Twelfth Brt. Develpment, Llc Et El. V. Danbury Planning Commission

Twelfth Brt. Develpment, LLC et el. v. Danbury Planning Commission CV054003916S SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF DANBURY January 5, 2007, Decided January 5, 2007, Filed JUDGES: Deborah Kochiss Frankel, J. OPINION BY: Deborah Kochiss Frankel OPINION MEMORANDUM OF DECISION The plaintiffs have appealed from a decision of the Zoning Commission of the City of Danbury (the "Commission") denying their application for a special exception. The Plaintiff, Twelfth BRT Development, LLC ("Twelfth BRT") is a limited liability company organized under the laws of the State of Connecticut. Twelfth BRT is the owner of a certain piece of land situated in the City of Danbury lying to the south and west of the intersection of First Street and Hospital Avenue ("the Property"). The Plaintiff, BRT General Corporation ("BRT General") is a closely held stock corporation organized under the laws of the State of Connecticut. BRT General is the proposed developer of the Property. The Property is within a R-3 zoning district and pursuant to the zoning regulations of the City of Danbury, "garden apartments" are permitted within a R-3 zone on a special exception basis. On January 24, 2005 BRT General filed an application with [*2] the Danbury Planning Commission ("the Commission") for a special exception to construct garden apartments on the Property. For the record, there is a member of the Commission, Mara Frankel, who is not related to the undersigned. Public hearings on the application were held from March 16, 2005 through May 25, 2005. On July 20, 2005 the Commission denied the application when it voted to adopt a "Resolution of Denial." The reasons for the denial were as follow: (1.) The proposal is not designed in a manner which is compatible with the character of

the neighborhood (Section 10.C.4.a(2)); (2.) The proposal will create conditions adversely affecting traffic safety or which will cause undue traffic congestion (Section 10.C.4.a.(3)); and (3.) The proposed site plan is not properly oriented to the street (Section 4.C.5.g.(2)). The plaintiffs appealed on the grounds that the denial was unreasonable, clearly erroneous, contrary to Connecticut law, arbitrary, capricious and an abuse of the Commission's discretion. The plaintiffs claimed that: a. The Commission improperly determined that the proposed development was incompatible with the surrounding neighborhood; [*3] b. The Commission improperly based its decision on its unfounded conclusion that the proposal for units that are "two-deep" result in a building mass that is considerably greater than other buildings in the adjacent neighborhood; c. The commission improperly based its decision on the perceived height of the buildings from First Avenue, despite its admission that the proposed development complies with the height restrictions within the R-3 zone; d. The Commission improperly determined that the proposed development would result in conditions that adversely affect traffic safety or congestion; e. The Commission improperly determined that feasible alternatives existed concerning the siting of the southern section of building 2 to First Street; f. The Commission improperly determined that it could not impose reasonable conditions of approval to ensure compliance with those areas of concern set forth in the Commission's Resolution of Denial. AGGRIEVIEMENT "[I]n order to have standing to bring an administrative appeal, a person or entity must be aggrieved." Water Pollution Authority v. Keeney, 234 Conn. 488, 493, 662 A.2d 124 (1995). Aggrievement [*4] falls within two broad categories, classical and statutory. (Internal quotation marks omitted.) Cole v. Planning & Zoning Commission, 30 Conn.App. 511, 514, 620 A.2d 1324 (1993). A party is classically aggrieved if it successfully demonstrates a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, and successfully establishes that

this specific, personal and legal interest has been specially and injuriously affected by the decision. Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984). Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest has been adversely affected. Gladysz v. Planning & Zoning Commission, 256 Conn. 249, 255-57, 773 A.2d 300 (2001). The Supreme Court has held that a contract purchaser of real property has sufficient interest in the property to have standing to apply for a special exception or zoning variance. Shapero v. Zoning Board, 192 Conn. 367, 376, 472 A.2d 345 (1984); Shulman v. Zoning Board of Appeals, 154 Conn. 426, 431, 226 A.2d 380 (1967); [*5] Goldreyer v. Board of Zoning Appeals, 144 Conn. 641, 645-46, 136 A.2d 789 (1957). In this case the plaintiffs have presented evidence that Twelfth BRT is the owner of the Property and that BRT General is the proposed developer of the Property. Both plaintiffs have a specific, personal and legal interest in the Property and the application for special exception, which interest was injuriously affected by the Commission's denial of the application. Therefore, the plaintiffs are aggrieved by the Commission's denial. DISCUSSION OF THE LAW In A. Aiudi and Sons v. Planning & Zoning Commission, 267 Conn. 192, 203, 837 A.2d 748 (2004), the Supreme Court considered the special exception and stated: "We previously have observed that [a] special [exception] allows a property owner to use his property in a manner expressly permitted by the local zoning regulations." (Internal quotation marks omitted.) Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 215, 779 A.2d 750 (2001). Nevertheless, special exceptions, although expressly permitted by local regulations, "must satisfy [certain conditions and] standards set forth in the [*6] zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values [as required by § 8-2]." (Internal quotation marks omitted.) The "nature [of special exceptions] 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." (Internal quotation marks omitted.) Barberino Realty & Development Corp. v. Planning & Zoning Commission, 222 Conn. 607, 612, 610 A.2d 1205 (1992). It is also recognized that, "if not properly planned for, [such uses] might undermine the residential character of the neighborhood." (Internal quotation marks omitted.) Id., 612-13. Thus, the goal of an application for a special exception is to seek permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district." Heithaus v. Planning & Zoning Commission, supra, 267 Conn. at 204.

