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2772 BPR, LLC v. Planning & Zoning Commission
Citation: Not availableDocket: AC42866
Court: Connecticut Appellate Court; September 14, 2021; Connecticut; State Appellate Court
Original Court Document: View Document
The "officially released" date on each opinion indicates when it will be published in the Connecticut Law Journal or released as a slip opinion, serving as the start date for filing post-opinion motions and petitions for certification. All opinions can be modified before their official publication in the Connecticut Reports and Connecticut Appellate Reports. In case of discrepancies between advance release versions and those in the Law Journal or official reports, the latest versions are authoritative. The accompanying syllabus and procedural history in the Connecticut Law Journal and official reports are copyrighted and require permission for reproduction. In the case of 2772 BPR, LLC v. Planning and Zoning Commission of the Town of North Branford, the plaintiff appealed after the commission denied its application to build a propane storage facility in an industrial district where such use is allowed. Concerns raised during a public hearing included safety risks, emergency access, and potential property value decreases. The trial court upheld the commission's denial, asserting it considered off-site traffic, emergency preparedness, and property impacts. However, the appellate court found that the trial court erred in concluding the commission appropriately considered off-site factors. The commission improperly based its denial on concerns about property values and conservation plans, despite having amended regulations to permit bulk propane storage. Additionally, the commission's traffic concerns exceeded the site-specific issues allowed for consideration. The Planning and Zoning Commission of North Branford denied 2772 BPR, LLC's application for site development to build a propane storage facility, citing off-site traffic, municipal service preparedness, and potential property value impacts. The plaintiff appealed this decision, arguing that the commission did not adequately consider alternative access routes for emergency services and raised additional reasons for denial not originally cited by the commission. The appellate court found merit in the plaintiff's claims, particularly regarding the commission's improper consideration of external factors, leading to a reversal of the trial court's judgment. The case was remanded with instructions for the commission to approve the plaintiff's site development plan. The plaintiff had submitted the application following amendments to zoning regulations effective September 5, 2014, which permitted propane storage in the area, and after receiving necessary approvals regarding wetlands from the Department of Energy and Environmental Protection. The commission had conducted multiple hearings over the years before ultimately denying the application. On March 8, 2017, the plaintiff submitted a revised site development plan to the commission, accompanied by an application referral notification dated February 16, 2017, from town planner Carey Duques, which outlined the application’s status. A handwritten comment on the document indicated that the application met the required site plan and zoning regulations. During public hearings, residents expressed opposition to the plan, citing safety concerns regarding a bulk propane storage facility, particularly its location at the end of a dead-end street, which could hinder emergency response. Residents also feared a decrease in property values. The commission questioned the plaintiff's representatives about these concerns. At the March 16, 2017 meeting, Duques presented correspondence addressing previous inquiries, including a letter from Lieutenant James Lovelace of the North Branford Police Department, which indicated no past difficulties in emergency responses on Ciro Road. Additionally, Emergency Management Director James Buck assessed evacuation routes, suggesting the need for safe access away from Ciro Road in case of an incident. On March 16, 2017, the commission voted 3-2 to deny the application, citing non-compliance with the North Branford Zoning Regulations, specifically: non-conformance with the plan of conservation and development, inadequate protection of neighborhood property values, and restricted access on the dead-end Ciro Road. The decision was published on March 30, 2017, and the plaintiff filed an appeal on April 10, 2017, claiming the commission acted arbitrarily and unlawfully in denying the application. The plaintiff asserted that since the proposed use was permitted by zoning regulations, the commission could not base its decision on concerns about conformity with the conservation plan, property values, or access, as these factors were presumed considered when the regulations were adopted. The plaintiff contended that the record did not support the commission's denial of the application, regardless of any legal provisions to the contrary. The commission countered by citing Friedman v. Planning and Zoning Commission, arguing that permitted use does not eliminate the need to review specific zoning matters, and it claimed the record justified its denial based on regulatory compliance. Following a hearing, the court denied the plaintiff’s appeal, agreeing with the commission's interpretation