A. AIUDI & SONS, LLC v. Planning & Zoning Commission

• Decision Date: 06 January 2004
• Docket Number: (SC 16879).
• Court: Connecticut Supreme Court
• Parties: A. AIUDI AND SONS, LLC v. PLANNING AND ZONING COMMISSION OF THE TOWN OF PLAINVILLE

267 Conn. 192

837 A.2d 748

A. AIUDI AND SONS, LLC v. PLANNING AND ZONING COMMISSION OF THE TOWN OF PLAINVILLE

(SC 16879).

Supreme Court of Connecticut.

Argued September 12, 2003.

Officially released January 6, 2004.

Borden, Norcott, Katz, Palmer and Zarella, Js.

Peter J. Zagorsky, for the appellant (plaintiff).

Edward T. Lynch, Jr., with whom was Jared Cohane, for the appellee (defendant).

Opinion

ZARELLA, J.

In this certified appeal, we must determine whether the Appellate Court properly affirmed the trial court's dismissal of the plaintiff's appeal from the decision of the defendant, the planning and zoning commission of the town of Plainville (commission), to deny the plaintiff's application for the removal of sand and gravel from its property. We conclude that it did and, accordingly, affirm the judgment of the Appellate Court.

The following facts and procedural history are relevant to this appeal. On October 1, 1996, the plaintiff, A. Aiudi and Sons, LLC, filed an application with the commission for the removal of approximately 95,000 cubic yards of sand and gravel from its property in Plainville. The plaintiff's property is located in a residential zone and is situated between a residential neighborhood and a concrete plant utilized by the plaintiff. The commission held two public hearings in connection with the plaintiff's application during which it received testimony regarding the potential impact of the plaintiff's proposed activity from experts and owners of property abutting the plaintiff's property.

At the November, 1996 hearing, the plaintiff offered a brief overview of the area it sought to excavate but presented no other evidence in support of its application. At the December, 1996 hearing, Gregory Granger, an attorney appearing on behalf of the abutting property owners, objected to the plaintiff's application pursuant to General Statutes § 22a-19.¹ Granger presented four expert witnesses, all of whom testified about the negative impact that the plaintiff's proposed excavation posed to neighboring properties.

Thereafter, the commission denied the plaintiff's application,² and the plaintiff appealed to the trial court. Construing the plaintiff's application as an application for site plan approval, the trial court upheld the commission's decision to deny the plaintiff's application and dismissed the plaintiff's appeal. The trial court concluded that the rule announced in Friedman v. Planning & Zoning Commission, 222 Conn. 262, 265-66, 608 A.2d 1178 (1992), authorizes a zoning commission to take into account general considerations of health, safety and welfare of the community in denying a site plan application when the applicable regulations so permit. The trial court further concluded that, because the applicable town zoning regulations expressly authorize the commission to deny an application on the basis of these "general considerations," the commission properly considered, inter alia, the health and safety of the community in denying the plaintiff's application.³

On the granting of certification, the plaintiff appealed from the judgment of the trial court to the Appellate Court. The Appellate Court affirmed the trial court's judgment, concluding that, even though the plaintiff had filed its application as an application for site plan approval, the application, "in substance," qualified as one for a special exception rather than site plan approval.⁴A. Aiudi & Sons, LLC v. Planning & Zoning Commission, 72 Conn. App. 502, 505, 516, 806 A.2d 77 (2002). The Appellate Court noted that, even if it were to accept the plaintiff's characterization of its application as one for site plan approval, General Statutes § 8-3 (g)⁵ and the applicable regulations authorized the commission to deny the plaintiff's application on the basis of considerations of public health, safety and welfare. Id., 515. This appeal followed.

We granted the plaintiff's petition for certification to appeal limited to the following issues: First, "[d]id the Appellate Court properly hold that the plaintiff's site plan application was actually an application for [a] special exception?" A. Aiudi & Sons, LLC v. Planning & Zoning Commission, 262 Conn. 919, 812 A.2d 861 (2002). Second, "[d]id the Appellate Court properly determine that if the application was seeking site plan approval, general criteria in the zoning regulations could serve as a basis for denial?" Id. We conclude that the Appellate Court properly determined that the plaintiff's application was, "in substance," one for a special exception and, therefore, need not reach the second certified issue.

