No. FST CV 08 4018081 S
January 19, 2011
MEMORANDUM OF DECISION
This appeal was taken by abutting owners who are found to be statutorily aggrieved. The lead plaintiff, Y Downtown, Inc. ("Y Downtown") is found to be representationally aggrieved pursuant to Timber Trails Corp. v. Planning and Zoning Commission, 222 Conn. 380, 393-95 (1992). Y Downtown, Inc. also enjoys standing as an environmental intervenor pursuant to Section 22a-19 of the General Statutes. The defendants do not dispute the plaintiffs' status in any of these capacities. No evidence was offered to support Leanne Bell's status and so she is found not to be aggrieved.
The appeal attacks a special permit granted by the Planning and Zoning Commission ("the commission") which would permit the construction of a 102,000 square foot YMCA facility to house the Westport/Weston Family Y ("Family Y") on a 34-acre parcel in the Town of Westport south of and adjacent to the Merritt Parkway at exit 41. The property is located in the residence AAA zone which permits single-family residential buildings on two-acre lots as of right. The property is bounded on the north by Sunny Lane, a town street, which itself is bounded on the north by the Merritt Parkway, on the east by the Saugatuck River and on the south and west by various residential owners some of whom are plaintiffs herein. The site has long been used as a day camp by the Family Y and is known as Camp Mahackeno.
The plaintiffs begin their attack on the commission's approval by claiming that a majority of the commission was predisposed to granting the application and therefore prejudged it. The plaintiffs' position is predicated on a series of actions taken by the commission which they claim favored the Family Y and which were therefore harmful to them. Pursuant to the plaintiffs' motion to introduce additional evidence, the court took testimony from persons whom the plaintiffs offered in proof of their charge of predisposition and predetermination. Former commission member, Helen Martin-Block who resigned from the commission after the application was granted, told the court that she believed the commissioners to have been biased because their questioning of the applicant and its supporters was "relatively insignificant" and the commissioners were not "as active as they should have been." To put it another way, it was her belief that the commissioners "were reluctant to probe the issues." She compared the Family Y hearing with other complex applications which the commission had heard in the past and concluded that there were fewer questions asked of the Family Y team of supporters. Ms. Martin-Block also criticized the commission because it did not require the minutes of the prior meetings relating to this application to be "brought up to date and made available for commission review" prior to the next meeting.
With specific reference to Section 11-2.2.3 of the zoning regulations which required the commission to determine whether the Family Y was a "private noncommercial recreational use," she charged that the commission did not have "an objective point of view." She was led to believe from their failure to share opinions on the point that the commissioners "had other things on their minds."
She also faulted the commission for failing to accept her recommendation that it hire "independent counsel" to act in place of the town attorney and for her similar request for independent professional review of the waste management plan. She complained that the chairperson of the commission prevented her from asking as many questions as she wished and that at times she was cut off before she had the opportunity to finish her statement. She charged further that the applicants were permitted to put more documents in the record than the opponents and "the commission gave more time to the proponents than the opponents."
On the other hand, she admitted that no commissioner said anything to her which would cause her to suspect bias or predetermination nor did she raise the issue with the commission at any time. She felt that the chairperson "steered the proceeding in a biased way" and "showed deference to members of the public who were in support of the application," but "opponents were cut off."
The court also heard the testimony of former commissioner Kenneth Desanctis, who sat on this application, who did not agree that the commission engaged in predisposition and predetermination. Commissioner Lowenstein agreed with Mr. Desanctis.
The foregoing evidence is now reviewed, informed by the following principles. "We presume that administrative board members acting in an adjudicative capacity are not biased." Simko v. Ervin, 234 Conn. 498, 508 (1995). "Neutrality and impartiality of members are essential to the fair and proper operation of a planning and zoning commission." Lake Garda Improvement Assn. v. Town Plan Zoning Commission, 151 Conn. 476, 480 (1964). The evil to be avoided is "the creation of a situation tending to weaken public confidence and to undermine the sense of security of individual rights which the property owner must feel assured will always exist in the exercise of zoning power." Bossert Corporation v. Norwalk, 157 Conn. 279, 284 (1968). We have held that bias "can take the form of favoritism toward one party or hostility toward the opposing party; it is a personal bias or prejudice which imperils the open-mindedness and sense of fairness which a zoning official in our state is required to possess." Anderson v. Zoning Commission, 157 Conn. 285, 290-91 (1968). "The decision as to whether a particular interest is sufficient to disqualify, however, is necessarily a factual one and depends upon the circumstances of the particular case." Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 648 cert. denied, 469 U.S. 932 (1984).
"We have held that [t]he law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities. It would be strange, indeed, if this were true. Furtney v. Zoning Commission, 159 Conn. 585, 594 (1970). As the court noted in In re J.P. Linahan, Inc., 138 F.2d 650, 651-52 (2d Cir. 1943), "[t]he human mind . . . is no blank piece of paper . . . Interests, points of view, preferences, are the essence of living . . . An `open mind,' in the sense of a mind containing no preconceptions whatever, would be a mind incapable of learning anything, [and] would be that of an utterly emotionless human being . . ."
"Local governments, therefore, would be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a zoning official." Such a policy "would not only discourage but might even prevent capable men and women from serving as members of the various zoning authorities. Of course, courts should scrutinize the circumstances with great care and should condemn anything which indicates the likelihood of corruption or favoritism." Anderson v. Zoning Commission, supra, 291.
The decisive question, therefore, must be whether the challenged commissioners actually had made up their minds prior to the public hearing, regardless of any arguments that might have been advanced at the hearing. Furtney v. Zoning Commission, supra, 594. This issue involves a question of fact and the burden of proving that illegality was on the plaintiffs. Id., 594-95. (Alternate citations omitted.) Cioffoletti v. Planning and Zoning Commission, 209 Conn. 544, 553-55 (1989).
Because there is no direct evidence of predetermination and predisposition the court must rely on circumstantial evidence. "The burden of persuasion can be satisfied by circumstantial evidence if the trier finds that the facts from which the trier is asked to draw the inference are proved and that the inference is not only logical and reasonable but also strong enough so that it can be found to be more probable than not. Terminal Taxi Co. v. Flynn, 156 Conn. 313, 316 (1968)." (Alternate citations omitted.) Tait's Handbook of Connecticut Evidence, 3rd Ed. at 3.5.1., p. 140.
"It is not one fact but the cumulative impact of a multitude of facts which establishes liability in a case involving circumstantial evidence." State v. Rodgers, 198 Conn. 53, 58 (1985). "The trier of fact is not permitted to resort to speculation or conjecture." State v. Stankowski, 184 Conn. 121, 136 (1981). "There is no legal distinction between direct and circumstantial evidence as far as probative force is concerned." State v. Haddad, 189 Conn. 283, 390 (1983).