of Friedman and affirming that the record supported the commission's decision. The court noted that the property’s location posed traffic concerns and that the local fire department was inadequately prepared for emergencies, alongside public testimony about potential negative impacts on property values. The court found no requirement for expert testimony on valuation in this context. The plaintiff subsequently filed for certification to appeal, claiming the court erred in allowing the commission to consider off-site traffic, municipal preparedness, and property value impacts in its review. The plaintiff argued that the court misinterpreted Friedman regarding the commission’s consideration of off-site factors. The commission maintained that Friedman was applicable, reinforcing that permitted use does not exempt it from evaluating specific regulatory matters. Ultimately, the summary agrees with the plaintiff's position. The standard of review for the plaintiff's claim challenges a legal conclusion made by the trial court, which is assessed for legal and logical correctness based on the record. Connecticut General Statutes § 8-3(g) states that a site plan must be submitted to the commission to determine conformity with zoning regulations. Modifications or denials of a site plan can only occur if it does not comply with existing zoning requirements. When reviewing a site development plan for a permitted use, a planning commission acts administratively and cannot reject an application that adheres to relevant regulations. The planning commission's discretion is limited to compliance verification with site plan and zoning regulations. Two prior cases, Beit Havurah v. Zoning Board of Appeals and TLC Development, Inc. v. Planning and Zoning Commission, establish that a permitted use is presumed not to adversely affect the district, negating further inquiry into impacts like traffic or property values. In TLC, the planning and zoning commission denied a shopping center application based on off-site traffic concerns, which the trial court overturned, affirming that such considerations were not permitted under the zoning regulations. The Supreme Court upheld this, emphasizing the plaintiff’s application was for a use already allowed under the regulations. The case of Friedman further clarifies the circumstances under which a planning and zoning commission may consider traffic impacts for uses permitted as of right. Plaintiffs sought site plan approval to construct a three-story office building in a commercial zone in Rocky Hill, where such a building was a permitted use, contingent on site plan approval per Rocky Hill Zoning Regulations § 9.4. The zoning regulations required a traffic study under § 9.46, which addresses the impact of development on the surrounding street system. The Planning and Zoning Commission denied the application due to non-compliance with zoning regulations, specifically the absence of the required traffic study, leading plaintiffs to appeal to the Superior Court, which dismissed the case. On appeal to the Supreme Court, plaintiffs contended that the Commission could not consider off-site traffic issues since an office building was permitted in the zone, referencing prior cases TLC and Beit Havurah. The Supreme Court rejected this argument, clarifying that those cases did not prevent consideration of specific traffic impacts related to site plan applications when allowed by zoning regulations. It emphasized that § 9.46 specifically concerns issues like the placement of entrances and exits to minimize traffic disturbance, which necessitated an accompanying traffic study. The court upheld the Commission's decision, affirming that the lack of a traffic study justified the denial. Furthermore, the Friedman ruling did not overrule TLC or Beit Havurah but clarified that planning commissions could require traffic studies to ensure safe exits and entrances, distinguishing this from denying a permitted use based on off-site traffic conditions. Judge Robert A. Fuller’s treatise supports this interpretation, noting the difference between evaluating specific traffic consequences for site plans and denying uses due to existing traffic issues. The Supreme Court in Pansy Road reaffirmed that when a landowner applies for a permitted use, the planning and zoning commission may only consider off-site traffic conditions to evaluate internal traffic circulation and the placement of roads and driveways to mitigate negative impacts on existing traffic. In Pansy Road, a developer sought to subdivide land into five lots and build single-family homes with a cul-de-sac, Pansy Circle, connecting to Pansy Road. The commission denied the application due to concerns about off-site traffic congestion. The trial court dismissed the developer's appeal, but the Supreme Court reversed this decision, finding that the commission failed to consider the existing traffic conditions properly and did not evaluate alternative intersection locations. In the current case, the commission, in its administrative capacity, cited three grounds for denying a site development plan. Two key reasons were nonconformance with the plan of conservation and development and the plan's failure to protect neighborhood property values. The commission referenced specific sections of the North Branford Zoning Regulations outlining requirements for site plans to align with development plans and to