8-7d, notice of the public hearing was published in the Westport News on January 6, 2017, and January 13, 2017. (ROR exh. 14.) A public hearing on the petition was held on January 19, 2017, at which time Mr. Richard Redniss, of Redniss & Mead, Inc., presented the application and offered the following comments:
1. "The genesis of the idea is Westport has ... a lot of nonconforming automobile dealerships because the only place they are allowed now is the highway service district ... so all the other non-conforming, and therefore, it becomes difficult for them over time to either keep up with the changes that the dealership requires or to improve themselves." (ROR, exh. 1, p. 4.)
2. "Volvo and similarly to Honda, the only two dealerships that could take advantage of this regulation ..." (ROR, exh. 1, p. 4.)
3. "So it has to be consistent with other sections of your regulations, except where there are non-conformities. They may be maintained, reduced and reorganized subject to P & Z— PZC— and the reason for that is right now, the only way that they can make changes is to go to the Zoning Board of Appeals, and the Zoning Board of Appeals must establish a hardship, and— and so literally any hardship, and most applications that go before ZBAs are self-created hardships, so they are all subject to being denied." (ROR, exh. 1, PP 7-8.)
4. "[B]ut technically speaking, you’re supposed to have a hardship, and it— it’s very difficult when you have— and when I take you through the demonstration site, it’s very difficult to take nonconformity at the different regulations that you have and not require variances to do it, and so it’s— it’s very difficult to do it through the ZBA process." (ROR, exh. 1, p. 8.)
5." ... so we say that building coverage shall not be increased except to accommodate for new building for side materials or entryways." (ROR Exh. 1, p. 8.)
6. "The floor area being removed and exempted and maybe relocated to the second floor, above and up to the face of the existing building, which may or may not conform to the setbacks, so that’s why we wrote that." (ROR exh 1, p. 10.)
Mary Young the planning and zoning director of the Town of Westport also provided the following at the public hearing: "[M]ust we go in front of ZBA, because I can anticipate that there will be questions that bring us back down to isn’t this financial, and even if we wanted to approve it, the Town Attorney will try to tell us we can’t, because financial hardship is not a rationale. So the road all led back to the Planning and Zoning commission as being the right vehicle, the right forum where finances ..." (ROR, exh. 1, p. 13.)
The plaintiff, Raba, also provided the following: "The lot is overbuilt. One of my houses looks directly upon the lot ... If they added a second floor, I will have people who can see into my master bedroom window. Volvo is kind of— — it’s like this dinosaur in the middle of it all, so the redesign that they have proposed is just a box a bigger box ..." (ROR, exh. 1, p. 31.) Additionally, a member of the commission, Alan Hodge, provided the following regarding the proposed amendment: "[G]iven that this is a regulation that looks as if it’s going to apply to two dealerships ..." (ROR, exh. 1, p. 19.)
The commission also received two reports from their professionals regarding the proposed amendment. The first report was an internal memo, dated January 9, 2017, from Michelle Perillie, AICP, addressed to the commission members which indicated that the purpose of the amendment was to "enable existing automobile dealerships that sell new and/or used vehicles at the retail level, to make physical improvements ... provided the redevelopment shall result in no increase in building coverage, total coverage or floor area, except as provided in the regulation." (ROR, exh. 16 and 17.) The second report was a memo from the town engineer, Amrik Matharu, dated January 10, 2017, which provided the following:
a) Section 6-6.2.1 Building Coverage. The referenced item seeks to create an exemption from seeking a variance to increase building coverage in the event of a proposed entryway or faç ade. If necessary, the variance mechanism currently allows for increases in coverage to be evaluated as part of a proposed development. It is not clear why the exemption is necessary, or why any existing or proposed condition would preclude them from seeking such variance.
b) Section 6-6.2.6. Grading: The last proposed item in section 6-6 allows an exemption to section 32-8 Excavation and Fill. The proposed exemption will allow grading within 5′ of the property line. If necessary, the variance mechanism currently allows for grade changes within 5′ of the property line to be evaluated as part of a proposed development. It is not clear why the exemption is necessary, or why any existing or proposed condition would preclude him from seeking such variance.
c) "Per this review, it is not clear why the exemptions listed above for coverage or grading would be necessary." (ROR, exh. 18.)
