Gerlt v. Planning and Zoning Com'n

• Decision Date: 10 February 2009
• Docket Number: No. 18149.,18149.
• Citation: 963 A.2d 24,290 Conn. 300
• Parties: Wayne C. GERLT v. PLANNING AND ZONING COMMISSION OF the TOWN OF SOUTH WINDSOR et al.
• Court: Connecticut Supreme Court

963 A.2d 24

290 Conn. 300

Wayne C. GERLT v. PLANNING AND ZONING COMMISSION OF the TOWN OF SOUTH WINDSOR et al.

No. 18149.

Supreme Court of Connecticut.

Argued September 5, 2008.

Decided February 10, 2009.

Gwendolyn S. Bishop, with whom were Paul T. Smith and, on the brief, Paul W. Smith, Windsor Locks, for the appellant (plaintiff).

John P. Casey, with whom, on the brief, was Brian R. Smith, Hartford, for the appellee (named defendant).

Charles D. Ray, with whom, on the brief, were Matthew A. Weiner and William H. Narwold, Hartford, for the appellee (defendant Evergreen Walk, LLC).

NORCOTT, KATZ, PALMER, ZARELLA and SULLIVAN, Js.

SULLIVAN, J.

The named defendant, the planning and zoning commission of the town of South Windsor (commission), approved a general plan of development submitted by the defendant, Evergreen Walk, LLC (Evergreen Walk), for the development of a 232 acre property on the west side of Buckland Road in the town of South Windsor.¹ The plaintiff, Wayne C. Gerlt, a neighboring landowner, then appealed from the approval to the Superior Court claiming that the approval constituted an unlawful site plan approval under General Statutes § 8-3(g).² The trial court concluded that the general plan of development did not constitute a site plan under § 8-3(g), and that the commission's approval of it was preliminary and nonbinding. Accordingly, the trial court dismissed the plaintiff's appeal. The plaintiff then brought this appeal,³ claiming that the trial court improperly had concluded that the general plan of development did not constitute a site plan and that the commission's approval did not violate the applicable land use statutes and zoning regulations. We conclude that the trial court properly determined that, under the South Windsor zoning regulations, a general plan of development does not constitute a site plan governed by § 8-3(g) and is intended to be preliminary and nonbinding. We also conclude, however, that certain decisions and conditions that underlay the commission's approval of this particular general plan of development were not preliminary and nonbinding as to the plaintiff. Rather, the commission treated them as final, unreviewable decisions during subsequent site plan proceedings, and, by doing so, allowed the proposed development to evade the requirements of § 8-3(g). Accordingly, we conclude that the trial court improperly dismissed the plaintiff's appeal.

The record reveals the following undisputed facts. In June, 2001, pursuant to § 8.1.2.1 of the South Windsor zoning regulations,⁴ Evergreen Walk submitted an application for a general plan of development to the commission in which it proposed to construct and operate a complex of retail, office, lodging and recreational facilities on a 232 acre property located on Buckland Road in South Windsor. Thereafter, the commission conducted a voluntary public hearing on the application. At the hearing, Marcia Banach, the director of planning for South Windsor, explained that "[t]he purpose of the general plan is to provide for commission approval at an early stage in the planning of a project before [extensive] engineering is completed. This is beneficial to both [Evergreen Walk] and the commission as [Evergreen Walk] will receive the commission's input in reaction to a development proposal and the commission can have meaningful input into a project design. For these reasons the amount of detail required is minimal, however, the commission does have to be satisfied that you got enough information to make an informed decision. . . . A full site plan of development that is in conformance with the approv[ed] general plan would have to be submitted and approved by this commission. The site plan would include all of the engineering details as well as final building design, final site layout."

The commission approved the general plan of development on October 9, 2001, subject to numerous conditions. One of the conditions provided that "[i]n accordance with [§ ] 3.A.4.b [of the South Windsor zoning regulations governing the Buckland Road and Sullivan Avenue corridor],⁵ a waiver is hereby granted to allow three signalized driveway intersections with Buckland Road as shown on [the] general plan." Another condition provided in relevant part that "[i]n accordance with [§ ] 5.8.6.c.6 [of the South Windsor zoning regulations],⁶ the yard setback between Smith Street and the first building is permitted to be partially combined with the required buffer, with a combined total building setback and buffer of 115 feet instead of the full separate width of 140 feet. . . ."

