Mackenzie v. Planning & Zoning Comm'n of Monroe

Decision Date15 October 2013
Docket NumberNo. 34919.,34919.
Citation77 A.3d 904,146 Conn.App. 406
CourtConnecticut Court of Appeals
PartiesDonna MACKENZIE et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF MONROE et al.

OPINION TEXT STARTS HERE

Kevin J. Gumpper, Fairfield, for the appellants (plaintiffs).

Peter V. Gelderman, Fairfield, with whom were John P. Fracassini, town attorney, and Raymond W. Ganim, Stratford, for the appellee (defendant Real Time Investments, LLC).

GRUENDEL, BEAR and SHELDON, Js.

GRUENDEL, J.

The plaintiffs, Donna MacKenzie, David W. Santarsiero and Colleen M. Santarsiero, appeal from the judgment of the Superior Court dismissing their appeal from the decisions of the defendant Planning and Zoning Commission of the Town of Monroe (commission) granting a special exception to the defendant Real Time Investments, LLC, pursuant to § 117–1800 of the Monroe Zoning Regulations (regulations), and approving its request for a zone change pursuant to § 117–900 of the regulations.1 The plaintiffs contend that the court improperly concluded that (1) the commission, in granting the special exception, possessed the authority to vary the setback and landscaped buffer requirements set forth in the regulations, and (2) the notice of the proposed zone change filed by the defendant with the town clerk satisfied the requirementsof General Statutes § 8–3(a).2 We affirm in part and reverse in part the judgment of the SuperiorCourt.3

At all relevant times, the defendant owned a 4.027 acre parcel of land known as 579 Main Street in Monroe (property). On November 4, 2010, the defendant filed an application with the commission requesting a zone change for a 1.15 acre portion of the property from “Residential and Farming District C(RC) to Design Business District 1(DB1).” See Monroe Zoning Regs., § 117–100. As required by §§ 117–900(A) and 117–907(A) of the regulations, the defendant also requested a special exception and site plan approval in order to construct a McDonald's restaurant on the property.4Those requests were set forth on a “uniform land use application” form, which specifies, inter alia, a “combined application” for both “design district zone change” and “special exemption permit.” See Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 147, 953 A.2d 1 (2008).

The various maps and surveys in the record before us indicate that the defendant's property is largely a rectangular parcel whose northerly and southerly property lines are roughly four times as long as the easterly and westerly boundaries. The westernmost portion of the property is landlocked, contains wetlands, and is bordered exclusively by properties in the RC zone. The easternmost 0.65 acre portion of the property, which abuts Main Street, already is designated as part of the DB1 zone. In its application to the commission, the defendant sought to extend that DB1 zone on its property an additional 1.15 acres, running in a westerly direction from the 0.65 acre portion. If approved, the combined 1.80 acre portion would be bordered entirely by other properties located in the DB1 zone, save for a property to the north known as 585 Main Street that, at all relevant times, was owned by Vazhayil Babu. On January 13, 2011, the defendant filed with the office of the town clerk of Monroe a metes and bounds description of the boundaries of the portion of the property that it sought to have rezoned.

The commission commenced a public hearing on the defendant's application on February 17, 2011. At its outset, Attorney Kevin J. Gumpper raised a “point of order” with the commission, in which he alleged that the notice of the proposed zone change filed by the defendant with the town clerk was inadequate.5 A letter filed with the commission earlier in the day then was read into the record, in which Gumpper claimed that the notice failed to comply with § 8–3(a) because it “refers to a compilation map which was not filed with the notice to the town clerk....” Gumpper further argued that [t]he boundaries of the proposed change must be described in the notice which is filed with the town clerk's office. It is not sufficient simply to refer in the notice to maps which are available elsewhere within the Town Hall.” (Emphasis omitted.) Chairman Richard A. Zini, Jr., overruled that point of order.

The defendant then provided an initial presentation of its application, which included much discussion between commission members and the defendant's representatives regarding the details thereof. A public comment session followed, during which several residents opined that the proposed McDonald's restaurant was architecturally unappealing. Lee Hossler, a member of the Monroe Economic Development Commission, spoke in support of the application, noting that “this site is pretty much encased with [DB1 zoning] all around it—north and south. I think it would be instrumental to have this also [zoned as DB1].”