Additionally, the commission held a workshop on March 16, 2017 at which time they discussed the proposed text amendment. Subsequent to the discussion, the commission proposed a resolution to approve the text change. As part of the resolution, the commission made a number of findings which included the following: 1) "The regulation allows development on split GBD and Res A lots that are at least 3 acres with 200 linear feet of frontage provided the total redevelopment reduces non-conformities for the entire site subject to a number of requirements"; 2) "Currently there are several automobile dealerships in town; all but one is pre-existing non-conforming to their location. Only the highway service district permits automobile dealerships, and only one dealership (Maserati) is located in the HSD ... Improvements to the nonconforming dealerships are therefore limited to "small-scale projects" subject to a site plan waiver and/or variances issued by the Zoning Board of Appeals"; 3) "Two properties meet the eligibility criteria proposed in Amendments ... The properties at 556 Post Road East (currently occupied by Volvo of Westport) and 1372 Post Rd. E. (currently occupied by Honda of Westport) are the eligible properties." (ROR, exh. 33.)
The commission also made a determination that one of the benefits of the amendment was "planning utilizing a zoning regulation is preferable to directing an applicant to obtain variances." (ROR, exh. 33.) The commission made a few minor changes (in italics below) to the proposed text amendment and unanimously approved the following.
§ 5-2, Specific Terms
Except as otherwise stated, or as the context may otherwise require, the following words, for the purpose of these regulations, shall be defined as follows:
Automobile: Any wheeled vehicle that is powered by a fuel or battery source including cars, motorcycles, sport utility vehicles, trucks, and vans, but excluding mobile homes, trailers, campers, and farming or other heavy equipment.
Automobile Dealership, New: An automobile distribution business that sells new and/or used vehicles under 10, 000 pounds at the retail level, based on a dealership contract with an automaker or its sales subsidiary, and does not include wholesale sales, but may include vehicle servicing.
Automobile Dealership, Used: An automobile distribution business that sells used vehicles at the retail level and does not include wholesale sales, but may include vehicle servicing.
6-6.2 Non-Conforming Automobile Dealerships
Notwithstanding the above, on lots with a minimum of one hundred fifty (150) feet of frontage on the Post Road and fifty (50) feet of residentially zoned frontage, a minimum of thirty thousand (30, 000) square feet of land, a portion of which lies in each of the GBD and Residence A zones, and legally used an Automobile Dealership (New), where the Planning and Zoning Commission makes a finding that the redevelopment significantly improves the streetscape and public safety, a nonconforming building and its uses may be allowed full or partial redevelopment, in the nonresidential portion of the lot, provided the redevelopment shall result in no increase of building coverage, total coverage, or floor area, except as provided below and subject to the standards herein.
Redevelopment shall be pursuant to Special Permit and Site Plan review, consistent with § 34, § 35, § 43 and § 44, except that where nonconformities legally exist, such nonconformities may be maintained, reduced, and/or reorganized, subject to the approval of the Planning & Zoning Commission and the standards outlined below:
6-6.2.1 Building Coverage shall not be increased, except to accommodate new building faç ade materials and/or entryways.
6-6.2.2 Exemptions from calculated floor area may include:
(a) Internal vehicular queuing and drop-off for customer vehicle servicing;
(b) Up to 3 showroom display vehicles, each not to exceed a (9′ x 18′) dimension.
6-6.2.3 Existing first floor area being removed and/or exempted under this section may be relocated to the second floor, above and up to the face of the existing floor below which may or may not conform to setback standards provided it does not exceed 25% of the floor area below inclusive of any atrium space and is a minimum of fifty (50) from the nearest residential district and adequately screened to the satisfaction of the Planning and Zoning Commission .
