MSW Assocs., LLC v. Planning & Zoning Dep't of Danbury

• Decision Date: 23 February 2021
• Docket Number: AC 43052
• Citation: 246 A.3d 1064,202 Conn.App. 707
• Parties: MSW ASSOCIATES, LLC v. PLANNING & ZONING DEPARTMENT OF the CITY OF DANBURY
• Court: Connecticut Court of Appeals

202 Conn.App. 707

246 A.3d 1064

MSW ASSOCIATES, LLC

v.PLANNING & ZONING DEPARTMENT OF the CITY OF DANBURY

AC 43052

Appellate Court of Connecticut.

Argued October 13, 2020

Officially released February 23, 2021

Daniel E. Casagrande, Danbury, for the appellant (defendant).

Kenneth R. Slater, Jr., with whom was Ann M. Catino, Hartford, for the appellee (plaintiff).

Lavine, Suarez and Devlin, Js.^*

LAVINE, J.

This zoning appeal concerns the conflict that sometimes arises between the state's authority to regulate solid waste management¹ and a municipality's right to regulate the structures and land use within its borders.² The plaintiff, MSW Associates, LLC, filed a site plan application (site plan) to construct and operate a solid waste transfer station and volume reduction plant³ in Danbury (city) that was denied by the defendant, the Planning and Zoning Department of the City of Danbury. The plaintiff appealed to the Superior Court pursuant to General Statutes § 8-8.⁴ The Superior Court sustained the plaintiff's appeal. Thereafter, this court granted the defendant's petition for certification to appeal.

On appeal before us, the defendant claims that the trial court erred by (1) construing General Statutes § 22a-208b (b)⁵ to require it to approve the site plan even though the use is prohibited in the IG-80 zone in which it was proposed and when the city's zoning regulations (regulations) permit other types of solid waste facilities at other locations in the city, (2) ruling that the regulations "have the effect of prohibiting the construction, alteration or operation of solid waste facilities within the limits" of the city and thus violate § 22a-208b (b), (3) refusing to invoke the doctrine of primary jurisdiction to remand the case to the city's zoning commission,⁶ and (4) disregarding the language of § 22a-208b (b) that "[n]othing in this chapter shall be construed to limit the right of a municipality to regulate, through zoning, land usage for an existing or new solid waste facility," and by ordering it to approve the site plan in a particular location and zone, thereby usurping the legislative authority of the zoning commission. The defendant also claims that the plaintiff lacks standing to claim a violation of § 22a-208b (b) on the basis of allegations that the regulations fail to allow solid waste facilities other than the specific subtype of facility that it seeks to construct on its property. We agree with the court that the plain language of § 22a-208b (b) bars zoning regulations from having the effect, as the city's do, of prohibiting construction of solid waste facilities of any type within its borders. We, therefore, affirm the judgment of the trial court.

The following facts underlie the present appeal. The plaintiff is the owner of property at 14 Plumtrees Road in the city (property). In February, 2017, pursuant to General Statutes § 22a-208a (a),⁷ the Commissioner of Energy and Environmental Protection (commissioner) issued a permit to the plaintiff to construct and operate a solid waste transfer station and volume reduction plant on its property.⁸ On August 15, 2017, the plaintiff filed with the defendant a site plan to construct a volume reduction plant and waste transfer station on its property. The defendant denied the site plan on October 12, 2017, stating "[i]n accordance with section 6.B of the Zoning Regulations, a volume reduction plant and transfer station is not a permitted use in the IG-80 Zoning District."

Pursuant to § 8-8, the plaintiff timely filed an appeal to the Superior Court that sounded in two counts. In count one, the plaintiff alleged that the defendant acted arbitrarily, capriciously, unlawfully, and in abuse of the discretion vested in it by, among other things, denying the site plan as a use not permitted by the regulations when that denial is in direct violation of § 22a-208b (b), which provides that no Connecticut zoning regulation shall have the effect of prohibiting the construction and operation of a volume reduction plant and transfer station.⁹ The plaintiff also alleged that the site plan complied with all of the requirements applicable to uses permitted in the zone.¹⁰ The plaintiff asked the court to sustain its appeal and to order the defendant to approve its site plan.

The defendant responded, representing that one transfer station and one volume reduction facility existed at 307 White Street (White Street) in the city before a 2007 amendment to the regulations prohibited the construction of transfer stations in the city and before the General Assembly enacted § 22a-208b. The defendant argued that it was entitled to apply the regulations to prohibit the construction of a solid waste facility anywhere else in the city and, therefore, to deny the plaintiff's site plan. In May, 2018, before trial, the court and counsel for the parties visited the property. Trial was held on July 31, 2018, and the court issued a detailed memorandum of decision on February 26, 2019, sustaining the plaintiff's appeal and ordering the defendant to grant the plaintiff's site plan.

