American Institute for Neuro-Integrative Development, Inc. v. Town Plan and Zoning Commission of 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 ...