6-6.2.4 Legally nonconforming display, employee and visitor parking spaces may be maintained or reorganized, provided that overall front landscaping is enhanced to the satisfaction of the Planning & Zoning Commission.
6-6.2.5 Existing conforming or legally non-conforming signage may be updated in its current location and/or relocated to a more appropriate location as determined by the Planning & Zoning Commission.
6-6.2.6 Notwithstanding § 32-8, grading within five (5′) of a front property line may be allowed for removal, installation, and/or relocation of curb cuts, driveways, landscaping, sidewalks and parking subject to the approval of the Planning and Zoning Commission. (ROR exh. 33.)
Notice of the decision was published in the Westport News on March 24, 2017. (ROR exh. 34.) Pursuant to General Statutes § 8-8, the plaintiffs appealed the commission’s decision to the Superior Court.
II
AGGRIEVEMENT
"[P]leading and proof of aggrievement are prerequisites to the trial court’s jurisdiction over the subject matter of a plaintiff’s appeal." (Internal quotation marks omitted.) Stauton v. Planning & Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004). "[I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538, 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 ..." (Citation omitted; internal quotation marks omitted.) Mayer v. Historic District Commission of Groton, 325 Conn. 765, 772, 160 A.3d 333 (2017).
"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.) Lewis v. Planning & Zoning Commission, 275 Conn. 383, 391, 880 A.2d 865 (2005); Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). Further, General Statutes § 8-8 defines "aggrieved person" as "any person who owns 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."
Evidence was introduced at the hearing which indicated that both plaintiffs, Raba and Abisaab, are the owners of property located at 10 Rayfield Road, Westport, Connecticut. First, the plaintiffs provided a copy of a warranty deed, dated April 22, 2015 recorded in Volume 3606 at Page 43 of the Westport Land Records, to evidence their ownership of the property. Additionally, the plaintiffs also introduced a copy of the Town of Westport assessor’s map which indicated that that the plaintiffs’ property is within one hundred feet of the land which is the subject of the commission’s decision. Finally, all of the parties involved in the matter stipulated that the plaintiffs were both statutorily aggrieved and classically aggrieved. Therefore, it is found that the plaintiffs are aggrieved by the decision of the Commission.
Evidence of classical aggrievement had previously been introduced at a hearing held on January 26, 2018 before Ecker, J.
III
STANDARD OF REVIEW
"We have often articulated the proper, limited scope of judicial review of a decision of a local zoning commission when it acts in a legislative capacity by amending zoning regulations. [T]he commission, acting in a legislative capacity, [has] broad authority to adopt the amendments ... In such circumstances, it is not the function of the court to retry the case. Conclusions 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 agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached ... Acting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change ... The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function ... This legislative discretion is ‘wide and liberal, ’ and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally ... Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment ... The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission. Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion ... Within these broad parameters, [t]he test of the action of the commission is twofold: (1) The zone change must be in accord with a comprehensive plan, General Statutes § 8-2 ... and (2) it must be reasonably related to the normal police power purposes enumerated in § 8-2." (Citations omitted; internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. 527, 542-44, 600 A.2d 757 (1991).
Additionally, "[a]s a creation of the state, a municipality [whether acting itself or through its planning and zoning commission] has no inherent powers of its own ... and that [it] possesses only such rights and powers that have been granted expressly to it by the state ..." (Citation omitted; emphasis in original.) Buttermilk Farms, LLC v. Planning & Zoning Commission, 292 Conn. 317, 326, 973 A.2d 64 (2009). Further, "[n]o administrative or regulatory body can modify, abridge or otherwise change the statutory provisions under which it acquires authority unless the statute specifically grants it that power." (Citations omitted.) Finn v. Planning & Zoning Commission, 156 Conn. 540, 546, 244 A.2d 391 (1968).
Analysis of the claims raised in the present matter entail "construction of the relevant regulations and statutes, and is therefore a matter of law ..." Zimnoch v. Planning & Zoning Commission, 302 Conn. 535, 547, 29 A.3d 898 (2011).
