HomeMy WebLinkAboutAppeal (5) TOWN OF SOUTH WINDSOR Application# y q-00
APPLICATION FOR Date l o-(q -G
ZONING BOARD OF APPEALS Receipt# S 1 g
IMPORTANT.- This application must be submitted to the Planning Department by the second Thursday of the
preceding month to insure being heard at the next meeting.
ALL ITEMS MUST BE ANSWERED AND ALL SUPPLEMENTS MUST BE SUBMITTED.
1. The application and supplements must be filed in duplicate,typed or printed in ink.
2. A Class D or better survey of the property in question must be submitted with the application showing
streets, lot lines,building lines,zone boundary lines, dimensions, and buildings present or proposed and
buildings on adjacent properties and distance from subject property.
3. If a variance is being requested, a legal description and deed of the property must be submitted with the
application. This description can be obtained from the land records.
4. The sign from the Planning Department must be displayed on the property at least 10 days prior to the public
hearing in a location visible from all abutting streets.
• The applicant,or a representative must be present for the public hearing. The time,date and place of the
hearing will be advised by mail.
• Inquiries on this application maybe directed to the Planning Department at the South Windsor Town Hall.
5. No application shall be a complete application unless it shall be in such form and contain such
information as necessary for a fair determination of the issues. Incomplete applications may be
denied.
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�ECT1C�11 17I 0 't0:
1. Applicant: Richard S. Kelley; The Stop & Shop Supermarket Company
2. Mailing Address: 1744 Ellington Road 153 Washington Avenue
South Windsor, CT 06074 North Haven, CT 06473
3. Telephone#: (860) 644-8761 (203) 654-8403
4. Owner of record of property in question: Richard S. Kelley; Savings Bank of Rockville
5. Location of property in question: Town Center, 1725 Ellington Road
Assessor's Map#*See below Parcel# Zone RC
6. Is applicant a corporation or co-partnership? (If corporation, submit a list of officers. If co-partnership,
submit a list of owners). See attached
*Map 51, Lots 2, 3, 4, 5, 6, 8b, 8d, 9 and a portion of Lot 16 on Map 50, fka a portion
of Lot 17 on Map 50 and a portion of Lot 48 on Map 51.
ECT7X) � UIRED7 .k71RMAfiIO � c nt�nued ��` ��
7. Please indicate if the applicant is owner, lessee, or prospective tenant: Owner; lessee
8. Check one of the following:
( ) Request Variance to Section of the Zoning Regulations to allow
( ) State hearing under Section of the General Statutes for
Planning and Zoning Commission's September 19, 2000 decision
(%) An appeal from the Z 13 M I I B .denying a site elan application.
9. Is this a request for a sign variance? If yes, complete and submit the sign checklist information. N/A
10. If application is for a variance to Section 3.12, are there any liquor outlets within the restricted area,
(500 feet)? YES or NO If yes, submit a list of liquor outlets,their locations and distances from the
property in question.
11. Is this property within 500 feet of another town line? NO
12. Is this property within the Connecticut Water Aquifer area? No. If yes, application must be filed
with the Connecticut Water Company by the applicant.
13. If requesting a variance state clearly the unusual hardship or exceptional difficulty on the property that
prompts this application and indicate why other options are unacceptable. Use a separate sheet of paper if
necessary.
N/A
mW
I hereby declare that the data&information contained herein is accurate to the best of my knowledge.
Dated this 18th day of'� October Year 2000
Applicant: On 1r AA Ae- ,C S S,f 1
U .
(Signature)
OWNER: '
Signature)
t K _
Approved: Denied:
Revised 12/04/98
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Town of South Windsor
Zoning Board of Appeals
Memo
To: Robert Fuller, Attorney for Stop and Shop Supermarket and Richard S. Kelley
Michael Ziska, Attorney for SW Planning and Zoning Commission
From: Marjorie Anthony, Chair ZBA
CC: Stephen Penny, Attorney for the SW ZBA
Date: 12/12/00
Re: The Stop and Shop Supermarket and Richard S. Kelley ZBA application
At the December ZBA meeting, the Board outlined the procedure that they will be following
relating to the above application.
The hearing will be scheduled for Thursday, March 1, 2001. At the beginning of the hearing,
the Board will entertain its counsel's opinion relating to the ZBA's jurisdiction over the
submitted appeal. The Board is asking both the applicant's attorney and the South Windsor
Planning and Zoning Commission's attorney to be prepared to address the appropriateness
of the Board hearing this appeal, as opposed to the court.
If the Board determines at that time that it is appropriate for it to continue, it will proceed to the
merits of the plan.
If you have any questions, please do not hesitate to contact Michele Lipe, Assistant Director
of Planning at 644-2511, ext. 252.
Thank you for your cooperation in this matter.
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Marjorie S. Anthony, Chairwoman
Zoning Board of Appeals
October 18, 2000
Page 2
This appeal is brought pursuant to Zoning Regulations Section 18.4 and seeks to overturn the
September 19, 2000 decision of the Planning and Zoning Commission denying the site development
plan application by Kelley and Stop & Shop.
The following materials are enclosed in support of this appeal:
1. Town of South Windsor application for Zoning Board of Appeals.
2. Copy of June 20, 2000 application for site development plan approval.
3. Project narrative included with site plan application.
4. Copy of Planning and Zoning Commission's denial of site plan application.
5. Copy of Borden v. North Stonington Planning and Zoning Commission, 58 Conn. App.
399 (2000).
6. Plans submitted in support of site plan application, including survey.
We respectfully request that the Zoning Board of Appeals schedule this appeal for a public
hearing at the Board's regular meeting in January, 2001. Please do not hesitate to contact me if you
have any questions.
Sincerely,
RICHARD S. KELLEY
THE STOP & SHOP SUPERMARKET COMPANY
Robert A. Fuller
75 East Meadow Road
Wilton, Connecticut 06896
(203) 762-5888 (phone)
(203) 762-5894 (fax)
Their Attorney
Enclosures
Copy to: Richard S. Kelley
Anthony A. Colavolpe
THE STOP & SHOP SUPERMARKET COMPANY
OFFICERS & DIRECTORS
Effective as of September 1, 2000
Officers:
Chairman, President& Marc E. Smith
Chief Executive Officer
Executive Vice President,
Chief Financial Officer
&Treasurer Brian W. Hotarek
Executive Vice President,
Secretary and/or Clerk Peter M. Phillipes
Assistant Secretary
and/or Clerk Allan C. Cave, Jr.
David J. Kramer
Michael J. Sawyer
Dean Cohagan
Directors: Brian W. Hotarek
Peter M. Phillipes
Marc E. Smith
All Officers and Directors have the following address:
The Stop&Shop Supermarket Company, 1385 Hancock Street, Quincy, MA 02169.
TOWN OF SOUTH WIINDSOR _
PLANNING&ZONING COMMISSION
APPLICATION
Application No: g`
Official Receipt Date:
Receipt No:
..___.
APPLICANT: Richard S. Kelley and The Stop & Shop Supermarket Company
PROJECT NAME: Town Center
ADDRESS: 1725 Ellington Road
OWNER OF RECORD ON LAND RECORDS: Richard S. Kelley and The Savings Bank of Rockville
ADDRESS: 1744 and 1645 Ellington Road
COMPLETE LOCATION OF PROPERTY: Map 51, Lots 2, 3, 4, 5, 6, 8b, 8d, 9 and a portion of Lot 16
on Map 50, fka a portion o Lot 17 on map 50 MUM a po
ASSESSOR'S MAP# PARCEL # ZONE RC
NAME, ADDRESS, TEL& FAX # OF PERSON TO WHOM INQUIRIES SHOULD BE DIRECTED:
Thomas P. Cody, Robinson & Cole LLP 280 Trumbull Street, Hartford, CT 06103-3597
Phone 860-275-8264; fax 860-275-8299
THIS APPLICATION IS FOR: (Check all that apply):
❑ Zone Change to (Public Hearing required and Certified letter to abutters required)
❑ Subdivision/Resubdivision ❑ Open Space Subdivision (Public Hearing Required)
❑ Subdivision ❑ Minor ❑ Major
❑ Resubdivision (Public Hearing Required) ❑ Minor ❑ Major
❑ Conditional Approval
❑ Special Exception to Article (Public Hearing, Certified letter to abutters required)
® Site Plan of Development
❑ General Plan of Development
❑ Earth Filling (Sec. 15) and/or Earth Removal (Sec. 14 - Public Hearing required)
❑ Regulation Amendment: ❑ Zoning ❑ Subdivision (Attach proposed amendment)
❑ Temporary and Conditional Permit for
❑ Major Home Occupation for
❑ Other (explain in detail)
An Application Pending sign is required to be posted on the property for all applications ten (10) days
prior to being heard by the Co n.
Si tu f pplic Signature o ope Owner
Project Narrative
Site Development Plan Application by
Richard S. Kelley and The Stop & Shop Supermarket Company for the
South Windsor Town Center
INTRODUCTION
The Town Center is located at the intersection of Buckland Road, Ellington Road and Sullivan
Avenue. This existing development contains a mix of different uses, including retail, office,
banking, and elderly housing. The Town Center is a neighborhood center that primarily services
the residents of South Windsor and the traffic on abutting roads. Retail projects occurring in
nearby Manchester and Vernon have detracted from the viability of the Town Center. Currently
25%of available space in the Town Center is vacant.
The proposed project provides an anchor for the Town Center—a Stop& Shop supermarket—
that will fill a community need for a grocery store and that will increase the economic viability
of the Town Center. The proposed development plan will increase the overall area of the
shopping center by approximately 47,435 s.f. (26%), while retaining the same aesthetics and
viewscape from the abutting roadways. The project will mitigate the impact of traffic through
the addition of a new traffic signal on Buckland Road. This Project Narrative provides
information on fundamental site planning issues associated with the Project.
PROJECT DESCRIPTION
The existing Town Center is located on 21.8 acres and consists of 176,165 s.f. of building area.
Uses on the site include office, banking, retail and elderly housing. In addition, approximately
13,000 s.f. of additional office space was approved but has not been constructed yet.
The Project will include the demolition of 12,077 s.f. of existing retail space and the elimination
of 8,000 s.f. of previously approved but unbuilt office space. This area will be replaced by a
64,067 s.f. supermarket with a 12,504 s.f. mezzanine. In addition, 3,445 s.f. of retail space will
be constructed adjacent to the supermarket to enhance the integration of the existing building and
the new construction. The Project results in a net increase of approximately 47,435 s.f. of
building area over what is approved and built on the site.
There are currently 545 parking spaces on-site. The Project will reorient some of these spaces
and add approximately 194 new spaces. Access to the Town Center will remain at the existing
driveway locations. The Terry Office Park driveway on Buckland Road will be widened and a
traffic signal will be added. An additional 2.9 acres of land is being added to the property in the
southwest corner of the site, bringing the total area of the Town Center to 24.7 acres.
ZONING
The site is located in the Restricted Commercial (RC)zone district where supermarkets,retail
and office uses are allowed with site development plan approval from the Planning and Zoning
Commission. The Project layout conforms to all of the use, dimensional, bulk, and area
requirements of the Zoning Regulations, with the exception of parking stall sizes, for which a
waiver is requested, as described below.
The Zoning Regulations currently require parking stalls to be 10 feet wide by 20 feet deep in the
RC zone district. The size of the parking spaces shown in the application is 9 feet wide by 18
feet deep. An alternate layout for the Project has been developed which provides for parking
spaces 10 feet wide by 20 feet deep, but this layout is believed to be less desirable than what is
proposed. The Applicants are requesting a waiver pursuant to Zoning Regulations section 13.4
to use 9 foot by 18 foot parking spaces because they believe that it creates a better plan.
Specifically, the waiver request is being made for the following reasons:
1. The use of 9 foot by 18 foot spaces results in a substantial increase in the amount of green
space that can be added to the parking field and will therefore reduce the amount of storm
water runoff.
2. It is recognized that 9 foot by 18 foot parking spaces are allowed as of right in the abutting
Gateway Development Zone.
3. It is well documented that 9 foot by 18 foot parking spaces are sufficient to provide
convenient customer parking with ample room to maneuver a vehicle.
If the Planning and Zoning Commission desires,the Applicants would be willing to further
reduce the area of parking by agreeing to place up to 44 parking spaces in"reserve." Specific
locations for these reserved parking spaces are noted on the plot plan. The Applicants would be
willing to initially landscape these areas instead of paving them. If the parking is ever needed in
the future,the Applicants would request permission to change some or all of the areas back to
parking. The reserved spaces will allow for additional green space to be provided for
landscaping, which will reduce storm water runoff.
VISUAL CONSIDERATIONS
The Four Corners area(formerly known as the Five Corners area)is a landmark in South
Windsor. Within the past five years the intersection has been widened by the Connecticut
Department of Transportation(ConnDOT). The Town has also constructed stone walls at the
intersection to create more of a village feel and has informally adopted a policy not to widen the
intersection further.
2
Lawn Panel
A lawn panel of about 70 feet in width is located along Ellington Road and lends character to the
existing Town Center. The buildings along Ellington Road create a very attractive street facade
with a village feel and also screen the bulk of the retail stores. Currently approved plans for the
Town Center include an additional 5,400 s.f. building located on Ellington Road and an 8,000
s.f. building located near Buckland Road. Neither building has been built. The proposed layout
with the new Stop& Shop ensures that the 70 foot-wide lawn panel along Ellington Road is
maintained. The parking lot for the as yet unbuilt 5,400 s.f. building has been relocated so that
the proposed building will be built in line with the other buildings, and its associated parking will
be located behind the building to maintain a consistent lawn along Ellington Road.
Gazebo
A second visual consideration is the gazebo and lawn area within the Town Center. These
elements are not readily visible from the surrounding roadways; however,they are prominent
features once you enter the site from any of the driveways.
The importance of the gazebo and a surrounding lawn is recognized as a predominant feature in .
the proposed site design. The gazebo and surrounding lawn area have been located on the
Buckland Street approach to provide an attractive transition into the Project in the same general
location as the current structure. The gazebo area includes walkways,pedestrian level lighting
and landscaping.
Building Architecture
The architectural style of the proposed supermarket will be compatible with the existing New
England village style structures already located on the site. The proposed building elevation
depicts the transition between the existing and new buildings. The supermarket will contain two
gables along the front roof line,two entry/exit points into the building, clear glass windows into
the building sales floor area, clapboard and brick facade materials. The color of the clapboard,
fascia panels and brick will match the existing buildings in the Town Center.
The supermarket will be set back approximately 1,000 feet from Ellington Road and
approximately 300 feet from Buckland Road. Existing buildings are located between the
proposed Stop& Shop building and the surrounding roadways. These existing buildings and the
setback from surrounding roads will result in very little change to the existing viewscape from
surrounding roadways. Once the site is entered, the building architectural style will be consistent
with surrounding structures.
Although the easterly side of the supermarket will largely be screened from Buckland Road by
existing buildings,the wall will be enhanced with brick, accent bands and columns to match the
front elevation. In addition, a planted panel will be provided at the base of the building. Roof
top units for the building will be screened. Plantings and walls will screen loading and service
areas, where appropriate.
3
Courtyard
A courtyard is proposed along the west side of the supermarket. The courtyard will contain a
circular raised brick planter with a cap for sitting, benches, pedestrian lighting and landscaping.
The courtyard will provide an outdoor space near the supermarket to wait for or meet people.
The area also serves as a transition between the existing storefronts and the new building.
Landscaping and Site Lighting
Landscaping will consist of plantings within the parking lot and around the perimeter of the
supermarket building. Landscaping within the parking area complies with the requirements of
the Zoning Regulations. A heavy landscaping screen is proposed for the southern end of the
Project to screen the rear of the supermarket building.