These plaintiffs have asked the court to draw an inference from the numerous observations made by Mrs. Martin-Block that a majority of the commissioners had made up their minds before the hearing was completed such that the result in their minds was preordained. The court declines to attach any significance to the various incidents which Mrs. Martin-Block has described which deviate from her notion of a fair and impartial hearing. Even the cumulative effect of these actions do not rise to the level of bias, predetermination or predisposition. There is nothing to indicate that each of the commission members did not maintain an open mind throughout. The plaintiffs have failed in their burden of persuasion.
B. Plaintiffs' Substantive Claims
The plaintiffs now substantively attack the validity of the permit approval on six different grounds. Many of these grounds are based on the claim that the commission incorrectly interpreted its own regulations in several important respects.
". . . Acting in this administrative capacity, (on a special permit application), the [zoning commission's] function is to determine whether the applicant's proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied." (Citations omitted; internal quotation marks omitted.) A.P.W. Holding Corporation v. Planning and Zoning Board, 167 Conn., 182, 185 (1974).
"The zoning commission has no discretion to deny the special exception if the regulations and statutes are satisfied . . . When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision . . . The zoning [commission's] action must be sustained if even one of the stated reasons is sufficient to support it. (Citations omitted.) Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn.App. 53, 56-57 (1988)." (Internal quotation marks omitted.) Felsman v. Zoning Commission, 31 Conn.App. 674, 678 (1983).
". . . The evidence, however, to support any [reason stated by the planning commission for its action] must be substantial . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion . . . The court can sustain the plaintiff[s'] appeal only upon a determination that the decision of the Commission was unreasonable, arbitrary or illegal." Pelliccione v. Planning and Zoning Commission, 64 Conn.App. 320, 326-28 (2001).
In the present case the court is called upon to determine whether the commission has correctly interpreted its own zoning regulations which it is legally bound to apply.
Because a question of proper statutory interpretation is involved, the court must go beyond the conventional scope of administrative review and conduct a plenary review of the commission's action. Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 416 (2007). "Ordinarily [trial courts afford] deference to the construction of a statute applied by an administrative agency empowered by law to carry out the statute's purpose . . . Cases that present pure questions of law, however, invoke a broader standard of review that is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily or in abuse of its discretion . . . Furthermore, when [an] agency's determination of a question law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [It] is for the courts, and not administrative agencies, to expound and apply governing principles of law." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 698-99 (2001). Whether the Board properly interpreted and applied the relevant regulations depends upon whether it read the particular regulations "in the context of all the regulations, their evident purpose and policy, and recognized principles of zoning in general." Field Point Park Association, Inc. v. Greenwich Planning and Zoning Commission, 103 Conn.App. 437, 441 (2007).
On the other hand, a time tested agency interpretation of a statute will gain deference, but only when the agency "has consistently followed its construction over a long period of time, the statutory language is ambiguous and the agency's interpretation is reasonable." State Medical Society v. Board of Examiners and Podiatry, 208 Conn. 709, 719 (1988).
I. Status of Family Y as a Private, Noncommercial Recreational Use
Section 11-2.2.3 of the zoning regulations authorizes as a special permit use in the AAA zone, a "private non-commercial recreational use." The plaintiffs first argue that the Family Y use is not a non-commercial use. Plaintiffs freely acknowledge that Section 5-2 of the regulations defines "commercial use" as "an occupation, employment or enterprise that is carried on for profit by the owner . . ." This definition is consistent with the ordinary meaning and commonly approved usage of the term (G.S. § 1-1(a); Martone v. Lensink, 207 Conn. 296, 302 (1988)) as found in the dictionary. Merriam Webster's Collegiate Dictionary, 11th Ed. at 249 defines the word "commerce," the noun form of the adjectival "commercial" as "the exchange or buying and selling of commodities on a large scale involving transportation from place to place."
The court notes that Section 5.1 of the regulations provides that "words not specifically defined herein shall be used as defined in Webster's New Collegiate Dictionary no more than 5 years old." The commission would be well advised to expand the specific source material cited to include dictionaries that are more readily available to the Connecticut Judiciary as a statewide search within the courthouse library system failed to produce a single copy of such a dictionary.
Well known principles of statutory construction provide further direction to the effort to ascertain the proper meaning of a word or phrase. "Related statutory provisions, or statutes in pari materia, often" illuminate the task. Hatt v. Burlington Coat Factory, 263 Conn. 279, 312 (2003). In Raffaele v. Planning and Zoning Board of Appeals, 157 Conn. 454 (1969) our Supreme Court used the words "not operated for commercial profit" as found in the Greenwich zoning regulations synonymously with "nonprofit."
The plaintiffs' attack on the essential nature of the Family Y operation is multi pronged. Initially, they assert that it is a "for profit" enterprise because the Family Y receives ninety percent of its revenue from membership and program service fees. In Jeffrey v. Planning and Zoning Board of Appeals, 155 Conn. 451, 458 (1967) the court acknowledged that the members of a YWCA pay membership fees. Sub silentio, the court accepted this revenue source as not constituting a "commercial profit" within the meaning of the Greenwich zoning regulations. Nor does a charge for a specific program or activity made available to the public necessarily constitute a commercial profit. Because the term "profit" does not appear in Section 11-2.2.3 of the regulations the court is free to resort to the definition of the term contained in Webster's 9th New Collegiate Dictionary at 939. Here, "profit" is defined as "gain; a valuable return; the excess of returns over expenditures over a transaction or series of transactions; the compensation occurring to entrepreneurs for assumption of risk in business enterprise." Clearly the gain contemplated is the enhancement of the financial condition of the individual participants in the activity. Such is not the case with the Family Y because no part of any surplus which it might enjoy is distributed to its members.
Next, the plaintiffs argue because the membership fee is not tax deductible under the internal revenue code as a charitable contribution the Family Y is a commercial enterprise. While the membership fee is clearly a nondeductible expenditure all donations made to it are tax deductible because the Family Y is a qualified tax exempt organization both under federal, state and local law. As the Family Y mission statement makes clear, "The Family Y is a `nonprofit charitable agency' which relies solely on membership fees . . . and contributions from generous members of the community."
