220 Conn. 527 | Conn. | 1991
The principal issue of this appeal is whether the trial court exceeded the proper scope of review of the decision of the named defendant, the
The defendants claim that: (1) the court employed an improper scope of review and, therefore, improperly concluded that the commission’s decision was not supported by the record; (2) the court relied on improper evidence; and (3) the court improperly concluded that the plaintiffs had been denied due process of law by the commission’s hearing procedure. We conclude that: (1) the court exceeded the applicable scope of review of the commission’s decision and that the commission’s decision was adequately supported by the record; and (2) the court improperly concluded that the plaintiffs’ due process rights were violated.
On its face, the application did not seek approval for any construction or refer to any particular site, nor did it include any site plans or traffic or drainage information. The commission referred the application to its planning section, which, after a meeting, recommended approval of the amendments.
At a special meeting of the commission on January 5, 1989, after considerable discussion, it voted three to two to adopt the amendments to the zoning regulations. According to the minutes of that meeting, upon a request by the town attorney that the reasons for the action be stated for the record, one of the commissioners who had voted for the amendments stated that “he voted his conscience and said the amendments fall within the Town Plan; more specifically, it addresses the interrogatories and the response from the Town
The plaintiffs appealed to the Superior Court. The court viewed the appeal as involving the issue of whether the commission had acted within its discretion in amending the regulations so as to permit the Ham-den Court mall. In that posture, the court subjected the regulations to a two part test: (1) whether they were in accord with the town’s comprehensive plan; and (2) whether they were reasonably related to the police power purposes enumerated in General Statutes § 8-2.
The court concluded from the record that “the majority of the Commission who voted in favor of the
The court also reasoned that, even if it were to search the record for a legitimate basis of the commission’s decision, “the decision of the Commission would not meet the requirements of § 8-2 that the Amendments must be reasonably related to one or more of the state police power purposes.” Stating that the only purposes articulated in § 8-2 that could possibly apply to the amendments at issue were that the amendments be “designed to lessen congestion in the streets” and that they “promote health and the general welfare”; General Statutes § 8-2; see footnote 7, supra; the court concluded that there was “no substantial evidence [in the record] which would allow the Commission to find that either of these purposes [is] served by the Amendments.”
With respect to congestion in the streets, the court compared the traffic to be generated by the mall to the traffic without the proposed amendments. The court concluded that “[a]ll the evidence in the record pertaining to traffic congestion indicates that a regional shopping mall consisting of 784,000 square feet would generate a substantial increase in traffic congestion.” The court noted the concession by Homart’s expert witness that “substantial improvements would be required to be made by local, state and federal governments in order to accommodate the traffic flow for a regional shopping mall at the Site of Dixwell Avenue and Skiff Streets.” The court also concluded that the commission was not entitled to rely on evidence that traffic congestion would be decreased by these improvements because there was no evidence that such traffic
With respect to the promotion of health and the general welfare, the court concluded that there was no evidence that “the adoption of the Amendments would promote the health and general welfare of the public. Indeed, the record is replete with substantial evidence that a regional shopping mall would cause increased traffic, safety, air pollution, health and refuse problems, and an increase of insurance premiums, and reduce property values.”
The court also determined, as an independent ground for sustaining the appeal, that the plaintiffs had been deprived of due process of law under article first, § 10, of the constitution of Connecticut.
During their initial presentation on November 10, 1988, the applicants did not present evidence regarding traffic that would be generated by a regional shopping mall.
The court concluded that this procedure violated the plaintiffs’ due process rights. It reasoned that the refusal of the commission to permit the plaintiffs “to at least rebut [the applicants’ expert’s] testimony by making clear that the state traffic commission had not approved the regional shopping mall, that traffic problems had not been resolved and that the modifications and improvements were not a certainty . . . and [to] present other evidence to the Commission deprived [the plaintiffs] of their constitutional right to due process of law.”
