Whisper Wind Development Corp. v. Planning & Zoning Commission

630 A.2d 108, 32 Conn. App. 515, 1993 Conn. App. LEXIS 378
CourtConnecticut Appellate Court
DecidedAugust 17, 1993
Docket11497
StatusPublished
Cited by78 cases

This text of 630 A.2d 108 (Whisper Wind 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
Whisper Wind Development Corp. v. Planning & Zoning Commission, 630 A.2d 108, 32 Conn. App. 515, 1993 Conn. App. LEXIS 378 (Colo. Ct. App. 1993).

Opinions

Freedman, J.

The plaintiff appeals from the judgment of the trial court dismissing its appeal from the decision of the planning and zoning commission of the town of Middlefield, which had denied its application for a special permit. The plaintiffs application sought [517]*517approval for the excavation and removal of sand and gravel from a fifteen acre parcel of land. On appeal, the plaintiff claims that the trial court improperly (1) concluded that the plaintiffs failure to meet the general health, safety and welfare requirements set forth in the town’s zoning regulations may be considered in determining whether to grant or deny the permit and need not be considered only for the purpose of placing conditions on a special permit, and (2) reviewed the actions of the commission by applying the discretion afforded to a zoning authority acting in its legislative capacity as opposed to its administrative capacity. We affirm the judgment of the trial court.

The following facts are not in dispute. The plaintiff is the developer of the Whisper Wind subdivision located on Whisper Wind Road in Middlefield. The plaintiff seeks to excavate and remove sand and gravel from lots that are a part of the Whisper Wind subdivision. The lots to be excavated are located behind lots on which houses have already been built. The only access to the lots to be excavated is a narrow strip of land (approximately fifty feet wide and 450 feet long) that begins at Whisper Wind Road and passes through the subdivision adjacent to some of the lots on which houses are located. Whisper Wind Road is a short U-shaped street developed by the plaintiff as part of the subdivision. There are a number of undeveloped and unsold lots along the road. The plaintiff’s plan would have the trucks, filled with excavated materials, travel on the narrow strip of land and turn onto Whisper Wind Road. The trucks would then travel 1000 feet on Whisper Wind Road past lots on which, at present, there are no houses, finally turning onto Hubbard Street.

On December 7, 1990, the plaintiff filed an application for a special permit in accordance with § 9 and § 10.02 of the town’s regulations. Section 9 of the regulations sets forth the special conditions for the require[518]*518ments involving excavation and removal of earth products. Section 10.02 sets forth the general considerations for approval of special permits.1

Commencing on January 23, 1991, the commission held public hearings on the special permit application. On April 10,1991, the commission denied the plaintiff’s application for the special permit stating that “[t]he proposed use would not be harmonious with the 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.” The plaintiff timely appealed from the commission’s decision to the Superior Court.

In the trial court, the plaintiff claimed that its application complied with all of the requirements of §§ 9 and [519]*51910.02 of the regulations and that the reasons given by the commission in denying its application (1) constituted a legally insufficient basis for denial of the application, (2) had no factual basis, and (3) were motivated by prejudice and bias. The plaintiff further claimed that it was denied equal protection of the law and due process of law under the Connecticut and the United States constitutions. These equal protection and due process claims, however, were orally withdrawn by the plaintiff at the hearing before the trial court.

The trial court concluded that a zoning authority may deny a special permit application on the basis of general considerations in the local zoning regulations even where the plaintiffs application complies with the detailed technical requirements established in the regulations for the specific proposed use. The trial court also determined that the plaintiff failed to prove that the record did not support the reasons for the denial given by the commission. Finally, the trial court concluded that because the plaintiff presented no evidence of bias or prejudice by the commission, that claim was abandoned. We granted certification for appeal to this court.

“The basic rationale for the special permit ... is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated because of the particular topography, traffic problems, neighboring uses, etc., of the site.” T. Ton-dro, Connecticut Land Use Regulation (2d Ed. 1992), p. 175; Barberino Realty & Development Corporation v. Planning & Zoning Commission, 222 Conn. 607, 612, 610 A.2d 1205 (1992).

The plaintiff contends that the broad legislative statements contained in the general considerations section of the regulations (§ 10.02) do not provide an indepen[520]*520dent basis for denying special permit applications. Instead, the plaintiff asserts, § 10.02 may be used solely to place restrictions on an approved permit and may not be used as an alternative to the standards contained in the technical considerations section of the regulations (§ 9). In essence, the plaintiff argues that once the specific requirements in § 9 are met, the permit must be granted, subject to any limitations that may be placed on that approval under the terms of § 10.02. Thus, according to the plaintiff, § 10.02 cannot serve as the sole basis for denying a special permit application, but can serve as the basis only for attaching conditions to the proposed plan. We do not agree.

“ ‘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 the 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).’ ” Felsman v. Zoning Commission, 31 Conn. App. 674, 677-78, 626 A.2d 825 (1993); Mobil Oil Corporation v. Zoning Commission, 30 Conn. App. 816, 819, 622 A.2d 1035 (1993).

In its decision, the trial court properly relied on Cameo Park Homes, Inc. v. Planning & Zoning Commission, 150 Conn. 672, 192 A.2d 886

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Bluebook (online)
630 A.2d 108, 32 Conn. App. 515, 1993 Conn. App. LEXIS 378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whisper-wind-development-corp-v-planning-zoning-commission-connappct-1993.