Protect Hamden/North Haven from Excessive Traffic and Pollution, Inc. v. Planning and Zoning Com'n of Town of Hamden

• Decision Date: 10 December 1991
• Docket Number: No. 14233,14233
• Citation: 220 Conn. 527,600 A.2d 757
• Court: Connecticut Supreme Court
• Parties: PROTECT HAMDEN/NORTH HAVEN FROM EXCESSIVE TRAFFIC AND POLLUTION, INC., et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF HAMDEN, et al.

Page 757

600 A.2d 757

220 Conn. 527

PROTECT HAMDEN/NORTH HAVEN FROM EXCESSIVE TRAFFIC AND POLLUTION, INC., et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF HAMDEN, et al.

No. 14233.

Supreme Court of Connecticut.

Argued Sept. 25, 1991.

Decided Dec. 10, 1991.

Steven R. Rolnick, Town Atty., for appellants (named defendant et al.).

Bourke G. Spellacy, with whom were Karen P. Blado and, on the brief, Alyce L. Raboy, Hartford, for appellants (defendant Homart Development Co. et al.).

Frank B. Cochran, with whom was Peter B. Cooper, New Haven, for appellees (plaintiffs).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and BORDEN, JJ.

BORDEN, Associate Justice.

The principal issue of this appeal is whether the trial court exceeded the proper scope of review of the decision of the named defendant, the Hamden planning and zoning commission (commission), in amending the Hamden zoning regulations regarding the development of shopping centers. The defendants ¹ appeal ² from the judgment of the court sustaining the zoning appeal of the plaintiffs ³ that challenged the decision of the commission.

The defendants claim that: (1) the court employed an improper scope of review and, therefore, improperly concluded that the commission's decision was not supported by the record; (2) the court relied on improper evidence; and (3) the court improperly concluded that the plaintiffs had been denied due process of law by the commission's hearing procedure. We conclude that: (1) the court exceeded the applicable scope of review of the commission's decision and that the commission's decision was adequately supported by the record; and (2) the court improperly concluded that the plaintiffs' due process rights were violated. ⁴ Accordingly, we reverse the judgment.

The following facts are undisputed. In July, 1988, Pellegrino, Homart and Fusco/Gottlieb filed an application with the commission to amend the Hamden zoning regulations for all fifteen Business B-2 and CDD-1 districts located in Hamden. ⁵ The proposed amendments would apply to numerous sites in these districts. The stated purpose of the application was "[t]o permit existing zoning regulations to be more compatible with the development of a Shopping Center." It sought five amendments ⁶ that are pertinent here: (1) an increase in the permissible gross floor area of a shopping center from 250,000 square feet to 784,000 square feet; (2) the exclusion of enclosed interior walkways from the definition of gross floor area; (3) the aggregation of lots within a shopping center for certain area, yard and frontage requirements; (4) the fulfilling of nonresidential front landscaping requirements by substituting such landscaping in other locations; and (5) the exclusion of underground or covered parking spaces from the computation of the required landscaping area and the number of trees. The application did not seek a change of zone with respect to any particular parcel or parcels of property. The Hamden zoning regulations require a special permit for the construction of a mall or shopping center. Hamden Zoning Regs. § 512.3.

On its face, the application did not seek approval for any construction or refer to any particular site, nor did it include any site plans or traffic or drainage information. The commission referred the application to its planning section, which, after a meeting, recommended approval of the amendments.

It is also undisputed, however, that the commission was aware that the purpose of the applicants in seeking the amendments was to enable them ultimately to develop a commercial shopping mall, to be known as Hamden Court, on a thirty-three acre site located at the corner of Dixwell Avenue and Skiff Street (site). On that site were various commercial buildings, including a department store, a car dealership, a burnt-out cement factory, a fast food outlet, and an abandoned railroad line. The town planner, who acted as the clerk of the commission, knew that these amendments were necessary before the applicants could obtain a special permit for the mall they intended to propose later. At the meeting of the planning section, Pellegrino had stated that the owners wanted to demolish the existing buildings on the site and construct Hamden Court. In a letter dated September 29, 1988, to the residents of Hamden, Homart had stated, inter alia, that it was "proposing to build Hamden Court Shopping Center at the intersection of Dixwell Avenue and Skiff Street," and that "[i]n order to develop Hamden Court as proposed by Homart Development Co. and Fusco/Gottlieb Associates, zoning ordinance changes are essential." Furthermore in 1987, Homart had filed an application for certain other amendments to the zoning regulations in order to permit it to build a larger mall on the site. The commission had denied that application.

