Smith-Groh, Inc. v. Planning & Zoning Commission

• Decision Date: 22 July 2003
• Docket Number: (AC 22817).
• Court: Connecticut Court of Appeals
• Parties: SMITH-GROH, INC., ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF GREENWICH

78 Conn. App. 216

826 A.2d 249

SMITH-GROH, INC., ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF GREENWICH

(AC 22817).

Appellate Court of Connecticut.

Argued March 26, 2003.

Officially released July 22, 2003.

Foti, West and Dupont, Js

Robert A. Fuller, for the appellant (named plaintiff).

Haden P. Gerrish, assistant town attorney, for the appellee (named defendant).

Jane D. Hogeman, for the appellee (defendant Gateway Park Associates, LLC).

Opinion

DUPONT, J.

The plaintiff Smith-Groh, Inc.,¹ appeals from the judgment of the trial court dismissing its appeal from the decision of the planning and zoning commission of the town of Greenwich,² which denied its application for final site plan approval and a special permit to construct an apartment building in a residential-planned housing design-small unit zone (R-PHD-SU). The defendants are the planning and zoning commission (commission) and Gateway Park Associates, LLC (Gateway), an owner of property that abuts the property of the plaintiff.³

The plaintiff claims that (1) the commission's tie vote was tantamount to an approval of its application, (2) the court improperly considered the town planner's letter of reasons given for the denial and (3) the R-PHD-SU zone regulations applicable to the plaintiff's proposed apartment building do not require designated "affordable" units.⁴ The primary issue in this appeal is whether the plaintiff's application for site plan approval and a special permit met "all" of the purposes of the R-PHD-SU zone.⁵

The following facts and procedural history are relevant to our resolution of the plaintiff's appeal. In 1989, the prior owner and prospective lessees of the property applied for a zone change, from a R-6 zone to a R-PHD-SU zone, as well as special permit and site plan approval. The commission approved the zone change and the site plan, and granted a special permit.⁶ The apartment complex was not constructed within three years, and the site plan approval and special permit became null and void. See Greenwich Building Zone Regs., §§ 6-14.1 (e) (site plan) and 6-17 (f) (special permit).⁷

In August, 1998, Pemberwick Apartments, LLC (Pemberwick), the contract purchaser of the property, submitted an application for a special permit and "final" site plan application.⁸ The commission considered the application at public hearings held on November 17 and December 8, 1998, and at its regular meeting on January 7, 1999. The commission reviewed the site plan application as preliminary and advised the plaintiff to proceed to a final site plan subject to twenty modifications. The relevant modifications required for final site plan approval included a reduction in the height and bulk of the building and the identification of, and the deed restrictions on, the five "affordable" units.⁹

In August, 1999, Pemberwick revised its preliminary application, and submitted a final site plan and special permit application for the commission's approval. On September 3, 1999, the plaintiff became the record owner of the property. The commission considered the application at a public hearing on October 26, 1999, and regular meeting on December 8, 1999. At the December meeting, the commission denied the application. In its December 22, 1999 revised letter, the commission stated as reasons for the denial that the reduction in height and bulk of the proposed building was not substantial enough to satisfy the requests of the commission in its previous letter, the average size of the individual apartments did not meet the requirements of the zone, and there was "reasonable doubt" that the units would meet the requirements of § 6-62 (4) and (5) of the building zone regulations.¹⁰

The plaintiff submitted a second final site plan and special permit application in January, 2000, which application is the subject of this appeal. This application was considered at a public hearing on February 15, 2000, and a special meeting on March 13, 2000. Following discussion at the special meeting, a motion to approve the application did not carry. Two commission members voted to approve the motion, two voted to deny the motion and one abstained. The concerns raised at the meeting related to the regulation requirements of the R-PHD-SU zone as to "reasonable cost" housing and the size of the building.

