Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Inc. v. Planning & Zoning Commission of Town of Trumbull

Court of Appeals of Connecticut

September 19, 2017


          Argued April 25, 2017

          Joel Z. Green, with whom, on the brief, was Linda Pesce Laske, for the appellants (defendant Jeffrey W. Strouse et al.).

          Michael C. Jankovsky, for the appellees (plaintiffs).

          Lavine, Sheldon and Pellegrino, Js.


         The plaintiffs appealed to the trial court from the decision of the defendant planning and zoning commission denying their application for a special permit to install lighting on certain real property on which the plaintiff school was situated. The school sought a special permit, pursuant to the applicable town zoning regulation (Article II, §, to authorize the installation of four light poles, seventy feet in height, to illuminate the school's primary athletic field. After the trial court granted the motion to intervene filed by the defendant adjacent landowners, it rendered judgment sustaining the appeal in part, concluding that the plaintiffs' application met the technical requirements of § (a) through (d) of the zoning regulations, and that it satisfied each of the known and definite standards therein. With respect to § (e) of the regulations, which provides that ‘‘[a]ll requirements of Article XV Special Permit/ Special Exception shall be satisfied, '' the court found that because Article XV contained no definite standards with which a prospective applicant must comply, it could not serve as the sole basis for denying a special permit application when all of the known and definite standards in the regulation in question have been satisfied. The court thus remanded the matter to the commission with direction to approve the special permit as requested, subject to such conditions that would be necessary to protect the public health, safety, convenience and property values. Subsequently, the intervening defendants, on the granting of certification, appealed to this court. Held:

         1. The trial court applied an improper legal standard in reviewing the commission's decision on the special permit application and determining that the general standards contained in Article XV of the zoning regulations could not serve as the sole basis for denying the special permit application; a planning and zoning commission may deny a special permit application on the basis of general standards set forth in the zoning regulations, even when all technical requirements of the regulations have been met, and, contrary to the plaintiffs' claim, this court's decision in MacKenzie v. Planning & Zoning Commission (146 Conn.App. 406) did not alter the ample body of appellate precedent regarding the ability of a commission to append conditions to a special permit approval, or its ability to predicate its decision on compliance with general standards set forth in the zoning regulations.

         2. The trial court improperly sustained the plaintiffs' appeal in part from the commission's denial of their special permit application, as substantial evidence existed in the record on which the commission, in its discretion, could have relied in concluding that the school did not meet its burden of demonstrating compliance with the general standards of Article XV of the zoning regulations: on the basis of the testimony and evidence in the record, the commission reasonably could have concluded, in its discretion, that the school failed to demonstrate that the proposed use would not adversely affect neighboring residential properties due to nighttime noise emissions, in contravention of the regulations, that the school's proposal lacked buffers that would adequately shield neighboring residential properties from noise and light emissions, as required by the regulations, and that the school did not establish that its proposed use adequately avoided nonresidential traffic through residential streets, that pedestrian and vehicular traffic to and from and in the vicinity of the use would not be hazardous or inconvenient to, or detrimental to the character of, the abutting residential neighborhood, that, with respect to access and parking, the design of the proposed use adequately protected the residential character of surrounding residential neighborhoods or residential zones, or that the proposed use would not exacerbate special problems of police protection inherent in the proposed use; moreover, in exercising its discretion over whether the general standards of Article XV sufficiently were met, the commission could have concluded, on the record before it, that the school did not establish that the proposed use would not adversely affect neighboring property values, the character of the adjacent neighborhood, or the quality of life of its residents.

         Procedural History

         Appeal from the decision by the defendant denying the plaintiffs' application for a special permit to install certain lighting, brought to the Superior Court in the judicial district of Fairfield, where the court, Bellis, J., granted the motion filed by Jeffrey W. Strouse et al. to intervene as defendants; thereafter, the matter was tried to the court, Radcliffe, J.; judgment sustaining the appeal in part, from which the defendant Jeffrey W. Strouse et al., on the granting of certification, appealed to this court. Reversed; judgment directed.


          SHELDON, J.