Site lighting will be consistent with the existing lighting in the center. Pole heights, including
bases, will be 32.5 feet, for which a waiver is requested from the Commission. Lights will be
screened to prevent glare from escaping the site. Site lighting complies with the requirements
contained in the Zoning Regulations.
TRAFFIC
Traffic associated with the proposed supermarket has been thoroughly studied to ensure that the
surrounding roadway network is not burdened by the Project. The existing Town Center is
serviced by a signalized full service access drive on Ellington Road, a full service entrance and
restricted right out driveway on Buckland Road near CVS, and an interconnection with the Terry
Office Park abutting to the south. The Terry Office Park has two driveways onto Buckland
Road. The southern driveway is full movement and unsignalized. Buckland Road was
reconstructed by ConnDOT in approximately 1995 and serves as a connection with Route 84 and
the retail segments of Manchester.
Construction of the proposed Stop& Shop Supermarket will add approximately 47,500 s.f.to the
shopping center. Accounting for additional building area and the supermarket use, the new
supermarket is estimated to approximately double the Town Center driveway traffic volumes
during the peak hours only. The surrounding roadway network can handle the additional traffic
generated by the proposed supermarket with improvements to the Terry Office Park southerly
driveway.
Traffic capacity at the Four Corners intersection at peak hours is somewhat constrained by the
already large number of vehicles which approach on Ellington Road(eastbound) and make a left
onto Sullivan Avenue(northbound). The number of left turning vehicles for this movement
brings the intersection to near full capacity during the weekday p.m. peak hour in its present
condition. This same capacity restriction was predicted in a study commissioned by the Town
completed by Wilbur Smith Associates, dated 1997. As a result of the Wilbur Smith study,the
Traffic Committee adopted a recommendation that they did not want to see further widening
(i.e., double left turn lane for the Ellington Road approach)at the Four Corners. "
4
To allow the Town to remain consistent with this recommendation, the Applicants have proposed
a traffic signal at the southerly Terry Office Park driveway. This signal will provide northbound
vehicles exiting the Town Center with an alternate exit that will not increase the warrant for an
additional left turn lane at the Ellington Road approach. These vehicles can exit at Terry Office
Park and proceed straight through the Four Corners intersection. The new signal will also result
in construction of a protected left turn lane into Terry Office Park off Buckland Road. This left
turn lane will improve safety at the intersection, which has historically had a high incidence of
rear end accidents.
The traffic study included in the application establishes that with a new signal at Terry Office
Park,the Four Corners intersection and the Terry Office Park intersection will operate at
acceptable levels of service with the proposed supermarket.
ALTERNATE SITES
A previous proposal was submitted for a supermarket to be located on the east side of Buckland
Road at Deming Street. This site received considerable opposition due to impacts associated
with using currently undeveloped land for a new commercial use and due to traffic
considerations unique to that site. Other sites in Town have been evaluated for location of a new
supermarket. These other sites have been determined to be less desirable than the Town Center
site because they are predominantly undeveloped land with similar constraints as the previous
Deming Road site.
The Town Center property is unique in that it is already developed. The environmental impacts
associated with adding a supermarket to an existing 176,000 s.f. mixed use center are
substantially less than starting with a site which is currently undeveloped. For the most part,the
infrastructure, including access,utilities, drainage, and parking, are already in place at the
existing shopping center.
The alternative of locating the supermarket within the existing Town Center and performing
relatively minor upgrades to the infrastructure is believed to be far superior than pursuing a site
that is currently undeveloped.
STORM DRAINAGE
The proposed project will result in an additional two acres of impervious area within the project
limits. Runoff from the property is collected in a closed drainage system, discharges to a
stormwater detention system on the northwest corner of the property and is then picked up by a
State drainage system located in Ellington Road. The State drainage system outlets into a
tributary of the Podunk River and continues to flow north and west. The existing on-site
drainage system is in good working order and does not have a history of flooding, erosion, or
other failures. The detention basin treats runoff prior to being discharged from the site.
The Project will maintain the same drainage patterns as the existing site. Enlarging the existing
detention basin will mitigate the increase in peak rate of runoff caused by the additional
pavement. This system has been sized to match the existing runoff rates in all storm events,
5
I }
from a 2-year storm through a 100-year storm. All new catch basins installed will contain sumps
and hoods to collect sediment and floating contaminants. Drainage in the rear service area will
be collected and treated with a Vortechnics unit to assure any contaminants in the runoff are
pretreated before discharge into the stormwater detention basin.
As a result of these measures, the peak rates of runoff and the quality of runoff should remain
consistent with the current site characteristics.
SOUND
Sound generated from the project will conform to the South Windsor Sound Ordinance and the
State of Connecticut sound regulations. Rooftop HVAC equipment will be fitted with low speed
fans and acoustic screens to reduce sound levels. The compressor units are located within the
proposed building and an acoustic louver will be used for ventilation of the compressor room
area. The generator is fitted with a special muffler system to silence the noise. It is noted that
delivery vehicles currently service the existing stores in approximately the same location.
Screening and buffering will be enhanced with this plan. An 8 foot high solid timber screen wall
is proposed to be installed between the abutting commercial office property and the loading
zone. This buffer will serve as both a sound barrier and visual barrier. The appearance of the
buffer will be enhanced with plantings.
DELIVERY VEHICLES/TRASH
Tractor trailer delivery vehicles load into the store through a sealed loading dock. Sound and
any litter which may be generated from the loading operation is retained within either the truck
unit or the building.
Trash is handled through two sealed compactor units. The compactor units are loaded from
inside the store. One of the compactor units is used for dry goods. The second compactor unit is
water tight to prevent any materials from running out of the unit. The rear loading areas are
appropriately sized so there is no need for outside storage of pallets or other materials waiting to
be picked up for further processing.
The Project will displace four existing tenants, each of which receives daily deliveries for their
businesses. Dumpsters service these existing facilities and goods are stored on open loading
docks, all of which will be eliminated with the Project.
6
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1540 SULLIVAN AVENUE - SOUTH WINDSOR, CONN. 06074
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soe•co AREA CODE 860 / 644-2511
October 3, 2000
CERTIFIED MAIL
Thomas P. Cody, Esquire
Robinson & Cole LLP
280 Trumbull Street
Hartford, CT 06103-3597
Re: Appl 00-23P, Stop & Shop
Dear Attorney Cody:
We regret to inform you that the Planning and Zoning Commission, at its September
19, 2000, meeting denied your request for a site plan addition/modification for a
64,000 sq. ft. grocery store on the westerly side of Buckland Rd. and southerly side of
Ellington Rd. at Town Center, RC zone.
The reason for denial is noncompliance with the following zoning regulations (Section
9, Architecture and Design Review):
9.1.1 Intent
9.1.1.f: To preserve the special character of existing neighborhoods;
9.1.1.g: To promote the development of a harmonious character in newly
developing area.
9.1.2 Criteria for Plan Evaluation
9.1.2.b.(4): Compatibility with the Plan of Development of the Town.
9.1.2.b(2): Effect on the health, safety and general welfare of the community;
9.1.2.b.(5): Location and dimensions of public and private streets and common
drives;
9.1.3 Standards
9.1.3.a: Relationship of buildings to site;
9.1.3.b: Relationship of buildings and site to adjoining area;
9.1.3.b.3: Harmony in texture, lines and masses is required. Monotony shall
be avoided.
Sincerely,
�UQ 0• � 16/1L,.,
Walter J. Mealy, Chairman
Planning and Zoning Commission
cc: Richard Kelley, RSK Kellco
j June 27,2000 CONNECTICUT LAW JOURNAL Page 13
I
58 Conn. App. 399 JUNE, 2000 399
Borden v. Planning&Zoning Commission
MILDRED B. BORDEN v. PLANNING AND ZONING
COMMISSION OF THE TOWN OF NORTH
STONINGTON ET AL.
(AC 18864)
Schaller,Spear and Daly,is.
Syllabus
The plaintiff appealed to the trial court from the decision by the defendant
planning and zoning commission granting site plan approval to the defen-
dant S Co.for the construction of a new building on its property.S Co.
moved to dismiss the plaintiffs appeal on the ground that the action of
the commission constituted "enforcement" of the zoning regulations
and, because those regulations provided for an appeal to the zoning
board of appeals from decisions made in the enforcement of the re.gula-
Lions, the plaintiff had failed to exhaust her administrative remedies.
The trial court agreed with S Co. and dismissed the plaintiffs appeal.
On the granting of certification, the plaintiff appealed to this court
claiming,inter alia,that the commission's action resulted in an expansion
of a nonconforming use,which was prohibited by the zoning regulations,
`•� and,as a result,it constituted a legislative act and not an enforcement
f `• action.Held:
1.The trial court properly concluded that the commission's action consti-
4.
toted enforcement of the zoning regulations;when a zoning commission
j acts on a site plan application,it acts within its administrative capacity
and has no independent discretion beyond determining whether the plan
complies with the site plan regulations and applicable zoning regulations.
2.The plaintiffs claim that she was not given proper notice that she had
to appeal to the zoning board of appeals before appealing to the;Superior
Court,not having been raised in the trial court,was not reviewable here.
3.The plaintiff could not prevail on her claim that an appeal to the zoning
board of appeals would have been inadequate or futile and therefore
the exhaustion doctrine did not apply;nothing in the applicable statutes,
the relevant case law or the regulations prevented the board from
determining that the commission's interpretation of the regulations
I was incorrect.
4.The plaintiff's claim that her status as an abutting landowner afforded
her direct access to the Superior Court without exhausting her adminis-
trative remedies was unavailing;that exception to the exhaustion doc-
trine applies only to actions that are equitable in nature,and the action
here did not seek irounctive relief.
1
I
Argued January 20—officially released June 27,2000
ra8e14 COI�NECTICUT LAW JOURNAL
June 27 June 27 2000
CONNECTICUT LAW JOURNAL Page 15
400 NNE, 2000 58 Conn. App. 399
58 Conn; App. 399
Borden v.i Planning&Zoning Commission JUNE, 2000 401
Ptvicedural History ` Borden v. Planning&Zoning Commission
Stonington. The plaintiff is an abutting landowner. The
Appeal from they decision by the named defendant
facility is located in an area designated as an R-80 resi-
granting the appliclation for site plan approval filed by dential zone and its use therein is nonconforming.'Sec-
the defendant Connecticut Hospital Management Cor- g c
potation, brought to the Superior Court in the judicial don 1102 of the North Stonington zoning regulations
district of New London, where the court, Hon. D. provides that "(nJon-conforming uses shall not be
Michael Hurley,judge trial referee expanded to occupy additional building or outside
to dismiss filed by the defendant Connecticut Hospital space."Section 1103 of the regulations provides that a
Management Co P "building containing a non-conforming principal use
rporation and rendered judgment dis- shall not be enlarged to accommodate an e
missing the appeal] from which the plaintiff, on the such use." g xpansion of
granting of certification, appealed to this court.
Affirmed. On April 13, 1995, Richard Cody, attorney for the
Elissa T. Wright,with whom,on the brief,was Joseph institute, appeared before the commission and
E. Moukawsher, for]the appellant (plaintiff). xpressed his concern that the state had c `Pchanged
g d the
building, fire and safety codes for the institute's forty
Richard S. Cody, with whom, on the brief, was Ana bed facility. Cody wanted to discuss the most a
C. Navarro, for the! a priate way ppro-
appellee (defendant Connecticut Y�adhere to the codes and regulations. The
Hospital Manageme�t Corporation). commission and Cody discussed the
ility of a
zone or regulation change and concluded that the inst
j Opinion
tute should meet with the planning task force, which
SCHALLER, J. The plaintiff, Mildred B. Borden, was working on regulations in that area of the town at
appeals from the judgment of the Superior Court dis- that time.
missing her appeal from the granting by the defendant
Planning and zoning commission of the town of North Cody met with the planning task force on August 2,
Stonin 1995, and stated that the institute was contemplating
gton(comin on)of the application for site plan the construction of a new building. The planning task
approval filed by th� defendant Connecticut Hospital force informed Cody that he should attend a workshop
Management Corporation,doing business as Stonington with the commission and present it with a proposal fo
Institute(institute). n appeal, the plaintiff claims that a regulation change that would allow the institute
the trial court lmprop rly granted the institute's motion to
to dismiss her appeal�on the operate and expand within the residential zone.
ground that she had failed
to exhaust her available administrative remedy of Cody appeared before the commission on October 12,
aPPealing'to the Nottll Stonington zoning board of 1995, discussed the possibility of a regulation change,
appeals (board). We affirm the judgment of the trial submitted regulations for the commission to review and
court. 1
'Section 1 lol.l of the North Stonington zoning regulations provides in
The following relevant facts and procedural history relevant part."Where a use• • •existed before the initial adoption or,subse-
quent
from the record are not in dispute. The institute oper- to the requirements of these gelgulations except for the requiremennforms
t of a
ates an alcohol rehabilitation treatment facility in North special Permit .
the use . . may be continued without a Special Permit."
I
Page iti CONNEc-rlCUT LAW JOURNAL
June 27 June 27 2000
CONNECTICUT LAW JOURNAL Rage 17
L
402 JUNE, 2000 58 Conn. App. 399
Borden v' Planning&Zoning Commission 58 Conn. App. 399 JUNE 2000 403
invited the commission for a site visit of the facility. IJ Borden a. Planning$Zoning Commission
The commission visited the facility on October 28, 1995. [the] surrounding area is not adversely effected." The
After the commission toured the facility, Michael commission did not change the regulations.
Angelides, president of the institute, explained that On March 31, 1997, Cody filed with the commission
changes in health insurance had increased the demand
for detoxification services,and,by way of accommoda- an application for approval of an amended site plan,
tion,the institute wanted to convert some of its rehabili- which proposed the removal of the facility's infirmary
tation beds to de construction of a new one. Althoug
h toxification beds, which would and the, it is not
clear from the application, the record reveals that the
necessitate changes to the buildings. one story infirmary would be replaced by a two story
Cody appeared before the commission a structure that would be built at another location on the
ary 4, 1996. Cod g on Janu- premises.Part of the plan was to utilize the slab beneath
Y and the commission discussed (1) a the current infirm
"footprint tradeoff,�' which, according to the minutes infirmary as a Patio. In a letter included
of the meeting,"involved the swap off of square footage �� the application, Cody stated that the footprint of
which did not affect ithe forty bed facility's nonconform- the old infirmary was 3591.40 square feet while that of
ing use status" andI 2 the new infirmary would be 3607 square feet, or 3784
( ) possible modifications to the square feet if the roof overhang is taken into account.2
regulations that would allow for the expansion of a non-
conforming use.George Brown,the zoning enforcement At an April 3, 1997 commission workshop, Brown
officer, stated that the institute had been allowed to reminded the members that the site plan was in viola-
utilize the footprint tradeoff in the past with respect to don of § 1102 of the regulations and stated that a n
a maintenance building because it did not involve the expansion of even one square foot would be considered
nonconforming, forty bed rehabilitation portion of the an expansion of a nonconforming use.The commission
site. Arthur Pintauror the chairman of the commission, noted that it had previously concluded that the noncon-
stated that the commission would forward the matter forming use was the forty bed rehabilitation facility and,
to its attorney for comment. because the forty bed aspect would not be changing,the
Thomas B. Wilson, attorney for the commission
use would not be expanding. On April 8, 1996,Matthew
,
responded to the commission by way of letter dated Alexander the town planner, submitted a letter to the
commission in which he pointed out that the commis-
Febraary 23, 1996. Wilson wrote that if the commission sion's attorney had, in a February 23, 1996 letter, given
wanted to accommodate the institute, it could either an opinion that an expansion of a nonconforming use
(1) change the regulations to transform the institute's to occupyadditional building or outside space would be
use to permitted or(4) change the regulations to allow in violation of the regulations.Alexander recommended
for the expansion of a nonconforming use. Wilson also that the commission consider holding a public hearing
suggested that in the event that the commission decided due to the controversy over the nonconforming status.
against changing the regulations,the institute also could
The commission convened again on April 10, 1997,
aPP1Y to the board for a variance. He stated " i n some
cases, variances have been upheld to allow expansion m usly to reviewlthe application t witho It voted unani-
of nonconforming uses where a hardship is shown and without a public hear-
of The record reveals that the total building space would be 7391 square feet.
