55 Conn. App. 533 | Conn. App. Ct. | 1999
Opinion
The defendant planning and zoning commission of the city of Torrington (commission) appeals from the judgment of the trial court sustaining the plaintiffs appeal from the commission’s denial of a special exception application. On appeal before us, the commission claims that the court improperly (1) determined that the plaintiffs use, which was permitted by special exception, was conclusively presumed to be compatible and valid, (2) relied on the commission’s master plan because the plan is merely advisory in nature and (3) substituted its judgment for that of the commission in
The following facts are relevant to this appeal. On April 1, 1997, the plaintiff, Quality Sand and Gravel, Inc., doing business as B & B Group, applied to the commission for a special exception to perform earth and rock excavation pursuant to § 6.4 of the Torrington zoning regulations for real property at 260 Burr Mountain Road (Burr Mountain property). The plaintiff had an option to buy the Burr Mountain property, which is contiguous to its quarry operation. The owners of the Burr Mountain property authorized the plaintiff to obtain a special exception.
The Burr Mountain property is in an outlying residence zone (R-60) surrounded by the following properties: to the north, O & G Industries’ quarry (R-60 zone); to the east, the plaintiffs quarry; to the south, the old Torrington drive-in movie theater and two nonconforming residences (industrial zone); and to the west, a residence owned and occupied by individuals who previously subdivided their real property to sell land to O & G Industries for its quarry and access road.
On May 7, 1997, Bruce Hoben, staff planning consultant to the commission, submitted a memorandum and map in which he recommended certain alterations to the plaintiffs proposal. The commission published notice and held a public hearing on the plaintiffs special exception application on May 14, 1997, which was continued on May 28, 1997, and closed on June 10, 1997. In response to Hoben’s May 7, 1997 report, the plaintiff submitted a revised proposal at the May 14 meeting, which incorporated all of Hoben’s recommendations, including a 400 foot buffer zone along Burr Mountain Road. The commission heard evidence and accepted correspondence from individuals for and against the application.
The court sustained the plaintiffs appeal, concluding that the proposed use of the Burr Mountain property should be presumed conclusively to be valid and that the commission improperly inquired into the effect the proposed use would have on property values or the harmony of the district. We granted the commission’s application for certification to appeal. After reviewing the briefs and hearing oral argument, the two pertinent issues we decide are (1) whether the court applied the proper standard of review and (2) whether, under the proper standard, there was substantial evidence in the record to uphold the commission’s decision.
I
The first issue to be determined is the standard of review the trial court should apply to an appeal from a planning and zoning commission’s decision concerning an application for a special exception to zoning regulations. Here, the court improperly applied the presumption of compatibility of uses standard to its review of the plaintiffs appeal.
The “general considerations such as public health, safety and welfare, which are enumerated in zoning
“Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The . . . trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 116, 117, 186 A.2d 377 [1962]; Stern v. Board of Zoning Appeals, 140 Conn. 241, 244, 99 A.2d 130 [1953]. In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal. Connecticut Sand & Stone Corporation v. Zoning
“If, in denying the special permit, the zoning commission construed the special exception regulations beyond the fair import of their language, then the zoning commission acted in an arbitrary and illegal manner. See Double I Ltd. Partnership v. Plan & Zoning Commission, supra, 218 Conn. 72. In situations in which the zoning commission does state the reasons for its action, the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations. Zieky v. Town Plan & Zoning Commission, 151 Conn. 265, 267-68, 196 A.2d 758 (1963). [0]n factual questions ... a reviewing court cannot substitute its judgment for that of the agency. Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 380, 401, 610 A.2d 620 (1992). If there is conflicting evidence in support of the zoning commission’s stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission. Whisper Wind Development Corp. v. Planning & Zoning Commission, supra, 32 Conn. App. 523. The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-40, 525 A.2d 940 (1987).” (Internal quotation marks omitted.) Irwin v. Planning & Zoning Commission, supra, 244 Conn. 628-29.
II
The second part of our analysis concerns whether the plaintiffs appeal should be sustained when the substantial evidence rule is applied to the facts of this case. On the basis of our review of the record, we conclude that there is not substantial evidence to support the commission’s denial of the plaintiffs application. We hold that the plaintiffs appeal was properly sustained and therefore affirm the judgment of the trial court.
