PUTNAM PARK APARTMENTS, INC., ET AL.
PLANNING AND ZONING COMMISSION OF THE TOWN OF GREENWICH ET AL.
May 20, 2019
from the decision by the named defendant approving the
applications by the defendant Neighbor to Neighbor, Inc., to
construct a new building on property owned by defendant the
Parish of Christ Church, and for other relief, brought to the
Superior Court in the judicial district of Stamford-Norwalk
and tried to the court, Hon. Taggart D. Adams, judge
trial referee; judgment dismissing the appeal, from which the
plaintiffs, on the granting of certification, appealed to
this court. Affirmed.
Stephen G. Walko, with whom, on the brief, was Andrea C.
Sisca, for the appellants (plaintiffs).
J. Seeman, with whom were John K. Wetmore and Edward V.
O’Hanlan, for the appellees (named defendant et al.).
Alvord, Bright and Bear, Js.
plaintiffs, Putnam Park Apartments, Inc. (Putnam Park), and
Putnam Hill Apartments, Inc. (Putnam Hill), appeal from the
judgment of the Superior Court affirming the decision of the
defendant Planning and Zoning Commission of the Town of
Greenwich (commission), which had approved the special permit
and site plan applications of the defendant Neighbor to
Neighbor, Inc. (Neighbor), to construct a new building on
property, owned by the defendant Parish of Christ Church
(Church) and leased to Neighbor, abutting the
plaintiffs’ properties. On appeal, the plaintiffs claim
that the court improperly (1) agreed with the
commission’s interpretation of § 6-94 (b) (1) of
the Greenwich building zone regulations (regulations), (2)
concluded that the commission properly found that the record
contained substantial evidence that Neighbor’s proposal
was consistent with §§ 6-15 and 6-17 of the
regulations, and (3) concluded that § 6-95 of the
regulations did not apply to Neighbor’s special permit
application. We affirm the judgment of the Superior Court.
following facts, as revealed by the record, and procedural
history inform our review. Neighbor is a charitable
corporation that has provided clothing and food to people in
need within the Greenwich community for approximately forty
years. Neighbor operates out of a 2300 square foot space in
the basement of two buildings on Church’s property,
located at 248 East Putnam Avenue. That space, however, is
not handicapped accessible, and it does not meet the needs of
Neighbor and the people it serves. Because of the limitations
of the space at 248 East Putnam Avenue, Neighbor has resorted
to the use of approximately 600 square feet of on site
storage containers. To address these issues, Church and
Neighbor reached an agreement whereby Neighbor will lease a
portion of Church’s property located at 220 East Putnam
Avenue in order to construct a parking and loading area, and
a new 6363 square foot building, which will provide Neighbor
with administrative offices, a community room, and the
necessary space for clothing and food intake and distribution
property at 220 East Putnam Avenue is a trapezoidal shaped
parcel consisting of 5.25 acres situated south of East Putnam
Avenue approximately where Park Avenue and Park Place
intersect with East Putnam Avenue from the north. The
property is in an R-20 zone. This property also is the site
of the Tomes-Higgins House, a nineteenth century residence
designed by Calvert Vaux, and an associated carriage house,
located in a setting with mature trees in downtown Greenwich.
Putnam Hill’s property is located and abuts on the
southern end of 220 East Putnam Avenue’s eastern
boundary, and Putnam Park’s property is located and
abuts 220 East Putnam Avenue’s southern boundary.
Putnam Hill and Putnam Park are apartment complexes
containing a total of 397 individually owned apartments
between them. To the east of 220 East Putnam Avenue is 248
East Putnam Avenue, which is the location of Church’s
parish house, annex, and sanctuary, and is the location out
of which Neighbor currently operates.
October 14, 2015, Neighbor filed a special permit application
and a preliminary site plan application with the commission
to permit the construction of the proposed facility. During
discussions, Neighbor and Church informed the commission that
there would be no significant changes in Neighbor’s
present programs. After the submission of its preliminary
application, the commission held public hearings on December
8, 2015, and February 2 and 23, 2016. The commission,
thereafter, recognized that Neighbor’s current needs
were not being met, and it voted to have Neighbor submit a
final site plan and special permit applications for its
proposed facility. The commission noted that the proposed
Neighbor building would be situated 100 feet from the rear
(southern) property line and approximately thirty-eight feet
from the eastern property line, and it set forth specific
items that Neighbor needed to address in its final
application. Among those items were the relocation of the
rear parking area for the new building, the hours of
operation, the protection of all existing mature trees on the
property, additional buffering from adjacent properties, and
the outstanding comments from other town departments and
commissions, as well as from the commission’s traffic
consultant, the BETA Group.
27, 2016, Neighbor submitted its final site plan and special
permit applications. Following public hearings held on
September 8, 2016, and October 4, 2016, the commission voted,
on October 18, 2016, to grant Neighbor’s final site
plan and special permit applications, with several conditions
imposed. In a November 1, 2016 letter, the full decision of
the commission, detailing its findings and conditions of
approval, was sent to Neighbor’s
attorney. The special permit certificate and the
site plan approval certificate also were issued on that day.
By complaint dated November 8, 2016, the plaintiffs appealed
to the Superior Court from the commission’s decision to
approve the site plan and issue a special permit to Neighbor.