         The intervening defendants Jeffrey W. Strouse, Barbara M. Strouse, Mukesh H. Shah, Vibhavary M. Shah, Jai R. Singh, Sonali Singh, Dennis J. McEniry, and Joanne McEniry appeal from the judgment of the Superior Court sustaining in part the appeal of the plaintiffs, St. Joseph's High School, Inc. (school), and the Bridgeport Roman Catholic Diocesan Corp. (diocese), from the decision of the Planning and Zoning Commission of the Town of Trumbull (commission) denying the school's request for a special permit pursuant to Article II, §, of the Trumbull Zoning Regulations (regulations).[1] On appeal, the defendants contend that the court improperly concluded that the commission could not deny that request on the basis of noncompliance with general standards contained in the regulations. They further submit that substantial evidence in the record supports the commission's decision. We agree and, accordingly, reverse the judgment of the Superior Court.[2]

         At all relevant times, the diocese owned a parcel of land located in the AA residential zone and known as 2320 Huntington Turnpike in Trumbull (property). For more than half a century, the school has operated a private secondary school on the property. Although currently 53.95 acres in size, the property originally was significantly larger. Approximately two decades ago, the diocese sold a sizeable portion of the property to developers, on which neighboring residential homes were constructed. The current owners of those adjacent properties are among those affected by the proposed special permit use at issue in this appeal.

         Article II, § 1.2.4, of the regulations enumerates various special permit uses in the AA residential zone. Among such uses, as provided in §, are ‘‘[c]hurches and other places of worship, including parish houses and Sunday School buildings; non-profit primary and secondary schools; and buildings housing personnel affiliated with said churches and schools.''

         Pursuant to Article XVI, § 3, of the regulations, the commission is authorized ‘‘after public notice and a hearing, to amend, change, or repeal these Regulations . . . .'' At the behest of the school, the commission, in August, 2014, exercised that authority by amending § to permit the installation of lighting on athletic fields for nonprofit secondary schools.[3] Since it became effective on September 10, 2014, that amendment has provided, in relevant part: ‘‘Permanent and temporary light poles for lighted athletic fields on non-profit secondary school property shall be permitted for school related purposes only, provided: (a) The poles, lights and structures supporting such poles do not exceed a combined height of eighty (80) feet. (b) No such light structure shall be within two hundred (200) feet of an abutting residential property line. (c) Applicant shall submit a photometric plan at the time of application. (d) Lights must be shut off no later than 11:00 p.m. and applicant shall install an automated control system to ensure compliance. (e) All requirements of Article XV Special Permit/Special Exception shall be satisfied.''[4]The commission, in enacting that amendment, formally complied with all applicable procedural requirements. See General Statutes § 8-3; Trumbull Zoning Regs., art. XVI, § 3.

         In accordance with §, as amended, the school filed an application for a special permit[5] to permit the installation of four light poles, seventy feet in height, to illuminate the school's primary athletic field. In that application, the school stated, in relevant part, that ‘‘[t]he fields and lights are well-buffered with mature landscaping and there will be no negative impact on the adjoining neighborhood.''

         On September 17, 2014, the commission held a public hearing on the application. Attorney Raymond Rizio appeared on behalf of the school and detailed how the proposal complied with the technical requirements of § He first noted that the light poles would be ten feet shorter than the maximum height permitted under § (a), and would be at least 325 feet away from abutting residential property lines, in compliance with § (b). Rizio also stated that the abutting residential properties were ‘‘very well . . . buffered with heavily wooded property.''

         Consistent with § (c), the school submitted a photometric plan to the commission. It also presented expert testimony on the impact of the proposed lighting by Mark Reynolds of Techline Sports Lighting, who indicated that, although there would be ‘‘some light spillage'' around the athletic field, ‘‘when you get 100 feet away from that field, it's going to be pretty much down to nothing.'' Rizio similarly remarked that ‘‘the readings along the property lines basically measure zero, over 95 percent of the property line is zero or 0.1, which is one-tenth of a footcandle[6] at the property lines. And that's not taking into account . . . all of the . . . buffering that's up there with regard to the trees.'' (Footnote added.) The school's proposal also included the installation of an automated control system.

