Opinion
No. FBT CV 06 4018343 S
February 11, 2009
MEMORANDUM OF DECISION
On October 17, 2006, the plaintiffs, Jeffrey and Hannah Zimnoch, Elizabeth Murphy and Sally Lundy filed an administrative appeal pursuant to General Statutes § 8-8, challenging a decision by the defendant Planning and Zoning Commission of the Town of Monroe (the "Commission"). In that decision, the Commission approved a special exception permit application filed by defendant, Pond View, LLC, ("Pond View") with respect to premises located at 127 Main Street in Monroe.
The amended appeal, filed on December 7, 2006, alleges the following facts: Pond View filed a zone change application on November 18, 2004, seeking a zone change for the property located at 127 Main Street. The application sought to change the zone from the Residential and Farming District D (RD zone) to Design Business District 1 (DB 1 zone). At the same time, Pond View filed an application for a special exception permit to excavate and remove 475,000 cubic yards of earth materials and to construct a shopping center on the property. The Monroe Zoning Regulations authorize a shopping center by special exception permit in the DB 1 zone, but not in the RD zone.
Plaintiffs Murphy and Lundy, who had intervened in the proceedings before the Commission under General Statutes § 22a-19, successfully circulated a protest petition pursuant to General Statutes § 8-3(b), which required an affirmative vote of two-thirds of the members of the Commission for approval of the zone change. Public hearings on the proposed zone change and special exception permit application were held on December 1 and 2, 2004. On March 3, 2005, the members of the Commission voted to approve the zone change application by a vote of 3 in favor and 2 against. Because the application failed to obtain the support of two-thirds of the members, the application for the zone change was denied. Having denied the zone change, the Commission took no action on the special exception permit application.
Pond View appealed the denial of the zone change application to the Superior Court. In the memorandum of decision in that case, Pond View, LLC v. Planning Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV 05 4007759 (July 18, 2006, Owens, J.T.R.), the court determined that the "record does not reasonably support the decision of the PZC . . . [w]hile there are reasons listed for the denial of the application, the record is devoid of any evidence supporting these reasons." Id. Accordingly, the court ordered that "the plaintiff's application for a zone change is sustained and the application for the special exception permit is remanded to the PZC for further consideration." Id.
The intervenors, Murphy and Lundy, filed an appeal from the trial court's decision. Following certification, the appeal was transferred to the Supreme Court. In its decision, Pond View, LLC v. Planning and Zoning Commission, 288 Conn. 143 (2008), the Supreme Court observed that the intervenors claimed standing to appeal pursuant to General Statutes § 22a-19, but that it was "axiomatic that the statute encompasses substantive environmental issues only, and the court repeatedly has declined to consider whether procedural issues are covered." Id. at 159. The court examined the issues raised by the intervenors on appeal and determined that "[i]t is clear that these issues are not environmental issues traditionally within the scope of § 22a-19 . . ." Id. at 159.
The court stated that "[t]o the extent that the intervenors challenge the merits of the trial court's decision — i.e., the propriety of its determination that all of the evidence supported the plaintiff's position that the development resulting from the proposed zone change would be consistent with the town's comprehensive development plan — that challenge relates to the special exception permit application that is the subject of the appeal currently pending before the Superior Court." (Emphasis in original.) Id. at 160. The court held that the plaintiff — intervenors lacked standing to bring the appeal and, accordingly, dismissed it.
On September 21, 2006, during the pendency of the appeal, the Commission published notice that it had granted Pond View's special exception permit application. Prior to that decision, the Commission held no additional hearings on the special exception permit application. The Commission also failed to take any action to implement a change in the zoning of Pond View's property. The record does not disclose any evidence that a notice of a change in zone was published as required by General Statutes § 8-3(d). In voting to approval the special exception permit application, the Commission relied on the record of the December 1 and 2, 2004 hearings.