In 1989, Torrington adopted a plan of development, which provides in relevant part: “Industrial Development, Background: Industry has been the dominant economic force in Torrington since the mid-1800s. Despite declines, manufacturing is still the city’s largest employer. To ensure that industry is able to expand, it is necessary to set aside sufficient land for future industrial growth. ... In 1987, an evaluation was done of twenty-five potential industrial sites in the city. Of the five sites rated highest, two are now slated for retail development. Many of the sites have severe restrictions because of the [steep] slopes, significant wetlands, lack of utilities, etc. . . . Goal: To promote a diversified and stable economy by encouraging compatible industrial
Hoben’s June 25, 1997 report to the commission applied the criteria of § 8.2 to the plaintiffs application. He concluded that the application met the criteria, although he recommended a larger buffer zone between the mining operation and Burr Mountain Road.
The plaintiffs president spoke at the public hearing stating that the plaintiff would be excavating in accordance with the town plan to provide more land for industry. The mining operation was removing steep slopes to grade level, and the plaintiff intended to make the excavated property available for industrial use in the future. Numerous property owners from a residential development called Lakeridge spoke in opposition to the special exception. Lakeridge and the plaintiffs quarry are separated by a distance of one mile. The quarry operated by O & G Industries is one-half mile from Lakeridge and is larger than the plaintiffs.
On the basis of our review of the record, we conclude that there is not substantial evidence to support the commission’s denial of the plaintiffs application for a special exception on the ground that it would cause an unacceptable intrusion into a viable residential zone. The Burr Mountain property is on land that cannot be used due to the steep rock structure. The plaintiff was excavating an adjacent property to grade level with the future intention of making the land available for industrial development. O & G Industries operates a
The judgment is affirmed.
In this opinion the other judges concurred.
The cases cited by the court on “the presumption of compatibility of uses standard” concern site plans and not special exceptions. See Friedman v. Planning & Zoning Commission, 222 Conn. 262, 608 A.2d 1178 (1992);
“We can sustain, a right decision although it may have been placed on a wrong ground.” Stapleton v. Lombardo, 151 Conn. 414, 417, 198 A.2d 697 (1964).
Section 8.2 of the Torrington zoning regulations provides in relevant part: “8.2.1 The Planning and Zoning Commission shall decide on all applications for special exception. In granting or denying a special exception the Commission shall state upon the record the reasons for its decision.
“8.2.2 In addition to any conditions found elsewhere in these regulations, the Commission shall grant a special exception only if the Commission finds that the proposed special exception will not:
“A. create or aggravate a traffic, fire or other safety hazard;
“B. hamper the City's traffic circulation;
“C. be detrimental to the existing neighborhood or its residents; or
“D. be detrimental to the longterm protection of a public water supply watershed. . .
The relevant portion of Hoben’s June 25,1997 report stated: “During the course of the public hearing, the applicant has provided the following data in support of its application and in response to the special exception criteria contained in section 8.2:
“A. Traffic/Fire/Safety Hazard: The applicant does not intend to utilize Burr Mountain Road for access to the excavation operation. Overall, the excavation operations are not high traffic generators, and the existing capacity of Winsted Road is adequate for the proposed operation. Site lines are adequate for access to and from the site. Signs will be posted warning of trucks entering the highway. The excavated area will be fenced, and the applicant has stated that the appropriate standards will be observed relative to the size and location of blasting charges. On the basis of the above information, I would recommend that the applicant has demonstrated compliance with the special exception criteria, as it relates to not creating or aggravating traffic, fire or other safety application.
“B. Traffic Circulation: The criteria is pertinent when a special exception use involves the layout of new roads or modification to the city’s existing road system. This is not applicable to this application.
“C. Protection of Public Water Supply Watershed: This criteria is not applicable to this application.
“D. Detriment to Existing Neighborhood or Its Residents: The applicant’s engineer presented testimony to the effect that it was highly unlikely that the excavation operation would have detrimental effects on structures or wells on neighboring properties. This was based primarily on the physical distance separating the operation as well as on the character of the material being mined. Certainly as regards the Lake Ridge and the Burr Pond State Parks areas, the significant separating distances as provided by the applicant are convincing in demonstrating that there is unlikely to be any effects on*543 Ihose areas from the proposed excavation. The applicant also presented cross sections to demonstrate the distances, topography and vegetation separating the adjacent residential structures on Burr Mountain Road. Furthermore, the offer was made to increase the distance to 150 feet between the area to be excavated and the rear property lines of the properties on Burr Mountain Road. Given the nature (rock cuts of up to eighty-five feet) and durat ion (up to fifteen years) of the proposed operation, I would recommend a much greater separating dist anee between the excavation operations and the residentially occupied properties on Burr Mountain Road. It appears to me that the extension of the most southerly property line of [the plaintiff] westerly to the west boundary of the Rout property is an appropriate point to which the excavation operation should be limited. This would provide a separation distance of approximately 770 feet to the residents on Burr Mountain Road.”