Accordingly, the court rendered judgment sustaining the plaintiffs’ appeal. The defendants’ appeal to this court followed.
I
We first consider the plaintiffs’ claim that certain events that took place subsequent to the judgment of the trial court have rendered this appeal moot, and that we are, therefore, without jurisdiction to consider it.
In January, 1991, while this appeal was pending, the commission took two actions on which the plaintiffs rely for their mootness claim. First, on January 24, 1991, it decided to deny a proposal, supported by the applicants herein, to reenact provisions increasing the maximum size allowable for a shopping center from 250,000 square feet to 784,000 square feet, and excluding certain areas for calculating required parking for such centers. The effective date of that action, by virtue of its publication, was January 30,1991. Second, on January 26,1991, the commission amended the zoning regulations so as to adopt a 300,000 square foot limit on shopping centers. The effective date of that action was January 31, 1991.
Meanwhile, however, on January 25,1991, Pellegrino had filed an application for a special permit pursuant to the regulations as amended by the commission effective February 1, 1989, and before its further amendment of those regulations effective January 31,1991.
The plaintiffs argue that the subsequent legislative changes by the commission outlined above have rendered this appeal moot. They rely on such cases as McCallum v. Inland Wetlands Commission, 196 Conn. 218, 492 A.2d 508 (1985) (subsequent regulatory amendments rendered appeal moot), and Rosnick v. Zoning Commission, 172 Conn. 306, 374 A.2d 245 (1977) (expiration of challenged zoning regulations rendered appeal moot). See also Johnson v. Zoning Board of Appeals, 2 Conn. App. 24, 475 A.2d 339, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984), cert. denied, 471 U.S. 1066, 105 S. Ct. 2141, 85 L. Ed. 2d 498 (1985) (subsequent amendment of zoning regulations rendered appeal moot). We are unpersuaded.
General Statutes § 8-2h (a)
Pursuant to § 8-2h (a), Pellegrino’s application for a special permit, filed on January 25,1991, will have to be considered by the commission under the zoning regulations in effect on that date. If the defendants’ appeal is successful, those regulations will include the amendments at issue in this case. Thus, this appeal is not moot because, if successful, it will have the concrete result of requiring consideration of the January 25,1991 special permit application under the regulations in effect on that date, rather than the regulations in effect on January 31, 1991.
We reject the plaintiffs’ argument that the January 25, 1991 application did not preserve this appeal because of the trial court’s judgment invalidating the amendments, notwithstanding this appeal.
II
The defendants’ first claim is that the trial court employed an improper scope of review of the commission’s decision that permitted the court to substitute its judgment for the broad legislative discretion of the commission, and that, when gauged under the proper scope of review, the amendments must be sustained by the court. We agree.
We have often articulated the proper, limited scope of judicial review of a decision of a local zoning commission when it acts in a legislative capacity by amending zoning regulations. “[T]he commission, acting in a legislative capacity, [has] broad authority to adopt the amendments.” D & J Quarry Products, Inc. v. Planning & Zoning Commission, 217 Conn. 447, 450, 585 A.2d 1227 (1991). “In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial
With this background in mind, we turn to the question of the weight to be given in this case to the “reasons” stated by the commission for its decision. Where a zoning agency has stated its reasons for its actions, the court should determine only “whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations. . . . The zone change must be sustained if even one of the stated reasons is sufficient to support it.” (Citation omitted.) Id., 543. The principle that a court should confine its review to the reasons given by a zoning agency does not apply to any utterances, however incomplete, by the members of the agency subsequent to their vote. It applies where the agency has rendered a formal, official, collective statement of reasons for its action. See DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970) (where zoning agency has “formally stated” the reasons for its decisions, court should not go behind such official collective statement to search record for other reasons supporting the decision).