The plaintiffs filed the current appeal from the Commission's decision claiming that it was "arbitrary, illegal, without support and procedurally improper" in two principal respects. First, they claim that the re-zoning of Pond View's property has not yet taken place and that until the re-zone has occurred, the Commission could not, consistent with its zoning regulations, grant a special exception permit application for property that was still zoned for residential use only. Second, the plaintiffs claim that the Commission could not rely solely on the record of the hearings held on December 1 and 2, 2004 in considering the special exception permit application. They urge that the Commission was required to hold a new public hearing before granting a special exception permit to Pond View.
The plaintiff's first claim raises the question of whether the decision of the Superior Court (Owens, J.T.R) sustaining Pond View's appeal was self executing? In other words, does a judge of the Superior Court have the authority to directly implement a change in a municipality's zoning regulations without ordering the Commission to take such action? If the answer to that question is negative, then Pond View's property remains in the RD zone, a zone which does not provide for the issuance of special exception permits for retail uses. In that event, the court would not reach the question of whether the Commission was entitled to rely on a nearly two-year old record in approving Pond View's special exception permit application.
AGGRIEVEMENT
At a hearing held on October 31, 2008, the plaintiffs submitted evidence that plaintiffs Jeffrey and Hannah Zimnoch owned residential property at 34 Little Fox Lane, which abuts the property that is the subject of this appeal. The evidence further established that plaintiff Elizabeth Murphy owned property at 47 Crescent Place, located within 100 feet of said property. (See also Return of Record [ROR], Exhibit [Ex.] 33.) The court finds that Jeffrey and Hannah Zimnoch and Elizabeth Murphy are statutorily aggrieved pursuant to General Statutes § 8-8(a)(1). The court also heard testimony from plaintiff, Sally Lundy, as to the location of her residential property at 35 Little Fox Lane in the immediate vicinity of Pond View's proposed shopping center. Lundy testified that her property is served exclusively by well water. She introduced a hydrologist's report into evidence showing that Pond View's planned excavation would alter the water table and adversely affect her well. Lundy also expressed fears that wetlands on her property, including a vernal pool, would be adversely impacted by a change in the water table. The court finds that Lundy has demonstrated classic aggrievement. CT Page 3399 Hall v. Planning Commission, 181 Conn. 442, 444-45 (1980).
AUTHORITY OF THE SUPERIOR COURT TO IMPLEMENT A CHANGE OF ZONE
The trial court's memorandum of decision in Pond View, LLC v. Planning Zoning Commission, supra, Superior Court, Docket No. CV 05 4007759, ordered that "the plaintiff's application for a zone change is sustained and the application for the special exception permit is remanded to the PZC for further consideration." The record establishes that, thereafter, the Commission took no action to place Pond View's property in the DB 1 zone.
In approving Pond View's special exception permit application, the Commission made the following finding: "The Commission finds zoning of the subject site is a Design Business District 1 (DB 1 zone) established by Order of the Superior Court in a Memorandum of Decision dated July 17, 2006, in the matter of [ Pond View, LLC v. Planning Zoning Commission], Docket Number CV 05 4007759, filed July 18, 2006." (ROR, Ex. 43.)
With respect to the zone change issue, the plaintiffs allege the following: "Neither the defendant Planning and Zoning Commission nor the Court has, to the date hereof, set an effective date for the change of zone, nor has any notice of the said change of zone or an effective date been published." (Amended Appeal, ¶ 19.)
The plaintiffs contend that the court, as a threshold matter, must address the zone designation issue before considering the merits of the Commission's approval of the special exception permit. The defendants counter that whether the trial court had the authority to approve a zone change "without remand to the Commission for any action on the zone change (i.e., either to formally approve the zone change, or set an effective date)" has already been raised and litigated. (Defendants' Post-Hearing Brief, dated 11/17/08, p. 9.) The defendants acknowledge that "[i]n its dismissal of the related appellate appeal for lack of standing, the Supreme Court did not reach this issue, or any other legal issue concerning the merits of the zone change raised in the appeal. However, this fact does not preclude the validity of Judge Owens' zone change Decision (either the validity of the Court approved zone change, or the validity of the order to render a decision on the special exception based upon the Court approved zone change), from being the law of that case." (Defendants' Post-Trial Brief, dated 11/17/08, p. 9.) The defendants conclude that the effect of the court-approved zone change "upon the validity of the Commission's decision on the related special exception based upon [the court's] remand cannot be revisited at this time." (Defendants' Post-Trial Brief, dated 11/17/08, p. 9.) The court finds that resolution of the issues raised on this appeal requires the court to determine whether a change in the zoning of Pond View's property has, in fact, been implemented. The process of making that determination does not require the court to revisit issues addressed by Judge Owens. The question to be answered is — "Have the necessary steps been taken to place the Pond View Property in the DB 1 zone?" The court answers that question in the negative.
