AMERICAN INSTITUTE FOR NEURO-INTEGRATIVE DEVELOPMENT, INC.
v.
TOWN PLAN AND ZONING COMMISSION OF THE TOWN OF FAIRFIELD
Argued
December 5, 2018
Procedural
History
Appeal
from the decision of the defendant denying the
plaintiff's request for a special exception, brought to
the Superior Court in the judicial district of Fairfield and
tried to the court, Hon Richard P. Gilardi, judge
trial referee; judgment dismissing the appeal; thereafter,
the court denied the plaintiff's motion to reargue, and
the plaintiff, on the granting of certification, appealed to
this court. Reversed; judgment directed.
MichaelT. Bologna, with whomwasWilliamJ.Fitzpa-trick, for the
appellant (plaintiff).
Stanton H. Lesser, for the appellee (defendant).
Keller, Moll and Lavery, Js.
OPINION
LAVERY, J.
The
plaintiff, American Institute for Neuro-Integrative
Development, Inc., appeals from the judgment of the trial
court dismissing its appeal from the decision of the
defendant, the Town Plan & Zoning Commission of the Town
of Fairfield (commission), in which the commission denied the
plaintiff's request for a special exception pursuant to
§ 27.0 of the Fairfield Zoning Regulations
(regulations). On appeal, the plaintiff claims that the trial
court erred when it concluded that the commission properly
denied the plaintiff's special exception application on
the basis of (1) concerns about increased off-site traffic,
and (2) the plaintiff's inability to identify specific
tenants that would occupy the proposed office spaces. We
reverse the judgment of the trial court.
The
record reveals the following facts. The plaintiff, a
Connecticut 501 (c) (3) nonprofit corporation, owns an
approximately 11.7 acre parcel of land at 309 Barberry Road
in the Southport section of Fairfield. The property is
located in a AA residential zone and is solely accessible by
a private driveway off the Barberry Road cul-de-sac. The
property contains two buildings: a former parochial
elementary school, which the plaintiff now occupies; and the
former Christ the King preparatory high school, which
currently stands vacant but previously had hosted 132
students and ten faculty and staff adults.
In the
former elementary school building, the plaintiff operates its
Giant Steps School (Giant Steps), a private school that
provides educational and therapeutic services for students
with complex neurobiological based learning and developmental
disorders. Giant Steps is approved by the Connecticut
Department of Education to serve up to forty students between
two and sixteen years of age.
The
plaintiff wishes to use the former high school building for
its proposed project, Next Steps. Next Steps would provide
continued educational, vocational, and other services to
Giant Steps graduates with severe learning disabilities, as
well as to similarly situated adults, who otherwise would be
ineligible for many programs after reaching twenty-one years
of age.
On June
16, 2015, pursuant to § 27.0 of the regulations, the
plaintiff applied to the commission for a special exception,
requesting permission to use part of the former high school
building for Next Steps. The application proposed designating
six rooms in the building to host nonprofit agencies that
would agree to provide vocational training opportunities to
these young adults with severe learning disabilities. Section
27.0 of the regulations governs the granting of special
exceptions. Section 5.1.4 of the regulations specifically
enumerates the various special exception uses in all
residential districts. As provided in the regulations, such
permitted uses, subject to the securing of a special
exception pursuant to § 27.0 of the regulations,
include, inter alia, ‘‘schools'' and
‘‘charitable institutions, '' provided
they are ‘‘not conducted as a business, or for
profit . . . .'' Fairfield Zoning Regs., § 5.1.4
(d).
On July
14, 2015, the commission held a public hearing on the
plaintiff's application. Attorney William Fitz-patrick
appeared on behalf of the plaintiff and offered presentations
from, inter alia, engineers and the founder and executive
director of Giant Steps, Kathy Roberts, detailing how the
plaintiff's proposal complied with the technical
requirements of the applicable regulations. The commission
reconvened on July 28, 2015, for public comment, during which
time it heard both support for and opposition to the
plaintiff's application. A common thread among the
neighbors who appeared in opposition to the application was
concern about possible adverse effects caused by the
anticipated increased traffic volume in the neighborhood.
