Opinion
No. CV 04 0093492S
June 8, 2005
MEMORANDUM OF DECISION
This is an appeal taken by the plaintiff property owner, NL Associates, from the granting of the renewal of a special exception and a site plan for earth excavation on adjoining land issued by the defendant, Planning Zoning Commission of the City of Torrington ("the Commission") to the defendant, Haynes Aggregates-Torrington, LLC ("Haynes"). For the reasons given, the appeal must be dismissed.
I. Aggrievement
Haynes owns property at 3217 Winsted Road in Torrington ("the excavation site"). The plaintiff is a partnership which owns property adjacent to the excavation site. The plaintiff is statutorily aggrieved and has standing to appeal. C.G.S. § 8-8(a); Smith v. Planning and Zoning Board, 203 Conn. 317, 321 (1987).
II. Standard of Judicial Review
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission], The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached. If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board. If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given. 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. Nevertheless, special exceptions, although expressly permitted by local regulations, must satisfy [certain conditions and] standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values [as required by General Statutes § 8-2]. Moreover, we have noted that 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. We also have recognized that, if not properly planned for, [such uses] might undermine the residential character of the neighborhood. Thus, we have explained that 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." (Citations omitted; internal quotation marks omitted.) Municipal Funding v. Zoning Board of Appeals, 270 Conn. 447, 453-54 (2004).
III. Facts
On April 10, 2002 the Commission granted a two-year special exception and site plan approval for earth excavation ("2002 permit") to the owner of the excavation site at that time, Gorman Aggregates, LLC ("Gorman"). The excavation site has been used for mining sand and gravel since 1934. Rock material is excavated from the property and crushed, separated, and stored on-site until transfer offsite. The 2002 permit was subject to fifteen separate conditions including limitations on holiday operation, provisions for timing and notices of blasting operations, maintenance of "truck crossing" signs, noise restrictions, maintenance of a complaint log, dust control requirements, and various other conditions. Special exceptions for this purpose are provided for by the Torrington Zoning Regulations, § 6.4.7 of which provides that: "Special exceptions must be renewed by the applicant every two years from the date of issuance. The special exception shall not be renewed unless the excavation completed to date conforms with the approved special exception." Haynes acquired the excavation site from Gorman Aggregates, LLC by deed dated May 30, 2003. Haynes continued excavation operations without attempting to have the permit transferred to its name.
On or about March 3, 2004 Haynes applied to extend the permit extended for two years. The Commission held a public hearing extending over two evenings, April 28, 2004 and May 28, 2004. On June 9, 2004 the commission voted to grant a two-year renewal of the special exception and site plan approval subject to sixteen separate conditions.
IV. Discussion A. Expiration of Prior Permit
The plaintiff argues that the prior permit could not be renewed because it had already expired on June 9, 2004 when the Commission granted the renewal. Further, the plaintiff argues that the Commission wrongfully permitted Haynes to continue operating between the time the original permit expired on April 10, 2004 and the time of the Commission's renewal on June 9, 2004.
The plaintiff's argument ignores the fact that Haynes' completed application to renew the permit was filed with the Commission on March 3, 2004 and accepted by the Commission on March 10, 2004, more than a month prior to the expiration of the original permit. The public hearing was not scheduled by the Commission until after the original permit had expired. The City Planner and the Corporation Counsel both advised the Commission that since the application was submitted before the expiration of the 2002 permit, the current permit and conditions would remain in effect until the commission makes a decision on it. The Commission's interpretation of its own regulations in previous cases has been to allow the continued use of the property subject to the original special exception during the pendency of the renewal application, This is a reasonable interpretation of § 6.4.7 of the commission's own regulations. The plaintiff has not cited any statute or case law which would require the Commission to interpret its regulations in the way suggested by the plaintiff. The Commission was not acting unreasonably or in abuse of its discretion to interpret § 6.4.7B of the regulations to mean that if the application for renewal is filed in a timely fashion, the permit will be extended until the Commission has made a decision on the application for renewal. "The commission is entrusted with the function of interpreting and applying its zoning regulations . . . The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts . . . The plaintiffs have the burden of showing that the commission acted improperly . . . The trial court can sustain the [plaintiff's] appeal only upon the determination that the decision of the commission was unreasonable, arbitrary or illegal . . . It must not substitute its judgment for that of the . . . commission and must not disturb decisions of local commissions as long as honest judgment has been reasonably and fairly exercised." (Internal quotation marks omitted.) 200 Associates, LLC v. Planning Zoning Commission, 83 Conn.App. 167, 171-72, 851 A.2d 1175, cert. denied, 271 Conn. 906, 859 A.2d 567 (2004). "Where the agency has previously interpreted an ordinance or regulation, the practical construction placed upon the ordinance in the past is entitled to some consideration." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 34.13, p. 207. See also Fedorich v. Zoning Board of Appeals, 178 Conn. 610, 616, 424 A.2d 289 (1979) (the trial court was entitled to accord considerable deference to the policy adopted by the board in interpreting zoning regulations).