"In an administrative appeal from a decision of a municipal land use agency, generally the only relief that can be requested is for the appeal to be sustained and, in a proper case, for the court to direct that the agency issue the permit or approval requested by the applicant." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. (2007), § 35:1, p. 317. "Where the unsuccessful applicant to the agency brings the appeal and the court does not dismiss it and reverses the agency, it has to decide whether to merely sustain the appeal or whether to also order that specific relief be granted. The options open to the Superior Court are generally contained and stated in section 8-8(l) of the General Statutes . . ." R. Fuller, supra, p. 319.
General Statutes § 8-8(l) provides that a "court, after a hearing thereon, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from. If a particular board action is required by law, the court, on sustaining the appeal, may render a judgment that modifies the board decision or orders the particular board action." When considering affordable housing appeals under General Statutes § 8-30g(g), superior courts are granted somewhat greater authority. Under that statute, in an affordable housing appeal, "If the commission does not satisfy its burden of proof under this subsection, the court shall wholly or partly, revise, modify, remand, or reverse the decision from which the appeal was taken in a manner consistent with the evidence in the record before it."
In Pond View, LLC v. Planning Zoning Commission, supra, Superior Court, Docket No. CV 05 4007759, Owens, J.T.R. in acting with respect to Pond View's zone change application, the court did no more than sustain Pond View's appeal. Although the Commission filed a brief and engaged in oral argument before the Supreme Court in support of the intervenors, it failed to "join in the intervenors' petition for certification to appeal from the trial court's judgment or file its own petition for certification." Pond View, LLC v. Planning Zoning Commission, supra, 288 Conn. 143, n. 5. Accordingly, the Supreme Court emphasized that the Commission was not an appellant in the appeal and its "contentions regarding the propriety of the trial court's judgment" were not considered. Id.
The Supreme Court later observed that it was unnecessary to "determine whether the trial court's ruling as to the zone change constitutes a final judgment on the `combined application' in light of the fact that the commission had not yet determined whether to grant the other portion of the application, namely, the special exception permit." Pond View, LLC v. Planning Zoning Commission, 288 Conn. 154, n. 11.
The court agrees with Pond View's assertion that Judge Owens' decision concerning the zone change application is a final judgment. Accordingly, the correctness of that decision will not be addressed by this court. See Kaufman v. Zoning Commission, 232 Conn. 122 (1995). In Kaufman, the plaintiff's application for a zone change to his property was denied by the zoning commission. After the plaintiff appealed, the Superior Court reversed the commission's decision. The court directed the commission to approve the application but remanded the matter to the commission to give it "the opportunity to impose reasonable conditions and changes with respect thereto." Id. at 128. On appeal, the Supreme Court held that the Superior Court's judgment constituted an appealable final judgment. Observing that "the court's judgment required the commission to approve the plaintiff's application," the Supreme Court emphasized that the trial court's decision "so concludes the rights of the parties that further proceedings cannot affect them." (Internal quotation marks omitted.) Id. At 131.
Similarly, in sustaining Pond View's appeal of the Commission's decision to deny the zone change, Judge Owens' decision has concluded the parties' rights with respect to the subject of that appeal and it would be improper to re-litigate those issues in this appeal. Nevertheless, in considering the current appeal the court must, of necessity, consider the actions of the Commission following Judge Owens' decision.