Page 18 CONNE("rICU`r LAW JOURNAL June 27,2000
une 27 2000 CONNECTICUT LAW JOURNAL page IS)
404 JUNI , 2000 58 Conn. App. 399 58 Conn. A . 399
PP NNE, 2000 405
Borden v. Planning&Zoning Commission J
Borden v. Planning&Zoning Commission
ing and discussed,, the issue of swapping footprint dimensions of buildings. The commission concluded the commission was engaged in the "enforcement" of
that that had been] done in the past by the institute the regulations, (2)an appeal to the board would effec-
and other properties in town with the commission's tively deprive her of her right to due process of law,
approval. The commission stated, however, that to uti- (3) an appeal to the board would be inadequate and
lize that method and to be in compliance would require futile and (4) regardless of whether the commission's
that the institute destroy an old pig sty on the property. action was enforcement,she,as an abutting landowner,
In response to an inquiry by one of the members, Cody alleging that she will be damaged as a result of such
explained that the second floor of the infirmary would action, is not required to exhaust the remedy of an
house office space and conference rooms but no addi- administrative appeal. We address these claims in turn.
tional beds. The commission then voted unanimously "A motion to dismiss . . . properly attacks the juris-
to approve the amended site plan with the stipulation diction of the court,essentially asserting that the plain-
that Alexander check it against a checklist and submit tiff cannot as a matter of law and fact state a cause of
a report before the site plan would be signed. On April action that should be heard by the court." (Internal
18, 1997, the commission published notice of its quotation marks omitted.) Gurliacci v. Mayer, 218
approval of the institute's site plan in the Westerly Sun, Conn. 531 544 590 A.2d 914 (1991). "A motion to dis-
a local newspaper. '
miss tests,inter alia,whether,on the face of the record,
By way of an amended complaint, the plaintiff the court is without jurisdiction." Upson v. State, 190
Conn. 622 624 461 A.2d 991
appealed directly to the Superior Court claiming, inter �.J (1983). The motion to
alia,that the expansion of the institute's nonconforming dismiss shall be used to assert (1) lack of jurisdiction
use is in violation of the regulations and that the com- over the subject matter . . . ." Practice Book § 10-31
mission's action was therefore improper. On January (a)• " `[W]here legal conclusions of the [trial] court are
21, 1998, the institute moved to dismiss the plaintiffs challenged,we must determine whether they are legally
amended complaint;arguing that because the action of and logically correct and whether they find support in
the commission wad "enforcement" of the regulations the facts set out in the memorandum of decision . . '
and the regulations provided for an appeal to the board Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn.
217,221,435 A.2d 24(1980).Thus,our review of the trial
from such an action the plaintiff had failed to exhaust
her administrative remedy of appealing to the board. court's ultimate legal conclusion and resulting grant
The institute argued that the court therefore lacked of the motion to dismiss will be de novo." Pitchett v.
subject matter jurisdiction. The trial court agreed with Har(/brd, 247 Conn. 422, 428-29, 722 A.2d 797 (1999).
the institute and dismissed the plaintiffs appeal. We "It is a settled principle of administrative law that, if
granted the plaintiff$petition for certification to appeal an adequate administrative remedy exists, it must be
to this court. exhausted before the Superior Court will obtain juris-
diction to act in the matter. Connecticut Life&Health
In support of her assertion that the court improperly Ins. Guaranty Assn. v.Jackson, 173 Conn.352,358-59,
granted the institute's motion to dismiss her appeal, 377 A.2d 1099(1977);State ex rel. Golembeske v. White,
the plaintiff claims that (1) the trial court improperly
concluded that, in approving the institute's site plan, 168 Conn. 278, 282, 362 A.2d 1354 (1975); see 3 [K.1
� Davis, Administrative Law [3d Ed. 19721 § 20.01; Gen-
I
Page 20 CONNECTICIIT LAW JOURNAL June 27 2000
27 2000 CONNECTICUr LAW JOURNAL
Page 21
406 JUNE, 2000 58 Conn. App. 399 58 Conn. App. 399 JL1NE, 2000 407
Borden v. Planning do Zoning Commission
_ Borden ik Planning&Zoning commission
eral Statutes§§4-175,4-183."Connecticut Mobile Home
Assn., Inc, v. Jensen's, Inc., 178 Conn. 5 le sequently denied the plaintiffs application for site plan
A.2d 285 (1979). approval for an asphalt plant. Id. The plaintiff appealed
to the zoning board of appeals. Id. Thereafter, the com-
mission reinterpreted the regulations, concluding that
The Plaintiff claims first that the trial court im ro asphalt plants were no longer allowed under the regula-
P P- tions. Id., 414. The board then dismissed the appeal
erly concluded that the commission was engaged in the because the commission's reinterpretation had
act of the "enforcement" of the regulations when it
deprived it of jurisdiction.Id.Tlie plaintiff sought a writ
granted the institute's site plan application. We are
not persuaded. of mandamus to compel the board to sustain the appeal
and to issue a certificate approving its application. Id.
In Castellon v. Board of Zoning Appeals, 221 Conn. The trial court granted the relief requested. Id., 415.
374,383,603 A.2d 1168(1992),our Supreme Court noted On appeal, we addressed the issue of whether the
that whether an administrative remedy
is available is board had jurisdiction to hear the plaintiffs appeal from
ascertained by examining the applicable regulations. the commission's denial of site plan approval.In holding
Section 207 of the North Stonington regulations, enti- that it did, we noted first there, as we have here, that
tled"Appeals and Variances,"provides in relevant part: the answer to the question lies in the"particular regula-
"As provided in Section 8-6 of the Connecticut General tions at issue." Id., 416, quoting Castellon v. Zoning
Statutes, any person who claims that there is an error Board of Appeals,supra,221 Conn.383.The regulations
in any order, requirement, or decision made by the in Leo Fedus & Sons Construction Co. provided that
Commission or its agent in the enforcement of these "[ajny person may a
Regulations may appeal such action to the Zoning Board A y appeal to the Zoning Board' of
„3 g Appeals when it is alleged that there is an error in any of Appeals. . . . Whether the plaintiff was required order, requirement, or decision made by the Commis-
to appeal to the board depends, therefore, on whether Sion or Zoning Enforcement Officer related to the
the commission's granting of the institute's site plan enforcement of these regulations." (Internal quotation
application was "enforcement" of the regulations. marks omitted.) Leo Fedus & Suns Construction Co.
The case of Leo Ffdus & Sons Construction Co. v. v. Zoning Board of Appeals, supra, 27 Conn. App. 416.
Zoning Board of Appeals, 27 Conn. App. 412, 606 A.2d Upon noting that "regulations . . . may be enforced
725 (1992), rev'd on other grounds, 225 Conn. 432 623 by a refusal of a building or occupancy permit where
A.2d 1007 (1993), is instructive on the issue. In Leo the construction or use of the land in question is not
Fedus & Sons Construction Co., the commission had in compliance with the pertinent regulations'; (Internal
interpreted the town's regulations to allow an asphalt quotation marks omitted.) id., 417; we concluded that
plant as a permitted lase. Id., 413. The commission sub- the commission's denial of the site plan application
similarly was an enforcement of the regulations.
General Statutes 18-6(a)!provides in relevant part:"The zoning board
of appeals shall have the following powers and duties:(1)To hear and decide The institute argues that Leo Fedus&Sons C017struC-
appeals where it is alleged that there is an error in any order,requirement or Lion Co. is directly on point, while the plaintiff claims
decision made by the official charged with the enforcement of . . . any that it should not be extended to the facts of her case.
. . . regulation . . . ."
The plaintiff argues that, because the regulations pro-
Pap 22CONNECTICUT LAW JOURNAL June 27,20 June 27 2000
CONNECTICI►T LAW JOURNAL Pa eL3
408 JUNE, 2000 58 Conn. App. 399
58 Conn. App. 399 JUNE, 2000 409
Borden a. Planning&Zoning Commission
Borden v. Planning&Zoning Commission
vide that nonconforming uses shall not be expanded 803 of the regulations, entitled "Purpose of Site Plan"
and that the commission was aware of the prohibition
its decision to + provides in part that " the t the institu [ ] Site Plan is '�'an to s application to expand intended to
its nonconforming use constituted a legislative act and Provide the Commission with information that will
was, therefore, not an enforcement action. enable it to determine that (a) the'proposed activity is
consistent with both the specific requirements as well
Although the language of the regulation in Leo as the spirit of these Regulations . . "
Fedus & Sons Constr
uction slightly Co. is sli y different It is clear to us that when a commission acts to grant
from the language in this case, both regulations clearly
state that if the commission's action constitutes a site plan application, its purpose is the same as when
enforcement of the regulations, an appeal from that it acts to deny one: to determine whether the proposal
action must be taken to the board. Contrary to the complies with the regulations. Our holding in Leo
institute's claim, however, that Leo Fedus&Sons Con- Fedus &Sons Construction Co. that the commission's
denial of a site plan application, under a similar regula-
siruation Co. is directly on.point, it differs from this
case in that the action there was a denial of a site plan tion, constitutes "enforcement," is equally applicable
application, while the action in this case is a granting in this case, where the commission granted the insti-
of a site plan application. We turn then to an analysis tute's site plan application. Accordingly, we hold that
of whether Leo Fedus&Sons Construction Co. applies the commission in this case was engaged in the
in this situation. "enforcement" of the regulations and, therefore, that
the plaintiff,had available to her the administrative rem-
"Where the agency, which is generally the zoning "' ed of
commission, acts upon a site plan application, it acts y appealing to the board.
in an administrative capacity."R.Filler,9A Connecticut II
Practice Series: Land Use Law and Practice (2d Ed.
1999) §33.5, p. 166. Pursuant to General Statutes §8-3 the to the board would violate her right to due process
(9), "regulations may require that a site plan be filed of law. The crux of the plaintiffs claim is that she was
with the commission . . . to aid in determining the
conformity of a proposed building,use or structure with not given adequate notice that she must appeal to the
board before appealing to the specific provisions �� P g Superior Co P P ns of such re P Court.The 1 'regulations,"and a site plan plain-
application claims that the notice of the commission's decision,
application may be "denied only if it fails to comply required under § 8-3
with requirements already set forth in the zoning (g), recited a fifteen day appeal
r g
++ period which under regulations." der General Statute� When an agency s §S-8 b is g y undertakes consideration O, the
appeal period for a
of a site I P peals taken to an application, P the
P pp cation, it has no independent discre- Superior Court.
tion beyond determining whether the plan complies The plaintiff argues that because an appeal taken to
with the site plan regulations and applicable zoning the board would have an appeals period of thirty days;
General St
atutes tatutes §8-7• she w regulations incorporated into the site 1 as justified in assuming
plan regulations that the commission's recital g
by reference.Allied Plywood, Inc. v.Planning& Zon-
ing Commission, 2 Conn. App. 506, 512, 480 A.2d 584 'General Statutes b 8-3(g)provides in relevant.
part; "The commission
shall Publish notice of the approval or denial of site plans i
Cert.denied, 194 Conn.808,483 A.2d 612(1984).Section n a newspaper
having a general circulation in the municipality. . . .
I
Pate 24 CUNNECTICUT LAWJOURNAL
June 27 June 27 2000
CONNE(,TICUT LAW JOURNAL Page 25 '
410 JUNE, 2000 58 Conn. App. 399
Borden v. Planning&Zoning Commission 58 Conn. App. 399 JUNE, 2000 411
period meant that an appeal to the Superior Court was �- Borden v. Planning&Zoning Commission the proper avenue. She argues that to hold otherwise cial deference when its determination of a question
would be unfair and in violation of her right to due of law has not previously been the subject of judicial
process of law. scrutiny; Davis v. Norwich, 232 Conn. 311, 317, 654
A.2d 1221 (1995); local boards are entrusted with the
Our review of the record reveals that this claim was function of interpreting and applying their own zoning
not raised in the trial court. An appellate court is not regulations. See New London v. Zoning Board of
bound to consider an issue "unless it was distinctly
Appeals, 29 Conn. App. 402, 405, 615 A.2d 1054, cert.
raised at the trial or arose subsequent to the trial. . . ." granted, 224 Conn. 921, 618 A.2d 528 (1992) (appeal
Practice Book § 60-5. This limitation on appellate withdrawn March 18, 1993).
review applies to all claims,constitutional or otherwise,
that were neither ruled on nor decided by the trial The plaintiff argues also that there is
remedy that
court adversely to the moving party.See Ames v.Sears, the board could fashion and that her appeal to the board
would therefore be futile. We disagree. Nothing in the
Roebuck & Co., 8 Conn. App. 642, 649, 514 A.2d 352,
cert. denied, 201 Conn. 809, 515 A.2d 378 (1986).5 We, applicable statutes,relevant case law,or the regulations
therefore, decline to review this issue, bars the board from determining that the commission's
interpretation, which would allow the building to be
III expanded as long as there were no beds added, was
The I incorrect.
plaintiff claims next that an Again, the board may review decisions of
would be inadequate or futile and that she is,therefore, those enforcing the regulations, which necessarily
excepted from the doctrine of exhaustion of administra-
includes interpretation of the regulations when chal-
tive remedies. We are not persuaded. lenged. General Statutes §8-6; Conto v. Zoning Com-
mission, 186 Conn. 106, 114, 439 A.2d 441 (1982).
Our Supreme Court has recognized certain limited
exceptions to the exhaustion doctrine,including where IV
the available relief is inadequate or futile. O& G Indus- The Plaintiff claims finally that her status as an abut-
tries, Inc. v. Planning & Zoning Commission, 232 ting landowner affords her direct access to the Superior
Conn. 419, 426, 655 A.2d 1121 (1995). In support of her Court. Specifically, she argues that because case law
claim that an appeal to the board would be inadequate recognizes that abutting landowners may bring an
or futile, the plaintiff argues fast that interpretation of Nunction action directly to the Superior Court to cor-
zoning regulations is a question of law that only the rect zoning violations without exhausting their adminis-
Superior Court is competent to determine. While it is trative remedies, she should similarly be .allowed to
true that courts frequently are called on to construe bring this appeal. See, e.g., Cummings v. Tripp, 204
agency regulations, and an agency is not afforded spe- Conn.67,75-78,527 A.2d 230(1987);Reynolds v.Soffer,
SThe plaintiff has not requested review 183 Conn. 67, 69-70, 438 A.2d 1163 (1981).
under the plain error exception
to our well established rule limiting review to claims distinctly raised in the
trial court,and nothing in the record before us presents circumstances to Our review of the applicable cases reveals that, for
this exception to the exhaustion doctrine to apply, the
warrant such review.See Practice Book§6(►-5;we also Chaplin v.Halkuc,
189 Conn. 445,447,4%A.2d 286(1983). plaintiffs action must be equitable in nature.The plain-
tiffs amended complaint does not seek to eWoin the
Page 26 CONNECTICUT LAW JOURNAL June 27,20M
412 JUNE, 2000 58 Conn. App. 412
State v. Lacks
institute from implementing the improvements to the
facility described in its site plan application but,rather,
is an appeal from the commission's decision to approve
the application. The plaintiff, therefore, cannot avail
herself of this exception.
The judgment is affirmed. `
In this opinion the other judges concurred.
