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

• Decision Date: 24 September 2002
• Docket Number: (AC 21291)
• Court: Connecticut Court of Appeals
• Parties: A. AIUDI AND SONS, LLC v. PLANNING AND ZONING COMMISSION OF THE TOWN OF PLAINVILLE.

72 Conn. App. 502

806 A.2d 77

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

(AC 21291)

Appellate Court of Connecticut

Argued May 6, 2002

Officially released September 24, 2002

Lavery, C. J., and Schaller and West, Js.

William Galske III, for the appellant (plaintiff). Edward T. Lynch, with whom, on the brief, was Kenneth R. Slater, Jr., for the appellee (defendant).

Opinion

LAVERY, C. J.

The plaintiff, A. Aiudi and Sons, LLC, appeals from the judgment of the trial court, which dismissed the plaintiff's appeal from the decision of the defendant, the planning and zoning commission of the town of Plainville (commission). At issue is the defendant's denial of the plaintiff's application to excavate sand and gravel from a residentially zoned parcel. Essentially, the plaintiff claims that its application was a site plan application and that the defendant had no discretion to deny the application because it satisfied the site plan requirements. We conclude that the plaintiff's application actually was a special permit application and that the defendant properly exercised its discretion in denying the application. We therefore affirm the judgment of the trial court.

The court set forth the following relevant facts in its memorandum of decision. On October 1, 1996, the plaintiff applied to the defendant for site approval to remove 90,000 to 95,000 cubic yards of sand and gravel from property that it owns on Camp Street in Plainville. The property is located in an R-11 zone, which is a residential zone, and lies between residential homes and a concrete plant owned by the plaintiff. Public hearings were held on November 12, 1996, and December 10, 1996. At the first public hearing, the plaintiff made a presentation regarding the area to be excavated, and area residents spoke in opposition to the project. At the second public hearing, attorney Gregory P. Granger intervened on behalf of some area residents, pursuant to General Statutes § 22a-19, and presented their opposition to the plaintiff's application. He also called four expert witnesses, who testified as to the negative effect that the proposed plan would have on the air quality, noise, neighboring property values and the parcel's diminished future use for residential purposes.

Members of the defendant deliberated on the application at their January 14, 1997 meeting. Although three members voted in favor of the application with only one in opposition, the application failed because it did not receive the support of the majority of the six board members present. See Merlo v. Planning & Zoning Commission, 196 Conn. 676, 683, 495 A.2d 268 (1985) ("failure of an application to garner enough votes for its approval amounts to a rejection of the application").

On February 14, 1997, the plaintiff filed an appeal in Superior Court pursuant to General Statutes § 8-9, which was dismissed. Relying on Friedman v. Planning & Zoning Commission, 222 Conn. 262, 608 A.2d 1178 (1992), the court concluded that the defendant properly denied the application after taking into account general health and safety considerations because the town of Plainville's zoning regulations expressly permitted it to do so and gave the defendant the discretion to deny a site plan application.¹ As to the plaintiff's contention that there was little on the record to support the defendant's denial, the court searched the record and stated that it "establishes that the mining poses a serious health risk, violates existing noise pollution standards, depreciates property values and destroys the ability to use that residentially zoned property for residential purposes." The court found that the evidence was sufficient to support the defendant's denial.

Following the court's denial of its motion to reargue, the plaintiff was granted certification to appeal and thereafter appealed to this court. It claims that the trial court improperly concluded that (1) general criteria in zoning regulations may serve as a basis to deny a site plan application, (2) the defendant's regulations permitted the defendant to deny the site plan application on the basis of such general criteria and (3) there was evidence in the record to support the defendant's decision. Additional facts will be provided as necessary.

Although the plaintiff argues that it filed a site plan application, we conclude that the plaintiff actually applied for, and was denied, a special permit. Our review leads us to conclude that the court improperly treated the plaintiff's application as one seeking site plan approval because the application was, in substance, an application for a special permit. Viewing the application as such, we conclude that the defendant acted within its discretion in denying the application. Accordingly, we affirm the judgment on the basis of one of the alternate grounds argued by the defendant because there is evidence in the record in support thereof. See Delfino v. Planning & Zoning Commission, 30 Conn. App. 454, 460, 620 A.2d 836 (1993). "Where a trial court reaches the correct result, but has based that result on mistaken grounds, we will sustain the trial court's action if proper grounds exist to support it." Id.

"A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations.... The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values.... An application for a special permit seeks permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district.... When a special permit is issued, the affected property may be allowed an exception to the underlying zoning regulations, but it continues to be governed in the same manner as provided in the overall comprehensive plan." (Citations omitted; internal quotation marks omitted.) Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 215-17, 779 A.2d 750 (2001).

"When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity.... 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 [Appellate Court and] trial court [have] 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 action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." (Citations omitted; internal quotation marks omitted.) Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627-28, 711 A.2d 675 (1998). Furthermore, although "the zoning commission does not have discretion to deny a special permit when the proposal meets the standards, it does have discretion to determine whether the proposal meets the standards set forth in the regulations." (Emphasis in original.) Id., 628. The plaintiff first argues that the court improperly concluded that general criteria in zoning regulations are proper bases to deny a site plan application. Because we conclude that the trial court improperly treated the plaintiff's application as one for a site plan application when it was, in fact, an application for special permit, we affirm the trial court's judgment on the basis of an alternate ground raised by the defendant. As a matter of law, general considerations enumerated in the zoning regulations are an adequate basis for denying an application for a special permit or exception. Whisper Wind Development Corp. v. Planning & Zoning Commission, 229 Conn. 176, 177, 640 A.2d 100 (1994). Here, § 502 of the defendant's regulations provides that general considerations such as "public health, safety, or general welfare to the public," "harmony and character with the surrounding properties," and "the value of adjacent properties," may be taken into account when considering a special permit. Accordingly, because the defendant had the discretion to deny the plaintiff's application based on general considerations, we must first explain how we reach our conclusion that the plaintiff applied for a special permit.

General Statutes § 8-2, which grants zoning commissions the authority to promulgate regulations provides in relevant part: "All such regulations shall be uniform for each class ... or use of land throughout each district, but the regulations ... may provide that certain... uses of land are permitted only after obtaining a special permit or special exception from a ... combined planning and zoning commission ... subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values...."

The plaintiff's property is located in an R-11 zone, which is zoned for multifamily and single-family use. Not only is the removal of sand, gravel or clay not permitted as of right in an R-11 zone,² § 900 of the zoning regulations provides in relevant part that "[e]xcept as otherwise provided for in this Article, there shall be no removal from the premises, in any district, of earth, sand, gravel or clay...." Although the removal of sand, gravel or clay is not permitted as of right, the plaintiff applied for a two year permit pursuant to § 910.2. Section 910.2 provides in relevant part that "the [defendant] may, after a public hearing, subject to the provisions of Article 6, grant a permit for the removal of sand, gravel or clay in any zone...." (Emphasis added.) Because the plaintiff was...