Dutko v. Planning and Zoning Bd.

• Decision Date: 16 September 2008
• Docket Number: No. 28695.,28695.
• Citation: 110 Conn.App. 228,954 A.2d 866
• Court: Connecticut Court of Appeals
• Parties: Donna DUTKO v. PLANNING AND ZONING BOARD OF THE CITY OF MILFORD.

954 A.2d 866

110 Conn.App. 228

Donna DUTKO v. PLANNING AND ZONING BOARD OF THE CITY OF MILFORD.

No. 28695.

Appellate Court of Connecticut.

Argued May 20, 2008.

Decided September 16, 2008.

Michael C. Jankovsky, Fairfield, for the appellant (plaintiff).

Matthew B. Woods, Norwalk, with whom, on the brief, was Cynthia C. Anger, assistant city attorney, for the appellee (defendant).

FLYNN, C.J., and ROBINSON and BERDON, Js.

FLYNN, C.J.

This certified appeal arises out of the decision of the defendant, the planning and zoning board of the city of Milford (board), not to extend the Milford center design development district (MCDD) to include other nearby properties. The plaintiff, Donna Dutko, appealed from the board's decision to the Superior Court, which dismissed the appeal, concluding that the board properly declined to exercise its legislative authority to extend the MCDD. The plaintiff now appeals, claiming that (1) the trial court utilized an improper standard of review, (2) the court wrongly concluded that the board's decision was based on proper considerations and (3) the board failed to take the plan of conservation and development (plan) into consideration when rendering its decision. We affirm the judgment of the trial court.

The following facts are relevant to our consideration of the plaintiff's appeal. On December 2, 2003, the board created the MCDD, which included several properties around the plaintiff's property. The MCDD allows mixed uses, including multifamily residential and commercial uses. Early in 2004, the board, sua sponte, again considered whether to expand the MCDD to include the plaintiff's property, located at 75 High Street, and two other properties, located at 67 High Street and 83-85 High Street. On May 4, 2004, the board voted not to extend the zone. The plaintiff appealed from the board's decision to the Superior Court, which dismissed the appeal on its merits. Upon our granting certification to appeal, this appeal followed.

I

The plaintiff claims that the court utilized a less stringent standard of review when assessing the merits of her appeal from the board's decision. She argues that the court acted improperly "in holding that there was `adequate' or `sufficient' evidence to support [the] board's decision when the applicable standard of review is `substantial' evidence." We conclude that this claim lacks merit.

"In voting [on the appropriateness of a] zone change of . . . property, [a planning and zoning authority] exercise[s] a legislative function . . . as distinguished from an administrative one. . . . Acting in such a legislative capacity, the [planning and zoning authority] 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." (Citations omitted; internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 505 n. 10, 636 A.2d 1342 (1994). "Legislative decisions reached by [a planning and zoning] commission must be upheld by the trial court if they are reasonably supported by the record . . . . In appeals from administrative zoning decisions, by contrast, the decisions will be invalidated even if they were reasonably supported by the record, if they were not supported by substantial evidence in that record." (Citation omitted; emphasis added; internal quotation marks omitted.) Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 215, 779 A.2d 750 (2001); see Konigsberg v. Board of Aldermen, 283 Conn. 553, 582, 930 A.2d 1 (2007); Kaufman v. Zoning Commission, 232 Conn. 122, 151-53, 653 A.2d 798 (1995); Cottle v. Planning & Zoning Commission, 100 Conn.App. 291, 294-95, 917 A.2d 1030 (2007).

In the present case, there is no dispute that the board was acting in a legislative capacity when considering whether the MCDD should be expanded. Accordingly, the standard to be employed by the trial court when reviewing the board's decision was whether there was reasonable support in the record to sustain the board's decision. Contrary to the plaintiff's claim, the substantial evidence standard is applicable to administrative actions, not to legislative actions. Accordingly, we conclude that the court used the proper standard in assessing the merits of the plaintiff's appeal.

II

The plaintiff next claims that the trial court wrongly concluded that the board's decision reasonably was supported by the record and was not clearly erroneous. She argues that "the board voted against the zone change because `the historic residential character [of the area] should be preserved' and `revising the zoning map and moving the [MCDD] boundary [would] have an adverse impact on neighboring residential properties.'" She further argues that the court was "confined to whether those [stated] grounds were valid and supported by the record," which, she argues, they were not. The board argues that the court correctly concluded that the board had legislative discretion to deny the zone change. We agree with the board.

Our Supreme Court often has articulated the proper, limited scope of judicial review of a decision of a local planning and zoning authority. "[T]he commission, acting in a legislative capacity, [has] broad authority to adopt [zoning] amendments. . . . In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached. . . . Acting in such legislative capacity, the local board is free to amend [or decline to amend] its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change. . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function. . . . This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally. . . . Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment. . . . The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission." (Citations omitted; internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 542-43, 600 A.2d 757 (1991).

"Appeals from legislative zoning decisions require a showing that the commission has acted arbitrarily . . . illegally . . . or in abuse of discretion. . . . Legislative decisions reached by [a planning and zoning] commission must be upheld by the trial court if they are reasonably supported by the record. . . . A zoning commission is not required to give reasons for denying a zone change application [but][w]here reasons are given, it is sufficient if any one of the reasons would be a valid basis to deny the application. R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed.2007) § 33:2, p. 236. In accordance with these principles, in [an] appeal from the commission's [legislative] decision, the commission's only burden before the trial court [is] to show that the record before the [commission] support[ed] the decision . . . and that the commission did not act arbitrarily . . . illegally . . . or in abuse of discretion." (Citation omitted; internal quotation marks omitted.) Cottle v. Planning & Zoning Commission, supra, 100 Conn.App. at 294-95, 917 A.2d 1030.

At its May 4, 2004 meeting, board members voiced their reasons for not wanting to expand the MCDD. Board member Frank J. Goodrich initially moved that the board "not change the zoning map designation from R-7.5 to MCDD for properties located at 67, 75 and 83-85 High Street for the following reasons: (1) the historic residential character of High Street should be preserved; (2) revising the zoning map and moving the MCDD boundary will have an adverse impact on the neighboring residential properties; [and] (3) the owner of the property at 83-85 High Street testified at the public hearing [that] he does not want his zoning changed and submitted a letter on behalf of the owner of 67 High Street that she [does] not want the zone changed." The motion was seconded by board member John Ludtke. The board then discussed the matter in some detail. Ludtke explained that the plaintiff's "house is a significant historical building" and that he believed that "it should be preserved."

Board member Nanci Seltzer explained that although the MCDD is nearby, the property at 75 High Street, which is the plaintiff's property, is not surrounded by the MCDD but, rather, has residential homes on both sides of it. She acknowledged that the property to the rear of 75 High Street was commercial and that the property across the street housed a utility company. She also expressed her opinion that these remaining residential High Street properties should remain residential. Board member Jeanne K. Cervin also expressed her opinion, stating that she thought that these properties had significant historical value to the city.

The board's chairperson, John Jansen, explained that in his opinion, "the argument that this property is surrounded by commercial [property] is not valid. . . ." He also explained that this property has ...