78 Conn. App. 216 | Conn. App. Ct. | 2003
Opinion
The plaintiff Smith-Groh, Inc.,
The plaintiff claims that (1) the commission’s tie vote was tantamount to an approval of its application, (2) the court improperly considered the town planner’s letter of reasons given for the denial and (3) the R-PHD-SU zone regulations applicable to the plaintiffs proposed apartment building do not require designated “affordable” units.
The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. In 1989, the prior owner and prospective lessees of the property applied for a zone change, from a R-6 zone to a R-PHD-SU zone, as well as special permit and site plan approval. The commission approved the zone change and the site plan, and granted a special permit.
In August, 1998, Pemberwick Apartments, LLC (Pemberwick), the contract purchaser of the property,
In August, 1999, Pemberwick revised its preliminary application, and submitted a final site plan and special permit application for the commission’s approval. On September 3, 1999, the plaintiff became the record owner of the property. The commission considered the application at a public hearing on October 26,1999, and regular meeting on December 8,1999. At the December meeting, the commission denied the application. In its December 22,1999 revised letter, the commission stated as reasons for the denial that the reduction in height and bulk of the proposed building was not substantial enough to satisfy the requests of the commission in its previous letter, the average size of the individual apartments did not meet the requirements of the zone, and there was “reasonable doubt” that the units would meet the requirements of § 6-62 (4) and (5) of the building zone regulations.
The commission’s decision was published in a newspaper on March 22, 2000.
I
THE TIE VOTE
The plaintiff first claims that its site plan was approved automatically by virtue of General Statutes § 8-3 (g).
Section 8-3 (g) specifically relates only to applications for site plan approval. In this case, the plaintiff was required to, and did, submit a special permit application, which is not inseparable from the site plan application. The plaintiff relies on SSM Associates Ltd. Partnership, which held that the special permit application was so inseparable from the site plan application that it, along with the site plan application, was deemed approved under the automatic approval provision of § 8-3 (g). Id., 337; see also Center Shops of East Granby, Inc. v. Planning & Zoning Commission, 253 Conn. 183, 189-90, 757 A.2d 1052 (2000).
In Center Shops of East Granby, Inc., however, our Supreme Court strictly limited SSM Associates Ltd. Partnership to its facts because the use sought was a permitted use, and the parties stipulated that the site plan and special permit applications were inseparable. Center Shops of East Granby, Inc. v. Planning & Zoning Commission, supra, 253 Conn. 190-92. The court went on to hold that “when a site plan is separable from its accompanying documents and the special permit application is for a use not permitted as of right, the provisions of § 8-3 (g) are not applicable and the time constraints specified in [General Statutes] § 8-7d do not control.” Center Shops of East Granby, Inc. v. Planning & Zoning Commission, supra, 193. We, therefore, conclude that regardless of the status of the site plan, the special permit could not be approved automatically.
II
COLLECTIVE STATEMENT
The plaintiff claims that the reasons stated in the March 24, 1999 letter of the town planner cannot be considered in reviewing whether the application for site plan approval and a special permit was denied properly. It argues that the letter contained reasons not discussed, or voted on, by the commission. The plaintiff further claims that because individual commission members stated their reasons for voting against the application on the record,
The following additional facts are relevant to the plaintiff’s claim. Margus T. Laan, the senior planner for the town of Greenwich, who was present at the public hearing and special meeting, wrote the March 24, 2000 letter to the plaintiffs counsel, purporting to state the reasons for the commission’s denial of the plaintiffs application. The senior planner was the only individual to sign the letter, and there is no indication in the record that the letter was written at the direction of, or adopted by, the commission. In fact, the commission received the letter only as a result of the “cc” notation at the end of the letter. Although the reasons outlined in the letter were discussed by the commission during either the public hearing or the special meeting, the planner could not speak for the commission. Not even the chairman of a zoning entity can speak for a zoning commission. Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 237-38, 794 A.2d 1016 (2002). The commission had a mandatory statutory duty to determine, as a commission, what the disposition of the plaintiffs application should be. Id., 248.