At a special meeting of the commission on January 5, 1989, after considerable discussion, it voted three to two to adopt the amendments to the zoning regulations. According to the minutes of that meeting, upon a request by the town attorney that the reasons for the action be stated for the record, one of the commissioners who had voted for the amendments stated that "he voted his conscience and said the amendments fall within the Town Plan; more specifically, it addresses the interrogatories and the response from the Town Planner which should be made part of the record. He said he felt this was not a departure from the Town Plan. He said tonight the Commission was supposed to limit itself to the zone changes only, which are not a departure from the Town Plan." When one of the two commissioners who had voted against the amendments "asked the other Commissioners if they were in agreement with [this] statement," another of the three commissioners voting in favor of the amendments "said he spoke to no one and based his decision on the fact that he thought this is a viable application." The third commissioner voting in favor of the amendments did not, after the vote, state his reasons, although he had participated in the discussion that preceded the vote.

The plaintiffs appealed to the Superior Court. The court viewed the appeal as involving the issue of whether the commission had acted within its discretion in amending the regulations so as to permit the Hamden Court mall. In that posture, the court subjected the regulations to a two part test: (1) whether they were in accord with the town's comprehensive plan; and (2) whether they were reasonably related to the police power purposes enumerated in General Statutes § 8-2. ⁷ The court concluded that the commission had not abused its legislative discretion in determining that a regional shopping mall of 784,000 square feet was within Hamden's comprehensive plan for a site that already permitted three separate shopping centers of 250,000 square feet each. Nonetheless, the court concluded that the appeal must be sustained because the amendments were not shown to be reasonably related to any one of the police power purposes contained in § 8-2.

The court concluded from the record that "the majority of the Commission who voted in favor of the Amendments not only failed to state on the record the police power purpose or purposes they relied upon to support their decision ... but they were under the mistaken belief that it was not their concern at that time." The court read the minutes of the January 5, 1989 special meeting of the commission to indicate that "the majority of the commissioners voted for the Amendments because it was in accordance with the comprehensive town plan and took no other factor into consideration." The court reasoned that "[t]he Commission's error is not that they merely failed to make necessary findings, but the record patently shows that they acted under the mistaken belief that these police power purposes enumerated in § 8-2 were not appropriately before them when determining whether to amend the regulations," and, therefore, the commission's decision must be overturned.

The court also reasoned that, even if it were to search the record for a legitimate basis of the commission's decision, "the decision of the Commission would not meet the requirements of § 8-2 that the Amendments must be reasonably related to one or more of the state police power purposes." Stating that the only purposes articulated in § 8-2 that could possibly apply to the amendments at issue were that the amendments be "designed to lessen congestion in the streets" and that they "promote health and the general welfare"; General Statutes § 8-2; see footnote 7, supra; the court concluded that there was "no substantial evidence [in the record] which would allow the Commission to find that either of these purposes [is] served by the Amendments."

With respect to congestion in the streets, the court compared the traffic to be generated by the mall to the traffic without the proposed amendments. The court concluded that "[a]ll the evidence in the record pertaining to traffic congestion indicates that a regional shopping mall consisting of 784,000 square feet would generate a substantial increase in traffic congestion." The court noted the concession by Homart's expert witness that "substantial improvements would be required to be made by local, state and federal governments in order to accommodate the traffic flow for a regional shopping mall at the Site of Dixwell Avenue and Skiff Streets." The court also concluded that the commission was not entitled to rely on evidence that traffic congestion would be decreased by these improvements because there was no evidence that such traffic improvements were probable. Thus, the court concluded that "the record in this case would not support the Amendments on the basis that it would lessen congestion on the streets. On the contrary, the overwhelming evidence in the record indicates that traffic congestion on the streets would be substantially increased; without...