         Rizio then noted certain general standards of Article XV that govern special permit applications, stating: ‘‘[W]e believe that we will have no impact on the neighborhood, we believe that we satisfy all of your special permit standards, that the use is appropriate. . . . We certainly are willing to put strong conditions on the application to ensure there is going to be minimal impact with regard to lights and activity on the property.'' Rizio also addressed the appropriateness of the proposed use, stating that ‘‘this is . . . a high school. [It] has athletic events. The athletic events need . . . [lighting on] the field, during minimal times . . . . We believe there is adequate buffering and controls. . . . [W]e greatly exceed the required distances from residential properties. The property is already naturally buffered . . . . [A]ll the light will be directed. The distances are more than adequate. We have given you a photometric plan that shows there will be absolutely no impact, light impact, on the neighboring properties. So, appropriateness of the use, impact on neighboring properties, we believe is absolutely minimal.''

         After reminding the commission that it previously had approved the use of athletic fields on the property, Rizio submitted that the proposal presently before the commission was ‘‘a completely harmonious accessory use [that] complements the current use of the athletic fields.'' With respect to traffic considerations and the impact on residential properties, Rizio stated that ‘‘the intensity of the operations involved'' with respect to ‘‘both pedestrian and vehicular traffic to and from the vicinity will not be hazardous. [There will be] no change in traffic plans.''[7]

         Rizio acknowledged that, in granting a special permit, the commission has the authority to place reasonable restrictions on the proposed use. See General Statutes § 8-2 (a) (special permits may be subject ‘‘to conditions necessary to protect the public health, safety, convenience and property values''); Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 594, 409 A.2d 1029 (1979) (§ 8-2 ‘‘expressly'' provides that ‘‘commissions [are] authorized to impose conditions as a prerequisite to certain uses of land''). He then articulated nine ‘‘voluntary conditions'' that the school believed were appropriate restrictions on the special permit use in question.[8]Rizio concluded by noting that the school was proposing those conditions to ‘‘make sure we conform not only with the literal interpretation [of §], but [also] the spirit of the regulation.''[9]

         During the public comment portion of the hearing, the commission heard both support for and opposition to the school's proposal.[10] The commission also received written correspondence from seventeen additional members of the public, all of whom opposed the proposal. The common thread running through the comments of those who spoke in opposition was a fervent belief that permitting major sporting events on the property at nighttime would adversely affect property values, public safety, the residential character of their neighborhood, and the use and enjoyment of their properties.

         When public comment concluded, the school responded to certain concerns raised therein. It volunteered two additional conditions of approval pertaining to its proposed special permit use. First, it agreed not to play any music when the proposed lights were utilized. Second, the school agreed that use of ‘‘the press box and the public announcement [system] at [night] games would only occur during boys' varsity football and boys' varsity lacrosse . . . .'' As to traffic concerns, Rizio noted that ‘‘there's no more games being added to the [property]. There's no more games at all being added to [the school]. It's the exact same games. And they are both held at nonpeak hours.'' He thus submitted that ‘‘[w]hether you have a Saturday football game or a Friday night football game, both games'' would have the same impact on the neighborhood in terms of vehicular and pedestrian traffic. Arguing that the school had ‘‘satisfied all of the items required to achieve a special permit'' under §, Rizio asked the commission to grant the application, subject to the conditions that the school had proposed.

         The commission then closed the public hearing and began its deliberations on the school's application. Commissioner Fred Garrity spoke first, remarking that he was ‘‘hard-pressed to find things that the applicant did not do in this process or provide this evening.'' He also stated that ‘‘some of the neighbors will never be happy if lights go up. It doesn't matter what we would do. The parking is going to overflow on busy days. They will park in those neighborhoods on public streets, which has occurred over time . . . whether we put the lights up or not or allow it.'' Garrity thus opined that the school had met its obligations under § and encouraged his colleagues to consider conditions of approval on its special permit application.