We have also stated, however, that the failure of the zoning agency to give such reasons requires the court to “search the entire record to find a basis for the commission’s decision.” Parks v. Planning & Zoning Com
The defendants argue that it was improper for the trial court, in discharging its obligation to review the
The proposed amendments did not, by their terms, authorize any specific project on any specific site. They applied, not only to the intersection of Dixwell Avenue and Skiff Street, but to all fifteen Business B-2 and CDD-1 zoning districts in the town. There were numerous properties in these districts to which the amendments would apply. The application for the zoning regulation amendments did not seek approval for construction on any particular site, nor did it include site plans or traffic or drainage information. Although it is undisputed that the applicants’ motivation for proposing the amendments was to build the mall on that site, that motivation could not serve to limit the commission, in the exercise of its legislative discretion, to a consideration of the amendments as if they were site-specific and project-specific. The commission was acting legislatively, and it was entitled to consider the proposed amendments in a context that went beyond that specific site and project.
Indeed, we recognize that private applicants for amendments to local zoning regulations usually are motivated by their own economic interests, and that those interests often include an intent to develop a specific site in a specific way. That motivation, however, should not limit the scope of the zoning commission’s consideration of the application and of its ultimate decision thereon more narrowly than is appropriate under § 8-2. See Caserta v. Zoning Board of Appeals, 219 Conn. 352, 361-62, 593 A.2d 118 (1991) (motive of applicant irrelevant to jurisdiction of administrative agency). The appropriate scope extends beyond the limits of the applicant’s immediate economic interest.
This conclusion is particularly apt here, because §§ 512.3 and 572.2 of the Hamden zoning regulations require, in Business B-2 and CDD-1 districts respectively, special permits for shopping centers and stores containing more than 20,000 square feet of floor area. Moreover, § 826 of the regulations provides that, in passing on a special permit application, the commission “shall give consideration to, but not be limited by” such factors as: the health, welfare and safety of the public and the immediate neighborhood; compliance with the town’s plan of development; the location, size, nature and intensity of the project; the safety and intensity of traffic generated by the project; the scale of the proposed structure; the harmony of the site design with the general area and adjacent properties; and compliance with the zoning regulations. Furthermore, § 827 of the regulations gives the commission the power to impose “reasonable conditions and safeguards related
Our review of the record leads us to conclude that it adequately establishes that the action of the commission was in accordance with the Hamden comprehensive plan and was reasonably related to the police powers enumerated in § 8-2. One of those powers is that the regulations be “designed to lessen congestion in the streets.” In reaching its decision, the commission was entitled to compare the potential traffic to be generated by development permissible under the previous zoning regulations with the traffic to be generated by development permissible under the proposed amendments, rather than comparing the traffic to be generated by the contemplated mall with the traffic without that mall, as the trial court did. There was evidence before the commission that, under the existing regulations, the site under dispute could accommodate three separate “strip” shopping centers, with a total gross leasable area of 730,000 square feet of space. Under the amendments, the site could accommodate one structure, containing 784,000 square feet and 640,000 of gross leasable square feet. There was also evidence before the commission that three such smaller shopping centers would generate 29 percent more traffic and substantially more traffic congestion than one large, regional shopping mall. This was because three such centers would attract more people from a smaller geographical area than would a regional mall, and these people would be more likely to use local streets for access to shopping than would the people coming to a regional mall, who would be more likely to travel by Interstate 91 or the Wilbur Cross Parkway. Thus,
There was other evidence before the commission that the amendments were reasonably related to the police powers enumerated in § 8-2. The disputed site was described by many of the Hamden residents as a blighted area.