The Commission's interpretation of its own regulations reflects honest judgment which has been reasonably and fairly exercised. The plaintiff has not sustained its burden of showing that the Commission's interpretation was unreasonable, arbitrary, or illegal.
B. Transfer of Permit
The plaintiff argues that the plaintiff had no right to apply to renew the existing permit because it was never transferred to the plaintiff by Gorman, and, in any event, the regulations do not provide for transfer of a special exception permit. The Commission acted upon advice of the City Planner and the Corporation Counsel that no transfer of the permit was necessary. This argument raises the issue of whether a purchaser of property steps into the shoes of the prior owner when it comes to continuing to use a special permit. Put another way, does the special permit run with the land or does the new owner have to apply for a new permit himself to continue using the land in the same manner as the previous owner. The plaintiff argues that when Gorman sold the property to Haynes, the special permit allowing gravel excavation did not extend to Haynes. It contends that the permit was issued specifically to Gorman and Haynes should have applied for a special permit at the time of purchase. Haynes argues that the special permit applies to the land itself; not the owner of the land.
There are no Supreme Court or Appellate Court decisions which address this issue. But, based upon general principles of zoning law, the special permit issued to German ran with the land and Haynes was entitled to use it to operate its gravel excavation business. "Since land use regulation is concerned with the use of land and not its ownership, a change in ownership of land for which vested rights exist, allowing continuation of the use or for which prior approvals or permits have been granted, does not affect the right to continue the same use or use the same approvals and permits, and the new owner stands in the same position as the prior owner." R Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 53.8, p. 581-82. See also Builders Service Corp. v. Planning and Zoning Commission, 208 Conn. 267, 285, 545 A.2d 530 (1988) (zoning is concerned with the use of property and not primarily with its ownership); Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 484, 408 A.2d 243 (1979) (zoning is concerned with the use of specific existing buildings and lots, and not primarily with their ownership).
In Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 303 A.2d 743 (1972), the Supreme Court stated: "By its very definition, a variance is granted with respect to a particular piece of property; it can be enjoyed not only by the present owner but by all subsequent owners . . . It follows then that a variance is not a personal exemption from the enforcement of zoning regulations. It is a legal status granted to a certain parcel of realty without regard to ownership." (Citation omitted.) Id., 239. See also Fromer v. Two Hundred Post Associates, 32 Conn.App. 799, 804, 631 A.2d 347 (1993) (a zoning variance runs with the land and not with the property owner). "There is no real difference, in terms of this discussion, amongst any of the land use permits, whether it be an inland wetlands permit, a variance, a site plan, special permit or subdivision permit . . . [T]he special permit approval . . . run[s] with the land." Griswold Hills v. Town Plan Zoning Commission of Newington, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0705701S (June 9, 1995, Berger, J.) ( 14 Conn. L. Rptr. 405).
Finally, C.G.S. § 8-3d provides that a special exception does not become effective until recorded in the land records of the town where it is located. This requirement appears designed to alert future owners that the premises are subject to a special exception which might be continued. This adds credence to Hayne's argument that a special exception runs with the land.
C. Notices
The plaintiff argues that the legal notices of the public hearing held on the approval of the 2004 permit were defective because they were misleading. The courts have held that the purpose behind the pre-hearing notice requirement of C.G.S. § 8-3 is "fairly and sufficiently to apprise those who may be affected by the proposed action of the nature and character of proposed action so as to enable them to prepare intelligently for the hearing. There is no requirement that the published notice describe the proposed action in detail or with exactitude." (Internal citations and quotation marks omitted.) Nazarko v. Zoning Commission, 50 Conn.App. 517, 519 (1998).
The specific defects alleged by the plaintiff are that 1) the notice referred to a "renewal" when the plaintiff claims that it was a new application, and 2) the original permit holder, Gorman, was not mentioned in the notice. I have already decided that the permit ran with the land and was continued by Haynes when it purchased the property. Therefore, the application was, in fact, a renewal of an existing permit. As for the second alleged defect, the notice correctly refers to the address of the property, the purpose for the hearing, and the file numbers of the existing permits. The notice is not misleading and is sufficient to fairly apprise those who might be affected of the nature and character of the proposal so as to enable them to prepare intelligently for the hearing.