STATE OF CONNECTICUT v. ALEXANDER LACKS
(AC 18589)
('Connell,C.J.,and Schaller and Daly,.Is.' R
a VUabus
Convicted of the crimes of felony murder and robbery in the first degree,
the defendant appealed,claiming,inter alia,that he had been deprived
of his right to a speedy trial and that the trial court,therefore,improperly
denied his motion to dismiss.Held:
1.The trial court's determination that the defendant had not been denied
9� a speedy trial was not clearly erroneous; although the delay of more
than two years between the defendant's arrest and trial was sufficient
to warrant an inquiry into whether the defendant's right was violated,
the state's decision to try the actual shooter first did not weigh heavily
against the state,the defendant's trial commenced within thirty days of
his motion for a speedy trial, his motion to dismiss was untimely, his
claim of a general weakening of the witnesses'memories did not"tab-
lish that he was prejudiced,and the replacement of ten members of his
original jury,having occurred after the commencement of trial,had no
bearing on his speedy trial claim.
2. The defendant's claim of prosecutorial misconduct was unavailing;
although the prosecutor commented during closing argument on the
motivation and credibility of the defendant and the defense witnesses,
the defendant did not object to any portion of that argument,and the `
comments did not involve deliberate prosecutorial misconduct or other-
wise egregious or unduly offensive behavior.
3.The defendant's challenge to the trial court's jury instruction on conscious-
ness of guilt was not reviewable, he having neither riled a request to
charge nor objected to the instructions given.
'Tie listing of judges reflects their seniority status on this court.as of
the date of oral argument.
'ZfA
�SOVIN Sf�<�
Town apsloledh V&U&iat
9 1540 SULLIVAN AVENUE • SOUTH WINDSOR, CONN. 06074
soR-co�'e'w AREA CODE 860 /644-2511
November 3, 2000
The Stop & Shop Supermarket Company
Attn: Mr. Robert A. Fuller
75 East Meadow Road
Wilton, CT 06896
RE: Appl. #2489-00, Richard S. Kelley &The Stop & Shop Supermarket
Company, Town Center, 1725 Ellington Road, RC zone.
Dear Mr. Fuller:
At the November 2, 2000 meeting of the Zoning Board of Appeals, the Board
officially received the above referenced application. The Board agreed to hold
the Public hearing on January 4, 2000 as requested. However, the Board
moved to request a 65 day extension of time in which to hold this public
hearing.
Enclosed you will find an extension form, please return to the South Windsor
Zoning Board of Appeals as soon as possible.
Madorig Anthony
Chairperson, Zoning Board of Appeals
Robert A. Fuller
Attorney at Law
75 East Meadow Road
Wilton, CT 06897
203-762-5888
Fax: 203-762-5894
South Windsor Zoning Board of Appeals
1540 Sullivan Avenue
South Windsor, CT 06074 November 3, 2000
Re: Appeal of Richard S. Kelley and The Stop & Shop Supermarket Company
Dear Board Members:
As requested through your staff, as attorney for the applicants in this appeal, an
extension of time to hold the public hearing is granted until February 2, 2000. I understand
that this is a precautionary measure in the event that there are problems with scheduling
the hearing for the January 4th meeting. I would like to resolve on which date the appeal
will be heard by the third week in December if possible so that I can schedule the
necessary witnesses for the hearing. Either January 4, 2000 or February 1, 2000 is
acceptable.
Very truly yours,
Robert A. Fuller
E C E I 'V
NOV U 2000
SOUTH WINDSOR PLANN".1113 DA7PL
Town of • • •
Zoning Board of Appeals
Memo
To: Robert Fuller, Attorney for Stop and Shop Supermarket and Richard S. Kelley
Michael Ziska, Attorney for SW Planning and Zoning Commission
From: Marjorie Anthony, Chair ZBA
CC: Stephen Penny, Attorney for the SW ZBA
Date: 12/12/00
Re: The Stop and Shop Supermarket and Richard S. Kelley ZBA application
At the December ZBA meeting, the Board outlined the procedure that they will be following
relating to the above application.
The hearing will be scheduled for Thursday, March 1, 2001. At the beginning of the hearing,
the Board will entertain its counsel's opinion relating to the ZBA's jurisdiction over the
submitted appeal. The Board is asking both the applicant's attorney and the South Windsor
Planning and Zoning Commission's attorney to be prepared to address the appropriateness
of the Board hearing this appeal, as opposed to the court.
If the Board determines at that time that it is appropriate for it to continue, it will proceed to the
merits of the plan.
If you have any questions, please do not hesitate to contact Michele Lipe, Assistant Director
of Planning at 644-2511, ext. 252.
Thank you for your cooperation in this matter.
•Page 1
CITYPLACEI
MURTHA CULLINA LLP 185ASY STREET
HARTFORD,CONNECTICUT 06103-3469
A T T O R N E Y S A T L A W TELEPHONE(860)240-6000
FACSIMILE(860)240-6150
www.murthalaw.com
MICHAEL A.ZIZKA
(860)240-6I44
MZIZKA@MURTHALA W.COM
March 1, 2001
VIA HAND DELIVERY
South Windsor Zoning Board of Appeals
Town Offices
1540 Sullivan Avenue
South Windsor, Connecticut 06074
Re: Appeal of Richard S. Kellgy and
The Stop & Shop Supermarket Company,
Dear Members of the Board:
This firm is special legal counsel to the South Windsor Planning and Zoning
Commission with respect to the "appeal" filed by Richard S. Kelley and The Stop &
Shop Supermarket Company, whom we will refer to as the "applicants." The
applicants' "appeal" was taken from a decision made by the Commission on September
19, 2000. In addition to filing the pending "appeal," the applicants have also filed an
appeal to the Superior Court from the very same decision on which they are asking this
Board to act.
The applicants' "appeal" letter seems to acknowledge that the Zoning Board of
Appeals and the Superior Court cannot both have jurisdiction over their appeal.
However, the applicants indicate that they did not wish to take the chance of filing the
appeal in the wrong place. Their concern stems from a recent decision by the Appellate
Court of Connecticut in the case of Borden v. Planning and Zoning Commission of the
Town of North Stonington (55 Conn. App. 399) (we have attached a copy of the
decision to this letter). In Borden, the court held that a zoning board of appeals in
another town - North Stonington- could hear an appeal from a site plan decision made
by the North Stonington Planning and Zoning Commission. We respectfully advise this
Board, on the basis of very clear and unequivocal language in the Borden decision, as
well as other controlling court decisions, that there is no legal basis for the applicants
to have filed an "appeal" with this Board and that the Board does not have any lawful
jurisdiction to consider it.
B 0 S T 0 N H A R T F 0 R D N E W H A V E N
MURTH- CULLINA LLP
South Windsor Zoning Board of Appeals
March 1, 2001
Page 2
We ask that you review the Borden decision, particularly at pages 406-409. In
those pages, the Appellate Court made it crystal clear that the language of the zoning
regulations is what controls the issue of whether a site plan appeal should be taken to a
zoning board of appeals. The court said the following:
In Castellon v. Board of Zoning Appeals, 221 Conn. 374, 383, 603 A.2d 1168
(1992), our Supreme Court noted that whether an administrative remedy is
available is ascertained by examining the applicable regulations. Section 207
of the North Stonington regulations, entitled "Appeals and Variances," provides
in relevant part: "As provided in Section 8-6 of the Connecticut General
Statutes, any person who claims that there is an error in any order, requirement
or decision made by the Commission or its agent in the enforcement of these
Regulations may appeal such action to the Zoning Board of Appeals . . . ."
Whether the plaintiff was required to appeal to the board depends, therefore, on
whether the commission's granting of the institute's site plan was "enforcement"
of the regulations.
Borden at 406 (highlighting added for emphasis).
Confirming these points on the next page of its Borden decision, the Appellate
Court referred to an earlier decision it had made in a case entitled Leo Fedus & Sons
Construction Co. v. Zoning Board of Appeals, 27 Conn. App. 412 (1992), reversed on
other grounds, 225 Conn. 432 (1993). The court said:
On appeal [in the Leo Fedus case], we addressed the issue of whether the board
had jurisdiction to hear the plaintiff's appeal from the commission's denial of
site plan approval. In holding that it did, we noted first there, as we have here,
that the answer to the question lies in the "particular regulations at issue."
Id., 416, quoting Castellon v. Board of Zoning Appeals, supra, 221 Conn. 383.
The regulations in Leo Fedus & Sons Construction Co. provided that "[a]ny
person may appeal to the Zoning Board of Appeals when it is alleged that there
is an error in any order, requirement or decision made by the Commission or
Zoning Enforcement Officer related to the enforcement of these Regulations."
Borden at 407 (highlighting added for emphasis).
On page 408 of Borden, the court said:
Although the language of the regulation in Leo Fedus & Sons Construction Co.
is slightly different from the language in this case, both regulations clearly
MURTI- A CULLINA LLP
t
South Windsor Zoning Board of Appeals
March 1, 2001
Page 3
state that if the commission's action constitutes enforcement of these
regulations, an appeal from that action must be taken to the board.
(Highlighting added for emphasis).
The Connecticut Supreme Court has made the same decision on this issue. As
the Board may'have noted from the discussion above in this letter, the Appellate Court
referred to a Supreme Court case entitled Castellon v. Board of Zoning Appeals, 221
Conn. 374 (1992) (copy attached). The Court in the Castellon case reviewed the
history of the issue, beginning with a case called Conto v. Zoning Commission, 186
Conn. 106 (1982). In Conto, the Court had held that a rule known as "exhaustion of
administrative remedies" required a person to challenge a zoning commission's
enforcement order to the zoning board of appeals where the local regulations expressly
allowed such appeals. As was true in Borden and Leo Fedus cases, the regulations in
Conto "empower[ed] [the] zoning board of appeals '[t]o hear and decide appeals where
it is alleged that there is an error in any order or decision made by the Zoning
Commission or its Enforcement Officer." 186 Conn. at 112 (highlighting added for
emphasis).
Summarizing the history of the issue in the Castellon decision, the Supreme
Court noted that, even after Conto, the Court had "routinely sanctioned . . . direct
appeals to the court from decisions of zoning and planning and zoning commissions
without requiring prior resort to the local zoning boards of appeals." 221 Conn. at
382. The Court concluded, "These decisions implicitly recognize that the exhaustion
requirement we perceived in Conto was a function solely of the particular regulations
at issue there and is not, as the plaintiffs' argument suggests, required generally by
General Statutes §§ 8-6, 8-8, 8-9 or 8-10." Id. at 383 (highlighting added for
emphasis).
Thus, the Supreme and Appellate Courts have made it very clear that a zoning
board of appeals does not have jurisdiction to hear appeals from decisions by a planning
and zoning commission unless the zoning regulations say so. The South Windsor
Zoning Regulations do not say so. We have attached the operative provisions of the
Zoning Regulations to this letter, and we reprint them beginning on the next page of
this letter:
N URTHA CULLINA LLP
South Windsor Zoning Board of Appeals
March 1, 2001
Page 4
18.4 Zoning Board of Appeals
18.4.1 The Zoning Board of Appeals shall have the following powers
and duties:
a. To hear and decide appeals where it is alleged that there is an
error in any order, requirements or decision made by the Building
Inspector or his assistants.
b. To hear and decide all matters upon which it is required to pass
by the specific terms of the provisions hereunder and the
amendments thereto. The Board shall hear and decide upon applications
for Special Exception where specifically granted the authority within
these regulations; all other Special Exception applications shall be
decided by the Planning and Zoning Commission. Subject to appropriate
conditions and safeguards, the Board may grant a special exception as
provided herein when in its judgment the public convenience and welfare
will be substantially served and the appropriate use of neighboring
property will not be substantially or permanently injured.
c. To determine and vary the application of the zoning laws and
regulations in harmony with their general purpose and intent and with
due consideration for conserving the public health safety, convenience,
welfare and property value solely with respect to a parcel of land where,
owing to conditions especially affecting such parcel but not affecting
generally the district in which it is situated, a literal enforcement of such
zoning laws and regulations would result in exceptional difficulty or
unusual hardship.
(Highlighting added for emphasis).
The foregoing regulations expressly give the Board the power to hear appeals
only from "the Building Inspector or his assistants." There is no authority whatsoever
to hear appeals from decisions of the Commission, under any circumstances.
Consequently, under the rules expressly laid out by the Supreme Court in Castellon and
the Appellate Court in Borden, the Board cannot properly entertain the "appeal" filed
by Mr. Kelley and the other applicants. The Board should dismiss the "appeal" and
allow the applicants to pursue their remedies in the appropriate forum - the Superior
Court.
f
NtURTHA CULLINA LLP
South Windsor Zoning Board of Appeals
March 1, 2001
Page 5
We and the Commission thank the Board for its thoughtful consideration of this
matter.
Very trul ya rs,
7
Michael A. Ziz
GregoHvA. Sharp
Attachments
Section XV111: Administration and Enforcement
SECTION XVI11: ADMINISTRATION AND
ENFORCEMENT
Enforcement and Penalties
s
18.1.1 It shall be the duty of the Planning Director or designee to enforce the provisions of these
regulations and to make such orders and decisions as may be necessary to carry out the intent
thereof.
18.1.2 The Zoning Enforcement Officer shall institute any appropriate action or proceeding to
prevent the unlawful erection, construction,alteration,repair or conversion of any building or
structure, of the unlawful use of land; to restrain, correct or abate such violations; to prevent
the occupancy of said building, structure or land; or to prevent any illegal act, conduct,
business or use in or about the premises. Whenever such acts shall be in contradiction to the
provisions of these regulations,penalties shall be as provided by the General Statutes.
18.2 Applications and Permits
18.2.1 It shall be unlawful to commence, for any purpose, the construction or alteration of any
building or excavation for any building or structure or to commence any use of land or
buildings until the application and plans thereof shall have been approved by the Building
Inspector and a written permit issued by him.
18.2.2 The Building Inspector shall require that the application for the building permit and the
accompanying plot plan or land use shall contain all the information necessary to enable the
Zoning Enforcement Officer to ascertain whether the proposed building and land use
complies with the provisions of these regulations. No building permits or land use permit
shall be issued until the Zoning Enforcement Officer has certified that the proposed building
or alteration or land use complies with all provisions of these regulations.
18.23 Application for a Zone Change
The procedures to be followed by the applicant when applying for a zone change are:
a. Application forms shall be submitted, in triplicate, with a$50.00 application fee.
b. Proof of ownership, or valid option to buy the property, shall be submitted by the
applicants, including parcel number and map numbers as recorded in the Town
Assessor's Office.
c. Maps shall be submitted in triplicate, showing dimensions of the property to the nearest
foot, acreage, current zone and zone change request, and names of current property
owners within 500 feet in all directions, as recorded in the Town Assessor's Office. In
addition, applicant is required to include acreage of all parcels (or part thereof) contained
within the proposed zone change area, and acreage of all parcels (or part thereof) located
within 500 feet of the proposed zone change. Geodetic and topographical survey maps,
with a scale of 1"= 100' shall be used.
d. When the area requested for a zone change is within 500 feet of an abutting town line,
this information will be clearly indicated on the map and the application.
207
--- —.,"AAr,&%�Suianons
e. The applicant, or his representative, will be required to appear at the Public Hearing
the zone change application. The information presented by the applicant at the Public
Hearing shall consist of the following:
1. How the proposed zone change compares with the Comprehensive Plan of
Development.
