564 A.2d 1075 | Conn. Super. Ct. | 1989
The plaintiffs appeal to the Superior Court from the denial by the planning commission of the town of Naugatuck (commission) of their application for a special exception to excavate gravel from their premises at Brook Street and Donovan Road. Section 32 of the Naugatuck zoning regulations sets forth the procedure to be followed for special permits.
The court finds that the plaintiffs, as owners, are authorized under the statute to bring this action. They *197 have proved their ownership from the date of application to the date of trial.
The plaintiffs claim that their appeal of the commission's decision should be sustained for the following reasons: (1) an alternate member of a separate zoning commission appeared in opposition to the application at the public hearing; (2) the commission predetermined the application; (3) the status of the parcel as a nonconforming use entitled the plaintiffs to continue that use provided their meeting the standards for safety and control of the operation set forth in the regulations; (4) the decision is "without sufficient municipal interest" and amounts to "confiscation"; and (5) the reasons for denial given by the commission are not supported by the evidence at the hearing held on the application.
The plaintiffs' other claims, which were not briefed, are considered abandoned.
The court finds that General Statutes §
The commission admits that Daniel Adams spoke against the application at the public hearing but asserts that he was only an alternate member of the zoning commission and, as an alternate, was not barred from appearing before the planning commission. The commission further asserted that, in any event, since Adams lived across the street from the proposed gravel pit, he had the right to speak in defense of his own property rights and that, by speaking as a principal, he did not violate the statute by "appearing for or represent[ing] any other party" since Adams was appearing for himself.
This court rules that Adams was neither barred from such an appearance, nor was the commission's action voided by his appearance.
It is clear from the record that Adams, an alternate commissioner, lives across the street from the premises. Section
The plaintiffs allege, however, that Adams violated the second statutory prohibition by appearing before another zoning board. The court disagrees.
The plaintiffs claim that the statute covers both alternates and regular members and argue that "a member is a member is a member." Neither does the matter *199 hinge on that tautological reference reminiscent of the late Gertrude Stein, nor does it hinge on regular or alternate status. The real issue is whether any member, regular or alternate, is barred from speaking at a hearing where one acts in one's individual interest as a property owner, rather than as an advocate for others.
The record shows that Adams did not purport to speak for anyone other than himself.
Section
What the plaintiffs' argument comes down to is that §
Adams' testimony was therefore not barred by §
To support a predetermination claim, there must be a showing that the commission had made up its mind regardless of any evidence or argument produced at the public hearing. Daviau v. Planning Commission,
The named plaintiff testified at trial that at a meeting held after the hearing date, commission member Sandra Decker made the motion to deny his application by reading the motion from a yellow pad on which *201 the reasons for rejection were listed. He further testified that there was no discussion among the commissioners before the vote was taken at this meeting.
The record indicates that the hearing was conducted fairly and that people favoring and people opposing the application both had opportunities to present their views. Neither the state nor the federal constitution, nor their procedural due process requirements require zoning commissioners to come to their duties in a mental vacuum. See Young v. Town Planning ZoningCommission,
The record and evidence do not support a finding of predetermination. As put forth in Daviau v. PlanningCommission, supra, for the plaintiffs to prevail, they had to establish that the commission would have disapproved the application regardless of the evidence or arguments which were presented at the public hearing. In essence, the plaintiffs had to establish that the public hearing was a sham. In the absence of a showing that the public hearing was held merely to comply with the statutory requirements, it cannot be said that the action of the commission was arbitrary, invalid or predetermined. Schwartz v. Town Planning ZoningCommission,
There was no predetermination of the application because there is no evidence that the commission had made up its mind prior to hearing the application.
The formal written resolution from which one member read during the voting on the application at a subsequent meeting, which the plaintiffs cite as evidence *202 to support their argument, is evidence of a permissible subsequent determination rather than evidence of an unlawful previous determination.
The plaintiffs applied for a special permit to remove gravel from four plots on a map. The scale of this map indicates they proposed to mine an area of approximately twenty acres, which had not previously been excavated.
The commission argues that, as the area which the plaintiffs sought to excavate is not in the same area where other excavation had been done, the nonconforming use argument is unavailing. Section 44-7 of the zoning regulations provides: "No nonconforming use of land shall be enlarged, extended or altered." Section 44-8 states: "No nonconforming use of land shall be moved to another lot or outside the lot."
