Barbieri v. Planning & Zoning Commission

• Decision Date: 11 November 2003
• Docket Number: (AC 23618).
• Citation: 833 A.2d 939,80 Conn. App. 169
• Court: Connecticut Court of Appeals
• Parties: NANCY J. BARBIERI v. PLANNING AND ZONING COMMISSION OF THE TOWN OF EAST WINDSOR ET AL.

80 Conn. App. 169

833 A.2d 939

NANCY J. BARBIERI v. PLANNING AND ZONING COMMISSION OF THE TOWN OF EAST WINDSOR ET AL.

(AC 23618).

Appellate Court of Connecticut.

Argued September 8, 2003.

Officially released November 11, 2003.

Lavery, C. J., and Bishop and Mihalakos, Js.

Paul W. Smith, for the appellant (plaintiff).

Stephen T. Penny, town attorney, for the appellee (named defendant).

John H. Parks, for the appellee (defendant Rye Street Business Park, LLC).

Opinion

LAVERY, C.J.

The plaintiff, Nancy J. Barbieri, appeals from the judgment of the trial court dismissing her appeal from the decision of the defendant planning and zoning commission of the town of East Windsor (commission), approving the application of the defendant Rye Street Business Park, LLC (Rye), for a site plan modification for its property. On appeal, the plaintiff claims that the court improperly (1) construed the town's zoning regulations as permitting a gravel driveway and a portion of a gravel parking area to be located in a required buffer zone, and (2) concluded that the potential increase in use of the right-of-way that provides access to the subject property is not an illegal expansion of a nonconforming use. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of the plaintiff's appeal. Rye owns two contiguous lots in an industrial zone on Rye Street in East Windsor. For many years, Rye has operated an industrial business on the lot at 95 Rye Street. Both of Rye's lots are rear lots, which have no public road frontage. The only way to access the lots is by a right-of-way over a fifty foot strip of land owned by a third party.¹ That right-of-way runs through a residential zone, which is adjacent to Rye's lots. The plaintiff owns property in the residential zone at 99 Rye Street. The plaintiff's property is adjacent to the right-of-way and abuts Rye's industrial zoned lots.

In October, 2000, Rye filed an application with the commission for a site plan modification for its 95 Rye Street property. The application proposed an addition to the existing building and, to comply with space regulations, the merger of the two industrial zoned lots. After a public hearing, the commission, on February 13, 2001, approved Rye's application for a site plan modification pursuant to General Statutes § 8-3 (g)² and the town's zoning regulations.

On March 12, 2001, the plaintiff appealed from the commission's decision to the trial court pursuant to General Statutes § 8-8 (b).³ After a hearing, the court issued a memorandum of decision in which it upheld the commission's decision, concluding that the plaintiff had not "sustained her burden of showing that the commission acted unreasonably in approving the site plan and, in particular, approving the buffer area as set forth in the plan." Accordingly, on August 29, 2002, the court rendered judgment dismissing the plaintiff's appeal. On September 18, 2002, the plaintiff filed a petition for certification to appeal to this court, which we granted. Thereafter, the plaintiff filed the present appeal.

I

The plaintiff first claims that the court improperly construed the town's zoning regulations as permitting a gravel driveway and a portion of a gravel parking area to be located in a required buffer zone. We disagree.

At the outset, we set forth our standard of review. A zoning commission's authority in ruling on a site plan is limited. A site plan is "filed with a zoning commission or other municipal agency or official to determine the conformity of a proposed building, use or structure with specific provisions of the zoning regulations." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 2.2, p. 18. "In ruling upon a site plan application, the planning commission acts in its ministerial capacity, rather than its quasi-judicial or legislative capacity. It is given no independent discretion beyond determining whether the plan complies with the applicable regulations." (Internal quotation marks omitted.) Berlin Batting Cages, Inc. v. Planning & Zoning Commission, 76 Conn. App. 199, 221, 821 A.2d 269 (2003).

"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. . . . In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal. . . . [U]pon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons. . . . We, in turn, review the action of the trial court." (Citations omitted; internal quotation marks omitted.) Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991); accord Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627-28, 711 A.2d 675 (1998). "The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision." (Internal quotation marks omitted.) Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269-70, 588 A.2d 1372 (1991).

"Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes. . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law. . . . These principles apply equally to regulations as well as to statutes. . . . A court that is faced with two equally plausible interpretations of regulatory language, however, properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation." (Citations omitted; internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 698-99, 784 A.2d 354 (2001). Because the interpretation of East Windsor's zoning regulations presents a question of law, our review of the plaintiff's claim is plenary.

Finally, "[a] zoning regulation is legislative in nature, and its interpretation involves the principles of statutory interpretation. . . . 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." (Citation omitted.) Smith-Groh, Inc. v. Planning & Zoning Commission, 78 Conn. App. 216, 232, 826 A.2d 249 (2003); see also Bhinder v. Sun Co., 263 Conn. 358, 367, 819 A.2d 822 (2003). With those principles in mind, we now turn to the plaintiff's claim.

The plaintiff contends that the court improperly construed the town's zoning regulations as permitting a gravel driveway and a portion of a gravel parking area to be located in a required buffer zone because the regulations require the buffer to be maintained as a grass strip.⁴ Section 9.2.1 of the East Windsor zoning regulations requires a 100 foot wide buffer zone to be maintained between an industrial zone and a residential zone. That section further provides that "[t]his buffer zone shall be maintained on a strip with a planting of at least two staggered rows of evergreen trees, not less than five feet in height, on 20 foot centers, and at least 1 row of evergreen shrubs on 6 [foot] centers, with minimum height of 3 [feet], on the outside edge of the buffer zone." East Windsor Zoning Regs., § 9.2.1. Section 4.1.7 of the regulations defines "buffer zone" as "[a] strip of land, unoccupied by buildings, structures or pavements; and maintained as a grass strip with plantings of trees and shrubs." (Emphasis added.)

It is undisputed that a gravel access driveway and a portion of an existing gravel parking area are located in the required buffer zone in the subject site plan. It also is undisputed, however, that pursuant to the zoning regulations, gravel driveways and parking areas are not "buildings, structures or pavements," which are expressly prohibited from being located in buffer zones.⁵ The only remaining issue, therefore, is whether the regulations prohibit locating anything in a buffer zone except grass, trees and shrubs, as the plaintiff contends.

On the basis of our review of the record and the relevant provisions of the zoning regulations, we conclude that the regulations are not intended to be so narrow as to exclude everything except grass, trees and shrubs from buffer zones. If the zoning authorities had intended to proscribe everything except grass, trees and shrubs from buffer zones, it would have been unnecessary and even gratuitous to expressly prohibit "buildings, structures or pavements" from those areas. Moreover, it makes little sense for § 4.1.7 to prohibit only pavement if the intent of that provision is to prohibit gravel, stone and sand as well, especially when other provisions in the regulations use more encompassing language.⁶

We agree...