         Commissioner Anthony Silber spoke next, reminding the commission that it had ‘‘voted for this text amendment unanimously.'' One commissioner later asked Attorney Vincent Marino, who was in attendance in his capacity as town attorney, about the commission's ability to consider the proposal's compliance with general standards set forth in the regulations, such as the detrimental effect on the quality of life of neighboring property owners. In response, Marino reminded commission members that, while amending § ‘‘in August, one of the concerns that [was] raised is [whether] there were adequate protections through the special permit process to vote in the negative should the commission wish to vote in the negative because they did not want to find themselves in a position where, now that the regulation change was in place it was just going to be an automatic thing. And we had [an] extensive conversation on the special permit process and specifically Article XV and the protections that are afforded the special permit process through Article XV.'' To accommodate the concerns of neighboring property owners, Silber suggested adding a condition prohibiting night games on Saturdays as well as Sundays.

         Commissioner David W. Preusch then opined that the central issue raised by the school's application was the impact of football games on the adjacent neighbor- hood, stating: ‘‘I think what this boils [down to is] how do they handle parking? And where do they park? . . . [That] is the real problem here . . . . That we need to address. And to me, it's not a couple [of] soccer games, it's not a lacrosse game. . . . [W]hat this boils down to is football games. So, [the] focus [is] on five occurrences in the fall. . . . So, we have four to five occasions a year in the fall every other week or whatever is the home [football] game. . . . I'm just wondering if there is something we can do about these games. And the problems that or issues that have been brought up, which, to me, has everything to do with the parking.'' In response, Silber noted that the school had proposed several voluntary conditions ‘‘to try and mitigate'' the impact of the proposed use. He continued: ‘‘[M]aybe there's some more that we could do there. . . . I am not sure what the right solution is, but I think for us it is about trying to find ways to protect the people who live on these streets and at the same time give the school the lights because I think it is the right thing to do.''

         Commissioner Richard C. Deecken then addressed the proposal, prefacing his remarks with the observation that ‘‘[t]his is a most difficult application . . . .'' Deecken noted that ‘‘what we have here is, we are transferring the [load], we are transferring the intensity from one time to another, and if we all agree that intensity is no greater during a night game than it is during a day game, then we are in agreement. . . . But again, what I want to know and what I need to be convinced on is, is the load being transferred from day to night significant enough to warrant a negative vote?'' Deecken also stated that, in his view, ‘‘the problem of light still remains'' because, ‘‘as we know, you can see lights from a long distance, ''[11] whether during games or nightly practices. Silber then proposed restricting lighting for practice sessions to 8 p.m. In response to concerns voiced by neighboring property owners, Silber also proposed a blanket prohibition against the use of the lights on weekends. A motion then was made to amend Garrity's original motion ‘‘to limit practices to 8 p.m. and eliminate weekend lights, flatly.'' That motion was unanimously approved.

         Discussion then turned to the number of night football games that would be permitted each year. As Preusch noted, ‘‘the varsity football games are the issue. It's not the soccer . . . . It's not the lacrosse. It's the crowds. It's the football games.'' Silber responded that the school was not increasing the number of football games on the property, but simply ‘‘shifting the intensity'' from day to night. Preusch then noted that ‘‘we are talking about the intensity of use here. And if we can cut the intensity of the expansion of use in half, that's what I am talking about. I am talking about a compromise.'' After further discussion, Deecken moved to amend the pending motion to limit the number of varsity football games to a ‘‘[m]aximum of four games. Period.'' That motion was approved, with all commissioners but Garrity voting in favor.

         At that time, Marino raised ‘‘a point of order.'' Marino reminded commission members that a prerequisite to the granting of a special permit was a specific finding by the commission pursuant to Article XV, § 4.14 (1), of the regulations, [12] as to the impact of the proposed use on surrounding residential neighborhoods. Marino further explained that ‘‘you have to incorporate that [finding] into your [primary] motion because it is required by your regulation. . . . If you vote negatively [on the primary motion] then it's a negative finding [and] if you vote affirmatively it's a positive finding'' as to the impact on surrounding neighborhoods. In what the transcript suggests was a chaotic part of deliberations, commissioners expressed confusion as to the mechanics of implementing such a finding while at the same time discussing the merits thereof. At one point, Silber explained to his colleagues that Marino ‘‘is saying we have to say it explicitly. It's got to be part of the motion. . . . So, we are amending the motion to include that passage.'' When Anthony G. Chory, as chairman of the commission, ultimately called the question, he stated, ‘‘all in favor to amend the motion?'' That motion to carried by a vote of three to two.[13]

