Michel v. Planning and Zoning Com'n of Town of Monroe, 10766

• Decision Date: 17 September 1992
• Docket Number: No. 10766,10766
• Citation: 612 A.2d 778,28 Conn.App. 314
• Court: Connecticut Court of Appeals
• Parties: John MICHEL, Jr., et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF MONROE et al.

Page 778

612 A.2d 778

28 Conn.App. 314

John MICHEL, Jr., et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF MONROE et al.

No. 10766.

Appellate Court of Connecticut.

Argued May 4, 1992.

Decided July 21, 1992.

Certification Denied Sept. 17, 1992.

George J. Markley, Bridgeport, for appellants (plaintiffs).

Alice A. Carey, with whom was Edward P. McCreery III, Bridgeport, for appellee (named defendant).

Before DUPONT, C.J., and FOTI and HEIMAN, JJ.

HEIMAN, Judge.

The plaintiffs in this zoning dispute appeal from the trial court's judgment dismissing their appeal from the Monroe planning and zoning commission's decision granting the defendant McDonalds Corporation's application for a change of zone and for a special exception permit. ¹ They claim that the trial court improperly found that (1) the appeal was moot, (2) the zone change did not constitute spot zoning, (3) the commission did not impose an illegal condition on its decision granting the application, (4) the application was not fatally defective even though the named applicant, McDonalds Corporation, was not an owner of the property at the time the application was filed, (5) the commission's failure to hold separate votes on the requests for a zone change and for a special exception permit was not improper, (6) the building conditions and parking requirements imposed by the commission were not improper and (7) the commission's decision to grant the application was not improper, even though the commission held a public hearing on the application before it received the decision and report of the Monroe inland wetlands commission on a related application. We affirm the trial court's judgment.

The following facts are necessary to resolve this appeal. On May 3, 1990, McDonalds Corporation filed an application with the Monroe planning and zoning commission requesting a zone change for a four acre parcel and a special exception permit authorizing the construction of a McDonalds restaurant with a drive-through service window. On the date that the application was filed, the subject parcel, located at 390 and 400 Monroe Turnpike in Monroe, straddled two zoning districts: Design Business 1 (DB1) and Residential and Farming C (RC). The Monroe zoning regulations (regulations) permit certain restaurants that do not have drive-through windows to be built in DB1 districts. No restaurants are permitted in RC districts. Restaurants containing drive-through service windows are, however, permitted in Design Business 2 (DB2) districts. The regulations applicable to DB districts provide further: "Any new building to be constructed ... shall be required to obtain a special exception permit for business use prior to its use." Thus, in order to build a restaurant with a drive-through window, McDonalds sought a zone change redistricting the entire parcel as DB2 together with a request for a special exception permit.

The commission held a public hearing on the application on May 24, 1990. On June 29, 1990, the Monroe inland wetlands commission granted conditional wetlands approval for the parcel. After a single vote taken on July 5, 1990, the planning and zoning commission granted the application. The plaintiff abutting landowners appealed the commission's decision to the Superior Court; see General Statutes § 8-9; and the trial court dismissed the appeal, finding that the appeal was moot and, further, that each of the plaintiffs' claims was meritless. The plaintiffs petitioned this court for certification, which we granted on October 16, 1991. This appeal followed.

I

Plaintiffs claim that the trial court incorrectly determined that their appeal was moot. At oral argument before this court, the defendants agreed. Although the parties agree that the trial court improvidently dismissed the appeal as moot, we nonetheless must address the mootness issue because mootness implicates our jurisdiction. See Furstein v. Hill, 218 Conn. 610, 627, 590 A.2d 939 (1991). We agree with the parties. The appeal was not, and is not, moot.