Gumpper spoke in opposition to the application. He reminded the commission that it possessed “very limited discretion when you act upon any special exception application. What you do is, you're looking to see that it complies with your regulations.... If it doesn't comply with your regulations you can't approve it.” He then alerted the commission to two specific deficiencies in the defendant's application, alleging that the proposed parking area on the northern side of the property violated the setback and landscaped buffer requirements of the DB1 zone. Specifically, Gumpper stated that the application failed to comply with the setback requirements contained in both §§ 117–1105(B) and 117–1103 of the regulations because the defendant's proposal contained fourteen parking spaces located within thirty feet of property located in the RC zone.6 In addition, Gumpper noted that § 117–1104, titled “Landscaping,” provides in relevant part: “Landscaping shall be required as follows ... B. All required yards abutting a residential and farming district shall be a landscaped buffer, as provided in Section 117–902 G.” Section 117–902 G, in turn, provides that [i]n [a] DB1 [zone] ... a landscape buffer shall consist of no fewer than three (3) rows of suitable evergreen trees of one and one-half (1 1/2) inches caliper....” Although the property's northerly property line abuts properties located in the RC zone, the defendant's proposal did not contain such a landscape buffer.

Following the public comment session, the defendant's representative requested a continuance “to see if we can get authority to take into [consideration] the concerns” raised during the public comment session and to “try to implement ... a more appropriate colonial look” to the building. The commission granted that request and continued the matter until March 17, 2011.

When the public hearing resumed on that date, the defendant began its presentation by opining that “the commission has the authority to waive or vary” the various requirements of the DB1 zone pursuant to §§ 117–1103 and 117–900(E) of the regulations. Speaking on behalf of the defendant, Attorney Raymond Rizio explained that the original plan was filed with the understanding that the commission would exercise that authority. Given the concerns raised during the public hearing one month earlier, Rizio also submitted what he described as an “alternate plan that satisfies all the requirements” of the DB1 zone. As Rizio stated, that alternate plan “fully complies with regard to parking, setback and every standard that is set forth” in the regulations. He continued: “And all that happens is, basically, the parking shifts.... What we have done [is that in the original plan] there are fifty-eight parking spaces. The alternate plan has essentially the same circulation, the same queuing. Everything really is the same. What we've done is, we have eliminated parking spaces in this area, reduced that down ... this provides a thirty foot bumper between the RC zone [to the north]. This map has forty-four parking spaces, which is the required minimum parking spaces based on [the] area of the building. Other than that, all the parking ... is all the same....” The alternate plan also reduced the width of the driveway around the building from eighteen to sixteen feet.7 Rizio further indicated that, in the event that the commission declined to vary the landscaped buffer requirements, the defendant “would agree to do the same landscaping, the transitional landscaping,” to comply fully with those requirements.

Rizio also informed the commission that Babu, the owner of the property abutting the northerly property line where the setback and landscaping issues arose, had no objections whatsoever to the defendant's plans. Rizio stated: “I [also] represent the owner [Babu] to the north and would like to represent for the record that he has no objection to the ... proposed site plan or the alternate site plan.” The chairman of the commission then clarified:

“Zini: So, you have [a] proxy to represent the property owner that—

“Rizio: I do represent him, yes.

“Zini: [Babu] does not have an issue with the waiver of the buffer?

“Rizio: Correct.

“Zini: Okay. So, let the record show.”

Rizio also informed the commission that a zone change request for a portion of Babu's property from RC to DB1 “will be coming and a pending application will be coming” because his property “would never be used for residential purposes because [the property lacks] enough acreage [to comply with the residential regulations]....” 8

Rizio then explained that, in response to public feedback regarding architectural and aesthetic details, the defendant obtained approval from McDonald's for “a new plan, a colonial plan [with] new architecture [that] I think is something the commission will be very pleased with.” Joseph Lombardi from McDonald's USA, LLC, spoke on behalf of the defendant, stating: [L]ast time we visited with the community of Monroe there was some direction in how they would like to see McDonald's...

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