Furthermore, as the court concluded, the amendments conformed to the town’s comprehensive plan referred
Section 100 of the Hamden zoning regulations provides that the regulations have among their purposes “[promoting the health, safety and general welfare of the community; lessening congestion in the streets; [and] . . . conserving the value of buildings and encouraging the most appropriate use of land throughout the town . . . .” Section 511 of those regulations states as the purpose of a Business B-2 district: “to provide a broad variety of retail stores, service establishments, offices, theaters, motels and public parking designed to serve the Town of Hamden and the region.” Section 571 states as the purpose of the CDD-1 district: “to encourage the appropriate development of land previously designated primarily for industrial use and which areas currently contain substantial vacant or under-utilized land. It is in the Town’s best interest to permit the flexibility necessary to provide for a mixed-use district such as this which would allow manufac
The commission could reasonably determine that it was within the town’s comprehensive plan to permit a regional shopping mall of 784,000 square feet on sites where three shopping centers of 250,000 square feet were already permitted. Before the commission were several reports and other documents submitted by the town planner that support the conclusion that the amendments conformed to the comprehensive plan. These documents noted the risks associated with permitting shopping centers under the previous regulations, and the risk of degradation of Hamden’s retail base if a mall were located elsewhere. They also noted that according to a then recent article in the New Haven Register, the General Assembly had appropriated $500,000 for an engineering study of the site in question as a potential location for a regional shopping center and the state and federal government had allocated $2,250,000 for highway improvements in the area.
The commission also considered the town planner’s recommendation in 1987 that the zoning regulations be updated to “respond to the updated concept of shopping.” The recommendation further stated that a new shopping center “could be beneficial to the Town . . . if the proper regulations [were] implemented.” Finally, in a 1981 public hearing concerning the adoption of Hamden’s plan of development that was ultimately adopted and in force at the time of consideration of the defendants’ application, the commission noted that “the town of Hamden [is] lacking in a major downtown area . . . [and there is a] need for specialized retail stores
Under these circumstances, the record adequately established that the action of the commission was in
The plaintiffs rely on Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 275, 545 A.2d 530 (1988), for the proposition that “ ‘[t]he power to zone . . . [is] conditioned upon an adherence to the statutory purposes to be served’ ” by § 8-2. They argue that the commission’s action was flawed because the commission “did not find that any of the ‘police powers’ would be furthered by adoption of the developers’ petition to increase [the] maximum allowable size and reduce parking and landscaping for large shopping centers.” The plaintiffs’ reliance on Builders Service Corporation and their argument are unpersuasive.
Builders Service Corporation was a declaratory judgment action in which this court, relying upon the specific record produced in the trial court, invalidated certain residential minimum floor space regulations as not rationally related to any legitimate purpose of zoning contained in § 8-2. It did not purport to overrule our well established case law on the proper scope of judicial review, in a zoning appeal, of a local zoning commission’s exercise of its legislative discretion in amending its zoning regulations regarding commercial development. Furthermore, Builders Service Corporation did not purport to permit a trial court, in such an appeal, to undertake its own process of weighing the competing bodies of evidence regarding the factors delineated in § 8-2.
Nor is there any requirement that, in exercising its legislative function, a zoning commission make specific
Although a zoning commission’s overall actions “must conform to the mandates of” § 8-2, those mandates “do not apply to every detail of the commission’s actions.” Pecora v. Zoning Commission, 145 Conn. 435, 440, 144 A.2d 48 (1958). Thus, it was not necessary for the commission’s legislative decision to satisfy each and every factor delineated by § 8-2. If the record establishes, as it did here, that the decision was reasonably related to at least one of those factors that was pertinent to the task before the cómmission, it must be sustained. First Hartford Realty Corporation v. Plan & Zoning Commission, supra, 543.
Ill
The defendants also claim that the trial court improperly concluded that the plaintiffs had been deprived of their right to due process of law under article first, § 10, of the constitution of Connecticut; see footnote 8, supra; by the refusal of the commission to permit them to respond to the traffic evidence produced by the applicants at the December 8, 1988 hearing. We agree.