D. Violations
The plaintiff contends that the Commission abused its discretion by approving the renewal despite evidence of past violations of the conditions imposed in the 2002 permit. Section 6.4.7B of the regulations states: "[T]he special exception shall not be renewed unless the excavation completed to date conforms with the approved special exception." The plaintiff argues that because Haynes has violated several of the conditions of the special permit, some of which Haynes has admitted, the Commission did not have the authority to renew the special permit under the regulation. Haynes responds that it was within the Commission's discretion to renew the special permit as the violations were technical, in the past, and not substantive in nature. Haynes states that C.G.S. § 8-12 dictates the procedure to be followed when regulations are violated and that it is within the discretion of the Commission to determine how to enforce violations of the regulations under § 8.2.3 which states: "Any violation of a condition is a violation of these regulations and is subject to the same enforcement measures."
General Statues § 8-12 states in relevant part: "If any building or structure has been erected, constructed, altered, converted or maintained, or any building, structure or land has been used, in violation of any provision of this chapter or of any bylaw, ordinance, rule or regulation made under authority conferred hereby, any official having jurisdiction, in addition to other remedies, may institute an action or proceeding to prevent such unlawful erection, construction, alteration, conversion, maintenance or use or to restrain, correct or abate such violation or to prevent the occupancy of such building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises. Such regulations shall be enforced by the officer or official board or authority designated therein, who shall be authorized to cause any building, structure, place or premises to be inspected and examined and to order in writing the remedying of any condition found to exist therein or thereon in violation of any provision of the regulations made under authority of the provisions of this chapter or, when the violation involves grading of land, the removal of earth or soil erosion and sediment control, to issue, in writing, a cease and desist order to be effective immediately."
The Commission found that the violations admitted to by Haynes were not sufficient to require a denial of the renewal application. For example, Haynes admitted that it sold materials on Good Friday before it realized that it was prohibited by the 2002 permit conditions. Haynes agreed not to operate in Good Friday in the future. Haynes also admitted that on one occasion it failed to give prior notice of blasting to the owner of vacant land adjacent to the excavation site. Haynes offered evidence that an employee mistakenly assumed that no notice was required for vacant land. The Commission had decided not to take enforcement action because the misunderstanding had been corrected and would not happen again. There was evidence from which the Commission could conclude that this was an isolated incident, especially in light of evidence from the Torrington Fire Department that the Fire Marshall who issued the blasting permits had received no complaints whatsoever during his tenure regarding the operation under consideration.
Haynes admitted that "Trucks Crossing" signs on Winsted Road were not posted during the entire life of the permit. There was evidence that vandals had removed the signs on at least one occasion, the signs were in place during the entire hearing process, and Haynes made assurances that the signs would be maintained. The Torrington Police traffic unit reviewed the applications and found "no problems or violations surrounding traffic related issues." Finally, Haynes admitted that it did not post a required bond until April 19, 2004. There was evidence that this was the result of an oversight which has been corrected and will not likely occur again.
There are other similar complaints of violations raised by the plaintiff which are disputed by Haynes. These need not be discussed because there is evidence in the record supporting Haynes's position on each of these points. This evidence included expert testimony concerning noise control, dust control and soil and sediment control. The Commission was not required to believe the plaintiff's evidence if there is countervailing evidence in the record. Suffice it to say that the court is not going to substitute its judgment for that of the Commission on factual issues.
With respect to the violations admitted by Haynes, there is no case which supports the plaintiffs' view that the Commission was powerless to renew the permits. Generally, "[a] local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it . . . Although the position of the municipal land use agency is entitled to some deference . . . the interpretation of provisions in the ordinance is nevertheless a question of law for the court . . . The court is not bound by the legal interpretation of the ordinance by the [commission] . . .
"The regulation is a local legislative enactment, and in its interpretation we seek to discern the intent of the legislative body as manifested in the words of the regulation . . . Since zoning regulations are in derogation of common law property rights, however, the regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms . . . The words employed by the local legislative body are to be interpreted in accordance with their natural and usual meaning." (Internal quotation marks omitted.) Balf Co. v. Planning Zoning Commission, 79 Conn.App. 626, 635-36, 830 A.2d 836, cert. denied, 266 Conn. 927, 835 A.2d 474 (2003). See also 200 Associates v. Planning Zoning Commission, supra, 83 Conn.App. 172.
"A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant . . . Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body." (Internal quotation marks omitted.) Miskimen v. Biber, 85 Conn.App. 615, 621, 858 A.2d 806 (2004), cert. denied, 272 Conn. 916 A.2d 1287 (2005).
Having given the Commission's interpretation of its own regulation "some deference" and having applied common sense in construing the regulation, I find that the Commission did not abuse its discretion in determining that the permit could be renewed despite the admission by Haynes of violations which were in the past and which were not likely to reoccur.