IV
DISCUSSION
The plaintiffs claim that the purpose of the text amendment is to impermissibly delegate authority for zoning variance relief, through "exemptions" and "exceptions," to the commission as opposed to requiring an automobile dealership to seek and obtain variance relief from the zoning board of appeals. The plaintiffs assert that the text amendment is an attempt to avoid seeking variance relief from explicit regulatory provisions concerning nonconformities, bulk/area requirements and setback provisions. The plaintiffs argue that the text amendment is invalid and void, as a matter of law for the following reasons: (1) the text amendment improperly delegates variance authority to the commission contrary to General Statutes § 8-6 which specifically delegates the authority to vary zoning regulations to a zoning board of appeals; and (2) the text amendment violates the uniformity requirement mandated by General Statutes § 8-2.
On the contrary, the defendants claim that the proposed amendment does not give the commission the right or ability to waive or vary any provisions of the regulations but, instead, establishes new standards that allow an applicant to redevelop the property in accordance with the holding in Campion v. Board of Aldermen of New Haven, 278 Conn. 500, 899 A.2d 542 (2006). Specifically, the defendants claim that the amendment does not permit nonconformities to be expanded, extended, enlarged or increased in derogation of the powers of the zoning board of appeals. Additionally, defendants further assert that the amendment is in accord with Roncari Industries, Inc. v. Planning and Zoning Commission of Windsor Locks, 281 Conn. 66, 912 A.2d 1008 (2007) and does not violate the uniformity requirement set forth in General Statutes § 8-2.
The court finds that the Appellate Court’s holding in Mackenzie v. Planning & Zoning Commission of the Town of Monroe, 146 Conn.App. 406, 77 A.3d 904 (2013) is relevant and instructive to the court’s analysis. In Mackenzie, the court held that in order "[t]o determine whether the regulation[s] in question [were] within the authority of the commission to enact ... [the court] must search for statutory authority for the enactment." Id. at 426. Further, "[a]dministrative agencies [such as the commission] are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves ... [It] is clear that an administrative body must act strictly within its statutory authority ..." (Internal quotation marks omitted.) Id.; see also Eden v. Town Plan & Zoning Commission, 139 Conn. 59, 63, 89 A.2d 746 (1952) ("zoning authorities can only exercise such power as has been validly conferred upon them by the General Assembly").
The plaintiffs claim that the text amendment is invalid in that it violates General Statutes § 8-6 which vests the power to vary the application of zoning ordinances exclusively in a board of appeals. As our Supreme Court has stated: "An examination of the provisions of chapter 124 of the General Statutes, especially [General Statutes] § 8-2, concerning the power conferred on the defendant planning and zoning commission, and § 8-6, concerning the powers of boards of appeal, can lead only to the conclusion that the power to vary the ordinance to accommodate practical difficulties and do substantial justice lies exclusively in a board of appeals. In connection with zoning ordinances, it is a cardinal principle of construction that provisions and amendments must be enacted pursuant to the zoning enabling statute ..." (Citations omitted.) Langer v. Planning & Zoning Commission, 163 Conn. 453, 457-58, 313 A.2d 44 (1972).
See also R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 22:16, pp. 677-78 ("[i]t is illegal for the zoning commission to vary uses on an application to application basis, and the exclusive authority to vary the zoning regulations is vested in the zoning board of appeals"); T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 123 ("[n]o municipal agency other than the board of appeals may be given the power to vary the application of the zoning regulations in individual cases"); 7 N. Williams, American Land Planning Law (2d Ed. 2003) § 139, p. 27 ("the power to issue variances is specifically granted to zoning boards in the enabling statutes"); Mackenzie, supra, 146 Conn.App. 428.
Further, there is no statutory provision that authorizes a commission to adopt regulations empowering itself to vary the application of the regulations when acting on a special exception request. South East Prop. Owners & Residents Assn. v. City Plan Commission, 156 Conn. 587, 591, 244 A.2d 394 (1968). "The variance power exists to permit what is prohibited in a particular zone." Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710, 535 A.2d 799 (1988). In simple terms, a zoning commission acts as a land use legislature in enacting zoning requirements. See Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 164, 479 A.2d 801 (1984). By contrast, "the zoning board of appeals is the court of equity of the zoning process ..." 9 R. Fuller, Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) at § 9:1, pp. 237-38.
