TLC Development, Inc. v. Planning & Zoning Commission

Shea, J.,

dissenting. In affirming the judgment of the trial court, the majority advances three grounds: (1) the Branford site plan regulations provide in § 31.5 only for “such modifications of the proposed plans as [the commission] deems necessary to comply with the specific standards contained [in those regulations],” and, therefore, do not authorize the denial of an application to approve a site plan “altogethér”; (2) “the language of the Branford zoning regulations does not permit offsite traffic considerations to serve as the basis for denying a site plan application”; and (3) in reviewing a site plan, a zoning commission may not consider the effect that a proposed shopping center will have upon offsite traffic as a basis for disapproving the plan. I disagree.

I

The view of the majority that, in reviewing an application for site plan approval, the Branford zoning commission, having determined that the plan does not comply with the site plan regulations, may only require modifications in the plan but may not disapprove the plan altogether is contrary to our previous holdings that an administrative agency is not “bound to make suggestions to [applicants] as to how their plans should be changed, or to grant the permit upon condition that they be changed.” Piccolo v. West Haven, 120 Conn. 449, 454, 181 A. 615 (1935). “It requires no citation *535of authority to say that regulation may in many instances result in prohibition. . . . The plaintiffs asked for the designation of a specific channel as described in their application. . . . The commission was not under a duty to make suggested changes or to grant a rehearing for that purpose.” Shorehaven Golf Club, Inc. v. Water Resources Commission, 146 Conn. 619, 625, 153 A.2d 444 (1959).

Even if the language of § 31.5 can be construed to preclude the absolute denial of site plan approval for failure to comply with the regulations, it would certainly require the applicants to modify the site plan in order to comply with those regulations that were properly found to have been violated upon its first presentation to the commission. At most, the phraseology of § 31.5 would entitle the applicant to a rehearing upon a revised plan. The majority’s affirmance of the judgment directing that the plaintiff’s site plan be approved unquestionably would be a complete frustration of the legitimate purpose of § 31.5 if the commission’s conclusion that the regulations have been violated is sound.

II

The conclusion of the majority that “the language of the Branford zoning regulations does not permit off-site traffic considerations to serve as the basis for denying a site plan application” wholly ignores the following provisions of the site plan regulations, which are part of the zoning regulations:

“[Section] 31.5.2 Traffic and Pedestrian Access: That all proposed vehicular and pedestrian accessways are safely designed, adequately provided and conveniently arranged to prevent traffic and pedestrian hazards both within the site and on the street.

* * *

“[Section] 31.5.3 Circulation and Parking: That the vehicular circulation pattern and the off-street park*536ing and loading spaces are safely designed, adequately provided and conveniently arranged to meet the needs of the proposed uses and to prevent traffic congestion, within the site and on the street. At least the following aspects of the site plan shall be evaluated to determine conformity to this objective:

“(a) The effect of the proposed development on traffic conditions on abutting streets. . . .

“(c) The adequacy of traffic signalization, traffic channelization, left turn lanes, or roadway width on the adjoining streets. . . .”

These regulations, as well as § 31.4.7, requiring a “traffic analysis” to be submitted with an application, certainly indicate that “offsite traffic considerations” are a significant factor in approval of a site plan. If the provisions made in the plan of the plaintiff for “traffic and pedestrian access” and for “circulation and parking” were not adequate in the light of offsite traffic conditions to ensure the safety of the public, the commission under these regulations would have been authorized to reject the plan.

Ill

The majority also apparently takes the position that, regardless of the language of the regulations, the enabling act for site plan regulations, General Statutes § 8-3 (g), by virtue of an amendment adopted in 1978, does not authorize zoning regulations that make off-site traffic conditions a basis for refusing to approve a site plan. This enactment, Public Acts 1978, No. 78-104, § 4, made several changes in the statute, including the insertion of the following sentence: “A site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations.”

The majority accepts the contention of the plaintiffs that this amendment was intended by the legislature *537to overrule Goldberg v. Zoning Commission, 173 Conn. 23, 30, 376 A.2d 385 (1977), in which this court approved the “concern of the commission as to the impact of traffic upon the area and the overburdening” of a town road as a basis for refusing to approve a site plan for a shopping center. There is, however, no legislative history to support this view, as the plaintiffs concede, nor does the language of the amendment address the question of whether offsite traffic concerns may properly be included in site plan regulations as part of the zoning regulations. In both Goldberg and this case, the regulations concerning offsite traffic considerations were “requirements already set forth in the regulations,” as the amendment provides. The only basis advanced by the plaintiffs for claiming that the amendment signifies legislative disapproval of Goldberg is that it was enacted about one year after that decision. It is probable, however, as the majority suggests in footnote 2, that the amendment was intended to overrule the Goldberg dictum allowing a zoning commission in reviewing a site plan to go outside the zoning regulations to consider “conditions necessary to protect health, safety, convenience and property values”; id., 28-29; by precluding reliance upon criteria not set forth in the regulations. The failure of the amendment to prohibit consideration of the impact of a proposed structure on offsite traffic, when the regulations so provide, nevertheless, is some indication of legislative approval of such regulations.

The problem with the majority’s view that a site plan for a permitted use may not be disapproved on the basis of the impact of that use on offsite traffic, even if the regulations so provide, is that it assumes such a consideration was fully explored at the time the zone permitting such a use was created. That assumption is faulty for two reasons: (1) conditions often change between the time a zone was created and the presen*538tation of a site plan for a specific use; and (2) when a permitted use is open-ended, as in this case where the zone in which the proposed shopping center is situated requires that it contain a minimum of 100,000 square feet but prescribes no maximum, the effect on offsite traffic cannot be adequately visualized until the scope of the permitted use is known. This problem can be resolved, of course, by the adoption of special provisions for such uses as shopping centers, which commonly allow consideration of the effect of a specific proposal upon offsite traffic. I am not aware of anything in § 8-3 (g), however, that bars a town from similarly fine-tuning its zoning determinations through its site plan regulations in the light of specific proposals.

Accordingly, I dissent.