78 Conn. App. 242 | Conn. App. Ct. | 2003
Opinion
The defendant, the planning and zoning board of the city of Milford (board), appeals from the judgment of the trial court sustaining the appeal of the plaintiff, Oakbridge/Rogers Avenue Realty, LLC (owner). The board had denied the owner’s petition to amend its special permit to add four boat slips to its existing pier in Milford harbor. On appeal, the court
We begin by setting forth the facts and procedural history that are relevant to the defendant’s appeal. The owner is a limited liability company holding title to 2.1 acres of real property at 20 Rogers Avenue in Milford.
The board held a public hearing on the owner’s petition for an amended special permit on April 17, 2001. At that time, the owner presented the board with a statement of use, which indicated that the harbor management commission had found that the proposed application was consistent with the harbor management plan. The owner also presented expert testimony that the additional slips would produce traffic consistent with the addition of a single-family house on Rogers Avenue and that real property values would not be affected negatively by the additional boat slips. Some of the owner’s neighbors voiced support for the petition.
A greater number of neighbors, however, opposed the petition, noting that in the past, as many as eight or nine boats were docked at the existing four slips and that some of those boats did not belong to the owner.
The petition was discussed at a meeting of a board subcommittee on April 24 and May 29, 2001. On June 5, 2001, the board voted in favor of a motion that “the [owner’s] petition for additional boat slips is inconsistent with the residential zone district within which 20 Rogers Avenue is located.” The owner appealed from the board’s decision to the Superior Court, which sustained the owner’s appeal. The court concluded that the board had exceeded its authority in denying the petition on the ground that increased utilization of a permitted use was inconsistent with the zone in which the property was located, where such use previously was found to be in harmony with the harbor management plan, as required by the zoning regulations. The court observed that the board’s concern about the owner’s use or misuse of the slips is a matter for the appropriate enforcement of the city’s zoning regulations rather than a reason to deny the petition. The board appealed to this court, claiming that the trial court improperly concluded that the board had exceeded its authority in denying the owner’s petition to amend the special permit.
We next address the appropriate standard of review with respect to special permits. A special exception is also known as a special permit; Grasso v. Zoning Board
“The basic rationale for the special permit ... is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated because of the particular topography, traffic problems, neighboring uses, etc., of the site.” (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 74 Conn. App. 155, 160, 810 A.2d 312 (2002), cert. granted on other grounds, 262 Conn. 945, 815 A.2d 675 (2003).
“When ruling upon an application for a special [permit], a planning and zoning board acts in an administrative capacity. . . . Generally, it is the function of a zoning board or commission to decide within pre
“[C]ourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing .... The trial court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support, [the board’s] findings. . . . [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. . . . Where the board states its reasons on the record we look no further. . . . Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board’s decision. . . . More specifically, the trial court
In Milford, boat slips are special uses permitted in single-family residential districts in which the owner’s property is located. See Milford Zoning Regs., § 3.1.2.17. Since the 1991 amendmentto the owner’s special permit was granted, the Milford zoning regulations were amended, eliminating from the regulations a predetermined number of slips permitted pursuant to a special permit. The amended regulation provides: “Private boathouses, landings and docks subject to the following conditions and safeguards: (1) The number of boat slips, berths, moorings and similar spaces proposed shall be consistent with the Milford Harbor Management Plan as determined by the Milford Harbor Management Commission; (2) The lot owner shall obtain all necessary State and Federal permits prior to constructing such boating facilities; (3) Such boat facilities shall be designated for the exclusive use of the owner.” The owner here had obtained all of the permits necessary for eight slips.
On appeal, the board relies on § 7.1.3.1 of the Milford zoning regulations to justify its having denied the owner’s petition. The regulations permit the board to rely on § 7.1.3.1,
A zoning board is vested with discretion to grant or to deny a petition for a special permit. Regardless of what action the board takes, its decision must be supported by substantial evidence in the record. The record before us does not contain substantial evidence that the addition of four boat slips per se is inconsistent with the residential zone district. The objections to the additional four slips concern the use of the slips by nonowners of the premises, not the number of slips. Those concerns, however, pertain to the manner in which the special permit is used, not to whether the additional slips are consistent with the residential zone district. Furthermore, the regulations make clear that the harbor management commission has the duty to determine the number of permissible boat slips. The harbor management commission had approved the addition of four boat slips at 20 Rogers Avenue.
It appears from the return of record that the board’s real concern is not with the number of slips at 20 Rogers Avenue, but with the utilization of the existing slips by nonowners and the potential for even greater abuses of the zoning laws in the future if more slips are permitted. That, however, is a zoning enforcement issue, not a question of whether the additional slips are consistent with the residential zone district. The board and the neighbors have remedies they may pursue with respect to zoning violations. If the owner fails to abide by the zoning regulations, the Milford zoning enforcement officer may take action to enforce the regulations or the board may revoke the special permit, as it is entitled to
The judgment is affirmed.
In this opinion the other judges concurred.
The limited liability company is owned by fifteen individuals, namely, Joseph Nesteriak, his three sons and their wives and children. They are nonresident owners.
Nesteriak conceded that from time to time, he had permitted his friends, the Special Olympics, a local yacht club and the attorney representing him at the hearing to use the slips out of friendship and as a favor. He did not receive compensation for letting nonowners use the slips, and he did not barter for their use.
Section 7.2.3 of the Milford zoning regulations provides in relevant part: “In approving the application, the Board may place conditions on such approval and shall consider, in addition to the criteria of Section 7.1.3, the following . . . .”