Felsman v. Zoning Commission

626 A.2d 825, 31 Conn. App. 674, 1993 Conn. App. LEXIS 284
CourtConnecticut Appellate Court
DecidedJune 22, 1993
Docket11083
StatusPublished
Cited by47 cases

This text of 626 A.2d 825 (Felsman v. 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
Felsman v. Zoning Commission, 626 A.2d 825, 31 Conn. App. 674, 1993 Conn. App. LEXIS 284 (Colo. Ct. App. 1993).

Opinion

Lavery, J.

This appeal arises from the denial by the defendant zoning commission of the city of Bridgeport of the plaintiffs application for a special exception to permit the construction of a twelve unit apartment building with thirty on-site parking spaces in a residence C zone. The trial court sustained the plaintiffs appeal. On appeal to this court, the defendant claims that the trial court improperly (1) ruled sua sponte that the defendant’s regulations regarding special exceptions are unconstitutional, (2) ruled that the facts in this case satisfied the exception in Helbig v. Zoning Commission, 185 Conn. 294, 440 A.2d 940 (1981), and that Helbig has overruled Bierman v. Westport Planning & Zoning Commission, 185 Conn. 135, 440 A.2d 882 (1981), and (3) reversed the decision of the defendant [676]*676in finding that it did not have discretion to determine the effects of parking and overintensification.

We agree that the trial court improperly found that the standards in chapter 8, § 2 (c),1 of the Bridgeport zoning regulations do not pass the constitutional test necessitating ascertainable standards, but we agree with the trial court that the reason stated for the denial by the defendant, that the granting of the petition would result in an “overuse of the property,” is not sustained in the record. We therefore affirm the judgment of the trial court.

The pertinent facts are as follows. On July 7, 1989, the plaintiff, Moshe Felsman, filed an application for a special exception to build a twelve unit, three story apartment house. The plaintiff sought to erect a building that he could combine for management and parking purposes with a three unit building on an adjoining lot. The property is in a residence C zone. The Bridge[677]*677port regulations permit an apartment house as a special exception. Chapter 8, § 2 (c), of the regulations directs the defendant to consider the size and intensity of the development and its effect on surrounding properties; the capacity of adjacent and nearby streets to handle peak traffic loads and hazards created by the use; the extent, nature and arrangement of parking facilities; the location of driveway entrances and exits; fire access lanes and hazards involved. The defendant is permitted by chapter 8, § 2 (c), to impose reasonable conditions and limitations on parking areas that are in excess of the requirements of the chapter. Apartment houses are also subject to chapter 16 of the Bridgeport zoning regulations which requires, inter alia, 150 square feet of parking for each apartment.

At the conclusion of a public hearing on September 25, 1989, the defendant commission voted unanimously to deny the petition stating, “the granting of this petition would result in an overuse of the property.”

The defendant appealed to the Superior Court which sustained the appeal and found: (1) the plaintiff complied with all the ascertainable regulations and standards applicable to his application; (2) the record fails to show that the plaintiffs application violated any zoning regulations; (3) chapter 8, § 2 (c), of the Bridgeport zoning regulations, when applied as standards for the granting of a special permit, “does not pass the constitutional test necessitating ascertainable standards.” Helbig v. Zoning Commission, supra, 315.

In Mobil Oil Corporation v. Zoning Commission, 30 Conn. App. 816, 819-20, 622 A.2d 1035 (1993), we said: “The terms special permit and special exception have the same legal import and can be used interchangeably. ... A special permit allows a property owner to use his property in a manner expressly permitted by [678]*678the local zoning regulations. . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience, and property values. . . . Acting in this administrative capacity, the [zoning commission’s] function is to determine whether the applicant’s proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied. (Citations omitted; internal quotation marks omitted.) A.P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 185, 355 A.2d 91 (1974).

“The 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. (Citations omitted.) Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 56-57, 549 A.2d 1076 (1988).” (Internal quotation marks omitted.)

The trial court determined that the stated reason, “overuse of the property,” was not sufficient to support the defendant’s decision not to grant the special exception. We agree.

The standards set forth in chapter 8, § 2 (c), do not mention “overuse of the property,” but the regulations do require the defendant to consider the intensity of a proposed use. The trial court treated the reason given by the defendant as if no reason were given and searched the record to find a basis for the defendant’s decision. A.P. & W. Holding Corporation v. Planning & Zoning Board, supra, 186. The trial court thoroughly [679]*679reviewed the record and analyzed it in the light of the regulations and found nothing in the record that showed that the plaintiff did not conform to the standards set forth in the regulation. The trial court did not have to go that far. The defendant stated a reason, “overuse of the property,” but there is nothing in the record to sustain that finding. The use is permitted, all the height, side yard and setback provisions of the zoning regulations are complied with, and there is more parking provided than is required.2

The word “overuse” is defined in Webster, Third New International Dictionary, as “excessive use.” Overuse of a parcel is a valid consideration for the defendant, as the zoning regulations specifically require the defendant to consider the “size and intensity of [a proposed] development and its effect upon the surrounding properties.”

In light of the contents of the record filed by the defendant, the trial court was correct in concluding that there was not substantial evidence to uphold the decision of the defendant on the basis that there was an overuse of the property. There was no evidence that the project would be too intense for the neighborhood. [680]*680The only evidence was that the architect testified, “It will be very contiguous with the neighborhood as far as the architecture is concerned . . .

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Bluebook (online)
626 A.2d 825, 31 Conn. App. 674, 1993 Conn. App. LEXIS 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/felsman-v-zoning-commission-connappct-1993.