E. Retail Sales
The plaintiff claims that the Commission misinterpreted or misapplied § 5.2.6 of its regulations to add retail sales as a permitted use under the special exception. Haynes proposed a sales trailer and product storage bin near the entrance to the property where they would make earth products available on site to retail customers on a small scale. The Corporation counsel advised the Commission that it had the power to interpret § 5.2.6 of its regulations to allow retail sales as an accessory use. § 5.2.6 is titled "Retail as an Accessory Use." The plaintiff argues that Haynes does not comply because several subsections of that regulation cannot be met. Subsection B provides that the products to be sold at retail shall be "made" on the property. The plaintiff argues that earth products are not "made" as in a manufacturing process. But, that is a highly restrictive reading. Certainly the Commission was entitled to interpret its own regulation to the "making" of gravel by blasting, hauling, crushing, washing and sifting of rock. Subsection C provides for a maximum floor area to be devoted to the retail use. Since earth excavation is an outside activity, there is no floor area at all in the Haynes's use. But, it is a reasonable interpretation that Subsection C is inapplicable and need not be applied if there is no floor area devoted to the retail use. Finally, Subsection B provides that "There shall be no outside display of the products sold at retail." Under Haynes's proposal, all of the retail sales will take place outside. But, this regulation is not violated provided that the products are not "displayed." The plans show that the products will be stored in bins shown on the plans.
The Commission's approval is consistent with similar approval given to OG Industries at its' quarry in the same general area of the town. The Commission did not abuse its discretion by permitting Haynes to conduct the same sort of on-site sales.
F. Expansion
The plaintiff argues that the Commission wrongfully permitted the area devoted to quarrying to be increased from five acres to fifteen acres. § 6.4.5 B provides that:
E. Restoration is to occur so that no more than five (5) acres are actively being excavated, used, or without topsoil at any one time. The Commission may increase the five acre maximum if the Commission determines that the five acre maximum does not provide sufficient space for the excavating operations.
Condition 16 imposed by the Commission is as follows:
Landscaping and/or berming shall be added in cooperation with the Planning Staff of the City Hall personnel. The Planning and Zoning Commission determined that the 5-acre maximum does not provide sufficient space for the excavating operations. The current area of open excavation is 1.9 acres, the area designated for excavation during the 2 year period is 3.1 acres, the operations area incidental to excavations is 10.0 acres and the total area proposed to be used during the 2 year renewal period is 15.0 acres. The Commission approves the area designated for excavations and operation as shown on the current plans titled, "Site Excavation Plans, 3217 Winsted Road, Torrington Connecticut Prepared for Haynes Aggregates — Torrington, LLC," prepared by CCA, LLA, dated 1/9/04 revised thru 5/25/04.
The plaintiff argues that there was no evidence from which the Commission could have concluded that five acres was insufficient. But, there was expert testimony from Haynes' project engineer from Fuss and O'Neill that the actual area of excavation will only expand to 5 acres during the next 2 years but there is another 10 acres which must be used for the other aspects of the business including processing and storage. The Commission seems to have merely recognized that there is, by necessity, an area around the actual excavation which is incidental to the excavation. This is shown on the site plan map referred to in the approval. The only increase in actual excavation area is from 1.9 acres to the 5 acre maximum. But, the Commission recognized that in practice there is an area around the excavation which is part of the operational area used by Haynes in its business. There is no violation of § 6.4.5E in this recognition.
V.C.G.S. § 22a-19 CT Page 9837
The plaintiff claims that the commission's issuance of the special exception violated C.G.S. § 22a-19, a portion of the Connecticut Environmental Protection Act. As provided by that statute, the plaintiff filed a verified pleading with the Commission asserting that the proceeding has, or is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state. The Commission was thereafter required to "consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water, or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare."The plaintiff claims that there was evidence of unreasonable dust emissions from the Haynes property as well as water pollution. However, the plaintiff presented no expert evidence concerning these matters. On the other hand, Haynes presented expert engineering testimony that the measures taken by Haynes will prevent any air or water pollution from the site.
There was evidence from DEP that on three separate reviews of the property in the last eight months, there was no fugitive dist observed. The plaintiff disagrees with this assessment but the Commission was free to believe the DEP. The Spill Prevention Control and Counter Measure Plan and the Storm Water Pollution Prevention Plan were all reviewed and approved by Commission's staff. Based upon that evidence, the Commission made a specific finding that "the proposed quarry operations are not likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the State." The evidence supports the Commission's finding.
VI. Conclusion
For the reasons given, the appeal is dismissed.
BY THE COURT,
John W. Pickard