Next, the plaintiffs claim that because the Family Y receives revenue from a day care operation which is open to the general public, it is therefore a commercial entity. As in Jeffrey, supra, the fact that uses which are subordinate to the principal recreational use of the Family Y may produce a fee, does not change the principal character of the use from non-commercial to commercial. Finally, it is contended that the Family Y offers its programs and services to the "mass market." The court rejected a similar argument in Jeffrey when it ruled that "numerous special interest" groups or subordinate clubs, such as for instance, bridge and rug hooking clubs and a world friendship club for newcomers to the United States do not render the nature of the institution "commercial." The court found explicitly that the YWCA programs were utilized by "no substantial portion of the general public of the area." Id. at 458.
The record establishes clearly that the Family Y has no stockholders but is comprised of dues paying members, distributes no profit to its members, but reinvests any surplus to advance the goals of the organization. The mission and membership statement of the institution clearly signifies its function and purpose.
The Westport Weston Family Y is a community-service organization which promotes positive values through programs that build healthy spirit, mind and body, welcoming all people.
It is the policy of the Family Y to make membership available to all persons regardless of race, color, religion, sex, age, marital status, sexual orientation, national origin, disability or financial circumstances without discrimination.
There are two types of membership in the Family Y.
Full Membership includes the use of the locker rooms, gyms, pools, whirlpool, sauna, our state of the art Fitness Center, as well as free babysitting while participating in Y activities (space available basis).
Health Center Membership included the full membership privileges plus the use of a private locker room for adults and seniors only, racquetball, squash or handball at no additional cost. Additional benefits include gym clothes, towels, steam room, sauna, exercise bike, and cable television.
All memberships require a joiner fee of $50 (adult and Family) or $25 (senior 65+ or 16-22 student).
Membership dues may be paid annually or monthly. The Family Y accepts cash.
The plaintiffs also challenge the nature of the use as "private." In Clark v. Planning and Zoning Commission, 152 Conn. 559, 561 (1965) the plaintiffs appealed from the granting of a special exception which determined the Westport Famous Artist School to be "private" within the meaning of a regulation permitting a " private school" by special exception in the AAA zone. (Emphasis added.)
The court said "that the school is private goes without saying." It was operated as a business venture for the profit of its stockholders and is in no sense maintained by the public. The court's comment on its status as a private school is also instructive. The court said "it is our conclusion that `a private school' as used in . . . Westport zoning regulations means a school operated by private interests as a substitute for, in giving the equivalent ot instruction given in the public schools operated by municipalities." Id. at 562.
What is notable about the court's language is that the court seems to have looked at the nature of the backer of the entity as an important factor in determining whether that entity is public or private. In the present case, applying this guidance, the Family Y is not owned, operated or maintained by a public entity but is financially supported by private interests in the form of membership fees and donations. Also, it is operated by its members and managed by a board which is elected by its members. Just as the Famous Artists School was owned by individual stockholders, so too the Family Y is managed and supported by individual members and thus maintains its character as a private organization. The court also notes that Webster's Ninth New Collegiate Dictionary at p. 936 defines "private" as "intended for or restricted to the use of a particular group or class." The group or class in the case of the Family Y is of course, its dues paying membership.
Finally, the plaintiffs contend that the term "non-commercial" is not the opposite of "commercial" and the fact that the Family Y is non profit for municipal and federal tax purposes does not make it non-commercial within the meaning of the zoning regulations. The court disagrees. The word "non" as used in "non-commercial" is defined in Webster's Ninth New Collegiate Dictionary at p. 802 as "other than; reverse of; absence of" thus it must logically follow that the converse of "commercial" is "non-commercial" and while it is true that an entity's status as tax exempt does not determine whether it is commercial or non-commercial it is one of the numerous salient factors on which the commission was entitled to rely.
Finally, the plaintiffs point to other sections of the regulations to support their argument that "non-commercial" is not the opposite of "commercial" and that "nonprofit" and "non-commercial" are not synonymous. Plaintiffs offer as an example Sections 23-2.1.2, 32-4 and 32-7.3 of the regulations in which these terms appear. The court has examined these provisions and concludes that they do not support the plaintiffs' argument. They simply relate to different zonal classifications and are used in different contexts.
II. Reasonable Probability of Success; Section 43-3.2
"Zoning authorities are necessarily entrusted with the function of deciding within prescribed limits, and consistent with the exercise of legal discretion, whether a regulation applies to a given situation, and the manner of its application." Graff v. Zoning Board of Appeals, 277 Conn. 645 (2006).
Section 43-3.2 of the regulations requires an applicant for a special permit "to submit any required report or document set forth in Section 44-2 at least 14 calendar days prior to the public hearing or Commission review of an application. If any such report or document has not been submitted the Commission may deny the application." (Emphasis added.)
Section 44-2.2 entitled "State or Federal Agency Reports" provides as follows:
"The applicant shall EITHER obtain a written report indicating recommendations, preliminary approvals, final approvals or disapprovals from any State or Federal Department, Bureau or Agency such as the Connecticut Department of Transportation . . . State Traffic Commission . . . etc., having jurisdiction over the application or any aspect thereof; OR otherwise provide sufficient written State or Federal Agency approvals [sic] appears to have a reasonable probability of success. (Emphasis added.)
It is important to note that both provisions appear under the general title of "Special Permit and/or Site Plan Review Procedures" and that while the latter provision employs the word "shall" with respect to the filing of written [material,] the former provision, which establishes the consequence for failure to comply with the latter, employs the word "may." That is, the commission may deny an application if the required submission is not made.
The juxtapositional use of the words "may" and "shall" in the same piece of legislation has received wide consideration by our courts.
"In Fritz ( Fritz v. Madow, 179 Conn. 269 (1979)) we said that the word "may" as used in § 52-216a was permissive and not mandatory, and that its use in that statute "is a clear indication that a discretionary rather than a mandatory duty was intended." Fritz v. Madow, supra, 272, citing Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428 (1967). To reinforce this conclusion we indicated that the fact that this statute uses "shall" three times and "may" only once further supports the claim that "the legislature intended to distinguish those words according to their ordinary meanings." Fritz v. Madow, supra, 272; see Jones v. Civil Service Commission, 175 Conn. 504, 509 721 (1978). When we decided Fritz, we held that conventional rules of statutory construction required that "may" mean "may" thus conferring discretion, as the plain language of that statute indicated, and we adhere to that view in this case. We decide, therefore, that the trial court, in the face of this plain language embodying a clear expression of legislative intent, went too far in its efforts to salvage the statute against a constitutional attack. When language used in a statute is clear and unambiguous, its meaning is not subject to modification by construction. Jones v. Civil Service Commission, supra, 509; Hurlbut v. Lemelin, 155 Conn. 68, 73 (1967)." (Alternate citations omitted.) Seals v. Hickey, 186 Conn. 337, 345, 346 (1982).