Every municipality which exercises the zoning power is mandated by General Statutes § 8-5 to have a zoning board of appeals, which acts as a "quasi-judicial" body; Nielsen v. Zoning Board of Appeals, 152 Conn. 120, 123, 203 A.2d 606 (1964); in deciding whether to grant "relief from the literal enforcement of a zoning ordinance ..." (Internal quotation marks omitted.) L & G Associates, Inc. v. Zoning Board of Appeals, 40 Conn.App. 784, 788, 673 A.2d 1146 (1996). As our Supreme Court explained more than one-half century ago, "[a zoning] board of appeals is indispensable to the zoning process both from the constitutional and the practical standpoint ... In creating building zones and in adopting pertinent zoning regulations, zoning commissions are required to deal with established and growing communities ... It is inevitable that a zoning regulation permitting certain uses of land and proscribing others will adversely affect individual rights in some cases. The essential purpose of a board of appeals is to deal with these cases by furnishing elasticity in the application of regulatory measures so that they do not operate in an arbitrary or confiscatory, and consequently unconstitutional, manner ... We must remember that the machinery of government would not work if it were not allowed a little play in its joints ... The purpose of boards of appeal ... is to keep the law running on an even keel." (Citations omitted; internal quotation marks omitted.) Florentine v. Darien, 142 Conn. 415, 425-26, 115 A.2d 328 (1955); see also 4 P. Salkin, American Law of Zoning (5th Ed. 2008) § 39:7, p. 39-26 (zoning board of appeals "created to interpret, to perfect, and to insure the validity of zoning"). Thus, zoning commissions and zoning boards of appeal are, by design and by statute, independent branches of a municipality’s land use department. Mackenzie, supra, 146 Conn.App. 429-30.
In the present case, the record is clear that the main purpose of the proposed amendment was to provide an avenue for two preexisting non-conforming automobile dealerships with the opportunity to "redevelop" their properties without the need of obtaining variances from the zoning board of appeals. The court acknowledges that the commission has the ability to amend its regulations and to change the zoning classification of a parcel of land. However, the proposed amendment, which applies to only two parcels of land in the Town of Westport, specifically provides that the "redevelopment shall result in no increase of building coverage, total coverage, or floor area, except as provided below and subject to the standards herein." (Emphasis added.)
Additionally, the court finds that the text amendment specifically provides exceptions or exemptions that the commission may consider, which authorizes the commission to increase a preexisting nonconforming use in contravention of the "general policy that the law disfavors extension of nonconformities." Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 609, 789 A.2d 478, cert denied, 260 Conn. 901, 793 A.2d 1088 (2002). For example, the proposed text amendment to § 6-6.2 provides in relevant part that "[a] nonconforming building and its uses may be allowed full or partial redevelopment in the nonresidential portion of the lot, provided the redevelopment shall result in no increase of building coverage, total coverage or floor area, except as provided below and subject to the standards herein." (Emphasis added.) Further, the proposed amendments to § 6-6.2.1 through § 6-6.2.5 provide a number of instances wherein the commission may approve increases to a nonconformity. For example, § 6-6.2.2 permits a nonconforming floor area to be increased as a result of excepting from the calculation of floor area: (a) internal vehicular queuing and drop-off for customer vehicles servicing; and (b) up to three showroom display vehicles, each not to exceed a (9′ x 18′) dimension.
The commission argues that the regulation does not provide it the opportunity to waive or vary regulations but rather, only the power to "except" or "exempt." However, the court finds that regardless of the term used, the proposed amendment provides the commission with the ability to waive or vary certain provisions of the regulations on a case by case basis. Regardless of the specific wording that is used, if the regulation confers authority on a commission to vary, modify, or alter the requirements or accept other uses, the regulation impermissibly assigns to a zoning commission a power which it cannot validly exercise. See Mackenzie v. Planning & Zoning Commission of the Town of Monroe, supra, 146 Conn.App. 406; Modern Tire Recapping Co v. Newington Planning & Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV-12-6035007-S (January 21, 2014, Mottolese, J.T.R.) .
