Congamond Lake Environmental Protection Organization v. Suffield Zoning & Planning Commission, LNDCV146052619S

• Decision Date: 12 November 2015
• Docket Number: LNDCV146052619S
• Court: Connecticut Superior Court
• Parties: Congamond Lake Environmental Protection Organization et al. v. Suffield Zoning & Planning Commission et al.

Congamond Lake Environmental Protection Organization et al. v. Suffield Zoning & Planning Commission et al.

No. LNDCV146052619S

Superior Court of Connecticut, Judicial District of Hartford, Hartford, Land Use Litigation Docket

November 12, 2015

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Marshall K. Berger, J.

I

On April 16, 2014, the intervening defendant, Lake Road Materials, LLC (Lake Road), submitted an application to renew a special use to the codefendant, the Suffield zoning and planning commission (commission), to conduct mining operations on Lake Road's property, also known as the Cannon property or the Cannon sand pit, located on Griffin Road off of Copper Hill Road in Suffield. (Return of Record [ROR], Item 1.) The commission held a public hearing on May 19, 2014, and on June 16, 2014, and approved the application during its regular meeting on June 16, 2014. (ROR, Item 9 Item 10; Item 16.) Notice was published in the Hartford Courant on June 19, 2014. (ROR, Item 17.)

On July 3, 2014, the plaintiffs, Congamond Lake Environmental Protection Organization (CLEPO), Kenneth W. Kiely, Paul Pellerin, and Marlies Nakaja, commenced this appeal. The amended complaint of July 28, 2015, contests the validity of the administrative process and the legality of past mining operations on the property from the late 1930s to at least 2003.^[1] Lake Road^[2] filed a motion to intervene as a defendant on July 11, 2014, and the court Vachelli, J., granted the motion on July 30, 2014. On September 22, 2014, the plaintiffs filed a motion, which was granted by the court, to supplement the record including the supplementary items, contained in pleadings ##108.00-113.00. On September 30, 2014, Lake Road filed its answer and the commission filed its answer and the return of record on October 1, 2014. On November 14, 2014, the plaintiffs filed a motion to supplement the record, which was granted by this court on April 7, 2015, with the supplementary items contained in pleading #129.00, and their brief. On January 2, 2015, the commission filed a motion to supplement the record, which was granted in part on April 7, 2015, with the items, contained in pleading #131.00, and the commission and Lake Road filed their joint brief. The plaintiffs filed a brief in reply on January 12, 2015. The parties filed supplemental briefs on June 29, 2015, and the commission and Lake Road filed a brief in reply on July 8, 2015. Pellerin also filed briefs in reply on August 3, 2015, and on August 4, 2015. On August 13, 2015, the court heard the appeal. The court brought the parties back on October 28, 2015, to clarify certain matters concerning the amended complaint of July 28, 2015, pleading #151.00.

II

General Statutes § 8-8(b), in relevant part, provides that " any person aggrieved by any decision of a board, including a decision to approve or deny . . . a special permit or special exception pursuant to [General Statutes] section 8-3c, may take an appeal to the superior court for the judicial district in which the municipality is located . . ." General Statutes § 8-8(a)(1) defines " aggrieved person" as " a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, 'aggrieved person' includes any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."

The court originally heard the appeal starting with the issue of aggrievement on April 7, 2015. As a result of the plaintiffs failure to prove that they were aggrieved, this court dismissed the action. On April 13, 2015, the plaintiffs filed a motion to open to which Lake Road and the commission objected. The court heard the motion on May 15, 2015, and granted it as to Pellerin only based upon his ownership of abutting property.^[3] See General Statutes § § 8-8(a)(1) and (b). Therefore, Pellerin is the only aggrieved plaintiff.^[4]

III

" General Statutes § 8-2(a) provides in relevant part that local zoning regulations may provide that certain . . . uses of land are permitted only after obtaining a special permit or special exception . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values . . . The terms special permit and special exception are interchangeable . . . 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 . . . When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity . . . [Its] function . . . [is] 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 . . . We have observed that the nature of special [permits] 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 . . . Review of a special permit application is inherently fact-specific, requiring an examination of the particular circumstances of the precise site for which the special permit is sought and the characteristics of the specific neighborhood in which the proposed facility would be built . . .

" Our Supreme Court has concluded that general considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit. Also, [it has] stated that 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 . . . would adversely impact the surrounding neighborhood . . . The . . . trial court ha[s] 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.) Meriden v. Planning & Zoning Commission, 146 Conn.App. 240, 244-46, 77 A.3d 859 (2013).

A commission cannot deny a special exception if the regulations and statutes are satisfied. See Irwin v. Planning & Zoning Commission, 244 Conn. 619, 628, 711 A.2d 675 (1998) (" [a] zoning commission does not have discretion to deny a special permit when the proposal meets the [applicable] standards"). " The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, 53 Conn.App. 636, 640, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999).

Additionally, where a nonconforming use is alleged, " General Statutes § 8-2(a) provides in relevant part that zoning regulations 'shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations. Such regulations shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use . . .' A nonconformity has been defined as a use or structure [that is] prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations [were] adopted . . . For a use to be considered nonconforming . . . that use must possess two characteristics. First, it must be lawful and second, it must be in existence at the time that the zoning regulation making the use nonconforming was enacted . . . The party claiming the benefit of a nonconforming use bears the burden of proving that the nonconforming use is valid." (Citations omitted; emphasis in original; internal quotation marks omitted.) Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622, 627-28, 814 A.2d 396, cert. denied, 263 Conn. 901, 819 A.2d 836 (2003).

IV

Suffield adopted its first zoning regulations in 1932 and the town was divided into four zones. (Pleading [Pl.] #131.00, Exhibit [Exh.] 1.) It is undisputed that the subject property was and is located in an " A" residential zone. (ROR, Item 18.) Section 3.A of Suffield's building zone regulations effective May 9, 1932, provided, in relevant part, that " within any 'A' residence zone no building or premises shall be used . . . except for one or more of the specified purposes . . ." (Pl. #108.00, Exh. 1, pp. 5-7.) While sixteen uses are specified, they are silent on the use of gravel and mining operations. (Pl. #108.00, Exh. 1, pp. 5-7.) As set forth in § 1, the regulations^[5] were permissive " meaning that those matters not specifically permitted are prohibited." See Graff v. Zoning Board, 277 Conn. 645, 653, 894 A.2d 285 (2006).

Pellerin argues that the photograph attached to the motion to supplement shows no gravel operation in the area in 1934. (Pl. #110.00.) It appears from the record that the mining operation commenced after Suffield enacted its zoning regulations at some...