Barberino Realty and Development Corp. v. Planning and Zoning Com'n of Town of Farmington

• Decision Date: 11 June 1992
• Docket Number: No. 14362,14362
• Parties: BARBERINO REALTY AND DEVELOPMENT CORPORATION v. PLANNING AND ZONING COMMISSION OF The TOWN OF FARMINGTON et al.
• Court: Connecticut Supreme Court

Page 1205

610 A.2d 1205

222 Conn. 607

BARBERINO REALTY AND DEVELOPMENT CORPORATION v. PLANNING AND ZONING COMMISSION OF The TOWN OF FARMINGTON et al.

No. 14362.

Supreme Court of Connecticut.

Argued Feb. 14, 1992.

Decided June 11, 1992.

Joseph L. Hammer, with whom were Charles W. Fortune and, on the brief, Palmer S. McGee, Jr., Hartford, for appellants (defendants).

Robert J. Reeve, with whom, on the brief, were William L. Wollenberg and Edward F. Scully, Unionville, for appellee (plaintiff).

Before SHEA, CALLAHAN, GLASS, BORDEN and BERDON, JJ.

BERDON, Associate Justice.

This appeal involves a zoning regulation that requires a site plan showing the specific project proposed to be submitted with an application for a special permit. The principal issue presented is whether, after approval of such a permit and site plan, a subsequent revision to the site plan must conform to the zoning regulations governing approval of such a special permit. ¹ In 1978, the named defendant, the planning and zoning commission of the town of Farmington (commission), ² granted a special permit to develop elderly housing to the plaintiff, Barberino Realty and Development Corporation. Several years later, the plaintiff returned to the commission seeking approval of an application for a revised site plan that materially altered the original proposal for the elderly housing project. The commission denied the plaintiff's application on the ground that the plaintiff had failed to comply with certain requirements set forth in the applicable special permit regulations.

The plaintiff appealed to the Superior Court, which affirmed the decision of the commission. The plaintiff then appealed to the Appellate Court, which reversed and held that the commission could not apply the conditions of the special permit regulations when considering the revised site plan application of the plaintiff. Barberino Realty & Development Corporation v. Planning & Zoning Commission, 25 Conn.App. 392, 594 A.2d 1025 (1991). Certification to appeal was granted and we reverse the judgment of the Appellate Court.

Because the decision of the Appellate Court succinctly relates all the facts, we will repeat only those facts relevant to this appeal. In Farmington, elderly housing is a permitted use upon the issuance of a special permit. ³ In 1978, the plaintiff, who owns a parcel of land bordering Tunxis and Main Streets in Farmington, applied to the commission for a special permit ⁴ to construct seventy units of elderly housing on 8.38 acres of the parcel. Pursuant to the applicable zoning regulations, the plaintiff simultaneously submitted a site plan detailing the specific project proposed. The site plan proposed the construction of approximately thirteen separate small scale buildings, each containing either four or six dwelling units.

After holding a public hearing on the plaintiff's application, the commission approved the 1978 application for the special permit with certain modifications to the site plan, one of which was the relocation of the entrance to the development from its proposed location at the far end of Tunxis Street to a point closer to the intersection of Tunxis and Main Streets. Neighboring property owners unsuccessfully appealed to the Superior Court from the commission's decision to grant the special permit. The plaintiff, however, never commenced construction on the project as designed and approved in 1978.

On July 1, 1988, the plaintiff filed an application with the commission for approval of a revised site plan, which proposed the development of what was basically the same site that the plaintiff had been given a special permit to develop in 1978. Instead of the original proposal of thirteen small scale buildings to accommodate the seventy dwelling units of elderly housing, however, the revised site plan proposed a single two and one-half story building containing seventy units. Timely legal notices were published in the Farmington News noticing a public hearing on the plaintiff's application for site plan approval. The public hearing was held on December 12, 1988, after which the commission voted to deny without prejudice the plaintiff's application for a revised site plan.

