165 Conn. App. 761
Conn. App. Ct.2016Background
- Real Time Investments sought to build a McDonald’s with a drive-up window on a 4.027-acre Monroe parcel; part of the parcel had prior DB1 commercial zoning and part was residential (RC).
- In 2009 the Zoning Board of Appeals granted Real Time a variance allowing a drive-up window; neighbors (the plaintiffs) received notice but did not appeal that variance.
- In 2010–2013 Real Time applied to the Planning & Zoning Commission for a zone change (to DB1), site plan approval and a special exception; prior appellate decision (MacKenzie) had held a prior special exception unlawful where it varied setback and buffer requirements.
- For the 2013 application, most of the rear parcel contained inland wetlands and heavy natural vegetation; Real Time proposed an underground septic system in the rear, wetland-approved landscaping, and a conservation easement restricting future development.
- The commission approved the zone change and granted the special exception (4–1), accepting the natural vegetation/wetlands-based approach instead of the regulation’s three-row evergreen buffer; plaintiffs appealed to Superior Court, which upheld the commission; plaintiffs appealed here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the commission had authority to waive/relax required three-row evergreen landscape buffer where buffer area includes wetlands/natural vegetation | MacKenzie/ plaintiffs: commission abused discretion by approving special exception without enforcing required three-row evergreen buffer | Real Time/commission: regs allow the commission to accept natural vegetation or waive/prescribe alternative buffers for inland wetlands; record shows wetlands, woods, wetlands commission approval, and conservation easement | Court: affirmed — commission acted within discretion to accept natural vegetation and wetlands-based alternatives; decision not arbitrary or illegal |
| Whether the 2009 variance is subject to collateral attack now (i.e., can plaintiffs challenge the variance as ultra vires) | Plaintiffs: 2009 variance exceeded board authority and thus may be attacked as invalid; no justified reliance | Real Time: plaintiffs received notice in 2009 and failed to timely appeal; variance became final and not open to collateral attack absent exceptional showing | Court: affirmed — plaintiffs failed to meet the high standard for collateral attack; record does not show the variance was so beyond zoning power as to prevent justified reliance |
Key Cases Cited
- Raymond v. Zoning Board of Appeals, 76 Conn. App. 222 (discusses standard of review for zoning regulation interpretation and commission discretion)
- Double I Ltd. Partnership v. Plan & Zoning Commission, 218 Conn. 65 (zoning commission’s liberal administrative discretion; review limited to arbitrariness/illegality)
- MacKenzie v. Planning & Zoning Commission, 146 Conn. App. 406 (prior appellate decision finding commission lacked authority to grant special exception that varied setback/landscape buffer)
- Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96 (failure to timely appeal zoning decision deprives court of jurisdiction; collateral attack exception narrowly construed)
- Torrington v. Zoning Commission, 261 Conn. 759 (high standard for permitting collateral attack on unchallenged zoning decisions)
- Caltabiano v. L & L Real Estate Holdings II, LLC, 122 Conn. App. 751 (jurisdictional review is plenary; court lacks discretion to consider merits if jurisdiction absent)