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Putnam Park Apartments, Inc. v. Planning and Zoning Commission of Town of Greenwich

Court of Appeals of Connecticut

September 24, 2019

PUTNAM PARK APARTMENTS, INC., ET AL.
v.
PLANNING AND ZONING COMMISSION OF THE TOWN OF GREENWICH ET AL.

          Argued May 20, 2019

         Appeal 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).

          Evan 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.

          OPINION

          BRIGHT, J.

         The 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.[1] 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.

         The 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 (proposed facility).

         The 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.

         On 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, [2]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.

         On May 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.[3] 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.

         I

         The 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.

         "Because 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 (2007).

         Section 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." (Emphasis added.)

         The 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 impacts."

         The 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.

         The 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.[4] We agree with the court that the commission’s interpretation was correct.

         Section 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 ...


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