Martland v. Zoning Com'n of Town of Woodbury

• Decision Date: 02 June 2009
• Docket Number: No. 29425.,29425.
• Citation: 971 A.2d 53,114 Conn.App. 655
• Court: Connecticut Court of Appeals
• Parties: Theodore H. MARTLAND et al. v. ZONING COMMISSION OF the TOWN OF WOODBURY et al.

971 A.2d 53

114 Conn.App. 655

Theodore H. MARTLAND et al. v. ZONING COMMISSION OF the TOWN OF WOODBURY et al.

No. 29425.

Appellate Court of Connecticut.

Argued January 6, 2009.

Decided June 2, 2009.

Duncan J. Forsyth, with whom were Richard P. Roberts, Hartford and, on the brief, Jennifer Sills Yoxall, Waterbury, Anne D. Peterson, New Haven and Maureen Danehy Cox, Waterbury, for the appellants (defendants).

Franklin G. Pilicy, Watertown, for the appellees (plaintiffs).

DiPENTIMA, GRUENDEL and ROBINSON, Js.

DiPENTIMA, J.

The defendants,¹ the zoning commission town of Woodbury (commission), its chairman and the town clerk, appeal from the judgment of the trial court sustaining the administrative appeals of the plaintiffs, Theodore H. Martland and Martland Management, Inc.² On appeal, the defendants claim that the court improperly (1) determined that the record did not contain substantial evidence with respect to a specific condition imposed in connection with the approval of a special permit for pond excavation and (2) failed to determine that the condition was integral to the approval of the special permit. We disagree with the defendants' first claim but agree with their second claim. Accordingly, we reverse the judgments of the trial court.

The following facts are relevant to our resolution of the defendants' appeal. The plaintiffs submitted an application, dated May 6, 2004, for a special permit to excavate earth materials from a portion of Riker Pond. This pond is located on Quassuk Road in Woodbury. The stated purpose of this excavation was to "diversify its habitat." The proposed activity would have removed approximately 17,000 cubic yards of soil from the floor of the pond, increasing the pond's depth to approximately twelve feet. The plaintiffs also proposed creating an unpaved road to haul excavated materials to a neighboring property. The road was to be fashioned from approximately 10,000 cubic yards of sand and gravel from an existing berm that ran along the western side of the pond. The berm, sloped and approximately 1345 feet in length, varied in height from 3.5 to 18 feet above the water level of the pond and in width from 40 to 120 feet.

Following several hearings and a modification of the proposed activities, the commission approved the plaintiffs' application and granted the special permit on September 28, 2004. The commission imposed certain conditions on the special permit. Condition (g) provided: "Upon completion of the excavation of the pond, the applicant shall restore all disturbed areas above the water level to a condition comparable to the conditions that existed prior to the excavation of the pond." The commission required the plaintiffs to submit a site restoration plan prepared by a landscape architect that demonstrated compliance with this condition.

By way of a complaint dated October 11, 2004, the plaintiffs filed an appeal with the Superior Court. They alleged that the restoration condition was vague, not consistent with the application and would make the excavation of the pond economically and practically unfeasible. The plaintiffs further claimed that the commission's actions were illegal and arbitrary and constituted an abuse of discretion.

On October 11, 2005, the plaintiffs filed a second application with the commission seeking to amend the approved special permit. Specifically, they sought the removal of the restoration condition. After several public hearings, the commission unanimously voted to deny the second application on January 24, 2006. The plaintiffs then appealed from this denial in a second appeal to the Superior Court, claiming that the commission had acted illegally and arbitrarily and had abused its discretion. On April 24, 2006, the court granted the plaintiffs' motion to consolidate the two appeals.

In its memorandum of decision, the court began its analysis by reviewing the Woodbury zoning regulations. Section 5.2.8³ provides that the plaintiffs' excavation of earth materials required a special permit⁴ in accordance with § 10 of the regulations. Section 10.4 requires the commission, before granting a special permit, to consider certain criteria and to make a finding that the proposal would not be inconsistent with the welfare of the public. Subsection (e) of that regulation requires the commission to take into consideration the impact of a proposed use of property in residential areas.

The commission had determined that "the proposed activity has the potential to impact residential properties and as such it should be conditioned to the extent that it minimizes such impacts...." The court noted that § 10.4.e.4 of the Woodbury zoning regulations provided the basis of this finding. That section states: "Consideration shall be given to the preservation and enhancement of existing topographic and/or vegetative buffers between adjoining properties." Woodbury Zoning Regs., § 10.4.e.4. The commission considered the berm to be a buffer between adjoining properties. The commission argued to the court that the berm constituted a "significant topographic feature that [served] as a vegetative and noise barrier." Specifically, it claimed that the berm separated the pond and residential properties from certain commercial activities, namely, a nursery and a mining operation.

The court concluded that the record did not contain substantial evidence to support the reasons proffered by the commission for the restoration condition. Specifically, the court determined that certain public comments regarding an increase in noise following the completion of the plaintiffs' project consisted of "the speculative general concerns of two laypersons." As to the issue of the berm as a vegetative buffer, the court stated that there was no evidence that the berm functioned in that capacity. It concluded: "A thorough review of the record fails to show any substantial evidence or reliable factual basis from which the [commission] could conclude that the failure to restore the berm to its original natural contours would result in any increase in noise or that the restoration condition was necessary to provide a vegetative buffer. Accordingly ... there is no substantial evidence in the record to show that the restoration condition was necessary to protect the public health, safety, convenience or property values as provided in ... General Statutes § 8-2(a), and the [commission] acted arbitrarily and abused its discretion by the imposition of the restoration condition on the special permit." (Internal quotation marks omitted.)

The court also rejected the defendant's argument that the restoration condition was integral to the approval of the special permit. It therefore sustained the plaintiffs' appeals and ordered the commission to delete the restoration condition and all provisions of the site restoration plan. This appeal followed.

Before addressing the specific claims of the defendants, we set forth the legal principles and standard of review that guide the resolution of the defendants' appeal. Our Supreme Court previously has "observed that [a] special exception allows a property owner to use his property in a manner expressly permitted by the local zoning regulations.... Nevertheless, special exceptions, although expressly permitted by local regulations, must satisfy [certain conditions and] standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values [as required by § 8-2].... Moreover, we have noted that the nature of special exceptions is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site.... We also have recognized that, if not properly planned for, [such uses] might undermine the residential character of the neighborhood.... Thus, we have explained that the goal of an application for a special exception is to seek 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." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 426-27, 941 A.2d 868 (2008).

"When considering an application for a special exception, a zoning authority acts in an administrative capacity, and its function is to determine whether the proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and statutes are satisfied.... When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision.... The zoning board's action must be sustained if even one of the stated reasons is sufficient to support it.... In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty.... In reviewing the action of the trial court, we have to decide whether it could in logic and in law reach the conclusion that the [zoning authority] should be overruled....

"[B]efore the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns such as parking or traffic congestion, would adversely impact the surrounding neighborhood.... Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process....

"Generally, it is the function of a zoning board or...