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Santarsiero v. Planning and Zoning Commission of Town of Monroe

Court of Appeals of Connecticut

May 31, 2016


          Argued February 10 2016

         Appeal from Superior Court, judicial district of Fairfield, Hon. Richard P. Gilardi, judge trial referee.

          Kevin J. Gumpper, for the appellants (plaintiffs).

          Michael C. Jankovsky, for the appellee (defendant Real Time Investments, LLC).



          ALVORD, J.

         The plaintiffs, Donna MacKenzie, David W. Santarsiero and Colleen M. Santarsiero, appeal from the judgment of the Superior Court dismissing their appeal from the decisions of the defendant Planning and Zoning Commission of the Town of Monroe (commission) granting a special exception[1] to the defendant Real Time Investments, LLC.[2] The commission granted the defendant a special exception pursuant to article XVIII, § 117-1800, [3] of the February, 2013 revision of the Monroe Zoning Regulations (regulations), and approved its request for a zone change pursuant to article IX, § 117-900, [4] of the regulations. On appeal, the plaintiffs claim that the court improperly (1) concluded that the commission, in granting the special exception, possessed the authority to waive landscape buffer requirements for areas contiguous to an inland wetland area, and (2) concluded that the commission’s authority in this action was properly based on a 2009 variance, granted by the Monroe Zoning Board of Appeals (board), that could not be subject to collateral attack. We affirm the judgment of the Superior Court.

         The following facts and procedural history are relevant to this appeal. Since 2009 the defendant has attempted to gain the appropriate approvals to build a McDonald’s restaurant with a drive-up window on 4.027 acres that the defendant owns at 579 Main Street, Monroe (property). The distance between plaintiffs’ property line and the defendant’s property line is approximately 100 feet, however the plaintiffs’ property does not abut the defendant’s property.

         In 2009, the defendant applied for a variance from the board to allow a restaurant with a drive-up window. At the time, 0.65 acres of the defendant’s property was zoned as ‘‘Design Business District 1’’ (DB1), which did not permit restaurants with a drive-up window.[5] The remainder of the property was zoned ‘‘Residential and Farming District C’’ (RC). Written notification of the application and hearing date were provided to the plaintiffs. After a public hearing, the board granted the variance. The plaintiffs did not appeal from the granting of the variance.

         On November 4, 2010, the defendant, relying on the 2009 variance, filed an application with the commission seeking a special exception, as allowed in the regulations; see footnote 3 of this opinion; a zone change and a request for site plan approval in order to construct a McDonald’s restaurant with a drive-up window on its property. In its application for a special exception the defendant sought modifications to the setback and landscape buffer requirements that the regulations required where commercial property abuts residential property.[6]In its application for a zone change the defendant sought to convert an additional 1.15 acres of its property from a RC to a DB1 zone. During a public hearing on the applications, the plaintiffs’ attorney, Kevin J. Gumpper, who at the time represented another party, raised objections to the defendant’s requests.[7] The commission approved the zone change and the special exception incorporating the nonconforming setbacks and landscape buffer. The plaintiffs appealed to the Superior Court, but their claims were dismissed. After granting a petition for certification to appeal, this court reversed the granting of the special exception and affirmed the partial zone change. MacKenzie v. Planning & Zoning Commission, 146 Conn.App. 406, 442, 447–48, 77 A.3d 904 (2013). This court concluded that the commission lacked the authority to grant a special exception that varied setback and landscape buffer requirements.

         On February 14, 2013, and prior to this court’s decision in MacKenzie, the defendant returned to the commission with a revised application for special exception, again in order to construct a McDonald’s restaurant with a drive-up window. The defendant sought to have the entire property rezoned as a DB1 zone. The general location of the restaurant building on the property remained the same, but the defendant’s new plan involved installing a septic system in the rear portion of the property. The variances that were at issue in MacKenzie were no longer necessary to the project because the adjacent property had been rezoned from a RC to a DC1 zone, eliminating the need for a landscape buffer between those parcels.

         The commission held a public hearing on July 11, 2013, on the defendant’s revised application. The defendant’s attorney stated at the hearing that the zone change was necessary because even though the septic system would be underground and not be visible, it was for commercial use, and therefore could not be built on residentially zoned property. The restaurant and parking area would be built along Main Street, on the portion of the property that was already zoned commercial and abutted by other commercial properties. The rear portion of the property, where the septic system would be installed, was abutted by residential properties that were not owned by the plaintiffs.