The plaintiffs contend that the word "shall" as used in Section 44-2.2 is mandatory and noncompliance with the written submission requirement by the applicant requires reversal. Specifically, the plaintiffs point out that the commission did not have before it at the time it acted, the required reports or other "sufficient written State or Federal approval." All parties agree that certain words have been omitted from this clause rendering the clause grammatically incomplete. The parties further agree that the clause should read substantially as follows: "or otherwise provide sufficient written State or Federal Agency approvals indicating that the proposal appears to have a reasonable probability of success." (Added words underscored.)
Other principles of statutory construction aid the court's task of statutory interpretation. "It is a basic rule of statutory construction that a statute is to be construed as a whole. Rustici v. Stonington, 174 Conn. 10, 13 (1977) so that all of its parts can be reconciled as far as possible." Martone v. Lensink, 207 Conn. at 307. A statute should be construed so that no word, phrase or clause will be rendered meaningless. Verrastro v. Sivertsen, 188 Conn. 213, 221 (1982). The plaintiffs rely on Fedus v. Zoning and Planning Commission, 112 Conn.App. 844 (2009) which held that the word "shall" as used in Section 12.5.3.c.12 of the Colchester zoning regulations mandated the submission of approvals from state, local or federal agencies at the time the commission approved the site plan, that such approvals had not been given and failure to have such approvals invalidated the commission's action. Though the court in footnote 2 at page 857 of its opinion distinguished the site plan case from those involving special exceptions (also called special permits) and variances, the case is clearly distinguishable on the basis of the material difference between Colchester and Westport's regulatory scheme. Unlike Fedus where the court found the regulation to be mandatory and subject to no exception, Section 43-3.2 of the Westport regulations, by its very terms, unambiguously specifies the consequence or sanction for an applicant's failure to comply with any of the filing requirements set forth in Section 44-2.2. Applying the principles of statutory construction mentioned above, the commission is given discretion to deny an application for failure to comply with the filing requirements. Conversely, exercising its discretion, the commission had the right reasonably to approve the application upon its acceptance of what it implicitly deemed to be the functional equivalent of a written approval. The commission's ability to do so is reinforced by the fact that the regulation does not specify from whom such approvals must come. That the commission did precisely this is implicit in its formal resolution of approval.
There are other distinguishing characteristics between Fedus and the present case. For instance, in Fedus there is no indication that either the zoning regulations or the condition imposed by the commission required that prior to the issuance of a zoning permit, there be "proof of obtaining all necessary permits from the Connecticut Department of Transportation and the State Traffic Commission." (See No. 22O of the Conditions.) Furthermore, nothing in Fedus vested discretion in the commission to determine what is "sufficient" under Section 44-2.2. The word "sufficient" is defined in Webster's New World Dictionary, Second College Ed. at 1423 as "as much as is needed; adequate; enough." After correcting the grammatically incomplete sentence by adding words to make sense of the sentence, the commission was authorized to determine whether the written material it had before it was "sufficient."
This case is more like Smith v. Zoning Board of Appeals, 227 Conn. 71, 91 (1993) wherein the Greenwich Zoning Board of Appeals in reviewing a subdivision application failed to require a full environmental assessment when the subdivision regulations provided that the applicant " shall include an evaluation of the following . . ." (12 environmental factors.) In Smith, the plaintiffs argued that the language of the regulation made it mandatory that each of the 12 environmental factors be evaluated by the board of appeals and that the board acted improperly in not insisting that each of the twelve factors be addressed in the application and ultimately for not itself evaluating each of them. The court disagreed.
The court stated at P. 91-92: "Although subdivision (19) of § 6-266(a) employs the word "shall," it does not make sense to require the commission to evaluate factors that are not relevant to a particular subdivision. Whether the word "shall" is mandatory or precatory depends upon its context. See, e.g., Caron v. Inland Wetlands Watercourses Commission, 222 Conn. 269, 273 (1992). In construction of the words of a regulation, like those of a statute, common sense must be used. Police Department v. State Board of Labor Relations, 225 Conn. 297, 303 (1993). The items listed to be considered include some specific items that will not be implicated in every subdivision application. For example, in addition to historical and archaeological factors, the list includes animal habitats, significant geological formations and aquifer protection. Greenwich Land Use Regs. § 6-266(a)(19)(g), (1) and (k). Not every subdivision application will require the consideration of each of these factors. It would be a waste of time, money and energy for the participants involved to be required to gather information that is not relevant to the subdivision application." (Alternate citation omitted.)
It is this court's belief that although the indicators of probable success are of course necessary under Section 44-2.2, under the existing circumstances where it was an impossibility to obtain written indicators from DOT and STC until after the commission had acted, it would have been a waste of time, money and energy to delay action on the application until after receipt of the so called written evidence from these agencies. The functional equivalent was available to the commission through other written materials.
The court notes that in #20 of its decision the commission addressed the issue of whether the application was complete.
"20. COMPLETE APPLICATION The P Z Commission finds pursuant to § 43-4 that this application is a complete application. It is the Commission's standard practice that certain routine items required by the Commission may be submitted by the applicant at a date subsequent to the date that the application has been officially received, but before the issuance of a zoning permit. This is consistent with the past practices of the Commission. Only a limited number of documents will be submitted at a later date, all for valid reasons. The submission of these documents at a date subsequent to the date of the application has been officially "received" does not render this application incomplete at the time of filing."
It is apparent that the commission, with knowledge of the lack of strict compliance with Section 42-2.2, nevertheless approved the application knowing that such approvals from the state agencies would have to be forthcoming before a zoning permit or building permit could be issued. The commission wrote the following on this very point at paragraph no. 24. "In addition, the Commission recognizes that further review of this application will be conducted by the Connecticut Department of Transportation (ConnDot) under the offices of the State Traffic Commission (STC). By statute an STC permit is required to be issued for this project before a building permit may be issued by the Town of Westport."
Having found authority for the commission's action the court must next determine whether that authority was exercised in a reasonable, non arbitrary way. "In applying the law to the facts of a particular case, the board is endowed with liberal discretion, and its action is subject to review . . . only to determine whether it is unreasonable, arbitrary or illegal." Schwartz v. Planning and Zoning Commission, 208 Conn. 146, 152 (1988). Nevertheless, its action in approving the special permit must be based on substantial evidence in the record. Huck v. Inland Wetlands and Watercourses Agency, 203 Conn. 525, 540 (1987). "Substantial evidence" means enough evidence "to justify, if the trial were to a jury, a refusal to direct a verdict," Huck v. IWWA, supra at 541. Or, there must be a substantial basis of fact from which the fact in issue can reasonably be inferred. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).
