Patty v. Planning and Zoning Commission of Town of Wilton

          Argued November 14, 2018

         Procedural History

         Appeal from the decision of the named defendant granting the application of the defendant Wilton Youth Football, Inc., for an amendment to an existing special permit and for site plan approval to allow the installation of an artificial turf field at a school, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the court, Jacobs, J.; judgment dismissing the appeal, from which the plaintiffs, on the granting of certification, appealed to this court. Affirmed.

          Paul A. Sobel, for the appellants (plaintiffs).

          Matthew C. Mason, for the appellee (defendant Wilton Youth Football, Inc.).

          Barbara M. Schellenberg, for the appellees (named defendant et al.).

          Alvord, Bright and Bear, Js.

          OPINION

          ALVORD, J.

         The plaintiffs, William Patty and Eliot Patty, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant Planning and Zoning Commission of the Town of Wilton (commission), granting the application of the defendant Wilton Youth Football, Inc., ^[1] for an amendment to an existing special permit and for site plan approval to allow the installation of an artificial turf field at the Middlebrook School in Wilton.^[2] On appeal, the plaintiffs claim that the court improperly concluded that the commission's approval did not include prohibited trailers on the property. Specifically, the plaintiffs claim that the only evidence in the record before the commission was that the defendant's application included trailers that were prohibited by § 29-4.C.9 of the Wilton Zoning Regulations (regulations). Our review of the record reveals that the plaintiffs failed to raise this claim before the commission, and, accordingly, we decline to review it.

         The following facts and procedural history are relevant to this appeal. Middlebrook School is located at 131 School Road and is situated in an R-2A district. Schools are allowed in this district by special permit. The school property includes an athletic field, which is used for sports and other activities. On May 6, 2015, the defendant filed an application with the commission^[3]to amend the existing special permit for Middlebrook School ‘‘to allow the renovation of the existing natural grass field to an artificial turf field . . . .'' The defendant's application also provided for the relocation of existing field lighting and for the installation of new field lighting.

         The commission held a public hearing on the defendant's application that commenced on June 22, 2015, and was further continued to July 13, July 27, and September 15, 2015. The plaintiffs, owners of abutting property, were represented by counsel at the hearing and vigorously opposed the application. Several other individuals attended the hearing, some speaking in favor of the proposal and others speaking against it. Numerous exhibits were submitted to the commission.

         After the public hearing was closed, the commission discussed the application on September 15, September 28, and October 13, 2015, as evidenced by the transcripts filed with this court. On October 13, 2015, the commission approved ‘‘the installation of an artificial turf field at Middlebrook School, '' subject to certain enumerated conditions, but denied ‘‘the relocation, placement or replacement of new or existing permanent and/or temporary lighting on the field site.''

         The plaintiffs appealed to the Superior Court, challenging the defendant's standing to file the application with the commission^[4] and claiming that the commission's approval allowed for the relocation and continued use of outdoor storage trailers that are prohibited by the regulations. The plaintiffs filed their prehearing brief in support of their appeal on September 16, 2016, in which they argued, inter alia, that the commission's approval encompassed the defendant's use of prohibited storage trailers. The defendant's response in its prehearing brief filed on November 10, 2016, which was adopted by the commission and the town, was as follows: ‘‘Based on our review of the record, the legality of the existing storage containers on the [p]roperty was not raised before the [commission], only that they were unsightly, would have to be relocated as part of the project, and the [commission] [s]taff [r]eport suggested consideration of a more ‘permanent solution.' '' (Emphasis in original.) Additionally, the defendant stated that various submissions to the commission indicate that the alleged ‘‘trailers'' were identified as ‘‘storage containers.'' Further, the defendant argued that the containers did not fall within the definition of ‘‘trailer'' set forth in § 29-2.B.166 of the regulations.

         In their reply brief filed on November 18, 2016, the plaintiffs argued that the commission's staff report referred to the containers as ‘‘storage trailers'' and that the defendant's response to the staff report likewise described the containers as ‘‘trailers.'' The plaintiffs did not respond to the defendant's statement that ...