The court will next review the plaintiff’s argument that the amendment violates the uniformity requirements mandated by General Statutes § 8-2. The uniformity requirement of General Statutes § 8-2 "requires intradistrict uniformity, and not uniformity among all districts in a given town ..." (Citation omitted; emphasis in original.) Pleasant Valley Neighborhood Assn. v. Planning & Zoning Commission, 15 Conn.App. 110, 114, 543 A.2d 296 (1988). Further, the Supreme Court has explained, "[t]he obvious purpose of the requirement of uniformity in the regulations is to assure property owners that there shall be no improper discrimination, all owners of the same class and in the same district being treated alike with provision for relief in cases of exceptional difficulty or unusual hardship by action of the zoning board of appeals." Veseskis v. Bristol Zoning Commission, 168 Conn. 358, 360, 362 A.2d 538 (1975); see also Kaufman v. Zoning Commission, 232 Conn. 122, 147, 653 A.2d 798 (1995) (uniformity requirement "serves the interests of providing fair notice to applicants and of ensuring their equal treatment"); Smith Bros. Woodland Management, LLC v. Planning & Zoning Commission, 88 Conn.App. 79, 83-84, 868 A.2d 749 (2005) (uniformity requirement "represents a compromise between the relative inflexible structure of Euclidian zoning and the impermissible favoritism, corruption, and violations of the uniformity requirement that could stem from a pure case-by-case approach"); Mackenzie, supra, 146 Conn.App. 431-32.
The uniformity requirement of General Statutes § 8-2 thus precludes a case-by-case variance of regulatory requirements by the zoning commission in a given district. In "excepting" or "exempting" certain regulations as they are applied to only two preexisting nonconforming automobile dealerships, the commission in the present matter contravened that statutory requirement, which constitutes an inconsistent application of the requirements within the Residence A zone and the General Business District zone.
The defendant argues that the holding in Campion v. Board of Aldermen, 278 Conn. 500, 899 A.2d 542 (2006), which stated that a zoning commission has the right pursuant to General Statutes § 8-2 to create a new zoning district, i.e., a planned development district which was bound by the uniformity requirement, is applicable to the facts presented in this case. However, the court disagrees. In the present case, the defendants have not attempted to create a new zone or rezone the two preexisting nonconforming automobile dealerships. Instead, the text amendment maintains both properties as nonconforming and attempts to permit the redevelopment of the properties by waiving, exempting or excepting certain provisions of the regulations.
Additionally, the defendants further claim that Roncari Industries, Inc. v. Planning and Zoning Commission of Windsor Locks, 281 Conn. 66, 912 A.2d 1008 (2007) provides support to the contention that the text amendment does not violate the uniformity requirements of General Statutes § 8-2. The court disagrees. The holding in Roncari Industries, Inc., stated that a zoning commission has the right to adopt regulations that allow certain uses within a zone by special permit subject to specific legislatively prescribed conditions. Roncari Industries, Inc., supra, 281 Conn. 81. However, in the present case, the text amendment, which applies to only two properties does not set forth "prescribed conditions" but rather grants the commission the authority to waive or except certain regulations.
V
CONCLUSION
In conclusion, the court finds that the entire proposed text amendment, which includes the definitions set forth in § 5-2 of the Westport Zoning Regulations, should "stand or fall together." See Payne v. Fairfield Hills Hospital, 215 Conn. 675, 685, 578 A.2d 1025 (1990). In accordance with the foregoing analysis, the court concludes that the proposed text amendment improperly delegates variance authority to the commission in violation of General Statute § 8-6, and violates the uniformity requirement set forth in General Statute § 8-2. Accordingly, the plaintiffs’ appeal is SUSTAINED.