Frito-Lay, Inc. v. Planning and Zoning Com'n of Town of Killingly

Decision Date15 March 1988
Docket NumberINC,No. 13134,FRITO-LA,13134
Citation538 A.2d 1039,206 Conn. 554
CourtConnecticut Supreme Court

Ralph P. Dupont, with whom was Thomas J. Riley, New London, for appellant (plaintiff).

John D. Boland, Putnam, for appellee (named defendant).

Gregory A. Sharp, Hartford, for appellee (defendant Richard C. Cunneen).


ARTHUR H. HEALEY, Associate Justice.

The plaintiff, Frito-Lay, Inc. (Frito-Lay), appealed to the Superior Court from the denial of its application for a special permit and site plan approval (application) by the named defendant, planning and zoning commission of the town of Killingly (commission). 1 Although that court found Frito-Lay to be aggrieved, it dismissed its appeal. 2 The Appellate Court granted Frito-Lay's petition for certification and, thereafter, this court transferred the appeal to itself. Practice Book § 4023.

Initially, certain relevant circumstances, augmented later in this opinion, are appropriately set out at this point. Frito-Lay is, and has been at all times relevant, the record owner of real estate in Killingly, upon which is situated a food processing facility and office. These premises are located in an industrial district as defined in the Killingly zoning regulations (regulations). After some discussions with Killingly town officials, Frito-Lay filed an application for a special permit on November 26, 1984, which was later supplemented by a site plan. This application explicitly proposed "new construction" of a wood chip burning electric "co-generation plant" and this proposed facility included, inter alia, a boiler, generator, silo and chimney. 3

The commission formally accepted Frito-Lay's application at its regular meeting of December 10, 1984. See General Statutes § 8-7d(c). Thereafter, a public hearing was set by the commission for January 14, 1985. This public hearing was duly noticed and held on January 14, 1985. At that hearing, the commission heard testimony, received other evidence and heard oral argument for and against the application. The chairman of the commission specifically declared the public hearing closed at the end of the meeting of January 14, 1985. At that time, Frito-Lay's application was tabled to the commission's next regular meeting on February 11, 1985, pending the receipt of certain information required by the commission.

At its regular meeting of February 11, 1985, the commission, during its "Citizens' Participation" 4 item on its agenda, heard comments on the Frito-Lay application. 5 The trial court found that "fourteen citizens voiced opinions during the course of the meeting on the plaintiff's application." A close examination of the transcript of the remarks made during the "Citizens' Participation" portion discloses that most of those speakers did not view the application with favor. Richard Cunneen, who later intervened and ultimately became a party defendant, was one of the citizens who spoke. After this portion of the meeting was over, commission chairman Vincent Baiocchetti addressed William Walker, Frito-Lay's plant engineer who was present, and told Walker that he had some questions to ask him. 6 Walker responded not only to the chairman's question, but also to a large number of questions from other members of the commission. At the end of this meeting, the commission voted unanimously to table the application until its next meeting on March 11, 1985.

At the outset of the meeting of March 11, 1985, the town planner, Richard Hubbard, announced that Frito-Lay would not be present that night due to a fatality at its plant and that Frito-Lay had requested an extension until the end of March. The commission determined that a special meeting would be held on March 26, 1985, and, therefore, that no action would be taken that night. 7 Thereafter, the "Citizens' Participation" portion of the agenda preceded the other business of the meeting, as it had on January 14, 1985, and on February 11, 1985. At the "Citizens' Participation" portion, nine persons spoke on the Frito-Lay matter.

