Barberino Realty & Development Corp. v. Planning & Zoning Commission

594 A.2d 1025, 25 Conn. App. 392, 1991 Conn. App. LEXIS 278
CourtConnecticut Appellate Court
DecidedAugust 6, 1991
Docket9067
StatusPublished
Cited by14 cases

This text of 594 A.2d 1025 (Barberino Realty & Development Corp. v. Planning & Zoning Commission) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barberino Realty & Development Corp. v. Planning & Zoning Commission, 594 A.2d 1025, 25 Conn. App. 392, 1991 Conn. App. LEXIS 278 (Colo. Ct. App. 1991).

Opinion

Lavery, J.

The plaintiff (Barberino) appeals from the decision of the trial court affirming the denial of its site plan application by the planning and zoning commission of Farmington (commission).

In its statement of issues on appeal, Barberino raises five claims. Pursuant to Practice Book § 4013, the commission filed a counterstatement of issues giving five reasons why the trial court’s judgment should be upheld, including alternate grounds on which we may sustain that judgment.

[394]*394The statement of issues and counterstatement of issues present two questions dispositive of this appeal. First, whether Barberino’s application was for approval of a revised site plan only, or whether it was an application for a revised special permit and revised site plan approval combined. Second, whether the reasons articulated by the commission for its denial of the application were based on standards found within the Farmington zoning regulations. We disagree with the trial court’s finding that under the applicable zoning regulations the reasons articulated by the commission provided an appropriate basis for denying the plaintiff’s application for site plan approval.

The relevant facts are as follows. Barberino owns 9.699 acres bordering Main and Tunxis Streets in Farmington. In 1978, the commission granted Barberino a special permit to construct seventy units of elderly housing on 8.3 acres of the site. Elderly housing is a permitted use in Farmington upon the issuance of a special permit. The approved special permit allowed the construction of ten scattered small scale buildings on the subject property. As one of the conditions of approval, Barberino was required to relocate the entrance to the development from its proposed location at the dead end of Tunxis Street to a point closer to the intersection of Tunxis and Main Streets. A neighboring property owner appealed from the commission’s decision to grant the special permit. That appeal was subsequently dismissed by the Superior Court. Kagan v. Planning & Zoning Commission, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 148268 (November 21, 1980). Barberino never constructed the project as designed and approved in 1978.

In 1988, Barberino filed a new application with the commission for site plan approval to construct a single building containing seventy units of elderly housing and [395]*395for approval of a subdivision of the property into three lots; two lots for single-family residences and one lot consisting of 8.55 acres for the development of the seventy units of elderly housing. Timely legal notices were published in the Farmington News noticing a public hearing at which the commission would consider an application for a “3 lot subdivision of 9.699 acres and site plan approval for 70 units of elderly housing . . . .” (Emphasis added.)

At the hearing held on December 12,1988, the commission denied both applications stating the grounds for their denial as follows: “VOTED: to deny without prejudice the Barberino Realty & Development, Inc. revised site plan for 70 units of elderly housing and subdivision plan for Lot 1 Main and Tunxis Streets.

“Members felt that this revision was not in keeping with the scale of adjacent homes; that the development of the western portion of the parcel was too intense; and the proposed driveway from Tunxis Street was located too close to the adjacent property. It was further recommended that the project be divided into two buildings and that the two proposed lots along Tunxis Street be combined into one.”

The plaintiff appealed both decisions to the Superior Court. The trial court sustained the commission’s denial of the revised site plan application and reversed the decision of the commission denying the subdivision application. The court found that the record did not support two of the commission’s stated reasons for the denial of the site plan application, in that “the scale of the adjacent homes” and the “intensity of the development” were not criteria found within the Farming-ton regulations governing site plan approval. The court did, however, find that the commission’s third stated reason for denying the application, namely, that the proposed driveway was located too close to the adja[396]*396cent property, was proper under the regulations and was supported by the record. In its postjudgment articulation, the trial court indicated that the proposed driveway entrance violated Article IV, § 12 (B) (2) and (3) of the town’s regulations.1 Barberino appealed from the trial court’s affirmation of the denial of the site plan application and we granted certification.

Resolution of this appeal requires that we first review the differences between a “special permit” and a “site plan.” A special permit authorizes a use permitted by the zoning regulations subject to the applicant’s meeting the standards set forth in those regulations. W A T R, Inc. v. Zoning Board of Appeals, 158 Conn. 196, 200, 257 A.2d 818 (1969). When deciding whether the granting of a special permit is appropriate, the agency must determine whether (1) the applicant’s proposed use is permitted under the regulations, (2) the standards and the relevant zoning regulations are satisfied, and (3) the conditions necessary to protect public health, safety, convenience and property values can be established. See General Statutes § 8-2.

By contrast, we have determined that the term “ ‘site plan’ ” as it is used in General Statutes § 8-3 (g) is “a general term which is used in a functional sense to denote a plan for the proposed use of a particular site, purporting to indicate all the information required by the regulations for that use. As such, it includes the entire package of documents submitted to a zoning ‘commission or other municipal agency or official to aid [397]*397in determining the conformity of a proposed building, use or structure with specific provisions of such [zoning] regulations.” SSM Associates Limited Partership v. Plan & Zoning Commission, 15 Conn. App. 561, 566, 545 A.2d 602 (1988), aff'd, 211 Conn. 331, 559 A.2d 196 (1989).

When an agency undertakes consideration of a site plan application, it has no independent discretion beyond determining whether the plan complies with the site plan regulations and applicable zoning regulations incorporated into the site plan regulations by reference. Allied Plywood Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 512, 480 A.2d 584, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984). Under General Statutes § 8-3 (g), “[a] site plan may be modified or denied only if it fails to comply with requirements already set forth in the regulations.”

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Barberino Realty & Development Corp. v. Planning & Zoning Commission
597 A.2d 332 (Supreme Court of Connecticut, 1991)

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Bluebook (online)
594 A.2d 1025, 25 Conn. App. 392, 1991 Conn. App. LEXIS 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barberino-realty-development-corp-v-planning-zoning-commission-connappct-1991.