The commission had before it the following evidence to support its determination. The traffic consultant hired by Y Downtown, speaking through its representative Michael Gallante, advised the Commission that the "State has approved several steps so far" namely, "the baseline traffic volumes for all peak hours, the 2009 no build traffic volumes, the site traffic numbers, the assignment of distribution of the site traffic which is based on where members live." To summarize, he stated "The state's approved all of that. By approving the base line, the no build, the site generation, the assignment of the site traffic, they automatically approve the build traffic volumes." Record, 4 t., pp. 17-19.
As for "written" indicators from these agencies the court notes that exhibits 500 and 600 of the record are letters from traffic engineer, Sharat Kalluri to the commission's planning director which contain evidence which permitted the commission reasonably to reach the "probability of success" threshold. It is noted further that the first part of Section 44-2.2 allows the commission to reach this level on the mere basis of "recommendations" from these agencies. The commission need not wait for even "preliminary approvals."
It is significant that the regulations do not require the commission to make a finding on the record that the proposal has a reasonable probability of success. Nevertheless, such a determination is implicit in its approval and ultimately, the probability was validated when the executive director of the STC issued his recommendation of approval to that commission on July 20, 2010.
While the evidence which the commission had before it was not technically written, it was not unreasonable or illegal for the commission to conclude that it was able to reach the threshold level of "reasonable probability" from the evidence in the record which it deemed sufficient. Although our courts have not defined the principle of "reasonable probability" our Supreme Court in Gerlt v. Planning and Zoning Commission, 290 Conn. 313, 327 (2009) did instruct that action is not reasonably probable when there is no evidence in the record that the agency whose approval is needed has any intention to grant that approval. It is obvious that that is not the case here.
There is no basis in the record to support a charge that the commission's confidence in the approval was or should have been undermined in any way to the point where that undermined confidence would have been tantamount to no evidence at all as that principle was applied by the court in Gerlt.
III. Interpretation of Section 31-12 of the Regulations Section 31-12 of the regulations provides as follows: "31-12 Aquifer Impact
"In order to help maintain drinking water standards, wastewater discharge into on-site septic disposal systems should not average more than 350 gallons per gross acre per day within that portion of the primary recharge area of the Saugatuck River Aquifer located north of the Kings Highway Bridge (St. Re. 57) as shown on the attached map which is from the "Guide to Ground Water Aquifer protection" report for Westport by SWLPA dated July 1080. Larger average discharges shall require either the installation of community sewerage systems or public sanitary sewers or the construction of smaller buildings i.e. fewer bedrooms or less gross floor area." (Emphasis added.)
The plaintiffs attack the commission's decision (# 21) because it expressly held that this section is not applicable to the Family Y's application because (a) it is a planning tool only; (b) it applies only to residential developments; (c) historically the commission has never applied this provision to any application, and (d) that if it were to be applied the particular sewerage system which it approved meets "a reasonable definition of community sewage system." Once again, the plaintiffs rely on Fedus v. Planning and Zoning Commission, supra, in arguing that the commission had no right to ignore the regulation by calling it a "planning tool." The plaintiffs charge the commission with making up the terminology "planning tool" because the term does not appear anywhere in the regulations. The commission adopted the term from a letter (Ex. 999) from the Connecticut Department of Environmental Protection ("DEP") to the Westport Conservation Commission which was required to and did approve the sewerage system for the project. This letter advised the commission to consider the specification of a maximum of 350 gallons of effluent per day per acre as a "planning number." The letter made reference to the history of the standard which originated in the regulation adopted pursuant to the Aquifer Protection Act (G.S. § 22a-354h through 22a-354t) in the 1970s and which the Westport Planning and Zoning Commission, acting pursuant to Section 22a-354n, adopted as part of its regulations. The DEP letter explains that "the number (350 gallons) was a general overall planning number for Aquifers and was not intended to be applied as a site specific limit." (Emphasis added.) Thus, the commission did not create the term, it adopted the term from the DEP regulatory scheme and merely used it in a context which enabled it to give a reasonable interpretation to the regulation and avoid a bizarre result.
The commission then went further and determined that Section 31-12, even as a planning tool, applies only to residential developments. Such an interpretation is entirely reasonable because the map area to which this regulation was intended to apply is almost entirely residential, including the subject property. Additionally, the regulation itself, in giving an example of how it should be applied, uses a residence as an illustration. Both administrative agencies and the courts may look to examples contained in the text of a statute or examples given by members of the legislature in their debates in ascertaining legislative intent. North Haven v. Planning and Zoning Commission, 220 Conn. 556, 564 (1991). Statutory words should be interpreted in the context in which they appear. Nichols v. Warner, 209 Conn. 191, 197 (1988). The rationale for the commission's interpretation is predicted on the inherently prohibitive effect of the regulation such that it limits a septic system to supporting only a two-bedroom house on a one-acre lot and fails to take into account any one of the numerous special permit uses permitted under Section 11-2.3 of the regulations for the AAA zone. In construing a statute, common sense must be used, and courts will assume that the legislature (here the commission itself acting in its legislative capacity) intended to accomplish a reasonable and rational result. King v. Board of Education, 203 Conn. 324, 332-33 (1987). Limitation of a one-acre lot to a two-bedroom house is not only unreasonable in Westport but it is not nurtured by common sense. When two constructions are possible the courts will adopt the one which will make the statute effective and workable and not one which leads to difficult and possibly bizarre results. State v. Parmalee, 197 Conn. 158, 165 (1985).
The commission's interpretation is further supported by the definition of "community sewerage system" as found in Section 7-245 of the General Statutes. There, the term is defined as "any sewerage system servicing two or more residences in separate structures which is not connected to a municipal sewerage system." This definition is consistent with the commission's expressed belief that Section 31-12 was intended to be applied to residences and not nonresidential special permit uses. Furthermore, Section 7-245 illuminates this statutory phrase because it addresses generally related subject matter. Smith v. Zoning Board of Appeals, supra at 84-85.
IV. The 100-Year Storm Drainage Analysis
The plaintiffs contend that the commission acted illegally when it failed to require the applicant to submit a storm drainage analysis containing runoff calculations for a 100-year storm as required by Section 44-2.4 of the regulations. The defendants respond that the commission had such analysis before it by virtue of the fact that the commission expressly incorporated the record of the Westport Flood and Erosion Control Board ("FECB") into its own record of this proceeding. The record confirms that the Chairperson of the commission explicitly incorporated that record into its own proceeding. It now must be determined whether there is substantial evidence in the record to support that analysis.