         Chory then called the motion to approve the school's special permit application, as amended several times. Silber and Garrity voted in favor of the motion, while Chory and Preusch voted against. Deecken abstained. As a result, the motion failed by virtue of the tie vote. The commission at that time articulated no reasons for that decision. See Hall v. Planning & Zoning Board, 153 Conn. 574, 576, 219 A.2d 445 (1966) (‘‘[i]n such a case [as a tie vote] the board, as a body, [can] give no reason for its failure to act although the result [amounts] to a rejection of the application''). Rather, it immediately adjourned the meeting following the final vote. Both the legal notice subsequently published by the commission and the written notice sent to the school confirmed that the application had been ‘‘denied'' by the commission.[14]

         The plaintiffs filed a timely appeal of that decision with the Superior Court, arguing that the school's application fully complied with all applicable special permit requirements and that the commission's decision was not substantially supported by the record. The defendants filed a motion to intervene as statutorily aggrieved owners of abutting property, which the court granted. Although the plaintiffs and the defendants subsequently filed briefs on the substantive questions before the court, the commission did not do so. Rather, the commission filed a one sentence statement noting that it ‘‘takes no position in favor of the plaintiffs or the intervening defendants in this administrative appeal.''

         The court held a hearing on October 19, 2015, at which all counsel agreed that the school's special permit application satisfied the technical requirements of Article II, § (a) through (d). Accordingly, the focus of the hearing was on compliance with § (e), which provides that ‘‘[a]ll requirements of Article XV Special Permit/Special Exception shall be satisfied.''

         During the hearing, the court repeatedly asked counsel to identify the ‘‘known and fixed'' and ‘‘clear and definite'' standards contained in Article XV. In response, all counsel acknowledged that no such specificity was contained therein. Because Article II, § (e), specifically provides that ‘‘[a]ll requirements of Article XV . . . shall be satisfied, '' the defendants' counsel nonetheless argued that the commission could predicate its decision on the general standards set forth in Article XV. The court, however, distinguished that last subsection of § from its predecessors, stating that ‘‘[i]f there are general guidelines here [in Article XV], they can be the subject of health, safety and welfare conditions.'' The court later expounded on that distinction as follows: ‘‘An appeal could, I think, be sustained in part, to the extent [that the plaintiffs] comply with [the technical requirements of § (a) through (d)] and [with respect to § (e)] the commission [could be] told to impose conditions related to health, safety and welfare that are site specific and protect the health, safety, welfare and property values . . . .''

         In its memorandum of decision, the court did precisely that. It noted that the record of the public hearing ‘‘unambiguously reveals that the applicant's proposal meets the [technical requirements] set forth in Article II, §, sub paragraphs (a) through (d).'' The court then turned its attention to Article XV of the regulations, the requirements of which must be satisfied pursuant to § (e). It stated, in relevant part: ‘‘Article XV, § 4.14, deals with uses adjacent to or impacting residential areas. Although the section does not contain any specific standards or requirements, it does provide a guidepost for the commission, as it seeks to evaluate conditions which should be adopted, before a special permit application is approved. . . . A review of § 4.14 . . . demonstrates that certain ‘findings' are required of the commission, when considering a special permit application which impacts a residential area. Because every special permit application is site specific, the nature and character of abutting properties must be considered when evaluating a specific proposal. Conditions imposed on a special permit may be designed to limit the impact on surrounding properties, and may be designed to preserve the residential character of a community. However, since Article XV, § 4.14, [15] contains no definite standards with which a prospective applicant must comply, it cannot serve as the sole basis for denying a special permit application, where all of the known and definite standards in the regulation in question have been satisfied. To permit the denial of an application on the basis such as a finding that it is ‘detrimental to the character of a residential district' is inconsistent with the administrative nature of the special permit review. When reviewing a special permit, a commission cannot act legislatively, or quasi-judicially. . . . Because the application submitted by the [school] satisfies each of the known and definite standards in the regulation, the plaintiffs' appeal must be sustained.''[16](Citations omitted; footnote added.)