The plaintiff then appealed from the commission's decision to the trial court pursuant to General Statutes § 8-8.⁷ The plaintiff claimed in his complaint that the general plan of development constituted a site plan and that the commission's approval of it was illegal because: it did not contain sufficient detail under the South Windsor zoning regulations; Evergreen Walk had not obtained the reports and studies required by the regulations; and the approval was premised on certain conditions and waivers that the commission was not authorized to grant. The plaintiff further claimed that the general plan of development had not been subject to the statutory notice and hearing requirements for site plans. Finally, the plaintiff claimed that the commission had no authority to approve an application for a general plan of development because no such procedure was authorized by statute.

The trial court rejected the plaintiff's contention that the zoning regulations regarding general plans of development were invalid because they were not authorized by statute. The court stated that the purpose of the regulations providing for a general plan of development was to provide a mechanism for a voluntary, preliminary and informal review of the proposed development and that the commission's approval was advisory and did not vest any rights in Evergreen Walk. The court concluded that the plaintiff had not met his burden of proving that the commission had no authority to conduct such a review. The court also stated that, because "the general plan of development is a voluntary submission, not a required step in the planning stages for the development of the site, a declaration that such a plan is null and void appears to have no effect on the future development plans. . . . As stated in the regulations, no development can take place until a final site development plan is approved." Accordingly, the court concluded, a declaration that the plan was null and void would not provide any relief to the plaintiff.

The trial court noted that the plaintiff had stated in his trial brief that the commission had refused to allow interested parties to challenge certain portions of the general plan of development during subsequent proceedings on the site plans for the development. Specifically, the plaintiff had pointed out that, at a public hearing on the site plan for the Expo Design Center, a retail store in the proposed development, an intervenor had attempted to raise the issue of the traffic congestion caused by the development as a whole. The commission chairman had stated that public comments on the site plan must be tied "to this specific application . . . and not the entire [development] which is not before this commission tonight." The trial court stated, however, that its "consideration of this appeal is limited to a review of the evidence in the record regarding this appeal . . . [and] the court will not consider evidence contained in the record regarding later decisions that were filed after the commission made the decision that is the subject of this appeal." (Citation omitted.) Accordingly, the trial court rejected the plaintiff's claim that the general plan of development constituted a de facto site plan and dismissed the appeal.

The plaintiff then filed this appeal. The plaintiff claims that the trial court improperly concluded that the application for a general plan of development was not a de facto site plan application governed by § 8-3(g).⁸ He further claims that the general plan of development did not meet the statutory and regulatory requirements for a site plan application. Specifically, the plaintiff claims that: (1) Evergreen Walk failed to obtain a regulated activities permit from the South Windsor inland wetlands agency as required by § 8-3(g); (2) Evergreen Walk failed to submit a soil erosion and sediment control plan as required by General Statutes § 22a-329 and § 8.1.7 of the South Windsor zoning regulations; and (3) the commission unlawfully waived compliance with the zoning regulations governing the number of access points to the site and those governing buffer and setback requirements without requiring Evergreen Walk to comply with the procedural notice, hearing and recordation requirements applicable to special permit proceedings. See General Statutes §§ 8-2, 8-3c and 8-3d. In addition, the plaintiff claims that, even if the waivers related to access points and buffer requirements did not require Evergreen Walk to obtain a special permit, they constituted illegal variances under General Statutes § 8-6. See Langer v. Planning & Zoning Commission, 163 Conn. 453, 457, 313 A.2d 44 (1972) (under § 8-6 "the power to vary the ordinance . . . lies exclusively in a [zoning] board of appeals").

The defendants respond that the trial court properly determined that the general plan of development was not a site plan, but rather was a preliminary, nonbinding conceptual plan. Accordingly, they argue, the plan was not subject to the statutory and regulatory requirements applicable to site plan applications. They further contend that the commission did not grant any waivers or variances because: (1) the general plan of development did not conflict with the regulations; and (2) even if the general plan of development did vary from the regulations, the approval did not vest any right...