         At the public hearing, the defendant’s engineer stated that much of the rear portion of the property was ‘‘extensively wooded’’ and the defendant was ‘‘not planning on touching it.’’ However, trees would be removed from that area where the septic system was to be buried, and would be replaced with ‘‘no mow’’ grass. The defendant’s engineer stated that additional landscaping would be added to the property after the septic system was installed.[8] The engineer also stated that an old driveway that connected the front and rear portions of the property would be excavated and replaced with vegetation.

         The rear portion of the property included several areas that were marked as inland wetlands. As such, the defendant had submitted its septic system and landscaping plans to the Monroe Inland Wetlands Commission (inland wetlands commission) for its approval. At the planning and zoning hearing, the defendant’s engineer informed the commission that the presence of inland wetlands limited its ability to create a landscape buffer that conformed to the regulations. The planning and zoning application was continued pending a final report and approval from the inland wetlands commission.

         Additional hearings were held through the summer of 2013. The plaintiffs’ attorney argued before the commission that the defendant’s landscaping plan did not provide an adequate buffer between the plaintiffs’ properties and the proposed McDonald’s restaurant. Attorney Gumpper, representing the plaintiffs, stated to the commission: ‘‘The area [at the rear of the property] is presently wooded, heavily wooded as described by the applicant’s engineer, and that provides a terrific buffer for the noise and lights that are down presently on Main Street [where the McDonald’s would be located], so [for the defendant] to say that this is not going to have any impact because you are tearing down all the trees to put in a septic system is quite to the contrary.’’ The defendant’s attorney argued that the proposed site plan would result in an adequate buffer: ‘‘[W]e have a very large open field like area in the rear that will provide no visual impact at all to any of the residential neighborhoods. . . . We have a wetlands buffer that prevents the commercial activity from leaking into an area which is abutting a residential area . . . .’’ At a hearing in August, 2013, the defendant’s attorney further stated: ‘‘The development of the project itself is on four acres, of which [the McDonald’s] only basically uses one acre and creates a three acre buffer.’’ Prior to deliberating on the defendant’s applications, each commission member visited the site. The defendant also offered to grant the town of Monroe (town) a conservation easement on the rear portion of the property where the septic system would be installed.

         The inland wetlands commission approved the defendant’s site plan. Its report and approval were disclosed to the commission. During deliberations on the defendant’s planning and zoning applications, commission members expressed concern about additional development of the defendant’s property if the zone change was approved and the septic system was never installed. The commission members concluded that the proposed conservation easement addressed these concerns.[9]

         On August 29, 2013, the commission approved the defendant’s special exception as requested by a vote of four to one. The commission also approved the defendant’s zone change request by the same four to one vote. A conservation easement for the rear portions of the property was listed as a condition of the special exception permit. During the public hearings and deliberations, the commission members did not specifically discuss the landscape buffer requirement or the regulatory exceptions to that rule. However, when the commission granted approval for the special exception it adopted the following statement as part of its reasoning: ‘‘This site has been landscaped thoroughly, including landscaped to meet the inland wetlands requirements.’’

         The plaintiffs appealed to the Superior Court to overturn the commission’s decisions approving the zone change and granting the special exception.[10] The court concluded that the commission did not abuse its discretion in granting the special exception because there was substantial evidence to support the commission’s decision to waive the landscape buffer requirement. Interpreting the regulations and, specifically, § 117-902 (G) (4) that authorized waiver of the landscape buffer requirement for inland wetland areas, the court concluded: ‘‘The regulations afford the commission the discretion to determine that an alternative buffer may be necessary in areas not strictly wetlands in order to preserve the wetlands themselves.’’ The court also rejected the plaintiffs’ argument that the 2009 variance should be subject to collateral attack in this case, observing that the plaintiffs had failed to directly appeal the variance when it was originally granted. The court dismissed the plaintiffs’ appeal.

         The plaintiffs thereafter filed a petition for certification to appeal pursuant to General Statutes § 8-8 (o). We granted the petition and this appeal followed.


         The plaintiffs claim on appeal that the court improperly concluded that the commission had the authority to waive the landscape buffer requirement in accordance with a regulatory exception for inland wetland areas. The plaintiffs argue that the commission abused its discretion when it approved the defendant’s special exception without requiring the landscape buffer of three rows of evergreen trees. See footnote 6 of this opinion. We conclude that the ...

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