The plaintiff claims that the Appellate Court improperly concluded that its application qualified as an application for a special exception. The plaintiff submits that the language of § 910 (2) of the regulations of the town of Plainville requires the issuance of a permit for the plaintiff's proposed activity and not a special permit or special exception. The plaintiff contends, therefore, that its application does not qualify as an application for a special exception but, rather, as an application for site plan approval. According to the plaintiff, the classification of its application as one for site plan approval rather than one for a special exception means that § 8-3 (g), rather than General Statutes § 8-2 (a),⁶ applies. In support of its claim that the commission improperly denied its application on the basis of general considerations of public health, safety and welfare, the plaintiff relies on Kosinski v. Lawlor, 177 Conn. 420, 423, 418 A.2d 66 (1979). We disagree with the plaintiff that its application was merely one for site plan approval and conclude that the application qualifies as an application for a special exception, thereby implicating the provisions of § 8-2 (a) rather than § 8-3 (g).

We begin by noting our standard of review when interpreting statutes as well as regulations. "Statutory construction . . . presents a question of law over which our review is plenary." (Internal quotation marks omitted.) Morrison v. Parker, 261 Conn. 545, 548, 804 A.2d 777 (2002), quoting Tighe v. Berlin, 259 Conn. 83, 89, 788 A.2d 40 (2002). Such plenary review also applies to questions of law relating to the interpretation of regulations. Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001).

When the provisions of a zoning regulation contain requirements or procedures mirroring those found in special exceptions, we have held that an application qualifies as an application for a special exception in substance even though the regulation does not identify or label the application as one for a "special exception." Etzel v. Zoning Board of Appeals, 155 Conn. 539, 540-41, 235 A.2d 647 (1967); Powers v. Common Council, 154 Conn. 156, 159-60, 222 A.2d 337 (1966); see also Huhta v. Zoning Board of Appeals, 151 Conn. 694, 696, 202 A.2d 139 (1964) ("[w]hether or not . . . [the] term [special exception] is used in the particular zoning regulations is not material"). In Etzel v. Zoning Board of Appeals, supra, 155 Conn. 539, the trial court dismissed the appeal of the plaintiff, Johanna Etzel, who owned land in a "light industrial" zone in North Haven, from the decision of the defendant zoning board of appeals denying her application for a certificate of approval for the erection of an automotive service station. Id., 540. Etzel thereafter appealed to this court. Id. We noted that, pursuant to the applicable zoning regulations, "automobile service stations are a permitted use in . . . a [light industrial] zone, but no permit for the construction of an automobile service station may be issued until the proposed location has been approved as suitable by the zoning board of appeals and, following such approval, certain designated physical aspects of the layout have been approved by the planning and zoning commission." Id. Accordingly, we held that "[t]he zoning regulations . . . place an automobile service station in the category of a special exception." Id. We discounted the fact that the applicable regulation did not employ the term "special exception" and noted that the absence of that term from the regulations was "of no consequence"; id., 541; because "[t]he language of the section ma[de] clear that no permit for the construction of an automobile service station [was] to be issued until the special conditions pertaining to that use of the land ha[d] been satisfied." Id.

We reached a similar conclusion in Powers v. Common Council, supra, 154 Conn. 156, in which the plaintiff, Seymour R. Powers, appealed from the trial court's dismissal of his appeal from the defendant common council's denial of his application for the designation of land as a multiple housing project area. Id., 158. The city of Danbury had enacted a zoning ordinance that provided that "subject to the provisions of [Danbury Zoning Ordinance] § 3.17, a multiple housing project is a permitted use in a professional office and apartment district. The effect of § 3.17, however, is that no property within the district may be put to that use unless the property is first recommended by the planning commission and designated by the council for that use." Id., 159. In Powers, we noted, as we did in Etzel, that the applicable ordinance did not use the term "special exception" or the term "special permit." Id. Nonetheless, we concluded that "[t]he nomenclature is immaterial so long as the effect is the same"; id.; and held that "this area designation process [was] in effect a procedure for the granting of a special permit." Id., 160; see also Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 220, 779 A.2d 750 (2001).

Similarly, in the present case, we are not constrained by the use or lack of use of the term "special exception" or the term "special permit" in determining the effect of the particular regulations at issue. Rather, we examine these regulations, focusing on their...