Gevers v. Plan. & Zon. Com'n of N. Canaan

• Decision Date: 21 March 2006
• Docket Number: No. 26149.,26149.
• Citation: 94 Conn.App. 478,892 A.2d 979
• Court: Connecticut Court of Appeals
• Parties: Catherine GEVERS et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF NORTH CANAAN et al.

892 A.2d 979

94 Conn.App. 478

Catherine GEVERS et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF NORTH CANAAN et al.

No. 26149.

Appellate Court of Connecticut.

Argued October 12, 2005.

Decided March 21, 2006.

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R. Bartley Halloran, Farmington, for the appellants (plaintiffs).

Judith Dixon, Winsted, for the appellee (named defendant).

Peter C. Herbst, Torrington, for the appellees (defendants Yale Farm Golf Club Limited Partnership et al.).

LAVERY, C.J., and McLACHLAN and CRETELLA, Js.^*

LAVERY, C.J.

The plaintiffs, Catherine Gevers, Wheaton Byers and Scott Asen,¹ appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant planning and zoning commission of the town of North Canaan (commission) approving the special permit application of the defendant Yale Farm Golf Club Limited Partnership (Yale Farm).² The plaintiffs claim that the court (1) improperly concluded that substantial evidence supported the commission's finding that the proposed use would not unduly impair pedestrian safety, (2) abused its discretion in excluding additional evidence outside the record and (3) incorrectly found Arway v. Bloom, 29 Conn.App. 469, 615 A.2d 1075 (1992), appeal dismissed, 227 Conn. 799, 633 A.2d 281 (1993), to be controlling as to the import of their successful appeal of a related decision of the town's inland wetlands and watercourses agency. We affirm the judgment of the trial court.

This zoning litigation involves a parcel of land owned by Yale Farm consisting of 780 acres, 245 of which are located in a residential-agricultural zone in North Canaan. Straddling the border between North Canaan and Norfolk, the parcel's other 535 acres are located in Norfolk. In the spring of 2003, Yale Farm proposed to build a private eighteen hole golf course on the parcel. Under the proposal, the clubhouse, supporting buildings, structures and parking area would be in Norfolk, as would a majority of the eighteen golf holes.

Article VI of the North Canaan zoning bylaws provides that golf courses are permitted in residential-agricultural zones only by special permit. Accordingly, on April 7, 2003, Yale Farm filed an application with the commission for such a permit. The commission held public hearings on May 28 and June 25, 2003, and participated in a site walk. At a special meeting on July 23, 2003, the commission reviewed the zoning bylaws and made the factual findings required thereunder. It then unanimously approved the special permit application, subject to four conditions.³ The plaintiffs there-after filed a complaint in the Superior Court, contesting the propriety of the commission's approval. They alleged that (1) the commission's finding that the proposed use is essential or desirable to the public convenience was not supported by substantial evidence, (2) the commission's finding that the proposed use will not create undue traffic congestion or unduly impair pedestrian safety was not supported by substantial evidence and (3) the commission improperly acted on the special permit application before receiving a final report of the inland wetlands agency. The court disagreed and dismissed the appeal. We granted the plaintiffs' petition for certification to appeal and now conclude that the court properly dismissed the plaintiffs' appeal.

I

The plaintiffs first claim that the court improperly concluded that substantial evidence supported the commission's finding that the proposed use would not unduly impair pedestrian safety. We disagree.

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. Kobyluck v. Planning & Zoning Commission, 84 Conn.App. 160, 171 n. 14, 852 A.2d 826, cert. denied, 271 Conn. 923, 859 A.2d 579 (2004). "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. . . . An application for a special permit seeks permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district. . . . 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." (Citations omitted; internal quotation marks omitted.) Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 215-17, 779 A.2d 750 (2001).

The parameters of the review of a special permit application are well established. When considering an application for a special permit, the commission "acts in an administrative capacity and its function is to determine whether the applicant's proposed use is one that satisfies the standards set forth in existing regulations and statutes. . . . Review of zoning commission decisions by the Superior Court is limited to a determination of whether the commission acted arbitrarily, illegally or unreasonably. . . . In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record. . . . The substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. . . . The settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised." (Citations omitted; internal quotation marks omitted.) Cybulski v. Planning & Zoning Commission, 43 Conn.App. 105, 110-11, 682 A.2d 1073, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996).

The plaintiffs shoulder the burden of demonstrating that the commission acted improperly. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). "In applying the law to the facts of a particular case, the board is endowed with a liberal discretion . . . ." Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). "The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission]. . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached." (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, 53 Conn.App. 636, 642-43, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999). In reviewing the conclusions of a zoning authority, "[c]ourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 596, 628 A.2d 1286 (1993).

Article VIII, § D, of the North Canaan zoning bylaws requires, inter alia, the commission to find that the proposed use will not impair pedestrian safety before granting a special permit. The commission made such a finding at its July 23, 2003 meeting. The question before us is whether the court correctly concluded that substantial evidence in the record supports that finding.

Among the evidence presented to the commission prior to its approval of the special permit application was a traffic study dated April 28, 2003, which considered site environs, existing and background traffic, site generated traffic, and evaluation methodology and analyses. The study concluded that "the introduction of traffic generated by [the project] will not disrupt the continuity of traffic flow on the adjacent roadway system. Roadway conditions remain virtually unchanged with the addition of the site-generated traffic." The commission also heard the testimony of Robert J. Bass, a member of the national institute of transportation engineers with thirty years experience in traffic engineering. Bass testified at the May 28 and June 25, 2003 public hearings, during which he detailed his research, responded to questions and opined that the project "is going to have a very small impact on the roadway network." He also stated that he did not observe "any people walking or riding of bicycles" during his time studying the area. Bass further submitted to the commission a memorandum containing eight appendices regarding traffic at the site. Vincent McDermott, a planning consultant, also testified at the June 25, 2003 public hearing stating that during the five hour period that he observed the area, he saw "very few cars and no pedestrians other than a person crossing the road to pick up their mail . . . ." Although the plaintiffs allege that the issue of construction traffic was neither addressed in the record nor considered by the commission, the record reveals otherwise. In a letter submitted to the commission dated June...