The commission further urged at oral argument that the plaintiffs' attorney had agreed to and did in fact make the application for such permit. This last contention is borne out by a reading of the record. At no time did the plaintiffs insist at the public hearing that they had a right, by virtue of some nonconforming vested right, to carry on the excavation for which approval was sought. *203
General Statutes §
One of the purposes of §
A nonconforming use is defined as a use or structure "in existence" on the date regulations are adopted that would make such a use illegal if begun thereafter. T. Tondro, Connecticut Land Use Regulation (1979) p. 62.
The General Assembly first generally authorized adoption of zoning by towns in 1926. Subsequent special acts authorized zoning in some specific towns as well.
The plaintiffs claim a nonconformity because of a use in 1926. The evidence in the record is vague and is merely a narration at the public hearing by the plaintiffs' attorney without entry of deeds, competent testimony, affidavits or other evidence to support the truth of this allegation. On the basis of this thin record, the commission was not obligated to find a nonconforming use. *204
It is noteworthy that the record is also devoid of evidence of the extent of such an alleged use. Logic dictates that there be some evidence upon the record that the use was substantial enough so that it could be determined that such a dedication of the premises was being made. A shovel full of gravel, carried off in a bucket once a year, does not a gravel pit make.
Furthermore, the plaintiffs failed to show, upon the record, whether zoning existed in Naugatuck in 1926 or, if it existed, whether it authorized gravel excavation in any zone. No map or other evidence was made a part of the record to show whether the plaintiffs' land was located in any zone which authorized gravel excavation. In other words, assuming, arguendo, that the plaintiffs' predecessors were using the application site for gravel excavation, the record is still devoid of evidence that they did so lawfully, either because no zoning existed or because zoning had been adopted but permitted the nonconforming use at that time. This kind of evidence is the sine qua non of establishing a legally vested right arising out of a nonconforming use. Since it is absent, the plaintiffs have not established any right under that doctrine by virtue of any activities alleged to have occurred in 1926.
Regarding the claim of nonconformity because of right arising out of a prior landscape ordinance which was no longer in effect at the time of the application, that prior ordinance was neither made a part of the return of record, nor did the defendant seek to amend the return to put it before the court. Therefore, it is not possible, in this proceeding, to determine what rights, if any, that repealed ordinance conferred. The court finds for the commission on this issue.
The constitution of Connecticut, article
When property cannot be utilized for any reasonable and proper purpose, as where the economic utility of the property has for all practical purposes been destroyed, a confiscation or taking in the constitutional sense has occurred. Wright v. Shugrue,
In Dooley v. Town Plan Zoning Commission,
Both the federal and state constitutions have similar provisions requiring just compensation where a taking occurs. The confiscation issue can be raised in an administrative appeal from an amendment of zoning regulations. The commission has raised no objection as to the court's consideration of this issue in this appeal.
The plaintiffs still have use of their land. A gravel mine has not been permitted. Other uses of the property, however, are not foreclosed, including the residential use for which it is now zoned.
The commission contends, and the court agrees, that since the plaintiffs can make other uses of their property, they have not sustained their burden of proof as to this issue. The record indicates the concession in testimony from one of the plaintiffs' witnesses, Mr. Triano, that development is possible now, of at least part of the land on which the permit is sought, for residential use under the existing R-15 zoning. It was the plaintiffs' burden, which they have not sustained, to show that it could not be used for other purposes.
The commission's action in regulation is not destructive, confiscatory or so unreasonable as to be arbitrary. The plaintiffs have not shown that the regulation has so deprived them of the use of their property that, for all practical purposes, they have no economic benefit from it while being left with its burdens. See Dooley v. Town Plan Zoning Commission, supra, 308. Furthermore, there is no evidence in the record from which the court could make any finding that the amount of the plaintiffs' loss was so great as to constitute a taking. *207 There is no appraisal evidence to indicate the property's value as a gravel bank as opposed to some other use. In short, there is no evidence indicating the extent of any claimed loss to satisfy the fundamental criterion for determining that the exercise of police power amounted to a taking, necessitating use of the power of eminent domain and compensation. Luf v.Southbury, supra.