         The court thus sustained the plaintiffs' appeal in part, concluding that the commission should have granted the special permit due to the school's compliance with the technical requirements of § (a) through (d). The court remanded the matter to the commission with direction ‘‘to approve the special permit as requested, subject to such conditions as are necessary to protect the public health, safety, convenience and property values.'' The defendants thereafter filed a petition for certification to appeal pursuant to General Statutes § 8-8 (o), which this court granted.[17]

         Preliminarily, we note that ‘‘[t]he function of a special permit is to allow a property owner to use his property in a manner expressly permitted under the zoning regulations, subject to certain conditions necessary to protect the public health, safety, convenience, and surrounding property values.'' Whisper Wind Development Corp. v. Planning & Zoning Commission, 32 Conn.App. 515, 525, 630 A.2d 108 (1993) (Dupont, C. J., dissenting), aff'd, 229 Conn. 176, 640 A.2d 100 (1994). ‘‘The basic rationale for the special permit [is] . . . that while certain [specially permitted] land uses may be generally compatible with the uses permitted as of right in particular zoning districts, their nature is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site. Common specially permitted uses, for example, are hospitals, churches and schools in residential zones. These uses are not as intrusive as commercial uses would be, yet they do generate parking and traffic problems that, if not properly planned for, might undermine the residential character of the neighborhood. If authorized only upon the granting of a special permit which may be issued after the [zoning commission] is satisfied that parking and traffic problems have been satisfactorily worked out, land usage in the community can be more flexibly arranged than if schools, churches and similar uses had to be allowed anywhere within a particular zoning district, or not at all.'' (Internal quotation marks omitted.) Barberino Realty & Development Corp. v. Planning & Zoning Commission, 222 Conn. 607, 612-13, 610 A.2d 1205 (1992). In reviewing a challenge to a ‘‘commission's administrative decision, we . . . must be mindful of the fact that the plaintiff, as the applicant, bore the burden of persuading the commission that it was entitled to the permits that it sought'' under the zoning regulations. (Internal quotation marks omitted.) Loring v. Planning & Zoning Commission, 287 Conn. 746, 778, 950 A.2d 494 (2008) (Norcott, J., dissenting). With that context in mind, we turn our attention to the defendants' claims.


         We first address the defendants' contention that the court applied an improper legal standard in reviewing the decision of the commission. That claim involves a question of law, over which our review is plenary. See Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 326, 63 A.3d 896 (2013).

         There is no dispute that the school's special permit application complied with the technical requirements of Article II, § (a) through (d). Accordingly, the only issue before the Superior Court was whether the commission properly could predicate its decision on compliance with general standards contained in Article XV of the regulations, as required by Article II, § (e). The court answered that query in the negative, stating that those general standards ‘‘cannot serve as the sole basis for denying a special permit application . . . .'' That determination, the defendants argue, constitutes a departure from established law.

         Accordingly, our analysis begins with an overview of the pertinent land use jurisprudence of this state. More than one half century ago, our Supreme Court recognized that a zoning commission may deny a special permit on the basis of general standards regarding public health, safety, convenience and property values. In Cameo Park Homes, Inc. v. Planning & Zoning Commission, 150 Conn. 672, 675, 192 A.2d 886 (1963), the plaintiff filed an application to construct an apartment complex in a residential zone. Such construction was permitted under the applicable zoning regulations as a special permit use, which necessitated the approval of the defendant commission. Id., 674. Following a public hearing, the commission denied the plaintiff's application, finding, inter alia, that the proposed apartments ‘‘would affect the mode of living in the area by creating problems of safety for children''; that ‘‘the limitation of privacy due to the increase of traffic would tend to decrease the value of surrounding homes''; and ‘‘that the proposed use is not in harmony with the intent of the commission which wrote the regulations.'' Id., 676. On appeal, our Supreme Court upheld the propriety of the commission's decision, stating, in relevant part, that ‘‘[t]he commission's power to stipulate such restrictions as appear to it to be reasonable and the minimum necessary to protect property values in the district as a whole and the public health, safety and welfare, necessarily implies the power to withhold its approval of the pro- posed use in its entirety if the commission finds that the circumstances warrant that action.'' (Internal quotation marks omitted.) Id., 676-77. Similarly, in West Hartford Methodist Church v. Zoning Board of Appeals, 143 Conn. 263, 269, 121 A.2d 640 (1956), the Supreme Court upheld the denial of a special permit based on a general standard requiring that the proposed activity ‘‘will not substantially or permanently injure the use of neighboring properties for residential purposes.''