The record before the court has now been supplemented to include a relevant portion of the record of the Flood and Erosion Control Board (FECB).
As part of the municipal administrative review process the Family Y's application was submitted to the FECB. The record reveals that the Family Y's consultant, Michael Bartos, a professional engineer, analyzed the effects of a 100-year storm in his written presentation to the Board of September 6, 2006, the relevant portions of which are as follows.
"The broad approaches to stormwater management for the site as taken by the Applicant appear to be reasonably sound and conventional. It should also be noted that the Applicant has analyzed the entire watershed of Poplar Plains Brook and the affects of the proposed site conditions on the watershed prior to the confluence of the brook and Saugatuck River. From this analysis it was determined that the peak flow rate in Poplar Plains Brook for a 25-year storm prior to the development will be essentially the same once the development is completed. This is due to the fact that the site is located at the bottom of the watershed and any increase in peak flow from the site will not coincide with the peak flow from the watershed. Furthermore, it should be noted that no site runoff will be directed to the Saugatuck River under the proposed site conditions."
Poplar Plains Brook flows through the property from west to east and into the Saugatuck River.
"The encroachment of the building and fill into the flood plain is insignificant. The maximum amount of flood storage displacement is 0.085 acre-feet or 3700 cubic feet."
"This compares to more than 130 acre-feet (5.7 million cubic feet) of flood storage available in Lee's Pond between the Lee's Pond Dam and Poplar Plains Brook. Considering that the 100-year discharge in the Saugatuck River is 12,600 cubic feet per second, the loss of 3700 cubic feet of storage is meaningless."
"F. Hydraulic Calculations — The Applicant utilized HydroCAD® software for the design calculations related to the storm management system. The program has a default setting of 5 hours to 20 hours for hydrograph computations, while it is standard to utilize a full day in computations (i.e. 0 hours to 24 hours). While it would be more appropriate to represent the time frame of 0 hours to 24 hours, in this instance, the time frame does not affect the runoff or peak time, it only affects the runoff volume and runoff depth."
And finally part of the FECB record which the commission incorporated in its record is the minutes of December 7, 2005 in which the following relevant advice was given by the Town Director of Public Works (DPW). "The Board asked Mr. Ratkiewich (DPW Director) for his professional comments. Mr. Ratkiewich stated that the project is in Floodzone A6 with a 100 year flood at elevation 12. There is no floodway in the Saugatuck River."
The Federal Emergency Management Agency (FEMA) defines "floodway" as follows.
A "Regulatory Floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height. National Flood Insurance Program Regulations. Section 59.1.
The court agrees with the defendants that the above constitutes an analysis with calculations which the commission was entitled to consider as reasonably meeting the requirement of Section 44-2.4. On the basis of this analysis the commission was entirely justified in finding that "storm water impacts . . . can easily be mitigated through a series of conditions and modifications." It is significant that the plaintiffs do not attack this finding, undoubtedly because there is substantial evidence in the record to support it. These findings are further supported by the fact that pursuant to Section 44-2.4(c) the commission satisfied itself that it had the necessary written approvals from FECB and the town engineer-director of public works. To the same basic effect is Section 8-2e(b)(1) of the General Statutes.
Next, the plaintiffs charge that the commission improperly delegated the decision relating to traffic management to the STC and specifically entrusted to that agency the determination of what corrective actions should be required to mitigate the effect of an increase of traffic to the project as a condition of its approval. Plaintiffs refer to paragraphs 24(b) and (c) of the commission's decision in which the commission noted that the State Route 53/57 Intersection " may need physical improvement," and that "a traffic light may be needed" at the Route 33/Partrick Road Intersection." (Emphasis added.) The plaintiffs claim that this language recognizes specific traffic problems but leaves their solution up to the unpredictable planning process of the STC and DOT. There is no evidence in the record to indicate, at least in this case, that the STC and DOT have been unpredictable.
As an initial matter the court notes that the word "may" as used in these expressions hardly denotes a finding of immediate or even short-term need. On the contrary, the commission recognized that both of these intersections are controlled exclusively by the State and that experience over time will indicate whether any such improvements are necessary. Nevertheless, the commission has no power under the general statutes or its own regulations to order improvements to state highways. This is why in condition #7 the commission recommended that the town work with the state to improve conditions at these intersections, reflecting the reality that the town may cooperate in but may not mandate improvements to state highways.
The commission readily acknowledged its lack of authority as evidenced by the following statements, one by a commissioner and the second by the commission's Planning Director.
Commissioner Lowenstein: "Actually, I — I don't think we can require the applicant to physically alter the intersection, but I do think that we ought to make some kind of statement in this that the Town and DOT, because it's a problem now, should work together to get that fixed; and I also think the one at Exit 41 going south and also the one on Newtown Turnpike, someone ought to review that and see what the problem is."
And Planning Director Bradley said: "We cannot dictate — Since it's a State road, we can recommend that they change timing, but we can't dictate because if the STC doesn't make them do it, then we can't force the State to change the timing on the State's traffic light. Remember, these traffic lights are the State's traffic lights. So we can recommend it. We can say that will help mitigate, but I don't think we can require it. Now, the STC gets a copy of our decision and they will not make their decision until they review our decision. MR. KASANOFF: We can request, but we can't require it? MR. BRADLEY: Yeah. We can make recommendations — recommendations in our decision that will go to the STC."
The defendants contend that there could be no illegal delegation of responsibility because pursuant to Section 44-2.5 of the regulations entitled "Requirements for Traffic Impact Analysis" and specifically subsection (d), special permit review of adverse traffic impacts is limited to "adjacent streets." Section 44-2.5(d) provides the following.
"(d) Where it is projected that the additional traffic resulting from the project will exceed a volume/capacity ratio of 0.8 on the adjacent streets, increase the peak hour volume by ten (10) percent or more, reduce the Level of Service to "D" or below for the intersection as a whole, or further reduce the Level of Service when it is already at "D" or below for the intersection as a whole, the Commission may at its discretion require that:
(1) provision be made by the applicant for the improvement of said inadequate condition; or
(2) the proposed project be otherwise reduced or modified to mitigate the adverse impacts." (Emphasis added.)
Such limitation to "adjacent streets" apparently is not uncommon among traffic engineers for the commission's traffic consultant, Sharat Kalluri advised the commission as follows.
Based on the definition, Mr. Gallante is correct that the adjacent street system typically in a traffic engineering profession is the immediate street system that abuts the property. It should be in this case the Merritt Parkway connector, the Merritt Parkway eastbound ramps, possibly the Route 33, Spring Hill Road intersection."