harmonize with neighborhood character. The commission's argument that it could deny the plaintiff’s application based solely on zoning criteria is rejected. A conclusive presumption exists, which cannot be disputed by additional evidence, affirming that once a specific use is permitted as of right—such as bulk propane storage in the I-2 industrial district—certain concerns (traffic, municipal services, property values, and overall district harmony) cannot be reevaluated by the commission. The amendment to the zoning regulations prior to the application established that this use would not adversely affect the district, implying the commission believed the use aligned with the conservation plan and would not diminish property values. The ruling in Friedman pertains specifically to site-related concerns, allowing the commission to assess the placement of structures to mitigate potential negative impacts. However, the commission's decision to deny the site development plan appeared to stem from a general opposition to propane storage rather than specific plan deficiencies, making the cited zoning regulations inadequate grounds for denial. Regarding access concerns, the commission referenced a specific regulation about vehicular access and traffic safety. While the conclusive presumption from Beit Havurah applied, the commission could still evaluate traffic matters for specific site-related issues as outlined in Friedman. However, evidence indicated the commission's traffic concerns extended beyond the site itself, which is a departure from the precedent set in Friedman. The plaintiff’s application was deemed complete and compliant with zoning regulations, contrasting with the incomplete application scenario in Friedman, which only addressed internal property traffic. The commission assessed access related to Ciro Road in a comprehensive manner, considering traffic for the entire road and neighboring areas rather than limiting its analysis to the specific site in question. This broad evaluation raised concerns applicable to multiple properties along Ciro Road, contrasting with the narrower focus on site-specific traffic issues seen in previous cases like Friedman. Notably, the commission failed to explore alternative access routes, such as using town-owned land at the end of Ciro Road for emergency evacuations. The commission’s earlier decision to amend zoning regulations to allow bulk propane storage on all I-2 district properties on Ciro Road indicates it was aware of the road's accessibility issues when making zoning decisions. Consequently, the court's conclusion that the commission appropriately considered off-site factors when denying the plaintiff's site plan was deemed erroneous. The case is remanded for the trial court to sustain the plaintiff's appeal and approve the site development plan. The judgment is reversed, and while the merits of the plaintiff’s second claim were not addressed, it was indicated that the plaintiff would likely succeed even if considered. The court mistakenly evaluated the fire department's preparedness beyond the commission's stated reasons for denial, which did not include this concern. A zoning agency's stated reasons for its actions must be reasonably supported by the record and relevant to the zoning regulations. This principle is applicable when the agency provides a formal statement of reasons. The plaintiff proposed site improvements in their development plan application. During a March 9, 2017 meeting, Commissioner Lescovich raised concerns about traffic congestion on Ciro Road and its impact on safety, particularly for emergency access, prompting an exchange with the plaintiff's engineer, Sonnichsen. He noted that Ciro Road is wide enough to accommodate traffic despite potential congestion. Public meetings were held to discuss the application, which were open for public comments. The North Branford Zoning Regulations set general standards for site development plan approvals. The commission denied the plaintiff’s application, citing non-conformance with the Plan of Conservation and Development. The plaintiff's appeal contests this denial, arguing that the commission improperly used general objectives for site plan modifications as a basis for outright denial, rather than allowing for necessary adjustments. The commission stated that the site development plan application did not conform to the conservation and development plan but failed to specify which provisions were not met, making it unclear what facts supported this conclusion. Section 41.2.3 outlines specific access requirements, including: a. Vehicular access must avoid using local residential streets if reasonable alternate access is available. b. The access street must have adequate traffic capacity and improvements to handle both the proposed use and existing traffic. c. Turning lanes and traffic controls must be provided to ensure safe access and prevent congestion. d. Driveways must be designed to prevent vehicle backups on the street. e. Driveway grades should not exceed 8% and must conform to local ordinances or Connecticut state regulations; driveway widths should not exceed 30 feet unless otherwise required. f. Generally, only one driveway is permitted per lot from any street, with one additional driveway allowed for every 300 feet of lot frontage beyond 150 feet. These points reflect the requirements that the application must meet for compliance.