On
August 25, 2015, the commission voted five to two to deny the
plaintiff's application. On August 28, 2015, notice of
this decision was published in the Fair-field
Citizen.[1] The plaintiff, thereafter, timely appealed
to the Superior Court, claiming that the commission's
decision lacked support in the record.[2] Following an
April 21, 2016 hearing, the court dismissed the
plaintiff's appeal, concluding that the commission
properly denied the plaintiff's application.
Subsequently, the plaintiff filed a petition for
certification to appeal pursuant to General Statutes §
8-8 (o) and Practice Book § 81-1, which this court
granted. Additional facts and procedural history will be set
forth as needed.
As a
preliminary matter, we consider whether the commission has
provided a collective statement setting forth its reasons for
denial. ‘‘Where a zoning agency has stated its
reasons for its actions, the court should determine only
whether the assigned grounds are reasonably supported by the
record and whether they are pertinent to the considerations
which the authority was required to apply under the zoning
regulations. . . . The principle that a court should confine
its review to the reasons given by a zoning agency does not
apply to any utterances, however incomplete, by the members
of the agency subsequent to their vote. It applies where the
agency has rendered a formal, official, collective statement
of reasons for its action. . . .
‘‘[F]ailure
of the zoning agency to give such reasons requires the court
to search the entire record to find a basis for the
commission's decision.'' (Citations omitted;
internal quotation marks omitted.) Protect Ham-den/North
Haven from Excessive Traffic & Pollution, Inc. v.
Planning & Zoning Commission, 220 Conn. 527,
544, 600 A.2d 757 (1991). ‘‘The search is
conducted against the backdrop of the particular regulation
under which the plaintiff sought approval of its
application.'' Smith-Groh, Inc. v.
Planning & Zoning Commission, 78 Conn.App. 216,
227, 826 A.2d 249 (2003).
In the
present case, the notice of the commission's decision,
published in the August 28, 2015 edition of the Fairfield
Citizen, states: ‘‘309 Barberry Road Special
Exception application of the American Institute for Neuro
[Integrative] Development Inc., to establish a school and
offices for charitable institutions in an existing building.
DENIED.'' The reasons for the denial are not set
forth in the published notice. On that same date, a clerk for
the commission, however, wrote the plaintiff's counsel a
letter providing the following three purported reasons for
the commission's denial: ‘‘(1) In accordance
with [§] 27.4.1 of the [regulations] it has not been
demonstrated that the location, type, character and size of
use will be in harmony with and conform to appropriate and
orderly development of the neighborhood, and will not hinder
or discourage appropriate development and use of adjacent
property or impact its value. (2) In accordance with [§]
27.4.3 of the [regulations] it has not been demonstrated that
the streets serving the proposed use shall be adequate to
carry prospective traffic and that provisions for entering or
leaving the site have been made to avoid hazard or
congestion. (3) It has not been demonstrated that the
proposed use is a permitted use in that there is no evidence
that the proposed offices for charitable institutions will be
[nonprofit] entities nor has [it] been demonstrated that the
proposed use is a compliant education
facility.''[3]
Although
our case law directs that we not rely on a letter that was
not adopted by the commission to evince the commission's
collective decision; see Smith-Groh, Inc. v.
Planning & Zoning Commission, supra, 78
Conn.App. 224-26 (concluding that letter to applicant's
attorney from town planner, purporting to state reasons for
commission's denial of application for site plan approval
and special permit, was not collective statement of
commission's decision, given that commission had not
adopted letter, and stating that ‘‘[a]lthough the
reasons outlined in the letter were discussed by the
commission during either the public hearing or the special
meeting, the planner could not speak for the
commission''); because the parties in the present
case agree that the letter properly sets forth the reasons
for the commission's decision and do not claim that the
August 28, 2015 letter should not be considered, we will, for
purposes of this case, consider the reasons set forth in the
letter.
We now
set forth general principles governing special permit or
special exception review procedures. At the outset, we note
that the terms ‘‘special exception'' and
‘‘[s]pecial permit'' are interchangeable.
(Internal quotation marks omitted.) Beckish v.Planning & Zoning Commission, 162 Conn. 11, 15,
291 A.2d 208 (1971). ‘‘[T]he function of a
special [exception] 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. . . . The basic rationale for
the special [exception] [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 [exception] which may be issued after
the [zoning commission] is satisfied that parking and traffic
problems have been ...