Although Judge Owens sustained Pond View's appeal regarding the zone change application, he did not expressly order the Commission to take any particular action. Apparently, the Commission construed the decision as having, ipso facto, enacted the actual zone change. See (ROR, Ex. 43). Notwithstanding the Commission's interpretation of Judge Owens' decision, the Superior Court does not have the power to directly change the zone of any property in any municipality in this state. General Statutes § 8-3 confers the power to establish and change zoning regulations and districts exclusively on the zoning commission of each Connecticut municipality. The limits of the power of a Superior Court hearing a zoning appeal have been succinctly stated by the Supreme Court. "When, on a zoning appeal, it appears that as a matter of law there was but a single conclusion the zoning authority could reasonably reach, the court may direct the administrative agency to do or to refrain from doing what the conclusion legally requires." Thorne v. Zoning Commission, 178 Conn. 198, 206 (1979). Any actions taken by a Superior Court beyond these limited circumstances represent an "impermissible judicial usurpation" of the functions of the zoning authority which amount to "improper judicial encroachment" upon the functions of the zoning authority. Id. See also, Bradley v. Zoning Board of Appeals, 165 Conn. 389, 395-96 (1973).
The court agrees with Pond View that once Judge Owens determined that the record did not reasonably support the Commission's decision to deny the zone change, there was only a single course of action open to the Commission (i.e. to approve the zone change). In light of his findings, Judge Owens could have properly ordered the Commission to take that action. However, it is difficult to construe the language Judge Owens employed in his decision as constituting such an order. In the relevant portion of his order, Judge Owens stated: "the plaintiff's application for a zone change is sustained . . ." That language fails to order or direct the Commission to take any particular action. Nevertheless, it is clear that by remanding the issue of the special exception permit application to the Commission, Judge Owens contemplated that the Commission would, in due course, enact the zone change.
Pond View asserts that the Supreme Court has recognized the authority of Superior Courts, considering zoning appeals, to enact zone changes without ordering a defendant zoning authority to take such action. Pond View relies on West Hartford Interfaith Coalition v. Town Council, 228 Conn. 498 (1994), and JPI Partners, LLC v. Planning Zoning Board, 259 Conn. 674 (2002). Both those cases involved affordable housing appeals pursuant to General Statutes § 8-30g. In each case, the Supreme Court approved of the action of the trial court in approving a zone change without remanding the matter to the local zoning authority. In so doing, the court in West Hartford Interfaith Coalition, stated: "Both the trial court's determination that the plaintiff was not required to submit a modification and its remedy granting the application are specifically authorized by the plan language of 8-30g." 228 Conn. at 257. Pond View's reliance on these cases is misplaced. Pond View's application for a zone change did not involve a plan for affordable housing and accordingly was not governed by the provisions of General Statutes § 8-30g(g), but rather by General Statutes § 8-8(l). Although the language of the two statutes is similar, the Supreme Court's determination of the authority of a trial court to act was based on its analysis of legislative intent behind the enactment of the special provisions of General Statutes § 8-30g governing affordable housing appeals. Pond View has identified no cases in which the holding of West Hartford Interfaith Coalition, supra, has been applied to a zoning appeal brought pursuant to § 8-8(l).
The court finds that Judge Owens was not empowered by the provisions of § 8-8(l) to enact a zone change. At most, he might have ordered the Commission to take such action. The court cannot construe the language employed by Judge Owens either changing the zone or ordering the Commission to take that action.
The record establishes that, following Judge Owens' decision, the Commission failed to take any action to approve a zone change. Moreover, Pond View failed to request the Commission to take steps, consistent with Judge Owens' decision, to place its property in the DB-1 zone. Instead, it appears that both the Commission and Pond View made the erroneous assumption that Judge Owens' decision had caused the zone change to become immediately effective. Since Judge Owens did not have the power to directly re-zone Pond View's property, it was incumbent upon the Commission to take the appropriate steps required to enact the change of zone, including publishing legal notice the zone change and setting an effective date. The Commission took no such action.