General considerations such as public health, safety and welfare, which are enumerated in zoning regulations [*7] may be the basis for the denial of a special exception. Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627, 711 A.2d 675 (1998); Whisper Wind Development Corp. v. Planning & Zoning Commission, 229 Conn. 176, 177, 640 A.2d 100 (1994). Special permit decisions by zoning commissions must be supported by the record and utilize only considerations pertinent to the decision. Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, 29 Conn.App. 1, 10, 613 A.2d 1358 (1992). A zoning commission has no discretion to deny the special exception if the regulations and statutes are satisfied. When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record, and are pertinent to the decision. The zoning commission's action must be sustained if even one of the stated reasons is sufficient to support it. Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn.App. 53, 56-57, 549 A.2d 1076 (1988). STANDARD OF REVIEW The settled standard of review of questions of fact determined by a zoning authority is that the court may [*8] not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised. Torsiello v. Zoning Board of Appeals, 3 Conn.App. 47, 49, 484 A.2d 483 (1984). The decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given. Id., 50. The evidence to support any such reason must be substantial. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540, 525 A.2d 940 (1987). The Court in Huck stated: "The 'substantial evidence' rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards [*9] embodying review of 'weight of the evidence' or 'clearly erroneous action . . . Id., 541. Under the substantial evidence rule the trial court must determine whether there is substantial evidence to indicate that the Commission acted fairly or with proper motives or upon valid reasons. Oakridge/Rogers Avenue Realty, LLC v. Planning & Zoning Board, 78 Conn.App. 242, 248, 826 A.2d 1232 (2003). On questions of fact, a reviewing court cannot substitute its judgment for that of a planning and zoning commission. If there is conflicting evidence in support of the commission's stated rationale, the court cannot

substitute its judgment as to the weight of the evidence for that of the commission. A. Auldi and Sons, LLC v. Planning & Zoning Commission, 72 Conn.App. 502, 806 A.2d 77 (2002). Conclusions reached by local zoning commissions must be upheld by the trial court if they are reasonably supported by the record, and credibility of witnesses and determination of issues of fact are matters solely within the commission's province. Harris v. Zoning Commission, 259 Conn. 402, 416, 788 A.2d 1239 (2002). DISCUSSION AND FINDINGS [*10] The plaintiffs argue that the record does not contain substantial evidence to support the finding of the Commission that the proposed project would adversely affect traffic safety or congestion. Specifically the plaintiffs argue that all of the expert evidence on the record suggests that traffic safety would be improved by the proposal. The Commission argues that the evidence of danger and congestion presented by the local residents, together with other evidence on the record, constitute substantial evidence in support of its decision to deny the application. At oral argument on the issue of aggrievement, both counsel addressed the issue of traffic safety. Both counsel recognized that if the Court found that the Commission acted properly on this specific ground for the denial, the court would not have to look at the other two reasons. Therefore, the first issue which this court must address is that the Commission's decision was against the weight of the expert testimony. "Recent decisions of [the Supreme] [C]ourt . . . have evidenced a trend toward investing zoning commissions with greater discretion in determining whether [a] proposal meets the standards contained in the [*11] regulations." (Internal quotation marks omitted.) Crabtree Realty Co. v. Planning & Zoning Commission, 82 Conn.App. 559, 569, 845 A.2d 447, cert. denied, 269 Conn. 911, 852 A.2d 739 (2004). As for the credibility given to witnesses, "an administrative agency is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 597, 628 A.2d 1286 (1993). "[A] lay commission acts without substantial evidence when it relies on its own knowledge and experience concerning technically complex issues . . . [W]e recognize that an administrative agency is not required to believe any of the witnesses, including expert witnesses . . . [but] it must not disregard the only expert evidence available on the