Section 8-3 (g) provides in relevant part that “[a] decision to deny ... a site plan shall set forth the reasons for such denial . . . .” General Statutes § 22a-109 (f) provides in relevant part that “[t]he zoning commission shall set forth the reasons for any decision to deny ... a coastal site plan submitted under this sec
Thus, the first question is whether the letter constituted a formal, collective, official statement of the commission. None of the commission members signed the letter. The letter was dated more than ten days following the special meeting denying the application and two days after the publication of the denial. It also contained many reasons not stated by the two commission members for their denial of the application. On the basis of those facts, we conclude that the letter was not a collective statement of the commission.
We next consider the individual statements of the commissioners made during the course of the special meeting on March 15, 2000. “[I]individual reasons given by certain members of the commission [do] not amount to a formal, collective, official statement of the commission . . . and are not available to show the reason[s] for, or the ground[s] of, the [commission’s] decision.” (Citation omitted; internal quotation marks omitted.) Id., 514; see also Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 546 n.15, 600 A.2d 757 (1991) (not appropriate for reviewing court to attempt to glean such formal, collective statement from minutes of discussion by commission members prior to commission vote). We conclude that the individual reasons
Therefore, we must consider this case under 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. ” Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. 546 n.15. The search is conducted against the backdrop of the particular regulation under which the plaintiff sought approval of its application.
The court concluded that the record supported the commission’s denial of the plaintiffs application because it did not meet the R-PHD-SU
Sections 6-101 (d) and 6-13 of the building zone regulations required the plaintiff to obtain special permit and site plan approval for its proposed multiunit apartment building within the R-PHD-SU zone. As part of the special permit approval procedure, “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.” (Internal quotation marks omitted.) Raymond v. Zoning Board of Appeals, 76 Conn. 222, 228, 820 A.2d 75, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003); see also Building Zone Regs., § 6-17 (a); T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 175.
“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 . . . .” T. Tondro, supra, p. 175; see also Barberino Realty & Development Corp. v. Planning & Zoning, 222 Conn. 607, 612-13, 610 A.2d 1205 (1992). The
The use in this case is small residential units in a building no more than forty feet in height. According to the minutes of the commission in March, 1970, estabhshing the R-PHD-SU zone, the nature of the use and mode of operation must conform to certain purposes. The residential development was designed to meet the needs of town residents at differing stages of their life cycles, namely, housing other than single-family detached homes. The purpose was to provide small residential units so that those who live or work in Greenwich could obtain “small residential units at reasonable cost.”
“[A] site plan is an administrative review procedure that assists in determining compliance of an underlying development proposal with zoning regulations.” T. Tondro, supra, p. 184; see also SSM Associates Ltd. Partnership v. Plan & Zoning Commission, 15 Conn. App. 561, 566, 545 A.2d 602 (1988), aff'd, 211 Conn. 331, 559 A.2d 196 (1989). “A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning . . . regulations. ...” General Statutes
The defendants’ chief argument is that the plaintiff, in its latest application, did not provide for five “affordable” units. The defendants claim that this omission caused a significant change from earlier proposals that had included a permanent rent restriction for five units and that such designation was integral to the proposed project. The commission’s argument appears to rest on the necessity for the plaintiff to continue to provide for the “affordable” units in the latest application or risk denial. The question is whether the manner in which the plaintiff proposes to use its property satisfies the conditions imposed by the regulations, not whether a subsequent application has varied from a prior application. It may be that a new plan, with changes, will succeed although a former failed. A commission is not precluded from granting a subsequent application because a prior application was denied. See id., 246. We conclude that the plaintiff is not bound by the prior applications, which included five “affordable” units. The remaining issue is whether the application that is the subject of this appeal has demonstrated compliance with the regulation as to reasonable cost units.
