Oakbridge/Rogers Avenue Realty, LLC v. Planning & Zoning Board

• Decision Date: 22 July 2003
• Docket Number: (AC 23345)
• Citation: 826 A.2d 1232,78 Conn. App. 242
• Court: Connecticut Court of Appeals
• Parties: OAKBRIDGE/ROGERS AVENUE REALTY, LLC v. PLANNING AND ZONING BOARD OF THE CITY OF MILFORD

78 Conn. App. 242

826 A.2d 1232

OAKBRIDGE/ROGERS AVENUE REALTY, LLC v. PLANNING AND ZONING BOARD OF THE CITY OF MILFORD

(AC 23345)

Appellate Court of Connecticut.

Argued May 29, 2003.

Officially released July 22, 2003.

Flynn, West and McLachlan, Js. Matthew B. Woods, city attorney, with whom, on the brief, was Cynthia C. Anger, assistant city attorney, for the appellant (defendant).

Leo P. Carroll, for the appellee (plaintiff).

Opinion

WEST, J.

The defendant, the planning and zoning board of the city of Milford (board), appeals from the judgment of the trial court sustaining the appeal of the plaintiff, Oakbridge/Rogers Avenue Realty, LLC (owner). The board had denied the owner's petition to amend its special permit to add four boat slips to its existing pier in Milford harbor. On appeal, the court concluded that the board had exceeded its authority. We affirm the judgment of the trial court.

We begin by setting forth the facts and procedural history that are relevant to the defendant's appeal. The owner is a limited liability company holding title to 2.1 acres of real property at 20 Rogers Avenue in Milford.¹ The property, which is adjacent to the harbor, is in a single-family residential zone. In 1967, a special permit was granted to allow two boat slips. In 1991, Joseph Nesteriak, the owner's predecessor in title, was granted an amended special permit to increase the number of slips to four. By petition dated March 1, 2001, the owner sought to amend the special permit again to increase the number of slips to eight.

The board held a public hearing on the owner's petition for an amended special permit on April 17, 2001. At that time, the owner presented the board with a statement of use, which indicated that the harbor management commission had found that the proposed application was consistent with the harbor management plan. The owner also presented expert testimony that the additional slips would produce traffic consistent with the addition of a single-family house on Rogers Avenue and that real property values would not be affected negatively by the additional boat slips. Some of the owner's neighbors voiced support for the petition.

A greater number of neighbors, however, opposed the petition, noting that in the past, as many as eight or nine boats were docked at the existing four slips and that some of those boats did not belong to the owner.² The opposition objected to the potential increase in motor vehicular traffic the additional slips would bring to Rogers Avenue and the chance that the slips would be used for a commercial enterprise in conjunction with the slips on the adjoining property at 30 Rogers Avenue. At the hearing, neighbors voiced considerable concern about the marina-like activity that occurs at 30 Rogers Avenue. Those speaking in opposition to the petition feared that the neighborhood will loose its residential character if the owner is permitted to add the requested slips. At the time of the hearing, there was no cease and desist order pending against the owner.

The petition was discussed at a meeting of a board subcommittee on April 24 and May 29, 2001. On June 5, 2001, the board voted in favor of a motion that "the [owner's] petition for additional boat slips is inconsistent with the residential zone district within which 20 Rogers Avenue is located." The owner appealed from the board's decision to the Superior Court, which sustained the owner's appeal. The court concluded that the board had exceeded its authority in denying the petition on the ground that increased utilization of a permitted use was inconsistent with the zone in which the property was located, where such use previously was found to be in harmony with the harbor management plan, as required by the zoning regulations. The court observed that the board's concern about the owner's use or misuse of the slips is a matter for the appropriate enforcement of the city's zoning regulations rather than a reason to deny the petition. The board appealed to this court, claiming that the trial court improperly concluded that the board had exceeded its authority in denying the owner's petition to amend the special permit.

We next address the appropriate standard of review with respect to special permits. A special exception is also known as a special permit; Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 242 n.7, 794 A.2d 1016 (2002); and whether a zoning board grants a special permit essentially is a discretionary process. Irwin v. Planning & Zoning Commission, 244 Conn. 619, 626, 711 A.2d 675 (1998). "A special permit allows a property owner to use his property in a manner expressly permitted by local zoning regulations.... The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values. . . . An application for a special permit seeks 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. . . . When a special permit is issued, the affected property may be allowed an exception to the underlying zoning regulations, but it continues to be governed in the same manner as provided in the overall comprehensive plan." (Citations omitted; internal quotation marks omitted.) Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 215-17, 779 A.2d 750 (2001).

"The basic rationale for the special permit . . . is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated because of the particular topography, traffic problems, neighboring uses, etc., of the site." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 74 Conn. App. 155, 160, 810 A.2d 312 (2002), cert. granted on other grounds, 262 Conn. 945, 815 A.2d 675 (2003).

"When ruling upon an application for a special [permit], a planning and zoning board acts in an administrative capacity. . . . Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it...