Buddington Park Condo. Ass'n v. Planning

• Decision Date: 28 December 2010
• Docket Number: AC 31525
• Citation: Buddington Park Condo. Ass'n v. Planning & Zoning Comm'n of the City of Shelton, AC 31525 (Conn. App. Dec 28, 2010)
• Court: Connecticut Court of Appeals
• Parties: BUDDINGTON PARK CONDOMINIUM ASSOCIATION ET AL. v. PLANNING AND ZONING COMMISSION OF THE CITY OF SHELTON ET AL.

BUDDINGTON PARK CONDOMINIUM ASSOCIATION ET AL.

v.PLANNING AND ZONING COMMISSION OF THE CITY OF SHELTON ET AL.

AC 31525

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued October 19

officially released December 28, 2010

The "officially released" date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ''officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ''officially released'' date.

All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.

The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.

DiPentima, C. J., and Lavine and Flynn, Js.

(Appeal from Superior Court, judicial district of Ansonia-Milford, Hon. George W. Ripley II, judge trial referee.)

Timothy J. Lee, for the appellants (plaintiffs).

Ramon S. Sous, assistant corporation counsel, for the appellee (named defendant).

Dominic J. Thomas, Jr., for the appellees (defendant Carol Farrell et al.).

Opinion

LAVINE, J. The plaintiffs, Buddington Park Condominium Association (association), Lynn Farrell and Maurice Cayer, appeal from the judgment of the trial court dismissing their zoning appeal from a decision of the defendant planning and zoning commission of the city of Shelton (commission).¹ On appeal, the plaintiffs claim that the trial court improperly determined that (1) they were not denied due process when the commission received, ex parte, a revised site plan from the applicants, the defendants Carol Farrell and Robert Farrell, following the close of the public hearing, (2) the commission's resolution regarding the application is not unconstitutionally vague, although it does not provide standards for setbacks and building locations, and (3) the applicants provided adequate notice of the property that was the subject of the amendment to the zoning regulations, although the notice failed to include a metes and bounds description of the property. We agree with the plaintiffs' first and third claims and, therefore, reverse the judgment of the trial court.²

The following facts and procedural history are relevant to our resolution of the plaintiffs' appeal. On September 11, 2007, the applicants submitted to the commission, pursuant to § 34 of the Shelton zoning regulations (regulations), an application for a planned development district (district) to develop seven residential units on their property at 122 Buddington Road, Shelton, consisting of 3.35 acres. The commission held hearings on October 23 and November 27, 2007, and conditionally voted to approve a resolution related to the application on February 26, 2008. The plaintiffs filed an appeal in the trial court on April 9, 2008, claiming that the commission's approval of the application was illegal, arbitrary and an abuse of the discretion vested in the commission. More specifically, the plaintiffs alleged that the commission approved the district despite procedural irregularities, despite the fact that the Shelton inland wetlands commission had not submitted a report, despite the fact that the district is inconsistent with the surrounding neighborhood and the Shelton plan of conservation and development, and despite the fact the decision is not supported by the record. The plaintiffs also alleged that the approval was in violation of the regulations and state law and was not rendered within the time permitted by law.

The trial court made the following findings of fact. Lynn Farrell and Maurice Cayer own units within the association located at 2 Buddington Park in Shelton. The plaintiffs' property is within 100 feet of the parcel of land that is the subject of the appeal and, therefore, the plaintiffs are aggrieved. Quoting from Blakeman v. Planning & Zoning Commission, 82 Conn. App. 632, 846 A.2d 950, cert. denied, 270 Conn. 905, 853 A.2d 521 (2004), the court noted that in considering an applica-tion for a planned development district, the commission acts in a legislative capacity, rather than an administrative one, and that it has wide and liberal discretion and is free to amend its regulations ''whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change.'' (Internal quotation marks omitted.) Id., 643. The court found that § 34 of the regulations permits the creation of a district, which is a three step process. The first step is to locate the property within a special development area, the second step is to file an informal application with initial development concept plans and the third step is to file a final site development plan. In this case, the court found that the plaintiffs had appealed from the commission's approval of the informal application, or step two of the process.

The court also found that the commission had held a public hearing on the informal application on October 23, 2007, at which time members of the public in attendance voted and submitted a petition requiring the commission to approve the application by a two-thirds majority. The public hearing was continued to November 27, 2007, and closed following the applicants' presentation and after opponents were given an opportunity to speak. On February 26, 2008, the commission held a special meeting to consider the application and expressed concern regarding the number of units proposed. The court found that Anthony Panico, the town's planning consultant, ''referred to a draft resolution which left the number of units blank. The applicant had suggested lowering the units from seven to six, which resulted in removing objections to wetland intrusion and spacing between units, as well as other considerations.'' The court then stated that ''[r]eceiving information from staff members after the public hearing is closed is permitted.'' Moreover, the court found that although the plaintiffs claim prejudice, they ''offer[ed] no explanation as to how they were prejudiced by the reduction of the number of units as proposed'' by the applicants.³ Continuing, the court stated that ''[b]ecause the applicant[s] had yet to go before the [commission] on the submission of its final detailed plans under the three stage process, the plaintiffs would have an opportunity to be heard on the number of units and any claim of prejudice by the plaintiffs could be considered.'' The court dismissed the appeal by memorandum of decision filed March 31, 2009. Following this court's granting of certification to appeal, the plaintiffs appealed.

The plaintiffs' claim is that the court improperly concluded that they were not prejudiced by the commission's receipt of ex parte communications from the applicants after the public hearing was closed. We agree.

Our review of the record of the commission's February 26, 2008 meeting discloses the following. Richard D. Schultz, administrator, stated that the commission had directed its staff to draft a favorable resolution pending additional discussions as to the number of units in the district. Panico read the proposed resolution, which did not specify the number of units in the district. Patrick Lapera, vice chair of the commission, opened the discussion by stating that the commission needed to come to a decision regarding the number of units, noting that the applicants had requested seven units. Panico informed the commission that the staff had pointed out some geometric spacing problems to the applicants, and the applicants ''provided a response as to how they could address those issues by removing one of the units down below bringing the number of units down to six, thereby addressing a number of other issues.'' Commissioner Leon Sylvester asked ''to see the site plan for six homes'' and later observed that the applicants ''have voluntarily reduced the number seven because it was a problem to this commission.'' Following a discussion, the commission voted four to two to approve the district application with six units. On the basis of our review of the record, we conclude that the commission received an ex parte communication from the applicants that it considered in approving the proposed district and that the court, therefore, improperly concluded that the plaintiffs had failed to demonstrate prejudice.

On appeal to this court, the plaintiffs complain that the applicants' revised plan was not made available for public comment and/or cross-examination by those opposed to the district at the public hearing, thereby denying them due process. They also claim that they were prejudiced by the commission's consideration of the revised plan because without the revised plan, the commission may have denied the application for a seven unit district.

''Ordinarily, zoning authorities act in either a legislative or an administrative capacity [and] the function of creating zones and...