A municipality has sufficient interest in traffic safety relating to truck access and proposed topographical changes to engage in reasonable regulation. The plaintiffs, having made application under the ordinance, cannot now attack its constitutionality.
The plaintiffs maintain that General Statutes §
It is neither reasonable nor rational to permit applicants who have employed numerous extensions to delay action on an application from the fall of 1986 until the spring of 1987, and then to claim, upon the application's denial, that the commission had nothing remaining before it to deny because the application as finally modified should have been automatically approved since it should have been acted upon four months sooner. Furthermore, such a result would be unjust. Zoning applications should be decided on a complete record. Neighboring property owners also have rights protected by zoning, including the right to appeal. It is one thing to make neighbors' rights hollow by express statute; see, e.g., General Statutes §
On the basis of the evidence and the record, the court finds this issue for the commission. *209
In granting a special exception, a commission acts administratively. Granting an application is necessary where all standards of the ordinance are met, but the application must be denied where they are not.
Where the commission has cited reasons for its decision, the court must search the record to determine whether the record supports any one of them. If even one of them is reasonably supported by the record, the court must dismiss any appeal based on that ground.Goldberg v. Zoning Commission,
In this case the record indicates the commissioners actually walked the property. The application was denied with four votes against and one abstention, for the following reasons: "(1) Section 31.4.4, which states, excavation will not impair the future use of the property, will not impair good development and safe use of the property after the excavation; (2) Section 31.4.5, which states, the excavation will not depress land values or adversely affect surrounding property in the neighborhood; (3) Section 31.4.11, which states, that the proposed truck access will not create safety or traffic hazards; (4) Plan of Development, pg. 3, which states, maintain as much of the natural landscape and topographic features as possible; (5) Plan of Development, pg. 4, which states, prevent the intrusion of incompatible uses into residential areas; and (6) Plan of Development, pg. 5, which states, prevent excavations from impairing the future use or development of a site." *210
Section 32.5 of the zoning regulations sets out "generalconsiderations" (emphasis added) which shall be considered by the commission before it acts on a special permit application. Subsection 2 of § 32.5 requires the commission to consider "the effect of the proposed use on any adopted plan of development for the Borough."
The application proposed removing 130,000 cubic yards of material from the site, which is a steep hillside, according to the contour map in the record. The plan of development in the record was adopted in 1974 and page three provides that the proposed use should maintain as much of the natural landscape and topographic features as possible. The ordinance refers to the plan of development, not the comprehensive town plan.
The commission actually viewed the premises. The court is therefore unwilling, in light of the record, to substitute its judgment for that of the commission that the proposed removal of 130,000 cubic yards of material from the application site would not maintain as much of the natural landscape and topographic features as possible.
Section 31.4.11 of the zoning regulations prevents the commission from granting a special permit where the proposed truck access will create safety hazards. This third reason for denial is reasonably supported by the record and the commission reasonably could have found that the proposed haul road for removal of material would create such a hazard.
Although the plaintiffs' attorney at the meeting during which the matter was voted down spoke of providing access from Donovan Road and Brook Street, the actual map filed shows access only from Brook Street. *211
The haul road shown on the erosion control plan which formed part of the application and is in the record shows only one way in and out through a road known as Brook Street near its junction with Cold Spring Circle. A member of the audience at the public hearing asked if the plaintiffs were "still going to run truck traffic the same way they originally planned." The plaintiffs' attorney responded that "the same pattern will be proposed with entrance from Donovan Road and [exit] on Brook Street so that they would have a continuous cycle and not any two-way traffic on any one of the roads." No amendment to the plan appears in the record, however. The application map filed shows only one way in and out through Brook Street which comes to a dead end near a boundary of the property. Section 31.4.11 of the zoning regulations permits the commission to deny approval where safety or traffic hazards would be created. The court will not substitute its judgment for that of the commission since the record indicates the roads in the area of the plaintiffs' premises are narrow and must service school buses. The commission reasonably could have concluded the truck access using only one haul road in and out would create a safety hazard. See also Naugatuck Zoning Regulations, § 32.5.3.
For all of these reasons the appeal is dismissed.