In its memorandum of decision, the court stated its findings of fact and legal conclusions as follows. The court began its decision by quoting the defendant's reason for denying the site plan, i.e., "a volume reduction plant and transfer station is not a permitted use in the IG-80 zoning district." (Internal quotation marks omitted.) The court then noted that under a permissive zoning scheme such as the one employed by the city,¹¹ "[a]ny use which is not specifically permitted is automatically excluded." Gada v. Zoning Board of Appeals , 151 Conn. 46, 48, 193 A.2d 502 (1963).

The court found that the solid waste facility that the plaintiff proposed was to be located in the city's general industrial zone, IG-80. As of the date the defendant denied the site plan, the city's regulations permitted only one type of solid waste facility in IG-80, namely, wood waste processing.¹² The regulations provide that a transfer station that has been in existence since before October 15, 2007, is a use permitted by special exception in the IL-40 light industrial zone. See footnote 12 of this opinion. Until 2007, transfer stations also were a permitted use by special exception in the IG-80 zone.¹³

In 1985, the commissioner issued a permit for a "solid waste resource recovery and recycling facility" at White Street in the IL-40 zone, and a "solid waste resource recovery and recycling facility" has been in operation at White Street since approximately 1986. (Internal quotation marks omitted.) In 1993, the commissioner issued permits to construct and operate a solid waste transfer station and solid waste volume reduction plant at White Street. As of October 15, 2007, White Street had been used as a transfer station, volume reduction facility, and intermediate processing (recycling) center. White Street has been operated by Winter Bros. Transfer Station of CT, LLC (Winter Bros.), since 2011. In 2012, the city's planning commission approved a revised site plan authorizing Winter Bros. to demolish two buildings and to construct a new 20,720 square foot building at White Street. In 2014, the planning commission approved another revised site plan authorizing Winter Bros. to demolish a third building and to construct a replacement at White Street. The record before the court did not reveal whether the 2012 or the 2014 revised site plans expanded the overall size of White Street.

In addition, the court found that in 2004, Ferris Mulch Products, LLC (Ferris Mulch), filed a site plan application to operate a wood waste and brush recycling facility at 6 Plumtrees Road.¹⁴ The defendant approved Ferris Mulch's site plan in 2005, and the facility has been in operation since that time. As of at least August 18, 2014, the commissioner has permitted Ferris Mulch to operate a solid waste volume reduction plant at 6 Plumtrees Road.

After making the foregoing factual findings, the court turned to the question the plaintiff raised in its appeal, i.e., whether the regulations have the effect prohibited by the second sentence of § 22a-208b (b), that is that "[n]o municipal regulation adopted pursuant to [ General Statutes § 8-2 ] shall have the effect of prohibiting the construction, alteration or operation of solid waste facilities within the limits of a municipality." The court noted that § 22a-208b (b) was enacted in its present form in No. 12-2 of the 2012 Public Acts (P.A. 12-2), in response to Recycling, Inc. v. Milford , Superior Court, judicial district of Ansonia-Milford, Docket No. CV-10-6002308-S, 2010 WL 4884923 (November 2, 2010) (50 Conn. L. Rptr. 866). In Recycling, Inc. , the court, Hiller, J. , held that in 2006, the General Assembly repealed the state law permitting local zoning authorities to regulate solid waste facilities other than "facilities for the land disposal of solid waste, i.e., landfills." Id., at 870. (Internal quotation marks omitted.) Judge Frazzini found that the General Assembly's enactment of P.A. 12-2 reinstated the law that had existed since 1978, which permitted local zoning bodies to regulate all types of solid waste facilities. See id., at 867–68.

Judge Frazzini also found that since at least 1977, courts in this state have recognized that "solid waste management [is] a problem of [statewide] magnitude," and that " ‘[t]he General Assembly has enacted a rather comprehensive [statewide] solid waste management program, to be administered by the commissioner ....’ " Colchester v. Reduction Associates, Inc. , 34 Conn. Supp. 177, 180, 382 A.2d 1333 (1977). "The General Assembly has seen fit to exercise its own power of regulation of solid waste management in this state. To be sure, the General Assembly may allow localities to make additional provisions and otherwise further to control the disposal of solid waste located within their boundaries." Id., at 183, 382 A.2d 1333. The court noted that zoning, a limitation on...