Our due process clause, like that of the federal constitution, “does not guarantee any particular form of state procedure. Due regard must be had to the nature of the proceeding and the individual right affected by
In this case, the commission was acting in a legislative capacity. Its ultimate determination had town-wide and long-term effects, and was not confined to the property of any particular plaintiff. Furthermore, the commission set out in advance the schedule of proceedings that it would follow. That schedule provided for an orderly, reasonable process by which all interested parties, including the plaintiffs, had ample opportunity to present their evidence and views insofar as they pertained to the legislative task before the commission. The fact that the plaintiffs viewed that task as site-specific and project-specific, and chose accordingly to introduce evidence that called for rebuttal by the applicants, did not create a constitutional right of surrebuttal in the plaintiffs. Under these circumstances, we perceive no violation of the plaintiffs’ rights to due process of law.
The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiffs’ appeal.
In this opinion the other justices concurred.
The defendants in this appeal are the commission, Bernard A. Pellegrino, Homart Development Company (Homart), and Fusco/Gottlieb Associates (Fusco/Gottlieb). Pellegrino had signed the application to the commission for the amendments to the zoning regulations, and listed Homart and Fusco/Gottlieb as the applicants. Also named as defendants in the trial court were the Hamden town clerk, and the chairman and clerk of the commission, who are not involved in this appeal. We refer herein to the defendants Pellegrino, Homart and Fusco/Gottlieb as the applicants.
The Appellate Court granted certification to appeal from the judgment of the trial court, and we transferred the appeal to this court pursuant to Practice Book § 4023.
The plaintiffs are the named plaintiff, Protect Hamden/North Haven from Excessive Traffic and Pollution, Inc. (Protect), two other associations, and numerous individuals, all claiming to be aggrieved by the decision of the commission. Since it is undisputed that one of the individual plaintiffs, Ellen Nathanson, is aggrieved because she owns land within one of the districts of Hamden that is affected by the amendments at issue, it is not necessary to resolve whether the other plaintiffs are aggrieved; see Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 479 n.3, 576 A.2d 510 (1990); and we refer herein to all the plaintiffs as the plaintiffs.
In view of these conclusions, it is unnecessary to consider the defendants’ claim that the court relied on improper evidence in reaching its conclusion.
A Business B-2 district is a business district, and a CDD-1 district is a controlled development district.
All five amendments were adopted by the commission. A sixth amendment to the regulations was rejected by the commission and is not involved in this appeal.
General Statutes § 8-2 provides: “regulations. The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes, including water-dependent uses as defined in section 22a-93, and the height, size and location of advertising signs and billboards. Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in
Article first, § 10, of the constitution of Connecticut provides: “Ail courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”
In view of this conclusion, the court found it unnecessary to consider a federal constitutional claim of the plaintiffs. Since the plaintiffs have not briefed or argued any such claim in this appeal, we consider it abandoned. Hanover Ins. Co. v. Fireman’s Fund Ins. Co., 217 Conn. 340, 343 n.4, 586 A.2d 567 (1991).
This was consistent with their position before the commission, and in this court, that, although they intended ultimately to seek a special permit for the mall if the proposed amendments were adopted, the proposed zoning regulation amendments before the commission did not apply solely to the site in question, and that the issue of traffic would be appropriately addressed by the commission upon their site-specific and project-specific special permit application.
The court also concluded that the plaintiffs had not waived their due process right by not objecting when the order of proceeding had been announced by the commission and by not objecting on December 8, when the applicants presented their evidence. Because we conclude that the plaintiffs were not deprived of due process by the procedure followed by the commission, we need not address the waiver issue.
During the course of this appeal, the plaintiffs moved that we dismiss the appeal as moot, and presented the record that we now consider. We denied that motion without prejudice to the right of the plaintiffs to renew it upon consideration of the merits of the appeal.
General Statutes § 8-2h (a) provides: “An application filed with a zoning commission, planning and zoning commission, zoning board of appeals or agency exercising zoning authority of a town, city or borough which is in conformance with the applicable zoning regulations as of the time of filing shall not be required to comply with, nor shall it be disapproved for the reason that it does not comply with, any change in the zoning regulations or the boundaries of zoning districts of such town, city or borough taking effect after the filing of such application.”