So, for the commission, the streets adjacent to the site do not include either the Route 33/57 or the Route 33/Partrick Road intersections both of which are a considerable distance from the site.
The Commission duly exercised its authority over adjacent streets by imposing condition number 1 which provides as follows.
" ACCESS FROM RICE'S LANE All vehicular access to this site except for emergency service vehicles shall be via Sunny Lane. A gate or gates shall be installed on the south side of the property to prevent such access from Rice's Lane and River Lane except by emergency service vehicles. The applicant shall not provide parking facilities for public access at the south end of the property near Rice's Lane. There will be no vehicular access from Rice's Lane and River Lane pursuant to PZ resolution #80-70 dated July 30, 1980."
The parties disagree on whether the language employed in the Section 44-2.5(d) in fact limits the commission's authority. Indeed, they disagree on the meaning of the word "adjacent." Therefore, it is the meaning which the commission attached to the word that must be vetted by the court. The record reveals that the commission had before it a definition drawn from the Merriam Webster Online dictionary. That definition gives several synonyms, namely, "adjoining, contiguous, juxtaposed," each of which is further defined as being "side by side" or "next to one another."
As stated earlier, Section 5-1 of the regulations obligates the commission to resort to "Webster's New Collegiate Dictionary no more than 5 years old" for dictionary definitions. That dictionary at p. 16 gives a similar definition, i.e., "having a common end point or border, immediately preceding or following." The plaintiffs seize upon an alternate definition that gives as its meaning, "nearby" arguing that both intersections are nearby the site. The court has viewed the site with counsel and has traveled to both intersections and concludes that the meaning of "nearby" is nebulous, relative and difficult to apply, whereas the term "adjacent" has a clear and fixed meaning and is easy to apply. See, Parsons v. Wethersfield, 135 Conn. 24, 29 (1948). This is made clear by the following commentary which accompanies the definition in both dictionaries: "adjacent may nor may not imply contact but always implies absence of anything of the same kind in between; a house with an adjacent garage." (Emphasis added.) In the present case, between the subject site and these two intersections are numerous intervening properties owned by others. Thus, under the definition which the commission adopted, neither intersection can be considered "adjacent."
Our Supreme Court had occasion to consider the meaning of the words "immediately adjacent" as used in the predecessor to Section 8-3(b) in evaluating and validating a rezoning protest petition. In Parsons v. Wethersfield, 135 Conn. 24, 29 (1948) the court deemed the term to be synonymous with "adjoining or abutting." Moreover, our courts have consistently recognized the real distinction between "adjacent" and "nearby." Two examples may be found in Fellician Sisters v. Historic District Commission, 284 Conn. 838, 807 (2008) and Florentine v. Darien, 142 Conn. 415, 419 (1955). In the former the court differentiated between "adjacent" and "the neighborhood" and in the latter, the distinction was between "adjacent" and "not for distant." Our courts have consistently construed the term "adjacent" when used in the context of a zoning regulation as synonymous with "contiguous." Newman v. Zoning Board of Appeals, 14 Conn. 55 (1988). To adopt the plaintiffs' version of the meaning of "adjacent" would make no sense.
The plaintiffs also object to the commission adopting a condition which requires the Family Y to sponsor a traffic impact mitigation plan, taking into account any modifications or conditions imposed by the STC, and which requires that the plan be paid for by the applicant. Plaintiffs argue that such a condition is illusory because the natural tendency will be for the Family Y to skimp on the study because it is responsible for its cost. This allegation has no merit for the simple reason that the commission required that the final plan as submitted be subject to "peer review" by the town's traffic consultant to ensure that all of the recommendations accepted by the town are implemented. Since condition # 1 and # 22 mandate that all conditions be met and that all necessary permits be obtained from the DOT and STC prior to the issuance of a zoning permit the Family Y will have no opportunity to skimp on the study in an effort to save money.
VI. The Public Access Easement
The plaintiffs contend that the commission had no authority to impose condition #12 which requires the Family Y to file "an open space access easement on the Westport Land Records for the public access along the Saugatuck River" as described in finding #29. The plaintiffs predicate their attack on the reading of Parish of St. Andrew's Protestant Episcopal Church v. Zoning Board of Appeals, 155 Conn. 350 (1967).
It is well established that the power of a planning and zoning commission to impose conditions on the grant of a special permit is limited by the express grant of power from the legislature, both state and local or those powers which are necessary to enable the commission to discharge the duties and to carry into effect the object and purposes of its creation. A condition not supported by proper authority must be invalidated. UpJohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 101 (1992).
An analysis of this contention begins with a verbatim restatement of finding #29.
29. PUBLIC ACCESS The PZ Commission finds that providing public access on this site along the Saugatuck River is appropriate and consistent with the 2007 Westport Plan of Conservation and Development (POCD). On page 4-2 the POCD states " In some instances, the land for the shoreway and riverway systems may have to be purchased and in other instances, such as those in non-profit ownership negotiations would be made with the landowners for rights of passage." Camp Mahackeno is located at a junction where the 2007 POCD proposed a riverway along the Saugatuck River and the proposed trailway along the Merritt Parkway converge. The Mahackeno site provides a connection point between these two linear pathway systems. The applicant testified that it would be amenable to having some form of public access on the property, provided that persons using such access obtain some type of pass or other documentation provided to them by the Y. The applicant felt strongly that such a system would be required to insure safety and security of the facility and the camp. The Commission finds that the Camp Mahackeno site should 1) provide for public access as mentioned in the POCD; 2) that there shall be no parking for such access at the south end of the property near Rice's Lane; and 3) that the Y shall be allowed to establish reasonable safety measures and protocols with respect to the use of such public access.
In Parish of St. Andrew, the Stamford zoning board of appeals granted a special exception for the construction of a gas station. As a condition of granting the special exception the board required the owner to convey a strip of land to the city for highway widening at the city's request. The condition further provided that if the owner failed to comply with the city's request the special exception would be revoked at the option of the board. The aggrieved plaintiff challenged the special exception on the grounds that the board exceeded its powers in reserving the right to revoke the grant of the special exception. Id., at 352. The court struck down the special exception, holding that the condition "does not come within the expressed authority of the board or relate to the standards promulgated in the regulations." The court held that such authority could not be found in the following section of the Stamford zoning regulations. "The Board may exercise its powers and duties subject to appropriate conditions and safeguards in harmony with the purpose and intent of these regulations and in accordance with the public interest and the most appropriate development of the neighborhood." The court stated "so much of the decision as imposed the condition and reserved the right to revoke the permission at the option of the Board is void and of no force." Id., at 354. (Emphasis added.) The court reads this opinion not as invalidating the condition because it required conveyance of land to the city but because the condition had attached to it a right, at the option of the board, to revoke the special exception upon the happening of a specific event, namely, the property owner's refusal to convey the strip of land to the city. Thus, what was objectionable to the court was not the mandated conveyance but the right of revocation by the board at its option. By contrast, condition #29 not only does not contain a right to revoke the special permit at the option of the commission in the event that the Family Y fails to create the easement, but the condition was imposed pursuant to a general grant of authority found in Section 44-6 of the regulations. Likewise, the commission stated at #30 of its standard conditions the following: "This is a conditional approval. Each and every condition is an integral part of the commission decision. Should any of the conditions, on appeal from this decision, be found to be void or of no legal effect, then this conditional approval is likewise void. The applicant may refile another application for review." This does not render the permit revocable at the option of the commission upon the happening of a specific event.