On March 6, 2018, the Superior Court, Hon. Taggart D.
Adams, judge trial referee, after determining that the
plaintiffs properly had established aggrievement, which is
not challenged on appeal to this court, concluded, in a
thoughtful and thorough memorandum of decision, that the
commission properly had interpreted its regulations and that
there was substantial evidence in the record to support the
commission’s decision, and it dismissed the
plaintiffs’ appeal. Following our granting of the
plaintiffs’ petition for certification to appeal; see
General Statutes § 8-8 (o); this appeal followed.
Additional facts will be set forth as necessary.
plaintiffs first claim that the court erred in agreeing with
the commission’s interpretation of § 6-94 (b) (1)
of the regulations. The plaintiffs argue: "In finding
that the [c]ommission correctly interpreted and properly
applied [§] 6-94 (b) (1) [of the regulations], the . . .
[c]ourt necessarily interpreted [§] 6-94 (b) (1). Such
interpretation was contrary to the plain language of the
regulation and should be reversed." We disagree.
the interpretation of the regulations presents a question of
law, our review is plenary. . . . Additionally, zoning
regulations are local legislative enactments . . . and,
therefore, their interpretation is governed by the same
principles that apply to the construction of statutes. . . .
Ordinarily, [appellate courts afford] deference to the
construction of a statute applied by the administrative
agency empowered by law to carry out the statute’s
purposes. . . . Cases that present pure questions of law,
however, invoke a broader standard of review than is
ordinarily involved in deciding whether, in light of the
evidence, the agency has acted unreasonably, arbitrarily,
illegally or in abuse of its discretion. . . . Furthermore,
when [an] agency’s determination of a question of law
has not previously been subject to judicial scrutiny . . .
the agency is not entitled to special deference. . . . [I]t
is for the courts, and not administrative agencies, to
expound and apply governing principles of law."
(Citation omitted; internal quotation marks omitted.)
Field Point Park Assn., Inc. v. Planning & Zoning
Commission, 103 Conn.App. 437, 439–40, 930 A.2d 45
6-94 (b) (1) of the regulations provides in relevant part:
"The following uses shall be permitted in . . . R-20 . .
. zones . . . when authorized by the . . . [c]ommission by
[s]pecial [p]ermit issued pursuant to [§] 6-17 [of the
regulations] . . . philanthropic or charitable institutions
not of a penal or correctional nature . . . provided that any
building so permitted shall be located not less than one
hundred (100) feet from any street or lot line unless the
[c]ommission finds in consideration of the particular use and
its specific location that a lesser distance will protect
adjacent property owners from adverse impacts."
plaintiffs argue: "There is no dispute between the
parties that . . . Neighbor is a qualified charitable
institution as contemplated by [§] 6-94 (b) (1). The
second part of [§] 6-94 (b) (1) [however] states that a
special permit may be issued, ‘provided that any
building so permitted shall be located not less than one
hundred (100) feet from any street or lot line unless the
[c]om-mission finds in consideration of the particular use
and its specific location that a lesser distance will protect
adjacent property owners from adverse impacts.’ It is
this limitation on the [c]ommission’s authority that
the [c]ommission, and subsequently the . . . [c]ourt,
misinterpreted." Specifically, the plaintiffs contend
that the language of § 6-94 (b) (1) "clearly
required [d]efendant Neighbor to identify any adverse impacts
to [the] [p]laintiffs’ properties arising from locating
the building 100 feet or more from the abutting property
lines, then show that moving the building within the 100 foot
setback will protect [the] [p]laintiffs from those adverse
plaintiffs construe § 6-94 (b) (1) to allow the
commission to locate a building closer than 100 feet from
their property lines only if that closer location
"affirmatively will protect" the plaintiffs from
whatever adverse impacts they would endure if the building
were located 100 feet or more from their property lines. In
other words, unless moving the proposed building location
closer than 100 feet "affirmatively will protect"
against adverse impacts on the plaintiffs created by the
farther location, the commission does not have the authority
to permit it; this would be true even if it would be
impossible for the applicant to build at a distance of more
than 100 feet and the closer location would have no adverse
impacts on the plaintiffs whatsoever.
Superior Court and the commission, on the other hand,
construed § 6-94 (b) (1) to allow the commission to
permit a building closer than 100 feet from the
plaintiffs’ property lines if, after considering the
proposed use and its specific location, the commission finds
that the closer distance would not produce any adverse
impacts on the abutting properties. In other words, they
concluded that the commission has the authority, after
considering the specific proposed use and location of the
area for which the special permit is sought, to permit a
building closer than 100 feet from the property line if there
would be no adverse impacts on the plaintiffs created by the
closer location. We agree with the court that the
commission’s interpretation was correct.
6-94 (b) (1) of the regulations specifically requires the
commission to consider "the particular use and its
specific location" when it considers whether to permit a
philanthropic or charitable institution to construct a
building less than 100 feet from a neighboring property line,
which, by its language, gives the commission some amount of
discretion to grant the special permit after considering the
use and location of the proposed building. The regulation
also provides, however, that the commission may not permit
such a building unless that "lesser distance will
protect adjacent property owners from adverse impacts."
We construe that restriction to mean that the commission must
find, by substantial evidence, that there will be ...