Because the plaintiff must comply with all of the conditions of § 6-62 (c), and the trial court determined that it had not provided, as required in subdivision (4),
The plaintiff argues that the small size of the apartment units satisfies the reasonable cost requirement of § 6-62 (c) (4). The defendants argue that the plaintiff, if approval is given, will have received a density bonus to build a twenty-seven unit dwelling without providing an enforceable agreement to provide a permanent reduced rental cost of a few of those apartments. On the contrary, the defendants claim that smaller sized units cannot always be equated to reasonable cost. The defendants argue that rental cost is based on a unit’s proximity to places of employment, shopping, banking, public transportation and aesthetic considerations, and, therefore, not necessarily size alone. The plaintiff argues that the market rental rates for all of the apartments would be reasonable compared to similar- sized housing available elsewhere in Greenwich. The arguments of the parties assume that “reasonable cost” is an enforceable and ascertainable standard, but disagree as to whether there was compliance with that standard.
We, however, must first examine whether the regulation is so broad or ill-defined as to make it impossible for any applicant to comply with it. A commission’s regulations must be precise enough to give adequate and sufficient notice to the commission, in order that it can enforce the regulations, and to applicants, in
The interpretation of a regulation is a question of law for which our review is plenary. Raymond v. Zoning Board of Appeals, supra, 76 Conn. App. 229. A zoning regulation is legislative in nature, and its interpretation involves the principles of statutory interpretation. Id., 234. We seek to determine the meaning of the regulations by looking to the words of the regulation, to the history of its enactment, including the circumstances surrounding its enactment, to the public policy it was designed to implement and to its relationship to other regulations governing the same general subject matter. See Bhinder v. Sun Co., 263 Conn. 358, 367, 819 A.2d 822 (2003).
“Reasonable” is a relative adjective that varies with the context in which it is used, and its meaning is affected by the facts of the particular controversy. E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959). Reasonableness depends on a variety of conditions and circumstances. “Reasonable” should be read to exclude capricious or confiscatory interpretation by a commission of its regulations. See Public Service Commission v. Havemeyer, 296 U.S. 506, 518, 56 S. Ct. 360, 80 L. Ed. 357 (1936). We must consider the purpose of the particular regulation, the means adopted to achieve it, and the relationship
A regulation should be as precise as the subject matter requires, and adequate and sufficient enough to allow the commission to perform its obligations. Sonn v. Planning Commission, 172 Conn. 156, 159, 374 A.2d 159 (1976). As long as the regulations provide a standard that can be applied to all cases of a like nature so as to reduce the likelihood of allowing a zoning agency to act in a capricious manner, the regulations will not be deemed to contain meaningless standards that can lead to unpredictable results. Id., 161-62. A regulation, for example, that requires consideration of the “intensity” of a proposed apartment building is capable of providing a standard to which an applicant can comply. Felsman v. Zoning Commission, 31 Conn. App. 674, 676-80, 626 A.2d 825 (1993).
On the basis of the scheme of the zoning regulations in this case and the avowed purpose of providing reasonable cost housing that is affordable or moderately priced to those who live or work in the town, the plaintiff needed to show at the public hearing some indication that it would do so. The statement of the plaintiff at the public hearing that some of the units might rent for $1172 per month and that the market rental rates for the units would be reasonable when compared to the more expensive housing ordinarily desired by the more affluent citizens of Greenwich was insufficient for compliance with § 6-62 (c) (4) of the building zone regulations. The plaintiff had to show more. For example, there was no evidence that some type of permanent rent restriction formula would be used to govern rental rates in the future or evidence of the rental cost of comparably sized housing in other zones in Greenwich.
Section 6-62 (b) of the building zone regulations provides in relevant part that the intent of the zone is to
The legislative history of the R-PHD-SU zone indicates that the regulation’s purpose was to provide housing for residents and employees of the town at various cycles of their lives, namely, the young employed or retirees, at a cost commensurate with their financial abilities. The regulation itself speaks to the same purpose; other regulations that govern housing units other than single-family dwellings, such as townhouses, do not include the requirement of reasonable cost.