The plaintiff appealed the commission's decision to the Superior Court. The trial court denied the appeal from the commission's denial of the plaintiff's revised site plan application. The plaintiff obtained certification to appeal from the trial court's judgment to the Appellate Court. On appeal, the plaintiff argued that, once a site plan has been approved in conjunction with a special permit application, any subsequent revision to the site plan is required to conform to the criteria set forth in only the site plan regulations rather than the special permit regulations. The Appellate Court agreed with the plaintiff and reversed the judgment of the trial court.

This court then granted the commission's petition for certification limited to the following issue: "When a zoning regulation requires a site plan showing the specific project proposed to be submitted with an application for a special permit, after approval of such a permit and site plan, must a later revision of the site plan conform to the zoning regulations for approval of such a special permit?" Barberino Realty & Development Corporation v. Planning & Zoning Commission, 220 Conn. 913, 597 A.2d 332 (1991). As an alternate ground on which to affirm the judgment of the Appellate Court; see Practice Book § 4013(a)(4); the plaintiff argues that the Farmington special permit regulations do not contain ascertainable standards for the regulation of the plaintiff's application, but instead merely reiterate the general policy statements contained within the General Statutes. We conclude that the commission properly referred to and applied the zoning regulations governing special permits when reviewing the plaintiff's application for approval of a revised site plan. Moreover, we conclude that the plaintiff has not met its burden of proving that the conditions of the special permit regulations do not contain known and fixed standards for the regulation of such applications.

I

Essentially, the present appeal concerns whether a site plan approved as part of an application for a special permit to construct elderly housing may be subsequently revised without conforming to such special permit regulations. The commission argues that, because the site plan is an integral part of the elderly housing special permit application process, any subsequent revision to the site plan must also comply with the special permit regulations. The plaintiff argues that review of the application for a revised site plan is confined to the regulations governing site plans because, once the special permit is granted, elderly housing is a permitted use on that site. Therefore, according to the plaintiff, the commission may deny the application for the site plan only if it fails to comply with the regulations governing site plans. We agree with the commission.

A specially permitted use enjoys a unique status in a town's planning and zoning scheme because it generally is not restricted to a particular zoning district. "The basic rationale for the special permit [is] ... that while certain [specially permitted] land uses may be generally compatible with the uses permitted as of right in particular zoning districts, their nature is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site. Common specially permitted uses, for example, are hospitals, churches and schools in residential zones. These uses are not as intrusive as commercial uses would be, yet they do generate parking and traffic problems that, if not properly planned for, might undermine the residential character of the neighborhood. If authorized only upon the granting of a special permit which may be issued after the [zoning] board is satisfied that parking and traffic problems have been satisfactorily worked out, land usage in the community can be more flexibly arranged than if schools, churches and similar uses had to be allowed anywhere within a particular zoning district, or not at all." T. Tondro, Connecticut Land Uses p. 78.

Accordingly, before the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood. The commission, therefore, must be allowed to examine the suggested proposal closely. The details of the proposal are laid out in the site plan, which "is a physical plan showing the layout and the design of the site of a proposed use.... It generally should indicate the proposed location of all structures, parking areas and open spaces on the plot and their relation to adjacent roadways and uses." (Internal quotation marks omitted.) SSM Associates Limited Partnership v. Plan & Zoning Commission, 15 Conn.App. 561, 567, 545 A.2d 602 (1988), aff'd, 211 Conn. 331, 559 A.2d 196 (1989). As used in General Statutes § 8-3(g), ⁵ a site plan is "a general term which is used in a functional sense to denote a plan for the proposed use of a particular site, purporting to indicate all the information required by the regulations for that use." Id., 15 Conn.App. at 566, 545 A.2d 602.

When considering an application for a special permit, the commission is called upon to make a decision as to whether a particular application for elderly housing would be compatible with the particular zoning district, under the circumstances then existing. That determination can only be made after a thorough examination of the specific site plan submitted. As in SSM Associates Limited Partnership v. Plan & Zoning Commission, 211 Conn. 331, 334, 559 A.2d 196 (1989),...