issue when the commission members lack their own expertise or knowledge." (Internal quotation marks omitted.) Bain v. Inland Wetlands Commission, 78 Conn.App. 808, 816-17, 829 A.2d 18 (2003) quoting Tanner v. Conservation Commission, 15 Conn.App. 336, 340-41, 544 A.2d 258 (1988). [*12] "It is well established that lay members of a commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety, traffic congestion or local property values." United Jewish Center v. Brookfield, 78 Conn.App. 49, 57, 827 A.2d 11 (2003). This court "is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) R&R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A. 2d. 61 (2001). There is nothing in the record to indicate that the commission relied on any "special knowledge outside the scope of that of an ordinary trier of fact." United Jewish Center v. Brookfield, supra, 78 Conn.App. 57. At the public hearings, residents appeared and strongly voiced their opinions that the egress and ingress of the proposal was dangerous due to the steepness of Hospital Avenue and the sharp curve at the point where Jeffrey Court intersects Hospital Avenue (ROR 40, p. 9). The topography of the proposed property slopes sharply up from Hospital Avenue on the inside of a horizontal curve (ROR 40 [*13] p. 5 and ROR 46). At portions of Jeffrey Court, the grade is between 8 and 9 per cent (ROR 41, p. 6). The grade of Hospital Avenue where it intersects with Jeffrey Court is about 10 to 12 per cent (ROR 41, p. 6). This intersection was described as a "treacherous place" by one Hospital Avenue resident who resides directly opposite Jeffrey Court. Between September 2000 and December 2004, sixteen accidents were reported at and around the vicinity of Hospital Avenue (ROR 23, ROR 33). At the public hearing, several residents noted specific safety concerns based upon their personal experiences. Two residents who reside opposite Jeffrey Court stated that cars landed in their front yards because drivers failed to negotiate the curve (ROR 40, p. 9 and ROR 41, p. 16). Another resident installed, at significant personal expense, a guardrail on his lawn after three or four cars ended up on his lawn, and in one instance in his living room. (ROR 40 p. 9 and ROR 42, p. 14.) Other residents testified as to congestion problems on Hospital Avenue. (ROR 39, pp. 1415 and ROR 41, pp. 13-14). One testified that it took him a long time (appx seven to nineteen seconds) to leave his driveway due to the [*14] congestion. (ROR 41, p. 11.) Multiple residents noted that although the posted speed limit was 25 miles per hour,

vehicles travel much faster on the road than the posted limit. (ROR 42, p. 14 and ROR 43, p. 12.) As such, substantial evidence exists in the record for the commission to rely on its personal knowledge related to traffic safety and congestion and to discredit the plaintiff's expert. Accordingly, the plaintiff's appeal cannot be sustained on the grounds that the commission lacked the authority to consider traffic factors or that it was not supported by evidence or testimony contained in the record. The Supreme and Appellate Courts of this state have repeatedly held that members of a Zoning Commission are allowed to rely on their personal knowledge on subjects which do not require expert knowledge, such as traffic congestion and street safety. Brookfield Plaza, Limited Partnership v. Zoning Comm., 21 Conn.App. 489, 494, 574 A.2d 825 (1990); Dram Associates v. Planning & Zoning Commission, 21 Conn.App. 538, 542, 574 A.2d 1317, cert. denied, 215 Conn. 817, 576 A.2d 544 (1990); Primerica v. Planning & Zoning Commission, 211 Conn. 85, 97, 558 A.2d 646 (1989); [*15] Central Bank for Savings v. Planning & Zoning Commission, 13 Conn.App. 448, 454, 537 A.2d 510 (1988); Welch v. Zoning Board of Appeals, 158 Conn. 208, 213-14, 257 A.2d 795 (1969); Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 675, 236 A.2d 917 (1967); Blakeman v. Planning Commission, 152 Conn. 303, 307, 206 A.2d 425 (1965); Atlantic Refining Co. v. Zoning Board of Appeals, 150 Conn. 558, 562, 192 A.2d 40 (1963); Gulf Oil Corporation v. Board of Selectmen, 144 Conn. 61, 65-66, 127 A.2d 48 (1956). In this case the members of the Commission heard testimony about accident frequency in the area of the Property, the curve of the road, the increase in congestion that the proposal would generate and other traffic safety concerns. They were under no obligation to accept as credible the testimony of the plaintiffs' expert and they could well rely on their own lay knowledge to render their decision. It is clear that the Commission members in their discretion honestly determined that the application violated the zoning regulations regarding traffic safety and traffic [*16] congestion. The court finds that their determination is supported by substantial evidence in the form of maps, correspondence and testimony received at the public hearing and the personal knowledge of the members of the commission. For the foregoing reasons, the appeal is hereby dismissed. FRANKEL, J.