We have examined the history of the propose of the regulation as stated in 1970, at the time the regulations were adopted, the words of the regulation itself, the public policy it was designed to implement and other regulations governing the some general subject matter. We conclude that reasonable cost housing for those who live or work in town means more than providing small residential units, and that the plaintiff had to provide evidence of reasonable rental cost and some guarantee of effectuating the regulation to obtain special permit and site plan approval.
The judgment is affirmed.
In this opinion the other judges concurred.
An additional plaintiff, Pemberwick Apartments, LLC, was found by the trial court to lack aggrievement and is not involved in the appeal to this court. We therefore refer in this opinion to Smith-Groh, Inc., as the plaintiff.
The Appellate Court granted the plaintiffs petition for certification to review the court’s judgment on February 20, 2002. See General Statutes §§ 8-8 and 8-9.
The planning and zoning commission of the town of Greenwich on appeal to this court adopted the brief of Gateway.
Throughout the history of this case the parties, the commission and the trial court have referred to the units in question interchangeably as “affordable,” “moderate income housing,” “moderate income dwelling” or “reasonable cost” units. We note, however, that the term “affordable” units in no way implicates Connecticut’s affordable housing program, General Statutes § 8-30g et seq., which was not in effect when Greenwich adopted the R-PHD-SU zone. The “affordable” units refer to five proposed units in the plaintiff’s prior site plan applications, which were proposed to be regulated in accordance with § 6-110 (g) of the Greenwich building zone regulations. Section 6-110 (g) units are termed “moderate income dwelling units.”
Section 6-62 (c) of the Greenwich building zone regulations, entitled “Residential-Planned Housing Design-Small Unit Zone (R-PHD-SU); Purpose,” provides in relevant part that the commission “may permit residential development . . . when all of the following purposes are to be accomplished:
“(1) To implement the letter and intent of the Town Plan of Development;
“(2) To maintain and reinforce the Town’s predominantly residential character;
“(3) To conserve and preserve land to assure that its development will best maintain and enhance the appearance, character and natural beauty of an area;
“(4) To provide attractive, decent and suitable housing at reasonable cost for those who live or work in Town;
“(5) To permit the construction of residential units that may be subsidized by public and/or private funds.”
The site plan and special permit called for the construction of a twenty-seven unit apartment complex with five units designated as “affordable” units and regulated by § 6-110 (g) of the Greenwich building zone regulations.
Section 6-14.1 (e) of the building zone regulations provides: “Any Site plan approval granted by the Commission on which construction has not started within a period of three years shall become null and void.”
Section 6-17 (f) of the building zone regulations provides: “Any special permit granted by the Commission and not exercised within a period of three (3) years from date of decision shall become null and void.”
The application proposed a building similar to the building previously proposed and approved in 1989. Again, it contained the proposal of five “affordable” units regulated by § 6-110 (g) of the building zone regulations.
Gateway appealed from the preliminary approval to the Superior Court. The appeal was dismissed. Gateway Park Associates, LLC v. Planning & Zoning Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. 170332 (October, 1, 2001) (Gateway I).
Both the plaintiff and Gateway appealed from that decision to the Superior Court. See Smith-Groh, Inc. v. Planning & Zoning Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. 176008 (October 1, 2001) (Smith-Groh I); Gateway Park Associates, LLC v. Planning & Zoning Commission, Superior Court, judicial district of Stamford
These cases were consolidated with Gateway Park Associates, LLC v. Planning & Zoning Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. 170332 (October, 1, 2001) (Gateway I). See footnote 9. The court dismissed all three appeals. In Gateway II, Gateway claimed that the R-PHD-SU zone designation had expired with the expiration of the site plan and special permit. In dismissing the appeal, the court concluded that the R-PHD-SU zone designation was still in effect. In Smith-Groh I, the court concluded that the record supported the commission’s decision. Having decided as it did in Gateway II and Smith-Groh I, the court dismissed Gateway I as moot.