The commission's decision was published in a newspaper on March 22, 2000.¹¹ On March 24, 2000, the town planner sent a denial letter to the plaintiff and copies to the commission members. The written letter outlined several reasons for the denial. Both the plaintiff and Gateway appealed from the commission's decision to the Superior Court.¹² The court dismissed the plaintiff's appeal because the plaintiff's application failed to provide housing at a "reasonable cost" pursuant to § 6-62 (c) (4) of the building zone regulations.¹³ We now consider the plaintiff's appeal.¹⁴

I THE TIE VOTE

The plaintiff first claims that its site plan was approved automatically by virtue of General Statutes § 8-3 (g).¹⁵ It argues that § 8-3 (g) requires an affirmative denial of the application and that because of the tie vote on the motion to approve, there was not such a denial. Relying on SSM Associates Ltd. Partnership v. Plan & Zoning Commission, 211 Conn. 331, 559 A.2d 196 (1989), the plaintiff further argues that although § 8-3 (g) applies only to site plans, its special permit was approved because it was inseparable from the site plan. The defendants argue that according to parliamentary procedure, a tie vote on a motion to approve amounts to a denial and, therefore, the application was denied within the specified period in accordance with § 8-3 (g). Additionally, they argue that even if the site plan is deemed approved by virtue of the statute, the special permit was not subject to the automatic approval provisions of § 8-3 (g) and was denied by virtue of the tie vote. We agree with the defendants' latter contention.¹⁶

Section 8-3 (g) specifically relates only to applications for site plan approval. In this case, the plaintiff was required to, and did, submit a special permit application, which is not inseparable from the site plan application. The plaintiff relies on SSM Associates Ltd. Partnership, which held that the special permit application was so inseparable from the site plan application that it, along with the site plan application, was deemed approved under the automatic approval provision of § 8-3 (g). Id., 337; see also Center Shops of East Granby, Inc. v. Planning & Zoning Commission, 253 Conn. 183, 189-90, 757 A.2d 1052 (2000).

In Center Shops of East Granby, Inc., however, our Supreme Court strictly limited SSM Associates Ltd. Partnership to its facts because the use sought was a permitted use, and the parties stipulated that the site plan and special permit applications were inseparable. Center Shops of East Granby, Inc. v. Planning & Zoning Commission, supra, 253 Conn. 190-92. The court went on to hold that "when a site plan is separable from its accompanying documents and the special permit application is for a use not permitted as of right, the provisions of § 8-3 (g) are not applicable and the time constraints specified in General Statutes § 8-7d do not control." Center Shops of East Granby, Inc. v. Planning & Zoning Commission, supra, 193. We, therefore, conclude that regardless of the status of the site plan, the special permit could not be approved automatically.

When voting on the motion to approve the application, two members voted in favor of the motion, two members voted against the motion and one member abstained. This tie vote on the motion to approve is tantamount to a rejection of the application. Merlo v. Planning & Zoning Commission, 196 Conn. 676, 683, 495 A.2d 268 (1985); see also Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 533-34, 525 A.2d 940 (1987); Lupinacci v. Planning & Zoning Commission, 153 Conn. 694, 696, 220 A.2d 274 (1966); Hall v. Planning & Zoning Board, 153 Conn. 574, 576, 219 A.2d 445 (1966); In re Reynolds, 170 Vt. 352, 355-57, 749 A.2d 1133 (2000) (in determining whether majority has voted for approval, abstention is not counted as vote for approval). Therefore, we conclude that the application for the special permit was denied.

II COLLECTIVE STATEMENT

The plaintiff claims that the reasons stated in the March 24, 1999 letter of the town planner cannot be considered in reviewing whether the application for site plan approval and a special permit was denied properly. It argues that the letter contained reasons not discussed, or voted on, by the commission. The plaintiff further claims that because individual commission members stated their reasons for voting against the application on the record,¹⁷ a reviewing court is not required to search the record for alternate reasons to uphold the commission's decision. The defendants agree that the letter was not a collective statement of the commission's decision. They argue, however, that a reviewing court must go beyond the record to determine whether there were any grounds to uphold the commission's decision. We agree that the letter cannot be considered as the commission's collective reasons for the denial, but we conclude that we would be required to search the record for reasons for the denial if those stated by either of the two commission members were insufficient for a denial.

The following additional facts are relevant to the plaintiff's claim. Margus T. Laan, the senior planner for the town of Greenwich, who was present at the public hearing and special meeting, wrote the March 24, 2000 letter to the plaintiff's counsel, purporting to state the reasons for the commission's denial of the plaintiff's application. The senior planner was the only individual to sign the letter, and there is no indication in the record that the letter was written at the direction of, or adopted by, the commission. In fact, the commission received the letter only...