Goldberg v. Zoning Commission of Town of Simsbury

• Decision Date: 26 April 1977
• Citation: 173 Conn. 23,376 A.2d 385
• Court: Connecticut Supreme Court
• Parties: Jack GOLDBERG v. ZONING COMMISSION OF the TOWN OF SIMSBURY.

Page 385

376 A.2d 385

173 Conn. 23

Jack GOLDBERG v. ZONING COMMISSION OF the TOWN OF SIMSBURY.

Supreme Court of Connecticut.

Argued Feb. 2, 1977.

Decided April 26, 1977.

Bertlen F. Turner, Simsbury, for appellant (plaintiff).

Peter B. Sullivan, Hartford, with whom was Bruce G. MacDermid, West Hartford, for appellee (defendant).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

BOGDANSKI, Associate Justice.

This appeal concerns the defendant commission's denial of the plaintiff's application for site plan approval of a retail shopping mall on property located at the corner of Stratton Brook Road and Bushy Hill Road in the town of Simsbury, and located in a B-3 zone (designed business development zone). On appeal, the Court of Common Pleas found that the commission did not act illegally, arbitrarily or in abuse of its discretion and dismissed the appeal. From that judgment, and after our grant of certification, the plaintiff appealed to this court assigning error in the conclusions of the court. The plaintiff claims that the reasons given by the commission for the denial of the application are not supported by the record, and that because a shopping mall is a permitted use in a B-3 zone the commission had no alternative but to grant the application.

In denying the plaintiff's application, the commission stated its reasons as follows: (1) No proof of need for the proposed use was established by the applicant; (2) a shopping mall of the scope proposed with its related traffic activity and after-dark operation would be most harmful to the residential character of the neighborhood; and (3) because of the inherent nature of the location and operation of the proposed development, the commission was unable to establish any safeguards to protect adjacent property or the neighborhood from the detrimental effect of a shopping center.

The trial court decided the appeal on the record returned by the commission and made no finding of facts other than a limited one on the issue of aggrievement, which issue is not before us. We therefore consult the memorandum of decision to ascertain the conclusions on which the trial court based its judgment. A. P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 187, 355 A.2d 91; Miklus v. Zoning Board of Appeals, 154 Conn. 399, 400, 225 A.2d 637. The trial court confined its inquiry to two issues: whether the reasons given by the commission were reasonably supported by the record, and whether those reasons were pertinent considerations which the commission was required to apply under the applicable zoning regulations. Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 190, 286 A.2d 299. Both of the above issues were answered in the affirmative.

" Where a zoning authority has stated its reasons (for its action), in accordance with General Statutes § 8-3, the reviewing court ought only to determine whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations. DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 540, 271 A.2d 105. The (commission's action) must be sustained if even one of the stated reasons is sufficient to support it. Zygmont v. Planning & Zoning Commission, 152 Conn. 550, 553, 210 A.2d 172." First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 543, 338 A.2d 490, 495. If any one of the reasons supports the action of the commission, the plaintiff must fail in his appeal. Senior v. Zoning Commission, 146 Conn. 531, 534, 153 A.2d 415, appeal dismissed, 363 U.S. 143, 80 S.Ct. 1083, 4 L.Ed.2d 1145.

In testing the correctness of those conclusions, we review the facts in the record on which they are based. "That record is the one submitted to us pursuant to Practice Book § 647 as it may be supplemented by any relevant portions of the record before the (commission) which are printed in the appendices to the briefs pursuant to Practice Book § 719." Miklus v. Zoning Board of Appeals, supra, 154 Conn. 401, 225 A.2d 637, 638. Both parties filed appendices to their briefs on the evidence presented to the commission at its hearing. While some of that evidence was conflicting, there was testimony to the effect that there was no need for a shopping mall at this location; that additional traffic would be generated from the shopping mall that would overburden Bushy Hill Road which is already overburdened; that additional traffic would have an adverse impact on the school facilities of Ethel Walker School, the buildings of which are located on both sides of Bushy Hill Road; and that the proposed site plan failed to establish sufficient safeguards to protect the area from the detrimental effect of a shopping mall.

In reviewing that evidence, the trial court could not substitute its own judgment for that of the zoning authority. Horvath v. Zoning Board of Appeals, 163 Conn. 609, 316 A.2d 418. Because the local authority is close to the circumstances and conditions which create the problem and shape its solution, zoning authorities are given wide discretion in determining public need and the means of meeting it. Lurie v. Planning & Zoning Commission, 160 Conn. 295, 312, 278 A.2d 799. In light of the above, the trial court was correct in concluding that the reasons given by the commission were reasonably supported by the record.

The plaintiff contends that the reason set forth by the commission that no need was established for the proposed shopping mall was not a pertinent consideration; that the issue of need was resolved when the subject property was changed to a business 3 zone in 1966; that it is when a zone change is contemplated that it is appropriate to consider the needs of the town, not when, as here, a site plan approval is sought for a use already permitted. He argues that the issue of need was not relevant and that the commission and the trial court erred in ruling otherwise.

The above argument represents an attack against only one of the three reasons given for the denial. The question remains whether any of the reasons assigned by the commission were pertinent considerations on which the commission could base its denial of the plaintiff's application.

At the outset, it should be observed that retail stores are permitted uses in a B-3 zone. Nowhere, however, in either a B-3, B-2 or B-1 zone are there any provisions to the effect that a shopping center as such is a permitted use. There is, however, mention made in the zoning regulations that "(i)t shall be the intent of these regulations to permit the development of groups of principal buildings on a single lot or other variance from the specific lot requirement of these regulations only under the strictest control to assure that the intent of these regulations is carried out." (Emphasis added.)

A proposal for a single retail store on a single lot is one thing: a proposal to develop numerous retail stores in one large shopping complex is something else. To claim that there is no difference between the two is to ignore realities. To say that the zoning authority may not exercise greater control over one proposal than over the other is to ignore not only the nature of the uses but the provisions of the zoning regulations and the provisions of § 8-2 of the General Statutes. The plaintiff appears to argue that because retail stores are a permitted use it therefore follows that "the development of groups of principal buildings on a single lot or other variance from the specific lot requirement" is also a permitted use with no alternative on the part of the commission but to grant the site plan approval. That contention lacks merit in view of the legal duty resting on the zoning authority to adhere to the town's comprehensive plan, its zoning regulations and the statutes.

Although there is no question that retail stores are a permitted use in a B-3 zone, an application for the development of groups of buildings for one total project must satisfy standards set forth in the zoning regulations themselves as well as conditions necessary to protect health, safety, convenience and property values. General Statutes § 8-2. ¹ Acting in an administrative capacity, the commission's function is to determine whether the applicant's proposed use is one which satisfies the standards set forth in the regulations and the statutes. Housatonic Terminal Corporation v. Planning and Zoning Board, 168 Conn. 304, 307, 362 A.2d 1375.

Article 10 of the Simsbury zoning regulations, § A, entitled "Designed Development Districts," states as follows: "The Zoning Regulation is designed for the typical development of a single principal detached structure on a single lot. It shall be the intent of these regulations to permit the development of groups of principal buildings on a single lot or other variance from the specific lot requirement of these regulations only under the strictest control to assure that the intent of these regulations is carried out." (Emphasis added.)...