See General Statutes § 8-3 (g).
The defendant claimed, as it had done previously, in Gateway Park Associates, LLC v. Planning & Zoning Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. 170332 (October, 1, 2001) (Gateway I), and Gateway Park Associates, LLC v. Planning & Zoning Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. 176155 (October, 1,2001) (Gateway IT), that the R-PHD-SU zone had expired with the special permit and site plan applications. Although the court noted that it had decided the issue in Gateway II, the court addressed the merits and dismissed the appeal because the court, concluded that the R-PHD-SU zone had not expired. Gateway did not petition this court for certification to appeal for review of that conclusion.
Section 6-62 (c) of the buEding zone regulations provides in relevant part: “The Planning and Zoning Commission . . . may permit residential development . . . when aE of the foEowing purposes are to be accomplished . . .
“(4) To provide attractive, decent and suitable housing at reasonable cost for those who Eve or work in Town ....’’
The basic aEegations of the complaint, stiE pressed in the plaintiffs brief filed in this court, are that the commission acted ElegaEy, arbitrarily and in abuse of its discretion in denying the special permit and final site plan apphcation. The claims raised on appeal are included within the aEegations.
General Statutes § 8-3 (g) provides in relevant part that “[a]pproval of a site plan shaE be presumed unless a decision to deny or modify it is rendered within [sixty-five days]. . . .”
Because of our conclusion with respect to that issue, it is unnecessary to consider statutory interpretation of General Statutes § 8-3 (g).
One commission member voted to deny the application because the plaintiff had not sufficiently complied with the condition to reduce the bulk of the building. A second commission member voted to deny the application because she did not believe that the plaintiff had met the “reasonable cost” requirement of the regulation.
A coastal site plan was required for the subject property. See General Statutes § 22a-94.
Even if the letter or individual statements were sufficient as reasons under the statutes, we still would have authority to search the record. “Notwithstanding . . . statutory language, our case law clearly requires the trial court, in appeals from planning and zoning authorities, to search the record to determine the basis for decisions made by those authorities.” Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 607-608, 569 A.2d 1094 (1990); see also T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 473-74 (under statute, no enforcement sanction against commission, and therefore, Connecticut courts have consistently not required formal collective statement of reasons from commission for its decision).
Section 6-62 of the building zone regulations, entitled “Residential-Planned Housing Design-Small Unit Zone (R-PHD-SU); Purpose,” provides:
“(a) The intent of this Article concerning residential development is to encourage attractive, safe, decent and sanitary housing for all Town residents or employees, present and future, without regard to race, color, creed, national origin or economic status.
“(b) The intent of this Article, in addition to the above, is to permit under specific conditions indicated herein, a type of residential development that will serve the housing needs of those Town residents and employees who seek small residential units at reasonable cost.
“(c) The Planning and Zoning Commission, upon application in the manner prescribed herein, after a public hearing, may permit residential development that conforms to the standards and requirements described herein when all of the following purposes are to be accomplished:
“(1) To implement the letter and intent of the Town Plan of Development;
“(2) To maintain and reinforce the Town’s predominantly residential
“(3) To conserve and preserve land to assure that its development will best maintain and enhance the appearance, character and natural beauty of an area;
“(4) To provide attractive, decent and suitable housing at reasonable cost for those who live or work in Town;
“(5) To permit the construction of residential units that may be subsidized by public and/or private funds.”
We are aware of the 1989 decision letter sent to a predecessor of the plaintiff requiring rent regulated units in accordance with § 6-110 (g) of the building zone regulations and that the commission stated that “no building permit shall be issued ... if the plans did not identify the location of the five deed restricted [‘affordable’] units.” We do not conclude, however, that subsequent applications for a special permit and site plan had to comply with the 1989 letter for the reasons cited previously.
Subdivision (5) is not discussed because there was no evidence as to it.