On March 26, 1985, the commission held a special meeting. 8 At the outset of this meeting, Baiocchetti, before opening "Citizens' Participation," said that the commission was "limiting discussion based on the information that [had] been gathered at the public hearing, so any comments that the citizens want[ed] to make regarding Planning and Zoning should not, should not relate to the matter before us this evening." 9 (Emphasis in original.) This immediately met with a demurrer from a prospective speaker. She was told by the chairman that anything she said "relative to the issue before [the commission that night would] carry no weight because [the commission had] already taken testimony." This woman, however, did speak on the Frito-Lay matter. Attorney Gregory Sharp, representing Cunneen, also spoke, as did Cunneen himself. Despite further statements by the chairman that the commission could accept "no more testimony" because the hearing had been closed in January, that that hearing had been "irrevocably closed," that the commission was not taking "any evidence at this point" and that the commission was "following state statutes exactly," fourteen citizens still spoke on Frito-Lay's operations and the great majority was opposed to its operations. During the "Citizens' Participation" portion, counsel for Frito-Lay, citing the opening statement of the chairman, objected to Sharp's proposal to speak, although he also said that he had no objection to members of the public speaking. After all of the members of the public had spoken, the chairman asked if anyone from Frito-Lay wished to make a comment. 10 Walker indicated that, given the chairman's earlier ruling, Frito-Lay had elected not to comment.

Immediately thereafter, the chairman closed "Citizens' Participation" and the commission itself discussed the Frito-Lay application. That same evening, the commission voted to deny the Frito-Lay application by a vote of three to two. The reasons given for its denial were: (1) the application did not meet the requirements of § 720.4(c) and (e) 11 of the Killingly zoning regulations; and (2) "the surrounding community has lost faith in Frito-Lay, Inc., due to past performance ... promises have been made to the community prior to the construction of the facility which were not kept, which resulted in a loss of confidence in Frito-Lay's ability to do what it says it will do." Frito-Lay thereafter appealed to the Superior Court.

At the hearing 12 on the appeal before the Superior Court, Frito-Lay claimed that the commission: (1) either failed to act within the statutory time frame or conducted multiple public hearings, which it claimed invalidated any purported commission action, thus resulting in the automatic approval of its application pursuant to General Statutes §§ 8-3c 13 and 8-7d; 14 (2) acted improperly from the outset in requiring an application for a special permit; and (3) acted illegally, arbitrarily or in abuse of its discretion in that the grounds assigned for its denial were not reasonably supported by the record. The Superior Court rejected all of these claims.

On appeal to this court, Frito-Lay claims essentially that the trial court erred: (1) because it did not conclude that the commission failed to complete the public hearing and lawfully decide its application within the mandatory time limits set out in § 8-7d(a), therefore requiring that its application be approved as a matter of law; and (2) in concluding that the commission had the authority to ignore its own regulations to require it to obtain a special permit pursuant to § 770 of its zoning regulations. Frito-Lay raises a number of subissues under each of these overall claims.

We turn first to the issues encompassed by Frito-Lay's claim that its application must be granted as a matter of law because of the commission's failure to adhere to the mandatory time limits set out in § 8-7d(a). We do not agree.

Frito-Lay first argues that Carr v. Woolwich, 7 Conn.App. 684, 510 A.2d 1358, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986), "directly controls" this case because this case involves an application for a special permit and site plan approval on which a hearing is required. It argues that Carr held, in effect, that both the thirty day and sixty-five day time limits referred to in § 8-7d(a) are mandatory and that a failure to comply with either or both of these limits requires, as a matter of law, that its application be approved.

Carr, which was a mandamus action, "involve[d] the issue of whether the failure of the defendant [Bridgewater] planning and zoning commission to act upon the plaintiff's application for a zoning permit for a permitted use of his property within the time constraints set by General Statutes § 8-7d results in the automatic approval of the application." Carr v. Woolwich, supra, 684-85, 510 A.2d 1358. Carr is factually distinguishable from this case. In Carr, the applicant filed his application with the commission on October 11, 1983, which "considered" it at its regularly scheduled meeting of December 7, 1983, and then voted to return the plaintiff's application and accompanying documents to him. On January 4, 1984, the plaintiff appealed to the board of zoning appeals, claiming the action of the commission in returning his application was improper. On March 19, 1984, that board directed the commission to process the application and site development plan. On April 14, 1984, at its regularly scheduled meeting, the commission noted its receipt of the board's decision. It, nevertheless, "failed to take any further action" on the application and had not even done so for almost two years when, on March 14, 1986, the case was argued in the Appellate Court. In Carr, the Appellate...

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