2. How the land for the proposed zone change shall be secured from flooding g and other
3. How the land upstream and downstream in the same watershed as the land pro osed
for the zone change shall be secured from flooding and other dangers. p
4. How the land for the proposed zone change shall be served by water, sewers e
transportation, and other public utilities. g
5. How the proposed zone change will affect any wetlands in the area.
f. The applicant shall be responsible for displaying a sign
advertising the zone change application, on the property,to be visible from all ublic
streets, at least ten(10)continuous days prior to the Public Hearing. p
1
g. If approval is granted, the procedure to be followed is:
The applicant shall submit a plot plan W' = 40') showing distance and bearings of all t
boundary lines and acreage of the parcel or parcels of land where the zone change was
granted. The plot plan shall be drawn in accordance with the riles and regulations of the
State Board of Registration for Professional Engineers and Land Surveyors, and shall be
stamped and signed by the Registered Land Surveyor and submitted
transparent polyester on black and
film.
h. This map shall be stamped and signed by the PIanning and ZoningCommission
by the applicant in the Office of the Town Clerk. An dr and fried
within ninety (90) days following approval by the Commrissionotor w thin ninetycorded
days of the date upon which such maps taken as approved by reason of the failure o the
Commission to act, shall become null and void. Except that the Commission may extend
the time for filing for two (2) additional period of ninety (90) days, and the map shall
remain valid until the expiration of such extended time. No map may be recorded or filed
by the Town Clerk until approval has been endorsed thereon by the Commission; and the
filing or recording of a map without such approval shall be void. Upon filing of this map,
effective date of the approved zone change shall be the dat
the zoning map in the Town Clerk's Office shall be changed to reflect the new zone. The
I8.3 Certificate of Occupancy e of filing of the map.
18.3.1 No occupation or use of land for purposes permitted shall be started, and no building
hereafter erected or altered in any zone shall be occupied or used in whole or in part for a n
purposes until a Certificate of Occupancy shall have been issued by the B y
stating that the premises or building complies with all the provisions f these iregul regulations.
Certificate of Occupancy shall be applied for at the same time that the Be issued
uilding Permit or
Land Use Permits applied for; and, if approved by the Building Inspector,
within ten (10) days after the notification by the permittee that the premises hare all b ready for
occupancy.
208
4 ,
Section XVIII: Administration and Enforcement
18.3.2 The Building Department shall maintain a record of all Certificates and copies shall be
furnished upon request to any person who has a proprietary or tenancy interest in the building
affected.
18.4 Zoning Board of Appeals
18.4.1 The Zoning Board of Appeals shall have the following powers and duties:
a. To hear and decide appeals where it is alleged that there is an error in any order,
requirements or decision made by the Building Inspector or his assistants.
b. To hear and decide all matters upon which it is required to pass by the specific terms of
the provisions hereunder and the amendments thereto. The Board shall hear and decide
upon applications for Special Exception where specifically granted the authority within
these regulations; all other Special Exception applications shall be decided by the
Planning and Zoning Commission. Subject to appropriate conditions and safeguards, the
Board may grant a special exception as provided herein when in its judgment the public
convenience and welfare will be substantially served and the appropriate use of
neighboring property will not be substantially or permanently injured.
c. To determine and vary the application of the zoning laws and regulations in harmony
with their general purpose and intent and with due consideration for conserving the public
health safety, convenience, welfare and property value—solely with respect to a parcel of
land where, owing to conditions especially affecting such parcel but not affecting
generally the district in which it is situated, a literal enforcement of such zoning laws and
regulations would result in exceptional difficulty or unusual hardship.
Use Variances: Pursuant to CGS Section 8-6, use variances shall not be granted within
the Rural Residential Zone or any Residence A or AA Zone (including Designed
Residence A-15 and Multi-Family A or AA) for any use not otherwise permitted within
those zones if such use is otherwise permitted either by right or by special exception in
the following zones:
Industrial (Sect. 6.1)
General Commercial (Sect. 5.2)
Restricted Commercial (Sect. 5.3)
Designed Commercial (Sect. 5.4)
Restricted Office (Sect.5.3)
18.4.2 Procedure
a. The Board of Appeals shall hold a Public Hearing on all applications and appeals, and
shall publish a notice of said hearing in a newspaper of general circulation within the
Town at least seven(7)days prior to the hearing date.
b. The Board shall elect a chairman from among its members; and all meetings of such
Board shall be held at the call of the chairman, and at such other times as the Board
determines. Such chairman—or in his absence, the acting chairman—may administer
oaths and compel the attendance of witnesses. The Board shall keep Minutes of its
proceedings showing the vote of each member upon each question.
209
South Windsor Gonmg Kegulations
c. Whenever the Board grants any special exceptions or variance in the Zoning Regulations,
or reverses wholly or partly an order or decision appealed from, it shall state on its
records, the reason why such variance or exception was granted or such reversal made.
d. Any exception, variance or reversal shall become effective at such time as is fixed by the
Board, provided a copy thereof shall be filed in the Office of the Town Clerk; and notice
of such filing shall have been published in a newspaper having a substantial circulation in
the Town of South Windsor before such effective date.
18.5 Amendments
These regulations may from time to time be amended, changed, or repealed, in accordance
with the provisions of Chapter 124, Revision of 1958, of the General Statutes of the State of t
Connecticut.
18.6 Validity
The invalidity of any section or provision of these regulations shall not invalidate any other
section or provision thereof.
18.7 Repeal
All ordinances or regulations hereto passed, inconsistent herewith, are hereby repealed.
18.8 Effective Date: March 7, 1938
Latest edition effective: October 28, 1989; revised through July 15, 1999.
C
210
374 MARCH, 1992 221 Conn. 374 221 Conn. 374 MARCH, 1992 375
Castellon v. Board of Zoning Appeals Castellon v. Board of Zoning Appeals
the issues in its decision on directing the verdict.Before board correctly declined to review the commission's decision;further, r`
directing the verdict,the trial court recessed the trial, since the Branford zoning regulations do not provide for review of the
both sides presented extensive briefs on the same issues commission's decisions by the board,there was no further administra-
presented in this appeal and there was extensive oral tive remedy available from the board for the plaintiffs to exhaust before
resorting to an appeal directly to the trial court pursuant to statute
argument. It makes little sense to require a motion to (S 8-9).
set aside the verdict and require the same argument
all over again. This is tantamount to requiring the liti-
gant to say—"Judge, did you really mean it?"And even Appeal from a decision by the named defendant
if the trial court reconsidered its decision,it would have granting subject to certain conditions,the application
been of no use because the jury had been discharged. for a special use and site development plan approval
Since the plaintiff herself conceded in this case that filed by the plaintiffs for the construction of a three
plain error is the appropriate standard of review, and story building on certain of their real property,brought
since that was therefore the posture in which the case ± to the Superior Court in the judicial district of New Haven
was presented to us, I concur in the result. and tried to the court, Clark, J.;judgment sustaining
the plaintiffs' appeal, from which the defendants, on -
the granting of certification, appealed.Reversed;fur-
HENRY C. CASTELLON,JR., ET AL.v. BOARD OF ZONING then proceedings.
APPEALS OF THE TOWN OF BRANFORD ET AL. ! Norbert W. Church, Jr., for the appellants(defend-
(14276)
ants).
PETERS, C.J., SHEA,GLASS, COVELLO and BORDEN, Js.
Michael R. Caporale,Jr.,for the appellees(plaintiffs).
The plaintiffs appealed to the defendant zoning board of appeals of the town
of Branford from the decision of the defendant town planning and zoning BORDEN, J. The dispositive issue of this appeal con-
commission refusing to delete certain conditions from its approval of
the plaintiffs'application for a special use and site development plan cerns the scope of our decision in Conto v.Zoning Com-
for the construction of a building on their real property.The board, mission, 186 Conn. 106, 439 A.2d 441(1982).In Conto,
on determining that it lacked jurisdiction over an appeal from a deci- we held that an aggrieved property owner in the town
sion of the commission,denied the plaintiffs'appeal.The plaintiffs'sub- of Washington could not appeal a zoning commission's
sequent appeal to the trial court,which held that the board did have
jurisdiction to hear the appeal from the commission's decision,was sus- administrative decision directly to the Superior Court,
tained,and the defendants,on the granting of certification,appealed but was required instead to exhaust the applicable
from that judgment.Held that,because the statutes governing zoning administrative remedies by appealing first to the
matters do not require that all administrative decisions of zoning or
planning and zoning commissions must first be appealed to local zon- Washington zoning board of appeals. Id., 114. This
ing boards of appeals before they can be appealed to the Superior Court, appeal raises the question of whether,on the one hand,
the trial court improperly determined that the board should have heard that decision turned on the particular regulations of
the plaintiffs'appeal from the decision of the commission;since under the town of Washington or, on the other hand, such
the Branford zoning regulations,the zoning enforcement officer,and
not the commission,is"the official"charged with the enforcement of an exhaustion requirement is implicit in Our statutes
the zoning regulations within the meaning of the statute(S 8-6)providing governing such appeals and is therefore of general
for appeals to zoning boards from the decisions of such officials,the applicability.
376 MARCH, 1992 221 Conn. 374 221 Conn. 374 MARCH, 1992 377
Castellon v. Board of Zoning Appeals Castellon v. Board of Zoning Appeals
The defendants, the zoning board of appeals(board) The plaintiffs thereafter appealed to the Superior
and the planning and zoning commission(commission) Court, naming both the commission and the board as
of the town of Branford, appeal from the judgment of defendants. The court, viewing the issue before it as
the trial court sustaining the zoning appeal of the plain- whether the board had jurisdiction to review a decision
tiffs.' The board had denied an appeal taken to it by of the commission,determined that under Conto v.Zon-
the plaintiffs from a decision of the commission.From ing Commission, supra, "[t]he correct manner to appeal
that decision of the board, the plaintiffs appealed to the Commission's decision [lay) in an appeal to the
the trial court,which held that the board did have juris- Board in the first instance and only if then unsuccess-
diction to hear the plaintiffs' appeal. ful before the Board, to the Superior Court.112 Accord-
ingly,Appellate the court sustained the plaintiffs' appeal. This
pp granted certification to appeal, appeal followed.
and we transferred the appeal to this court pursuant
to Practice Book § 4023. We reverse. ! The defendants claim that Conto does not control this
case, that the Branford zoning regulations are differ-
The facts are undisputed. In February, 1989, the ent from those of the town of Washington that we con-
plaintiffs applied to the commission for a special use i strued in Conto, and that our statutes governing zoning
and for site plan approval in order to construct a three ' matters do not mandate that all administrative deci-
story building on the plaintiffs' real estate located in sions of zoning or planning and zoning commissions
a"Center Business BC District"in Branford.The first must first be appealed to the local zoning board of
floor of the building was to contain offices, and the sec- appeals before they are appealed to the Superior Court.
and and third floors were to be residential apartments. The plaintiffs, to the contrary, argue that Conto does
The basement was to contain a laundry room and stor- control this case, and that General Statutes § 8-6
age space for the tenants, and part of the basement requires that any administrative decision by a planning
was to be unfinished. The commission approved the and zoning commission must first be appealed to the
application subject to three conditions, two of which , local zoning board of appeals before it is appealed to
were that(1)the unfinished part of the basement"shall the court. We agree with the defendants that there is
have a ceiling height no greater than 6 ft."and the stor- no such requirement.
age and laundry areas "shall not be converted to any
other use," and (2) final engineering details shall be In Conto, we concluded that the town zoning regula-
adjusted "as requested by Town Engineer." After the tions vested in the zoning commission itself the power
commission had denied the plaintiffs'request to delete of enforcement of the local residential zoning regula-
these two conditions, the plaintiffs appealed to the tions.Id., 110-11.Although the regulations in that case
board, which, on October 10, 1989, denied the plain- provided that the commission "may appoint a Zoning
tiffs' appeal on the ground that it had no jurisdiction z Although the court properly viewed the issue before it as involving the
over an appeal from a decision of the commission. jurisdiction of the board,in dictum it opined that the two conditions imposed
'The plaintiffs are the named plaintiff,Henry C.Castellon,Jr.,and Ann
by the commission on the plaintiffs'special use and site plan approval were
not supported by the zoning re g plaintiffs
Castellon, Phillip Castellon, Christine Castellon, Anthony Castellon and addressed the merits of that renmati the a 'thou h decline to nsider u
Mary Castellon. that issue and leave it to the full consideration of the trial court upon remand.
378 MARCH, 1992 221 Conn. 374 221 Conn. 374 MARCH, 1992 379
Castellon v. Board of Zoning Appeals Castellon v. Board of Zoning Appeals
Enforcement Officer to determine violation of these § 8-8,which refers to "any officer, department,board
Regulations,to order corrections or termination of such or bureau of any municipality, charged with the
violations and to perform other functions as delegated enforcement of any order, requirement or decision of
by the Commission"; id., 110-11 n.4; there is nothing said board,"5 and in conjunction with General Statutes
in the opinion indicating that such an officer had been § 8-12,6 which provides for enforcement of zoning regu-
appointed. We held that General Statutes § 8-3 (e)3 lations "by the officer or official board or authority
expressly permitted zoning commissions to provide for designated therein," § 8-6 permitted "zoning boards
the manner of enforcement of zoning regulations, and of appeals to review the actions of any local officer,
that "[a]lthough the statutes permit delegation of board or commission that has been designated by local
authority to a zoning enforcement officer; see, e.g., regulations to be the official charged with the enforce-
General Statutes §§ 8-3 (f), 8-11a, 8-12; 3 Rathkopf, ment of local zoning regulations." Id., 113-14.
Law of Zoning and Planning (4th Ed. 1981) § 45.01; s The relevant part of General Statutes(Rev.to 1979)S 8-8 provided:
they do not expressly or by implication require such Is FROM BOARD TO COURT.REVIEW BY SUPREME COURT.Any per-
a delegation." Conto v.Zoning Commission, supra, 112. son or persons severally or jointly aggrieved by any decision of said board,
or any person owning land which abuts or is within a radius of one hun-
We further concluded in Conto that the "town zon- dred feet of any portion of the land involved in any decision of said board,
ing regulations could legally provide that appeals from or any officer,department,board or bureau of any municipality,charged
enforcement decisions of a town zoning commission with the enforcement of any order,requirement or decision of said board,
must,in the first instance,be taken to the town's zon- may,within fifteen days from the date when notice of such decision was
published in a newspaper pursuant to the provisions of section 8-3 or 8-7,
ing board of appeals." Id., 113. The Washington zon- as the case may be,take an appeal to the superior court for the judicial
ing regulations "empower[ed] its zoning board of district in which such municipality is located,which appeal shall be made
appeals`[t]o hear and decide appeals where it is alleged returnable to said court in the same manner as that prescribed for civil
actions brought to said court."
that there is an error in any order or decision made 6 The relevant part of General Statutes(Rev.to 1979)S 8-12 provided:
by the Zoning Commission or its Enforcement Officer.' "PROCEDURE WHEN REGULATIONS ARE VIOLATED.If any g
buildin or struc-
Washington Zoning Regulations §•18.1.1." Id. We ture has been erected,constructed,altered,converted or maintained,or
rejected the argument that this provision violated Gen- any building,structure or land has been used,in violation of any provision
c , of this chapter or of any bylaw,ordinance,rule or regulation made under
eral Statutes § 8-6a because "the the words the official authority conferred hereby,any official having jurisdiction,in addition to
in § 8-6 preclude review by a zoning board of appeals other remedies,may institute an action or proceeding to prevent such unlaw-
„ � P g
of the action of a commission. Id. Instead, we held F. ful erection,construction,alteration,conversion,maintenance or use or
that when read in conjunction with General Statutes to restrain,correct or abate such violation or to prevent the occupancy of
such building,structure or land or to prevent any illegal act,conduct,busi-
5 General Statutes$8-3(e)provides:"The zoning commission shall pro- ness or use in or about such premises.Such regulations shall be enforced
vide for the manner in which the zoning regulations shall be enforced." by the officer or official board or authority designated therein,who shall
4 General Statutes S 8-6 provides in pertinent part:"The zoning board be authorized to cause any building, structure, place or premises to be
of appeals shall have the following powers and duties:(1)To hear and decide inspected and examined and to order in writing the remedying of any con-
appeals where it is alleged that there is an error in any order,requirement dition found to exist therein or thereon in violation of any provision of the
or decision made by the oj�cial charged with the enforcement of this chap- regulations made under authority of the provisions of this chapter or,when
ter or any bylaw,ordinance or regulation adopted under the provisions of the violation involves grading of land or the removal of earth,to issue,in
this chapter . . . ."(Emphasis added.) writing,a cease and desist order to be effective immediately."