The trial court found that the commission's adoption of a new zoning map in June, 1991, rendered moot the plaintiffs' challenge to the commission's July 5, 1990 vote granting McDonalds' requests for a change of zone and a special exception permit. Our Supreme Court's recent decision in Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v Planning & Zoning Commission, 220 Conn. 527, 600 A.2d 757 (1991), which was published after the trial court rendered its judgment, controls our resolution of this issue. In Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, the court recognized that General Statutes § 8-2h (a), which became effective on October 1, 1989, legislatively overruled McCallum v. Inland Wetlands Commission, 196 Conn. 218, 492 A.2d 508 (1985), and Johnson v. Zoning Board of Appeals, 2 Conn.App. 24, 475 A.2d 339, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984), cert. denied, 471 U.S. 1066, 105 S.Ct. 2141, 85 L.Ed.2d 498 (1985), which had determined that certain zoning appeals became moot by virtue of subsequent regulatory amendments. Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. at 540-41, 600 A.2d 757. The current rule in this state is that the validity of a planning and zoning commission's action is to be determined by reference to the zoning laws and regulations in effect at the time that the challenged action was taken. Id.; see General Statutes § 8-2h (a). Thus, a challenge to commission action no longer is rendered moot by a subsequent change in the applicable zoning laws or regulations. Id. The trial court incorrectly concluded otherwise. ²

II

The plaintiffs next argue that the commission engaged in illegal spot zoning when it granted the change of zone. We disagree.

Our courts consistently have invalidated zoning decisions that have constituted spot zoning. " '[S]pot zoning is the "reclassification of a small area of land in such a manner as to disturb the tenor of the surrounding neighborhood." ' Morningside Assn. v. Planning & Zoning Board, [162 Conn. 154, 161, 292 A.2d 893 (1972) ]. Two elements must be satisfied before spot zoning can be said to exist. First, the zone change must concern a small area of land. Second, the change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole. Id. The comprehensive plan is to be found in the scheme of the zoning regulations themselves. First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 542, 338 A.2d 490 (1973)." Blaker v. Planning & Zoning Commission, 212 Conn. 471, 483, 562 A.2d 1093 (1989).

Our review of the minutes of the commission's July 5, 1990 meeting discloses that the vote to approve McDonalds' application for a zone change and a special exception permit was based in part on the following finding: "[T]he rezoning does not constitute a 'spot zone' as the Plan of Development specifies that the subject area be a business zone without limitation or specification as to the specific zone designation. The subject site is principally zoned business as well as adjoining sites for substantial distances and areas to the north, south and west. The rezoning represents no dramatic change in the already intended use of the site." The commission further announced: "[A]ll aspects and features of the proposal ... are necessary for the welfare and convenience of the townspeople and will provide for the growth of appropriate business and retail establishments in town. The use will fill a significant need in the community and will be a desirable addition to the town of Monroe both in terms of goods and services to the community and as a reasonable addition to the tax structure."

The plaintiffs rely heavily on the fact that, under the Monroe zoning regulations, a drive-through window is permitted in a DB2 district but is not permitted in a DB1 district. This, they contend, leads ineluctably to the conclusion that the zone change from DB1 to DB2 is repugnant to the town's comprehensive zoning plan. ³ We, however, afford the commission's determination of whether a change comports with the town's comprehensive zoning plan substantial deference. Dooley v. Town Plan & Zoning Commission, 154 Conn. 470, 478, 226 A.2d 509 (1967). Here, the commission rezoned the subject parcel from one variety of design business district to another. The practical effect of the change in zone was simply to permit a McDonalds restaurant with a drive-through window in lieu of a McDonalds restaurant without a drive-through window. The commission did not engage in spot zoning when it granted McDonalds' application for a change of zone because it reasonably concluded that this incremental change in the permitted use of the property was not repugnant to Monroe's comprehensive zoning plan.

This claim is without merit.

III

The plaintiffs next claim that the commission improperly required that a sidewalk be installed along one border of the subject parcel as a condition to the change of zone. We disagree.

The minutes of the commission's July 5, 1990 meeting disclose that the commission approved McDonalds' application subject to a number of conditions, including the construction of a sidewalk along the roadway adjacent to the subject parcel. The plaintiffs claim that this condition violated General Statutes § 8-2, which requires that zoning regulations be uniform throughout all districts in the same class. They contend that because the Monroe zoning regulations do not provide for the installation of sidewalks in DB2 zones generally, the condition was unique to the DB2 zone at issue in this case. As such, the plaintiffs posit, the condition violates the uniformity requirement of § 8-2.

Our review of the record indicates that the installation of the sidewalk was a condition that the...