Whisper Wind Development Corp. v. Planning & Zoning Commission

Dupont, C. J., dissenting.

I respectfully dissent from the result reached by the court in this case for two reasons. I conclude that under the express language of § 10.02.01 of the Middlefield zoning regulations, the commission could not deny the plaintiffs application for a special permit solely on the basis of a claimed failure to meet the general considerations enumerated in that section, and that the holdings of Cameo Park Homes, Inc. v. Planning & Zoning Commission, 150 Conn. 672, 192 A.2d 886 (1963), and Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, 29 Conn. App. 1, 613 A.2d 1358 (1992), do not apply to this case.

“When considering an application for a special exception, a zoning authority acts in an administrative capacity, and its function is to determine whether the proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and statutes are satisfied. ... It has no discretion to deny the special exception if the regulations and statutes are satisfied.” (Citation omitted.) Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 56, 549 A.2d 1076 (1988).

The function of a special permit is to allow a property owner to use his property in a manner expressly permitted under the zoning regulations, subject to certain conditions necessary to protect the public health, safety, convenience, and surrounding property values. Mobil Oil Corporation v. Zoning Commission, 30 Conn. App. 816, 819, 622 A.2d 1035 (1993). The regulations permit the use here, and, therefore, a conclusive pre*526sumption arises that the use per se cannot adversely affect the zone in which it is to be conducted. TLC Development, Inc. v. Planning & Zoning Commission, 215 Conn. 527, 532-33, 577 A.2d 288 (1990). The presumption precludes a commission from denying a special permit because the use does not coincide with the general harmony of the particular zone. A special permit may be denied only for failure to meet specific standards in the regulations, and not for vague or general reasons. See DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970); accord Kosinski v. Lawlor, 177 Conn. 420, 423, 418 A.2d 66 (1979) (site plan). This is especially important because as we recently noted: “The zoning commission has no discretion to deny the special exception if the regulations and statutes are satisfied.” Felsman v. Zoning Commission, 31 Conn. App. 674, 678, 626 A.2d 825 (1993).

Two recent cases dealing with site plan permits and subdivision approval, TLC Development, Inc. v. Planning & Zoning Commission, supra, and Sowin Associates v. Planning & Zoning Commission, 23 Conn. App. 370, 376, 580 A.2d 91 (1990), cert. denied, 216 Conn. 832, 583 A.2d 131 (1991), support the proposition that general considerations should not serve as the basis of a denial of an application. Although TLC involved an application for site plan approval, and Sowin Associates pertained to subdivision permits, the rationale of their holdings is equally applicable to special permit applications. Special permits, as do site plans and subdivision applications, allow a town to exercise greater control over the development of a specific parcel of land even though the proposed activity is explicitly permitted by the regulations. See Parish of St. Andrew’s Church v. Zoning Board of Appeals, 155 Conn. 350, 353, 232 A.2d 916 (1967). The TLC and Sowin courts have recognized that general considerations regarding com*527pliance with public health and safety regulations do not provide a sufficient basis for rejection of a subdivision permit or site plan and have implicitly recognized that, instead, such approval should be given subject to restrictions or conditions.

In this case, the commission concedes that all of the specific requirements pertaining to special permits for excavation had been fulfilled by the plaintiff. In spite of the compliance with these requirements, the commission denied the permit on the basis that “[t]he proposed use would not be harmonious with existing development in the district and would be detrimental to the orderly development of adjacent properties” and that “[t]he location, size, nature and intensity of the use would create a pedestrian and traffic hazard and would conflict with the traffic characteristics of the surrounding neighborhood.” These reasons reflect the general conditions described in § 10.02.01 (2) and (3) (a).

The road, Whisper Wind Road, on which the plaintiffs trucks would pass in order to reach the area of excavation, is fifty feet wide and is an accepted public street in Middlefield. The site of the proposed activity is bound by land owned by the state, the town, a nonprofit conservation corporation and the road. The plaintiff intended to excavate from 7 a.m. to 3:30 p.m., Monday through Friday, and from 7 a.m. to noon on Saturday, with truck trips limited to five per hour. The commission could have imposed more stringent conditions, but I do not believe, given the language of the regulation and the nature of the use, that it could deny the permit altogether.

The language of the regulations in this case is fundamentally different from that of the regulations at issue in Cameo and Connecticut Health Facilities because it involves a different sequence of events. Here, § 10.02.01 of the regulations, entitled “General Con*528siderations” and a subsection of § 10.02, entitled “Special Permits,” provides: “In authorizing the issuance of a special permit, the commission shall take into consideration the public health, safety and welfare and shall prescribe appropriate conditions and safeguards to insure the accomplishment of the following objectives . . . .’’(Emphasis added.) The regulation at issue in Cameo, § 20.2, stated: “The Commission may . . . approve the use after making special application of these regulations in harmony with their general intent by stipulating such restrictions as appear to the Commission to be reasonable and the minimum necessary to protect property values in the district as a whole and the public health, safety and welfare. Before approving any special case the Commission shall consider [various enumerated factors].” (Emphasis added.) Cameo Park Homes, Inc. v. Planning & Zoning Commission, supra, 675 n.l. The regulation in Connecticut Health Facilities, § 19.3.2, provided: “Special Exceptions shall be granted by the reviewing board only upon afind-ing that the proposed use or structure . . . is in accord with the public convenience and welfare after taking into account, where appropriate [various enumerated factors].” (Emphasis added.) Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, supra, 5 n.l.

Here, the commission is directed to take into consideration the various factors listed in the regulations during the course of approving the permit, rather than before granting the permit, or only upon a finding. The express language of § 10.02.01 permits the commission only to place conditions on the approval of the plaintiff’s application and does not allow it to deny the application altogether if the plaintiff has complied with the specific technical requirements for the permit.

Cameo and Connecticut Health Facilities do not mandate that a commission may deny a special permit application in toto in all cases. Both cases involve an *529application seeking a special permit for a use that would permanently effect a fundamental change in the character of the surrounding neighborhood, namely, the building of garden apartments and the construction of a nursing home and child day care facility, respectively. The use sought in this case would be of a limited duration and, after the completion of the project or the expiration of the time provided for the use, the effect on the surrounding neighborhood would cease. An absolute denial of a special permit should occur only in cases where it is impossible to address all of the concerns of the commission through the use of conditions. This was true in Cameo and Connecticut Health Facilities, but not in the present case. In my opinion, neither Cameo nor Connecticut Health Facilities stands for the broad proposition that a zoning commission has the option, in every case, either to grant the permit with restrictions or, alternatively, to deny it entirely, even though the applicant has complied with all technical requirements. These cases merely recognize that there are limited instances where the commission has the authority to deny the application in toto.

A zoning authority should not be able to insulate a denial of a special permit from reversal by an appellate court simply by stating a subjective conclusion such as the use is not in harmony with existing development or that the use would be detrimental because of an increase in traffic congestion. Daughters of St. Paul v. Zoning Board of Appeals, supra, 68. In those cases where the language of the regulations is similar to that of § 10.02, and the nature of the proposed use will not produce a permanent, fundamental change in the character of the neighborhood, I would hold that a commission does not have discretion to deny the application for a special permit but must grant it, subject to reasonable conditions and restrictions.

*530Because I believe that the case should be remanded to the commission with direction to grant the special permit, subject to such conditions as the commission deems necessary, I respectfully dissent.