380 MARCH, 1992 221 Conn. 374 221 Conn. 374 MARCH, 1992 381
Castellon v. Board of Zoning Appeals Castellon v. Board of Zoning Appeals
eals
Finally, in Conto we concluded that neither General meat officer and is replete with references to that offi-
Statutes § 8-97 nor General Statutes § 8-10,8 nor the cer as the official charged with the responsibility of
two sections taken together,permit an aggrieved party
g P Y
enforcingthe applicable regulations. Section 3.1 pro-
direct access to the court when the local regulations vides in relevant part that ]here shall be a Zoning
provide for an intermediate appellate step between the ; Enforcement Officer who may b e also the Building
commission and the court. Id., 115-18. We held that
" since the zoning commission's decision to issue Inspector of the Town of Branford if so appointed.The
[ ] g e a use
Zo
ning Enforcement Officer shall have the res onsi-
. . P
permit was an enforcement action falling under§ 8-6, bill and authority to enforce
Washington 1s free to authorize an appeal of that decl- �' Y the provisions of these
Regulations in accordance with any administrative
sion to its zoning board of appeals by means of[zoning rules and procedures established by the Commission"
regulation] § 18.1.1." Id., 117. Section 3.6 gives the zoning enforcement� g officer the
Conto, therefore, turned on two critical factors: authority to"approve Applications for a Certificate of
(1) our reading of the local regulations as vesting the Zoning Compliance and[to]issue[a]Certificate of Zon-
ing Compliance when he determines that all re
enforcement power in the commission itself, rather quire-
than in a zoning enforcement officer, and thus the meats of these Regulations have been met," and to
implicit designation by those regulations of the com- "require the applicant to furnish measurements of any
mission as the enforcement"official"within the mean- construction features subject to the requirements of
ing of § 8-6; and (2) § 18.1.1 of the Washington these Regulations ." Section 3.7 authorizes the
regulations, which specifically provided for resort to i officer "to inspect or cause to be inspected any land,
the zoning board of appeals to rectify"an error in any ; building or other structure to determine compliance
order or decision made by the Zoning Commission or with these Regulations." Finally, § 3.8 authorizes the
its Enforcement Officer." Neither of these factors is I officer"to issue a Stop Work Order if in his judgment
the use of land buildings and other structures .
present in this case. [is]not being carried out in compliance with these Regu-
Unlike the Washington regulations, § 3 of the Bran- lations,"and"to order in writing the remedying of any
ford zoning regulations, entitled "Administration and condition found to be in violation of these Regulations."
Enforcement," requires that there be a zoning enforce-
Furthermore, § 4 of the Branford regulations,entitled
7 General Statutes§8-9 provides:"Appeals from zoning commissions and •"Zoning Board of Appeals,'.'provides in its entirety as
planning and zoning commissions may be taken to the superior court and, fOlIOWS: "4.1 The Zoning Board of Appeals shall have
upon certification for review,to the appellate court in the manner provided
in section S 8-8." all of the powers and duties prescribed by these Regu-
General Statutes§8-10 provides:"The provisions of sections 8-8 and lations and the General Statutes of the State of Con-
8-9 shall apply to appeals from zoning boards of appeals,Zoning commis- necticut and may adopt rules and procedures necessary
sions or other final zoning authority of any municipality whether or not. t0 exercise its authority." (Emphasis in Original,)Thus such municipality has adopted the provisions of this chapter and whether ,
or not the charter of such municipality or the special act establishing zon- unlike the Washington regulation construed in Conto,
ing in such municipality contains a provision giving a right of appeal from this provision does not interpose an intermediate appel-
zoning boards of appeals or zoning commissions and any provision of any late step between decisions Of the commission and the
special act,inconsistent with the provisions of said sections,is repealed." court.
i
382 MARCH, 1992 221 Conn. 374
221 Conn. 374 MARCH, 1992 383
Castellon v. Board of Zoning Appeals
Castellon v. Board of Zoning Appeals
We conclude, therefore, that since, under the zon- approval by South Windsor commission). These deci-
ing regulations in this case,the zoning enforcement offi- sions implicitly recognize
cer, and not the commission,was "the official charged p Y gnize that the exhaustion require-
g ment we perceived in Conto was a function solely of
with the enforcement of this chapter[124]or any bylaw, the particular
ordinance or regulation adopted under the provisions regulations at issue there and is not, as
p the plaintiffs argument suggests, required generally
of this chapter," within the meaning of General Stat-
utes§ 8-6,the board was correct in declining to review ! by General Statutes §§ 8-6, 8-8,10 8-9 or 8-10.1�
the commission's decision in this case.We conclude fur- This discussion leaves the question of the form of the
ther that, since the regulations in this case do not pro- remand in this case. There is a procedural lacuna in
vide for review of the commission's decision by the these proceedings, because the plaintiffs,in misguided
board, there was no further administrative remedy reliance on Conto, appealed to the trial court from the
available from the board for the plaintiffs to exhaust action of the board, rather than directly to the court _before resorting to an appeal pursuant to General Stat- from the decision of the commission,which would have
utes § 8-9.9 Accordingly, the trial court improperly been the proper procedural route. Conceivably,there-
determined that the board should have heard the plain- fore, on the remand the case could be subject to a
tiffs' appeal from the decision of the commission, motion to dismiss by the defendants because the plain-
Our conclusion is buttressed by the fact that we have
tiffs had not filed an appeal to the court from the deci-
routinely sanctioned similar direct appeals to the court sion of the commission.The defendants do not suggest
from decisions of zoning and planning and zonnn such a draconian result,however, and they should not
g com-
be heard to complain that the case arrived at the proper
missions without requiring prior resort to the local zon-
ing boards of appeals. See,e.g., TLCDevelopment,Inc. place by virtue of two steps rather than one. Further-
; more, the commission was made a party defendant,
v.Planning&Zoning Commission, 215 Conn. 527, 577 '
A.2d 288 (1990) (appeal from denial of site plan I along with the board, in the plaintiffs' appeal to the
p trial court. Under these circumstances, we deem it
approval by Branford commission);Schwartz v.Plan- i
ping&Zoning Commission, 208 Conn. 146, 543 A.2d i°General Statutes S s 8(b)provides:"Except as provided in subsections
1339 (1988) (appeal from denial of site plan approval ' (c)and(d)of this section and sections 7-147 and 7-147i,any person aggrieved
' by any decision of a board may take an appeal to the superior court for
by Hamden commission); Goldberg v.Zoning Commis- the judicial district in which the municipality is located.The appeal shall
sion, 173 Conn. 23, 376 A.2d 385 (1977)(appeal from be commenced by service of process in accordance with subsections(e)and
denial of site plan approval by Simsbury commission); (f)of this section within fifteen days from the date that notice of the deci-
Marandino v. Planning & Zoning Commission, 21 i sion was published as required by the general statutes.The appeal shall
be returned to court in the same manner and within the same period of
Conn. App. 421, 573 A.2d 768 (1990) (appeal from
denial of site plan approval by Greenwich commission); time for civil actions brought to that court."
11 Indeed,the plaintiffs acknowledge that their interpretation of Conto
Allied Plywood,Inc. v.Planning&Zoning Commission, v.Zoning Commission, 186 Conn. 106,439 A.2d 441(1982),and General
2 Conn.App. 506,480 A.2d 584,Bert.denied, 194 Conn. statutes S 8-6"would involve a dramatic change in current appeal proce-
808,483 A.2d 612(1984)(appeal from denial of site plan dunes"and that at least"a limited amount of confusion and inconvenience
would occur."They therefore urge that a decision in their favor should apply
e See footnote 7, supra. only prospectively. Suffice it to say that we should be most reluctant to
construe any statute so as to lead to such problematic results.
f
384 MARCH, 1992 221 Conn. 384 221 Conn. 384 MARCH, 1992 385
Dunham v. Dunham Dunham v. Dunham
appropriate that,pursuant to General Statutes§ 8-8(p),12 Action to recover damages for,inter alia,the defend-
on the remand the trial court should retain the case ant's trespass upon and unlawful use of certain of the
and consider it as an appeal from the decision of the plaintiff's real property, and for other relief, brought
commission. to the Superior Court in the judicial district of Litch-
field, where the defendant filed a counterclaim, and
The judgment is reversed, and the case is remanded where the court, Pickett, J., granted the plaintiff's
for further proceedings in accordance with this opinion. motion for summary judgment on the defendant's
counterclaim and rendered judgment thereon, from
In this opinion the other justices concurred.
which the defendant appealed. Affirmed.
I
CARL M. DUNHAM, .JR. v. ROGER S. DUNHAM Michael E. Grossmann,with whom,on the brief,was
(14280)
Timothy Brignole, for the appellant (defendant).
Norman J. Voog, with whom,on the brief,was Allen
SHEA, CALLAHAN, COVELLO, BORDEN and BERDON,JS, j Gary Palmer, for the appellee (plaintiff).
The plaintiff sought,inter alia,to recover for the defendant's alleged unlaw-
ful use of the plaintiff's airport.The defendant filed an answer,sev- COVELLO, J. This is an action for trespass to real
eral special defenses and a counterclaim seeking, inter alia, the
imposition of a constructive trust in his favor on the airport property. property SeelSlTlg damages and an injunction based llpOri
The action here was the third in ongoing litigation concerning the owner- ! the defendant's alleged unlawful use of the plaintiff's
ship of certain real property originally belonging to the parties'mother airport located in New Milford. The dispositive issue
and father.The trial court granted the plaintiffs motion for summary on appeal is whether the doctrine of res judicata acts
judgment on the counterclaim and rendered judgment thereon,from -
which the defendant appealed.Held that the trial court properly deter- as a bar t0 the prosecution Of the Counterclaim.We con-
mined that prosecution of the counterclaim was barred by the doctrine elude that it does and, therefore, we affirm the judg-
of res judicata;the defendant's claims of constructive trust,lack of con- merit Of the trial court that s0 concluded.
sideration and undue influence in connection with the transfer of the
airport property to the plaintiff were either addressed or could have
been addressed in an earlier action that was determined by a judgment The plaintiff, Carl M. Dunham, Jr., and defendant,
in the plaintiffs favor. Roger S. Dunham, are brothers. This is the third
suit'in their ongoing litigation concerning conflicting
Argued November 8, 1991—decision released March 10, 1992
claims to the ownership of certain real property origi-
12 General Statutes S 8-8(p)provides:"The right of a person to appeal ! nally belonging to their deceased father and mother.2
a decision of a board to the superior court,and the procedure prescribed ;
in this section,shall be liberally interpreted in any case where a strict adher-
ence to these provisions would work surprise or injustice.The appeal shall defendant had unlawfully entered the plaintiff's airport
be considered to be a civil action and,except as otherwise required by this property located in New Milford. The plaintiff sought
section or the rules of the superior court,pleadings may be filed,amended
or corrected,and parties may he summoned,substituted or otherwise joined, 'See Dunham v.Dunham,217 Conn.24,584 A.2d 445(1991),and Dun-
as provided by the general statutes." ! ham v.Dunham, 204 Conn. 303, 528 A.2d 1123(1987).
This provision is derived from Public Acts 1989,No.89-356,which took 8 The multigenerational character of this seemingly endless dispute is simi-
effect October 1,1989.General Statutes§8-9 applies the provisions of$8-8 lar to the eternal Chancery proceedings in Jarndyce v.Jarndyce. See C. y
to appeals from decisions of zoning and planning and zoning commissions. Dickens, Bleak House(1853).
58 Conn. App. 399 JUNE, 2000 399
Borden v.Planning&Zoning Commission
MILDRED B. BORDEN v. PLANNING AND ZONING
COMMISSION OF THE TOWN OF NORTH
STONINGTON ET AL.
(AC 18864)
Schaller,Spear and Daly,Js.
Symbus
The plaintiff appealed to the trial court from the decision by the defendant
planning and zoning commissiongranting site plan approval to the defen-
dant S Co.for the construction of a new building on its property.S Co.
moved to dismiss the plaintiffs appeal on the ground that the action of
the commission constituted "enforcement" of the zoning regulations
and, because those regulations provided for an appeal to the zoning
board of appeals from decisions made in the enforcement of the regula-
tions,the plaintiff had failed to exhaust her administrative remedies.
The trial court agreed with S Co. and dismissed the plaintiffs appeal.
On the granting of certification, the plaintiff appealed to this court
claiming,inter alia,that the commission's action resulted in an expansion
of a nonconforming use,which was prohibited by the zoning regulations,
and,as a result,it constituted a legislative act and not an enforcement
action.Held:
1.The trial court properly concluded that the commission's action consti-
tuted enforcement of the zoning regulations;when a zoning commission
acts on a site plan application,it acts within its administrative capacity
and has no independent discretion beyond determining whether the plan
complies with the site plan regulations and applicable zoning regulations.
2.The plaintiff's claim that she was not given proper notice that she had
to appeal to the zoning board of appeals before appealing to the Superior
Court,not having been raised in the trial court,was not reviewable here.
3.The plaintiff could not prevail on her claim that an appeal to the zoning
board of appeals would have been inadequate or futile and therefore
the exhaustion doctrine did not apply;nothing in the applicable statutes,
the relevant case law or the regulations prevented the board from
determining that the commission's interpretation of the regulations
was incorrect.
4.The plaintiff's claim that her status as an abutting landowner afforded
her direct access to the Superior Court without exhausting her adminis-
trative remedies was unavailing;that exception to the exhaustion doc-
trine applies only to actions that are equitable in nature,and the action
here did not seek injunctive relief.
Argued January 20—officially released June 27,2000
vaav�a —1, dv U1LL.41.L• june L'/ zuui
400 JUKE, 2000 58 Conn. App. 399 58 Conn. App. 399 JUNE, 2000 401
Borden v. Planning&Zoning Commission
Borden v. Planning&Zoning Commission
Stonington. The plaintiff is an abutting landowner. The
Phroceduml History facilit
y is located in an area designated as an R-80 resi-
Appeal from the decision by the named defendant dential zone and its use therein is nonconforming.'Sec-
granting the application for site plan approval filed by tion 1102 of the North Stonington zoning regulations
the defendant Connecticut Hospital Management Cor- provides that "[n]on-conforming uses shall not be
poration, brought to the Superior Court in the judicial expanded to occupy additional building or outside
district of New London, where the court, Hon. D. space." Section 1103 of the regulations provides that a
Michael Hurley,judge trial referee, granted the motion "building containing a non-conforming principal use
to dismiss filed by the defendant Connecticut Hospital shall not be enlarged to accommodate an expansion of
Management Corporation and rendered judgment dis- such use."
missing the appeal, from which the plaintiff, on the
granting of certification, appealed to this court. On April 13, 1995, Richard Cody, attorney for the
Affirmed. institute, appeared before the commission and.
expressed his concern that the state had changed the
Elissa T. Wright,with whom,on the brief,was Joseph building, fire and safety codes for the institute's forty
E. Moukawsher, for the appellant (plaintiff). bed facility. Cody wanted to discuss the most appro-
Richard S. Cody, with whom, on the brief, was Ana priate way to adhere to the codes and regulations. The
C Navarro, for the appellee (defendant Connecticut commission and Cody discussed the possibility of a
Hospital Management Corporation). zone or regulation change and concluded that the insti-
tute should meet with the planning task force, which
Opinion was working on regulations in that area of the town at
SCHALLER, J. The plaintiff, Mildred B. Borden, that time.
appeals from the judgment of the Superior Court dis- Cody met with the planning task force on August 2,
missing her appeal from the granting by the defendant 1995, and stated that the institute was contemplating
Planning and zoning commission of the town of North the construction of a new building. The planning task
Stonington(commission)of the application for site plan force informed Cody that he should attend a workshop
approval filed by the defendant Connecticut Hospital with the commission and present it with a proposal for
Management Corporation,doing business as Stonington a regulation change that would allow the institute to
Institute (institute). On appeal, the plaintiff claims that operate and expand within the residential zone.
the trial court improperly granted the institute's motion
to dismiss her appeal on the ground that she had failed Cody appeared before the commission on October 12,
to exhaust her available administrative remedy of 1995, discussed the possibility of a regulation change,
appealing to the North Stonington zoning board of submitted regulations for the commission to review and
appeals (board). We affirm the judgment of the trial `Section 1101.1 of the North Stonington zoning regulations provides in
Court. relevant part:"Where a use. . .existed before the initial adoption or subse-
quent amendment of these Regulations,and where such use. . . conforms
The following relevant facts and procedural history to the requirements of these regulations except for the requirement of a
from the record are not in dispute. The institute oper- Special Permit . . . the use . . . may be continued without a Special `
ates an alcohol rehabilitation treatment facility - Permit."
in North
UUIVAVL'UAAUUT LAW JUUHNAL June 27,20( june L!,LUUV .Avunivru,
402 JUNE, 2000 58 Conn. App. 399 58 Conn. App. 399 JUNE, 2000 403
Borden v. Planning&Zoning Commission Borden v. Planning&Zoning Commission
invited the commission for a site visit of the facility. [the] surrounding area is not adversely effected." The
The commission visited the facility on October 28, 1995. commission did not change the regulations.
