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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. 14-
15 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.
 

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