In Wilson v. Planning Zoning Commission, 260 Conn. 399, (2002), the issue was whether a commission's failure "to publish notice of a zone change prior to its effective date, pursuant to General Statutes § 8-3(d), [rendered] the zone change void." Id. at 400-01. There, the commission selected a particular date as the effective date of a zone change and published notice of its decision on the same date. On appeal, the trial court determined that the language of § 8-3(d), requiring publication of a zone change decision prior to its effective date, was mandatory and the commission's failure to publish that decision in accordance with the statute rendered the zone change void. The Appellate Court disagreed with the trial court and held that "[p]ublication of notice prior to the effective date . . . is not of the essence of the purpose to be accomplished by § 8-3(d) . . . [and] is directory." (Citation omitted.) Wilson v. Planning Zoning Commission, 53 Conn.App. 182, 189 (1999).
General Statutes § 8-3(d) provides that "[z]oning regulations or boundaries or changes therein shall become effective at such time as if fixed by the zoning commission, provided a copy of such regulation, boundary or change shall be filed in the office of the town, city or borough clerk, as the case may be, but in the case of a district, in the office of both the district clerk and the town clerk of the town in which such district is located, and notice of the decision of such commission shall have been published in a newspaper having a substantial circulation in the municipality before such effective date. In any case in which such notice is not published within the fifteen-day period after a decision has been rendered any applicant or petitioner may provide for the publication of such notice within ten days thereafter."
The Supreme Court held that while § 8-3(d) vested the commission with the power to set the effective date of a zone change, the statute did not similarly vest the commission with discretion to fix the publication date of the notice of the commission's zone change decision. The court concluded that the commission's failure "to comply with the statutory publication requirements rendered the zone change void." Wilson v. Planning Zoning Commission, 260 Conn. at 405. The Supreme Court reversed the decision of the Appellate Court and remanded the case to that court with the order to affirm the decision of the Superior Court.
In the present appeal, the record does reflect that the commission generated a public inspection copy, dated September 21, 2006, of its final decision concerning the special exception permit application. (ROR, Ex. 43.) In addition to indicating the approval of the permit, the notice states: "The Commission finds zoning of the subject site is a Design Business District 1 (DB1 zone) established by Order of the Superior Court in a Memorandum of Decision dated July 17, 2006, in the matter of Pond View, LLC v. Monroe Planning Zoning Commission, Docket Number CV05 400 77 59, filed July 18, 2006." (ROR, Ex. 43.) Notice of the Commission's decision to grant the special exception permit was published on October 5, 2006. (ROR, Ex. 44.) That notice did not include notice of the change of zone. By failing to publish a notice of a change of zone, the Commission failed to comply with the statutory requirements of General Statutes § 8-3(d) which the Supreme Court held mandatory in Wilson v. Planning Zoning Commission, supra, 260 Conn. 399.
Section 117-907A of the Monroe Zoning Regulations provides that a change of zone to a "design" designation is not effective until approval of the special exception permit. This provision does not alter the duty of the Commission to comply with the procedural requirements of General Statutes § 8-3(d).
In its November 17, 2008 brief (#134.00), Pond View argues that the Commission could not give notice of the change of zone and set an effective date for the change because Judge Owens' decision was on appeal when the Commission acted on the special exception permit application in September 2006. However, in its brief of August 30, 2007 (#120.00), Pond View notes that the appellants in Pond View, LLC v. Planning and Zoning Commission, supra, had not requested a stay during their pendency of their appeal, leaving Pond View free to apply for the special exception permit which is the subject of this appeal. Pond View does not explain why, in the absence of such a stay, it could not have asked the Commission to enact the zone change and to designate an effective date for the change. Under these circumstances, the court finds that the Commission has not yet taken the steps necessary to implement the zone change contemplated by Judge Owens' decision.
See also Defendant's Joint Objection dated October 3, 2007 (#123.00) and Pond View's Response to Plaintiff's Reply Brief dated May 9, 2008 (#126.00).
Having made the foregoing finding, the court does not reach any issues regarding the Commission's consideration of Pond View's special exception permit application, other than to note that the Commission could not, consistent with its regulations, approve a special permit application for property in the RD zone, since the regulations for that zone do not allow such an application.
The plaintiffs' appeal is sustained.