After the commission toured the facility, Michael On March 31, 1997, Cody filed with the commission
Angelides, president of the institute, explained that an application for approval of an amended site plan,
changes in health insurance had increased the demand which proposed the removal of the facility's infirmary
for detoxification services,and,by way of accommoda- and the construction of a new one. Although it is not
tion,the institute wanted to convert some of its rehabili- clear from the application, the record reveals that the
tation beds to detoxification beds, which would one story infirmary would be replaced by a two story
necessitate changes to the buildings. structure that would be built at another location on the
Cody appeared before the commission again on Janu- premises.Part of the plan was to utilize the slab beneath
ary 4, 1996. Cody and the commission discussed (1) a the current infirmary as a patio. In a letter included
"footprint tradeoff," wltich, according to the minutes with the application, Cody stated that the footprint of
of the meeting,"involved the swap off of square footage the old infirmary was 3591.40 square feet while that of
which did not affect the forty bed facility's nonconform- the new infirmary would be 3607 square feet, or 3784
ing use status" and (2) possible modifications to the square feet if the roof overhang is taken into account 2
regulations that would allow for the expansion of a non- At an April 3, 1997 commission workshop, Brown
conforming use.George Brown,the zoning enforcement reminded the members that the site plan was in viola-
officer, stated that the institute had been allowed to tion of § 1102 of the regulations and stated that an
utilize the footprint tradeoff in the past with respect to expansion of even one square foot would be considered
a maintenance building because it did not involve the an expansion of a nonconforming use.The commission
nonconforming, forty bed rehabilitation portion of the noted that it had previously concluded that the noncon
site.Arthur Pintauro, the chairman of the commission, forming use was the forty bed rehabilitation facility and,
stated that the commission would forward the matter because the forty bed aspect would not be changing,the
to its attorney for comment. use would not be expanding.On April 8, 1996,Matthew
Alexander, the town planner, submitted a letter to the
Thomas B. Wilson, attorney for the commission, commission in which he pointed out that the commis-
responded to the commission by way of letter dated sion's attorney had, in a February 23, 1996 letter, given
February 23, 1996. Wilson wrote that if the commission an opinion that an expansion of a nonconforming use
wanted to accommodate the institute, it could either to occupy additional building or outside space would be
(1) change the regulations to transform the institute's in violation of the regulations.Alexander recommended
use to permitted or(2) change the regulations to allow that the commission consider holding a public hearing
for the expansion of a nonconforming use. Wilson also due to the controversy over the nonconforming status.
suggested that in the event that the commission decided
against changing the regulations,the institute also could The commission convened again on April 10, 1997,
apply to the board for a variance. He stated, "[i]n some and took up the institute's application. It voted unani-
cases, variances have been upheld to allow expansion mously to review the application without a public hear-
of nonconforming uses where a hardship is shown and 2 The record reveals that the total building space would be 7391 square feet.
rage 10 VV1Vly L•L.111w1 i1nrr dvuiuvtaa. JLL1W G1 Guuu 16SC 1.7
404 JUNE, 2000 58 Conn. App. 399 58 Conn. App. 399 AM, 2000 405
Borden v. Planning&Zoning Commission Borden v. Planning&Zoning Commission
ing and discussed the issue of swapping footprint the commission was engaged in the "enforcement" of
dimensions of buildings. The commission concluded the regulations, (2)an appeal to the board would effec-
that that had been done in the past by the institute tively deprive her of her right to due process of law,
and other properties in town with the commission's (3) an appeal to the board would be inadequate and
approval. The commission stated, however, that to uti- futile and (4) regardless of whether the commission's
lize that method and to be in compliance would require action was enforcement,she,as an abutting landowner,
that the institute destroy an old pig sty on the property. alleging that she will be damaged as a result of such
In response to an inquiry by one of the members, Cody action, is not required to exhaust the remedy of an
explained that the second floor of the infirmary would administrative appeal.We address these claims in turn.
house office space and conference rooms but no addi-
tional beds. The commission then voted unanimously "A motion to dismiss . . . properly attacks the juris-
to approve the amended site plan with the stipulation diction of the court, essentially asserting that the plain-
that Alexander check it against a checklist and submit tiff cannot as a matter of law and fact state a cause of
a report before the site plan would be signed. On April action that should be heard by the court." (Internal
18, 1997, the commission published notice of its quotation marks omitted.) Gurliacci v. Mayer, 218.
approval of the institute's site plan in the Westerly Sun,
Conn. 531, 544 590 A.2d 914 (1991). "A motion to dis-
miss tests inter ilia,whether on the face of the record,
a local newspaper. >
the court is without jurisdiction." Upson v. State, 190
By way of an amended complaint, the plaintiff Conn. 622, 624, 461 A.2d 991 (1983). "The motion to
appealed directly to the Superior Court claiming, inter dismiss shall be used to assert (1) lack of jurisdiction
alia,that the expansion of the institute's nonconforming over the subject matter . . . ." Practice Book § 10-31
use is in violation'of the regulations and that the com- (a). "`[W]here legal conclusions of the [trial] court are
mission's action was therefore improper. On January challenged,we must determine whether they are legally
21, 1998, the institute moved to dismiss the plaintiff's
amended complaint, and logically correct and whether they find support in
lain _
p t, arguing that because the action of the facts set out in the memorandum of decision . .
the commission was "enforcement" of the regulations Pandolphe's Auto Parts, Inc. v.Manchester, 181 Conn.
and the regulations provided for an appeal to the board 217,221,435 A.2d 24(1980).Thus,our review of the trial
from such an action, the plaintiff had failed to exhaust court's ultimate legal conclusion and resulting grant
her administrative remedy of appealing to the board. of the motion to dismiss will be de novo." Pitchell v.
The institute argued that the court therefore lacked Hartford, 247 Conn. 422, 428-29, 722 A.2d 797 (1999).
subject matter jurisdiction. The trial court agreed with "It is a settled principle of administrative law that, if
the institute and dismissed the plaintiffs appeal. We an adequate administrative remedy exists, it must be
granted the plaintiffs petition for certification to appeal exhausted before the Superior Court will obtain juris-
to this court. diction to act in the matter. Connecticut Life&Health
In support of her assertion that the court improperly Ins. Guaranty Assn.v.Jackson, 173 Conn.352,358-59,
granted the institute's motion to dismiss her appeal, 377 A.2d 1099(1977);State ex rel. Golembeske v. White,
the plaintiff claims that (1) the trial court improperly 168 Conn. 278, 282, 362 A.2d 1354 (1975); see 3 [K.]
concluded that, in approving the institute's site plain, Davis, Administrative Law [3d Ed. 1972] §20.01; Gen-
vavava.L,allrU l LAW JUUI2NAL ••�v i.var..rvaa�.u• a.r�rr �vulLivrua L'a.Kc LY
June 27,20(
406 JUNE, 2000 58 Conn. App. 399 _ 58 Conn. App. 399 DUNE, 2000 407
Borden v. planning&Zoning Commission , .. Borden v. Planning&Zoning Commission ;
eral Statutes§§ 4-175,4-183."Connecticut Mobile Home sequently denied the plaintiff's application for site plan
Assn., Inc. v. Jensen's, Inc., 178 Conn. 586, 588, 424 approval for an asphalt plant.Id.The plaintiff appealed
A.2d 285 (1979)., to the zoning board of appeals.Id.Thereafter,the com-
I mission reinterpreted the regulations, concluding that
asphalt plants were no longer allowed under the regula-
The plaintiff claims first that the trial court improp_ tions. Id., 414. The board then dismissed the appeal
erly concluded that the commission was engaged in the because the commission's reinterpretation had
act of the "enforcement" of the regulations when it deprived it of jurisdiction.Id.The plaintiff sought a writ
granted the institute's site plan application. We are of mandamus to compel the board to sustain the appeal
not persuaded. and to issue a certificate approving its application. Id.
In Castellon v. Board of Zoning Appeals, 221 Conn.
The trial court granted the relief requested. Id., 415.
-
374,383,603 A.2d 1168(1992),our Supreme Court noted On appeal, we addressed the issue of whether the
that whether an administrative remedy is available is board had jurisdiction to hear the plaintiff's appeal from
ascertained by examining the applicable regulations. the commissions denial of site plan approval.In holding
� regulations,Section 207 of the North Stonin on re enti-
that it did, we noted first there, as we have here, that
tled"Appeals and Variances,"provides in relevant-part: the answer to the question lies in the"particular regula-
"As provided in Section 8-6 of the Connecticut General tions at issue." Id., 416, quoting Castellon v. Zoning
Statutes, any person who claims that there is an error yx R Board ofAppeals,supra,221 Conn.383.The regulations
in any order, requirement, or decision made by the in Leo Fedus & Sons Construction Co. provided that
Commission or its agent in the enforcement of these "[a]ny person may appeal to the Zoning Board of
Regulations may appeal such action to the Zoning Board Appeals when it is alleged that there is an error in any
of Appeals. . . ."3 Whether the plaintiff was required order, requirement, or decision made by the Commis-
to appeal to the board depends, therefore, on whether sion or Zoning Enforcement Officer related to the
the commission's grantingof the ' enforcement of these regulations." (Internal quotation
a "
lnstitute s site plan.
application marks omitted. Le PP n was o Fedus & Sons Construction enforcement of the regulations. ) Co.
v. Zoning Board of Appeals, supra, 27 Conn. App. 416.
The case of Leo Fedus & Sons Construction Co. v. Upon noting that "regulations . . . may be enforced
Zoning Board of Appeals, 27 Conn.App. 412, 606 A.2d by a refusal of a building or occupancy permit where
725 (1992), rev'd on other grounds, 225 Conn. 432, 623 the construction or use of the land in question is not
A.2d 1007 (1993), is instructive on the issue. In Leo m compliance with the pertinent regulations"; (Internal
Fedus & Sons Construction Co., the commission had quotation marks omitted.) id., 417; we concluded that
interpreted the town's regulations to allow an asphalt the commission's denial of the site plan application
plant as a permitted use. Id., 413. The commission sub- similarly was an enforcement of the regulations.
General statutes§8-6(a)provides in relevant part; "The zoning board The institute argues that Leo Fedus&Sons Construc-
of appeals shall have the following powers and duties:(1)To hear and decide tion Co. is directly on point, while the plaintiff claims
appeals where it is alleged that there is an error in any order,requirement or decision made by the official charged with the enforcement of any that it should not be extended t0 the facts Of her Case.
. . . regulation . • • -" The plaintiff argues that, because the regulations pro-
408 DUNE, 2000 58 Conn. App. 399 58 Conn. App. 399 JUNE, 2000 409
Borden v. Planning&zoning Commission Borden v.Planning&Zoning Commission
vide that nonconforming uses shall not be expanded 803 of the regulations, entitled "Purpose of Site Plan"
and that the commission was aware of the prohibition, provides in part that "[t]he Site Plan is intended to
its decision to grant the institute's application to expand provide the Commission with information that will
its nonconforming use constituted a legislative act and enable it to determine that (a)the proposed activity is
was, therefore, not an enforcement action. consistent with both the specific requirements as well
Although the language of the regulation in Leo' as the spirit of these Regulations . . . ."
Fedus & Sons Construction Co. is slightly different It is clear to us that when a commission acts to grant
from the language in this case, both regulations clearly a site plan application its
state that if the commission's action constitutes p pp � purpose is the same as when
it acts to deny one: to determine whether the proposal
enforcement of the regulations, an appeal from that complies with the re
action must be taken to the board. Contrary to the p regulations. Our holding in Leo
institute's claim, however, that Leo Fedus&Sons Con- Fedus &Sons Construction Co. that the commission s
struction Co. is directly on point, it differs from this denial of a site plan application,under a similar regula
case in that the action there was a denial of a site plan lion, constitutes "enforcement," is equally applicable
in this case, where the commission granted the insti-
application, while the action in this case is a granting tute's site plan application. Accordingly, we hold that
of a site plan application. We turn then to an analysis the commission in this case was engaged in the
of whether Leo Fedus&Sons Construction Co. applies in this situation. "enforcement" of the regulations and, therefore, that
the plaintiff had available to her the administrative rem-
"Where the agency, which is generally the zoning edy of appealing to the board.
commission, acts upon a site plan application, it acts II
in an administrative capacity."R.Fuller,9A Connecticut
Practice Series: Land Use Law and Practice (2d Ed. The plaintiff claims next that requiring her to appeal
1999) § 33.5, p. 166. Pursuant to General Statutes § 8-3 the to the board would violate her right to due process
(9), "regulations may require that a site plan be filed of law. The crux of the plaintiff's claim is that she was
with the commission . . . to aid in determining the not given adequate notice that she must appeal to the
conformity of a proposed building,use or structure with board before appealing to the Superior Court.The plain-
specific provisions of such regulations,"and a site plan tiff claims that the notice of the commission's decision,
application may be "denied only if it fails to comply required under § 8-3 (g),4 recited a fifteen day appeal
with requirements already set forth in the zoning . . . period which, under General Statutes § 8-8 (b), is the
regulations."When an agency undertakes consideration appeal period for appeals taken to the Superior Court.
of a site plan application, it has no independent discre- The plaintiff argues that because an appeal taken to
tion beyond determining whether the plan complies the board would have an appeals period of thirty days;
with the site plan regulations and applicable zoning General Statutes § 8-7; she was justified in assuming
regulations incorporated into the site plan regulations that the commission's recital of a fifteen day appeal
by reference.Allied Plywood, Inc. v.Planning &Zon-
ing Commission, 2 Conn. App. 506, 512, 480 A2d 584, 'General Statutes §8-3 (g)provides in relevant part "The commission ,
1984 .Section shall publish notice of the approval or denial of site plans in a newspaper
cent.denied, 194 Conn.808,483 A 2d 612
having a general circulation in the municipality. . . ."
410 JUNE, 2000 58 Conn. App. 399 58 Conn. App. 399 JUNE, 2000 411
Borden v. Planning&Zoning Commission
Borden v.Planning&Zoning Commission L
period meant that an appeal to the Superior Court was cial deference when its determination of a question
the proper avenue. She argues that to hold otherwise of law has not previously been the subject of judicial
would be unfair and in violation of her right to due scrutiny; Davis v. Norwich, 232 Conn. 311, 317, 654
process of law.