The relevant portion of Section 44-6 provides as follows: In reviewing a Special Permit application or an application for a change in a Special Permit use, the Commission shall consider all the standards contained in § 44-5, Site Plan Standards and Objectives, herein, and shall take into consideration the public health, safety and general welfare and may prescribe reasonable conditions and appropriate safeguards to assure the accomplishment of such standards and objectives. In granting any Special Permit, including any change in a Special Permit Use, the Commission shall determine that the proposed use conforms to the overall intent of these regulations and shall consider in each case whether the proposed use will: (1) be in conformance with the Town Plan of Development; (7) preserve important open space and other features of the natural environment related to the public health, safety and welfare; (8) not obstruct significant views which are important elements in maintaining the character of the Town or neighborhood for the purpose of promoting the general welfare and conserving the value of buildings.
While there is no general statutory requirement that the grant of a special permit be in accordance with a municipal plan of conservation and development (POCD) Section 44-6(1) and (7) require the commission to "consider in each case whether the proposed use will be conformance with the plan of development and to preserve important open space and other features of the natural environment related to public health safety and welfare."
As for the POCD, the commission cited the text of that document at p. 4-2.
"In addition to preserving open space where opportunities can be found, The Plan recommends, as a priority, that Westport strive over the long term to create a "greenway" system of open spaces and pathway connections.
a "shoreway" — extending from Fairfield to Norwalk along and near Long island Sound,
a "riverway" — from Long Island Sound to Weston along and near the Saugatuck River (and
a "trailway" — from Norwalk to Fairfield within the right-of-way of the Merritt Parkway.
In some instances, the land for the shoreway and riverway systems may have to be purchased and in other instances, such as those in non-profit ownership, negotiations would be made with the landowners for rights of passage. Where adjacent land is not available, connections will have to be made with sidewalks and bicycle paths along and near road . . ."The greenway strategies along waterways build on the open space resources most prized by residents and seek ways to make them even better. The trailway along the Merritt Parkway, while requiring cooperation with adjacent towns to create a viable system, will provide additional open space and recreational opportunities for residents of Westport and the region. Pg 4-2."
The commission then went on to find explicitly that "this project is consistent with this and other sections of the POCD." In doing so, the commission carried out not only the letter of G.S. § 8-3a but also its spirit, and notwithstanding the principle that generally the POCD is advisory only to the commission acting in its administrative capacity, Hawkes v. Town Planning and Zoning Commission, 156 Conn. 207, 212 (1968), in granting this application, the commission furthered the goals which it had previously set in its planning capacity when it adopted the POCD.
Thus, contrary to the plaintiffs' claim, there is express statutory authority for the commission to impose a condition which would assure implementation of the POCD and "preserve important open space." Where the property owner does not object to such a condition it is wholly within the power of a planning and zoning commission to fashion a reasonable means to accomplish its prestated planning goals of promoting open space and creating a "riverwalk" for public enjoyment. In the present case, it is the aggrieved plaintiffs not the property owner who objects. Such a permanent easement will prevent the "obstruct(ion) of significant views" of the Saugatuck River in furtherance of subsection (8) of Section 44-6.
The principle embodied in the requirement that a property owner in developing his land be made to dedicate a portion of his land for open space has long been recognized as a proper planning device in the field of subdivisions Section 8-25 of Gen. Stat. Although not expressly authorizing a zoning authority with special permit power to condition that permit on an open space dedication, § 8-2(a) expressly empowers a zoning commission to enact regulations which allow a special permit to be made subject to "conditions necessary to protect the public health and safety." The constitutional justification for such a requirement is consistently found in the police power. Aunt Hack Ridge Estate v. Planning Commission, 160 Conn. 109, 118 (1970).
Our courts have recognized that a public access easement designed to create a water-adjacent riverwalk can be an appropriate condition to the grant of an administrative permit under the proper circumstances. DeBererdinis v. Zoning Commission, 228 Conn. 187 (1984). As the Appellate Court stated in Farmington v. Viacom Broadcasting, Inc., 10 Conn.App. 190, 194 (1987), "the regulations (zoning) do not restrict the commission's power to grant or deny special exceptions to narrow or specified grounds alone. Rather, the regulations give the commission authority to make decisions within broad, general limits related to a proposed structure's impact on the community." The court went on to approve the condition which required the removal of a communications tower as "within the scope of the regulations . . . related to aesthetics and property values." Id., at 196. The creation of a riverwalk open to the public clearly promotes the good health, aesthetics and property values of the community.
As a final defense, the defendants assert that through their counsel at the public hearings the plaintiffs advocated the creation of a public access easement which would not be limited to use by members of the Family Y but which would be open to the general public. The significance of this is that it is not unlike the performance of the applicant's counsel in Fletcher v. Planning and Zoning Commission, 158 Conn. 497, 505-08 (1969), wherein counsel "invited" commission members to "reflect on" whether they should disqualify themselves from sitting on the plaintiff's application. In disapproving of this behavior the court found that such an invitation was less than forthright and if the plaintiff wished to have the commissioners disqualify themselves, he should have said so. Similarly, in the present case, counsel for the plaintiffs invited the commission to require that the public access condition be broadened to include use by the general public and when the commission did precisely that in adopting the condition (#29) they now attack the condition as being beyond the scope of the commission's authority. "Modern procedural concepts regard with disfavor, the failure whether because of mistake of law, inattention or design, to object to errors occurring during the course of a trial until it is too late for them to be corrected and thereafter if the outcome of the trial proves unsatisfactory, the assignment of such error has grounds for appeal." Id. at 507-08. Having advocated for public use of the riverway the plaintiffs cannot now be heard to challenge it because it exceeds the commission's powers.
For the foregoing reasons the appeal is dismissed.