         Despite-and arguably contrary to-that line of authority, our Supreme Court decades ago also indicated that ‘‘vague and undefined aesthetic considerations alone are insufficient to support the invocation of the police power, which is the source of all zoning authority.'' DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970); see also Sonn v. Planning Commission, 172 Conn. 156, 163, 374 A.2d 159 (1976) (‘‘[t]he discretion of a commission must be controlled by fixed standards applied to all cases of a like nature''); Powers v. Common Council, 154 Conn. 156, 161, 222 A.2d 337 (1966) (‘‘[a]lthough [§ 8-2] provides that the public health, safety, convenience and property values may be considered in making a determination on a special permit, this is to be done in conjunction with, and not as an alternative to, the standards which the zoning regulations themselves must provide'').[18] RK Development Corp. v. Norwalk, 156 Conn. 369, 242 A.2d 781 (1968), is illustrative. In that case, the plaintiff sought approval of certain subdivision plans by the common council. In denying that request, the council indicated that it was concerned about ‘‘[t]he safety for the sake of the children as well as the people living up there; the welfare of the community and also the health hazards.'' (Internal quotation marks omitted.) Id., 376. On appeal, the Supreme Court held that the council's determination was improper, stating in relevant part: ‘‘The reason given by the council for its disapproval was vague, uncertain in meaning and provided no information to the plaintiff [as to how] the plan submitted failed to satisfy the requirements of the regulations. . . . The council cannot, in utter disregard of the regulations, disapprove the plan for a reason it would not be required to apply to all applications for planned residential developments as to which the same reason obtained. It would amount to substitution of the pure discretion of the council for a discretion controlled by fixed standards applying to all cases of a like nature.'' Id., 377.

         Nevertheless, in a decision issued only six months later, our Supreme Court again rejected a challenge to a municipal land use agency's decision on a special permit application that was predicated on compliance with general standards. Rocchi v. Zoning Board of Appeals, 157 Conn. 106, 248 A.2d 922 (1968). In so doing, it noted that ‘‘a prerequisite to granting the [special permit was the determination] that the public welfare and convenience would be substantially served and that the appropriate use of neighboring property would not be substantially or permanently injured. These criteria are sufficient to pass constitutional muster.'' Id., 113-14; accord Barberino Realty & Development Corp. v. Planning & Zoning Commission, supra, 222 Conn. 619 (rejecting claim that regulations requiring commission to ‘‘take ‘adequate safeguards' for the protection of other properties and provide for ‘adequate' traffic circulation and parking'' were void for vagueness).

         Whatever conflict previously existed in our land use jurisprudence on this issue was definitively resolved by our appellate courts in an appeal concerning a partially completed subdivision in Middle field. In Whisper Wind Development Corp. v. Planning & Zoning Commission, supra, 32 Conn.App. 516-17, the plaintiff developer sought a special permit to excavate and remove sand and gravel from vacant subdivision parcels. In denying that request, the defendant commission stated that ‘‘[t]he proposed use would not be harmonious with the existing development in the district and would be detrimental to the orderly development of adjacent properties and that [t]he location, size, nature and intensity of the use would create a pedestrian and traffic hazard and would conflict with the traffic characteristics of the surrounding neighborhood.'' (Internal quotation marks omitted.) Id., 518. On appeal to this court, the plaintiff claimed that such general standards ‘‘do not provide an independent basis for denying special permit applications.'' Id., 519-20. Rather, the plaintiff argued that those general standards ‘‘may be used solely to place restrictions on an approved permit and may not be used as an alternative to the standards contained in the technical considerations section of the regulations . . . . [T]he plaintiff argues that once the specific requirements [of the applicable regulations] are met, the [special] permit must be granted, subject to any limitations that may be placed on that approval . . . . Thus, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.