Any doubt about the legislative intent behind General Statutes § 8-2h (a) is dispelled by reference to its legislative history. See 32 H.R. Proc., Pt. 30, 1989 Sess., pp. 10, 595-96, remarks of Representative William L. Wollenberg that No. 89-311 of the 1989 Public Acts, §§ 2 and 3, subsequently codified as General Statutes §§ 8-2h and 22a-42e, was intended to overrule the principle stated in McCallum v. Inland Wetlands Commission, 196 Conn. 218, 492 A.2d 508 (1985).
We also reject the plaintiffs’ argument that the commission’s action in declining to reenact the amendments in issue here somehow legislatively reversed those amendments. Furthermore, even that purported legislative reversal did not take effect until January 30, 1991, after the filing of the special permit application on January 25, 1991.
More recently, in Stankiewiez v. Zoning Board of Appeals, 211 Conn. 76, 77-78, 556 A.2d 1024 (1989), we considered upon a grant of certification the following issue: “ ‘Did the Appellate Court err in concluding that if a zoning board gives inadequate reasons for granting a variance, as opposed to giving no reasons whatever, the trial court may search the record to determine whether basis exists for the action taken?’ (Emphasis in original.) Stankiewiez v. Zoning Board of Appeals, 209 Conn. 815, 550 A.2d 1084 (1988).” We affirmed the judgment of the Appellate Court in a per curiam opinion relying on “the thoughtful and comprehensive opinion of the Appellate Court.” Id., 78. In the Appellate Court, the plaintiff had argued that, after the trial court found no basis in the record for the zoning board’s stated reason, it was obligated to sustain the appeal without further examination of the record. Stankiewiez v. Zoning Board of Appeals, 15 Conn. App. 729, 732, 546 A.2d 919 (1988). The Appellate Court rejected that argument, and held that “[i]f the board fails to give the reasons for its actions, or if its reasons are inadequate, the trial court must search the record to determine whether a basis exists for the action taken.” (Emphasis added.) Id. The court stated that “[i]n searching the record, the trial court may rely on any reason culled from the record which demonstrates a real or reasonable relationship with the general welfare of the community in concluding that the board’s decision should be upheld.” Id., 733.
In this case, we need not decide whether, as the trial court suggested, Stankiewiez v. Zoning Board of Appeals, supra, 211 Conn. 76, is inconsistent with First Hartford Realty v. Plan & Zoning Commission, 165 Conn.
Nor is it appropriate for a reviewing court to attempt to glean such a formal, collective statement from the minutes of the discussion by commission members prior to the commission’s vote. Thus, we regard this case as governed by the well settled principle of judicial review of zoning decisions that where the commission has failed to state its reasons, the court is obligated to search the record for a basis for its action.
Furthermore, even if we were to regard this as a case in which the commission had stated its reasons, we would reach the same conclusion. One of those reasons was that the amendments conformed to the comprehensive plan of the town. Under First Hartford Realty Corporation v. Plan & Zoning Commission, supra, that reason was sufficient and, as we discuss, infra, was supported by the record, which also supported the determination that the amendments were reasonably related to the police powers enumerated in General Statutes § 8-2.
In this connection, we agree with the defendants that the trial court’s rejection of this analysis, on the basis that there was no evidence that any development of three smaller shopping centers was contemplated under the previous regulation, improperly placed on the defendants the burden of proof of the legality of the commission’s decision. The defendants were not obligated to establish that any such development was intended. The plaintiffs were obligated to establish that the commission could not, in exercising its legislative discretion, undertake such an analysis.
One resident described the site as “an unsightly hazard. It is an empty lot with a lot of problems.” Another resident stated that the area is “an incredible eyesore . . . [and what] [t]he developers are proposing . . . is clearly a more aesthetically pleasing site plan . . . .”