A.2d 1221 (1995); local boards are entrusted with the
Our review of the record reveals that this claim was function of interpreting and applying their own zoning
not raised in the trial court. An appellate court is not regulations. See New London v. Zoning Board of
bound to consider an issue "unless it was distinctly Appeals, 29 Conn. App. 402, 405, 615 A.2d 1054, cert.
raised at the trial or arose subsequent to the trial. . . " granted, 224 Conn. 921, 618 A.2d 528 (1992) (appeal
Practice Book § 60-5. This limitation on appellate withdrawn March 18, 1993).
review applies to all claims,constitutional or otherwise, The plaintiff argues also that there is no remedy that
that were neither ruled on nor decided by the trial the board could fashion and that her appeal to the board
court adversely to the moving party.See Ames v.Sears, would therefore be futile. We disagree. Nothing in the
Roebuck & Co., 8 Conn. App. 642, 649, 514 A.2d 352, applicable statutes,relevant case law,or the regulations
cert. denied, 201 Conn. 809, 515 A.2d 378 (1986).5 We, bars the board from determining that the commission's
therefore, decline to review this issue. interpretation, which would allow the building to be
III expanded as long as there were no beds added, was
incorrect. Again, the board may review decisions of
The plaintiff claims next that an appeal to the board those enforcing the regulations, which necessarily
would be inadequate or futile and that she is,therefore, includes interpretation of the regulations when chat
excepted from the doctrine of exhaustion of administra- lenged. General Statutes § 8-6; Conto v. Zoning Com-
five remedies. We are not persuaded. mission, 186 Conn. 106, 114, 439 A.2d 441 (1982).
Our Supreme Court has recognized certain limited ITT
exceptions to the exhaustion doctrine,including where
the available relief is inadequate or futile. O&G Indus- The plaintiff claims finally that her status as an abut
tries, Inc. v. Planning & Zoning Commission, 232 ting landowner affords her direct access to the Superior
Conn. 419, 426, 655 A.2d 1121 (1995). In support of her Court. Specifically, she argues that because case law
claim that an appeal to the board would be inadequate recognizes that abutting landowners may bring an
or futile, the plaintiff argues first that interpretation of injunction action directly to the Superior Court to cor-
zoning regulations is a question of law that only the rect zoning violations without exhausting their adminis-
Superior Court is competent to determine. While it is trative remedies, she should similarly be allowed to
true that courts frequently are called on to construe bring this appeal. See, e.g., Cummings v. Tripp, 204
agency regulations, and an agency is not afforded spe- Conn.67,75-78,527 A.2d 230(1987);Reynolds v.Soffer,
183 Conn. 67, 69-70, 438 A.2d 1163 (1981).
e The plaintiff has not requested review under the plain error exception
to our well established rule limiting review to claims distinctly raised in the Our review of the applicable cases reveals that, for
trial court,and nothing in the record before us presents circumstances to this exception to the exhaustion doctrine to apply, the
warrant such review.see Practice Book§60-5;see also Chaplin v.Baucus, plaintiff's action must be equitable in nature.The plain-
189 Conn.445,447,456 A2d 286(1983). tiffs amended complaint does not seek to enjoin the
ngc r v UVLV IV L'1,111iU 1 I.H Yv dvunivru, June L'I zuuu '
412 DUNE, 2000 58 Conn. App. 412
State v. Lacks
institute from implementing the improvements to the
facility described in its site plan application but,rather,
is an appeal from the commission's decision to approve
the application. The plaintiff, therefore, cannot avail
herself of this exception.
The judgment is affirmed.
In this opinion the other judges concurred.
STATE OF CONNECTICUT v. ALEXANDER LACKS
(AC 18589)
O'Connell,C.J.,and Schaller and Daly,Js.'
Syllabus
Convicted of the crimes of felony murder and robbery in the first degree,
the defendant appealed,claiming,inter alia,that he had been deprived
of his right to a speedy trial and that the trial court,therefore,improperly
denied his motion to dismiss.Held:
1.The trial court's determination that the defendant had not been denied
a speedy trial was not clearly erroneous; although the delay of more
than two years between the defendant's arrest and trial was sufficient
to warrant an inquiry into whether the defendant's right was violated,
the state's decision to try the actual shooter first did not weigh heavily
against the state,the defendant's trial commenced within thirty days of
his motion for a speedy trial,his motion to dismiss was untimely,his
clai n of a general weakening of the witnesses'memories did not estab-
lish that he was prejudiced,and the replacement of ten members of his
original jury,having occurred after the commencement of trial,had no
bearing on his speedy trial claim.
2. The defendant's claim of prosecutorial misconduct was unavailing;
although the prosecutor commented during closing argument on the
motivation and credibility of the defendant and the defense witnesses,
the defendant did not object to any portion of that argument,and the
continents did not involve deliberate prosecutorial misconduct or other-
wise egregious or unduly offensive behavior.
3.The defendant's challenge to the trial court's jury instruction on conscious-
ness of guilt was not reviewable, he having neither filed a request to
charge nor objected to the instructions given.
r
'The listing of judges reflects their seniority status on this court as of
the date of oral argument.
f
I�
Penny/ Botticello/
O'Brien&Higgins Pc
ATTORNEYS AT LAW
December 7, 2000
Zoning Board of Appeals
Town of South Windsor
1540 Sullivan Avenue
South Windsor, CT 06074
Re: Appl. # 2489-00, Richard S. Kelley & The Stop & Shop Supermarket Company,
Stephen T.Penny Town Center, 1725 Ellington Road, RC Zone
Barry Botticello Dear Board Members:
Kevin M.O'Brien As your attorney in the above-referenced matter, the chairperson has forwarded to me five
questions propounded by member Nadel with respect to this matter. The questions and my
James M.Higgins,Jr. responses thereto are as follows:
1. Does the South Windsor Zoning Board of Appeals (ZBA) have the jurisdiction,
authority, power, or duty to receive, hear, decide, or otherwise act upon the
application of Richard S. Kelley and Stop & Shop Supermarket Co. (Stop & Shop),
which appeals the South Windsor Planning and Zoning Commission's (PZC) denial
of their application for site plan approval?
I am not persuaded that the South Windsor Zoning Board of Appeals has the
jurisdiction or duty to hear the pending appeal from the South Windsor Planning and
Zoning Commission's denial of an application for site plan approval. I base this
opinion on a line of cases culminating in the recent decision of the Appellate Court
for the State of Connecticut, Borden v. Planning; & Zoning Commission, 58 Conn.
App. 399 (2000).
This line of cases began with the Supreme Court decision in Conto v. Zoning
Commission of Town of Washington, 186 Conn. 106 (1982), in which a zoning
\\Server 1\home\Rachael\W ORK\LETTERS\STP\kelley
202 West Center Street
Manchester, Connecticut 06040
PHONE 860.646.3500
FAx 860.643.6292
WESSITE www.manchesterattorneys.com
commission had reserved to itself the enforcement function of issuing zoning
certificates of approval (as opposed to a zoning enforcement officer), and the local
regulations provided for all appeals from the zoning commission to go first to the
zoning board of appeals.
In the case of Castellon v.Board of Zoning Appeals of Town of Branford,221 Conn.
374, 380 (1992), the Supreme Court explained the Conto decision as turning on the
two factors set forth above, namely: (1) the local zoning regulations placed the
enforcement function in the zoning commission; and(2)the regulations specifically
provided for any appeal to correct an error made by the zoning commission to go first
to the zoning board of appeals. Neither of these factors was present in Castellon,and
the court directed an appeal of the zoning commission's conditional site plan approval
to the Superior Court,bypassing the ZBA. Interestingly,in its decision,the Supreme
Court "buttressed" its conclusion by commenting that it had routinely sanctioned
direct appeals to the court from decisions of zoning commissions, and cited among
other cases that of Allied Plywood, Inc. v. Planning&Zoning Commission,2 Conn.
App. 506 (1984), which was an appeal from the denial of a site plan by the South
Windsor Zoning Commission.
In Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals of Town and
Borough of Colchester,27 Conn.App.416(1992),the Appellate Court substantially
broadened this line of cases in concluding that a site plan review is an"enforcement"
function,and as such,is required to be appealed to the zoning board of appeals before
the Superior Court can have jurisdiction over the matter where the local regulations
provide for appeals from such zoning enforcement decisions to go first to the ZBA.
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The Fedus case was subsequently reversed by the Supreme Court,but on other issues.
The Supreme Court did not address the Appellate Court's interpretation that denial
of a site plan approval is an"enforcement" function.
In the Borden case,the Appellate Court again states that a review of the provisions of
the local zoning regulations relating to the appellate jurisdiction of the Zoning Board
of Appeals must be made, and in both the Fedus and Borden cases,those regulations
provided for an appeal to the ZBA of any decision made by the zoning commission
or zoning enforcement officer in the "enforcement" of the regulations, in language
substantially repetitious of Sections 8-6 and 8-7 of the General Statutes.
The South Windsor zoning regulations contain no such specific provision. In the
South Windsor regulations, the "Planning Director or designee", the "Building
Inspector or his assistants", and the "Zoning Enforcement Officer", are variously
designated as discharging these zoning enforcement functions,and,unlike the Fedus
and Borden cases, there is no broad repetition in the regulations of the statutorily-
mandated jurisdiction of the zoning board to hear appeals. The ZBA still, of course,
has vested in it the appellate jurisdiction set forth in Sections 8-6(a)(1)and 8-7 of the
General Statutes, which relate to appeals from zoning officials acting in their
enforcement function. Despite the Appellate Court's finding that"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 in the site plan regulations by reference
(internal citations omitted)",and characterization of such a function as"enforcement"
of the regulations, it is my opinion that an appeal of a site plan review must still be
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brought directly to the court in those municipalities like South Windsor where the
zoning regulations fail to specifically vest broader jurisdiction over appeals in the
ZBA.
2. Do State statutes, the South Windsor charter or ordinances, ZBA by-laws, or other
applicable authority quire that a member of the ZBA who had appeared at the PZC
public hearing on the Stop & Shop site plan application and spoken in favor and
support of it not participate in the Stop & Shop appeal before the ZBA?
Section 8-11 of the Connecticut General Statutes provides in part that"...no member
of any zoning board of appeals... shall appear for or represent any person, firm,
corporation or other entity in any matter pending before the planning or zoning
commission... in the same municipality, whether or not he is a member of the board
or commission hearing such matter". In Luery v.Zoning Board, 150 Conn. 135, 146
1962 it was held to be a violation of Section 8-11 when a member of the Stamford
Zoning Board of Appeals appeared before the zoning commission in his capacity as
executive vice-chairman of the Citizens' Action Council for the Improvement of
Stamford to read a written statement adopted by the board of that organization in
support of a pending application. While the Supreme Court found this conduct to be
in violation of the statute, it did not find that such violation rendered the zoning
commission's "reception of his evidence a reason for denying the application".
Subsequent cases have, however, resulted in a land use agency's decision being
reversed where a violation of Section 8-11 had occurred. In Daly v. Town Planning
&Zoning Commission, 150 Conn. 495 (1963), the court set aside an amendment to
the Fairfield zoning regulations,as a violation of Section 8-11,where a member of the
zoning commission in favor of the amendment had previously appeared before the
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zoning board of appeals in support of a variance to the same effect,though it may be
significant that the member was also the president of the cemetery association which
would have been most directly benefitted by the variance or amendment. And the
appearance of a member of the Ridgefield Zoning Commission before the zoning
board of appeals in support of the party in opposition to a variance, resulted in the
ZBA's denial of the variance being overturned,even though the commission member
had no financial interest in the proceeding and may have been acting in good faith.
Ferguson v. Zoning Board of Appeals, 29 Conn. Sup. 31 (1970). The prohibition of
Section 8-11 applies then whether the offending official was a member of the board
hearing the matter,or appeared before another board as a witness,agent,attorney,or
otherwise by reason of a substantial personal interest in the victory of one of the
parties.Ferguson,_ supra."Personal Interest"has been defined as"either an interest in
the subject matter or a relationship with the parties before the zoning authority
impairing the impartiality expected to characterize each member of the zoning
authority. A personal interest can take the form of favoritism toward one party or
hostility toward the opposing party;it is personal bias or prejudice which imperils the
open-mindedness and sense of fairness which a zoning official in our state is required
to possess. Local governments would, however, be seriously handicapped if any
conceivable interest, no matter how remote and speculative, would require the
disqualification of a zoning official. If this were so,it would not only discourage but
might even prevent capable men and women from serving as members of the various
zoning authorities... The decision as to whether a particular interest is sufficient to
disqualify is necessarily a factual one and depends on the circumstances of the
particular case."Anderson v. Zoning Commission, 157 Conn. 285, 290-291 (1968).
The underlying purpose of Section 8-11 is to avoid the creation of a situation tending
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to weaken public confidence and undermine the sense of security of individual rights
which the property owner must feel assured will always exist in the exercise of zoning
power. Daly, supra, p. 500. The appearance as an advocate by a member of a land
use agency before another such agency in the same municipality is considered to
undermine that confidence.
Predetermination or predisposition by a board member is also by case law an issue
which can be raised by an unsuccessful applicant on appeal. It requires a showing that
the agency member actually made up his or her mind prior to the hearing and was
irrevocably committed to that position no matter what evidence was subsequently
produced at the public hearing. An agency member may, however, have a tentative
opinion on an application prior to the public hearing, and predetermination is a
difficult claim to prove.
In the instant case, apparently two members of the South Windsor ZBA appeared
before the zoning commission in their capacities as members of the town Economic
Development Commission to advocate in favor of approval of the same application
now pending before the ZBA. At the time of their appearance,the members did not,
of course, know that this matter could be appealed to the ZBA. Nevertheless, their
appearances constituted violations of Section 8-11 of the General Statutes. While
neither member would appear to have any pecuniary interest in this matter, or even
any personal interest beyond promoting the economic development of the community
as members of the agency charged with that function, they would nevertheless be
subject to the standards of open-mindedness set forth above, and also with
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maintaining that public confidence in the impartiality of the zoning decision-making
process which the law requires.
In order to preclude an applicant or agency majority from preordaining the agency's
decision on an application by controlling which members sit thereon, neither the
applicant nor the other agency members can require another member to disqualify
himself, and the decision on such disqualification is vested exclusively in the
individual member.
3. Is any decision finally reached by the ZBA on the Stop & Shop appeal subject to
challenge or reversal by the Courts on the basis that a ZBA member who should not
have participated in fact did so?
Yes. Failure of a board member to disqualify himself under circumstances where it
is legally required renders the board's action invalid.Lake Garda Improvement Assoc.
v. Planning and Zoning Commission, 151 Conn. 476 (1964).
4. If the South Windsor ZBA determines that it does not have jurisdiction over the Stop
&Shop appeal of the PZC's site plan denial,could its failure to hold a public hearing
within 65 days of receipt of the application potentially result in the "automatic
approval"of the site plan, should the ZBA's determination be found by the courts to
be erroneous?
An deliberations upon and decision b the South Windsor Zoning Board of Appeals
Y P Y g pp
to not take jurisdiction in this matter should be made at the duly-noticed public
hearing, which is anticipated to be scheduled no earlier than January 4, 2001. The
decision could be made as the opening issue at the public hearing. Any such decision
would,of course,be subject to review by the Superior Court,which could remand the
case to the Board if the decision not to take jurisdiction was erroneous. Such action
7 \\Serverl\home\Rachael\WORK\LETTERS\STP\kelley
by the Board would not lead to an"automatic approval"of the site plan,even if it did
prove to have been in error, as the Board is not subject to such automatic approval
per the decision of the Supreme Court in Leo Fedus & Sons Construction Co. v.
Zoning Board of Appeals, 225 Conn. 432 (1993).
5. What other advice would you give the South Windsor ZBA and its members in
performing their duties and responsibilities with respect to the Stop & Shop appeal
and its ultimate disposition?
I am strongly advising against the Board engaging in any extended colloquy on these
matters at the December 6 meeting. The Board's deliberations and decisions are
obliged to be made in public at a duly noticed meeting of the Board,and as the subject
application does not appear on the December 6 agenda for action, it should not be
dealt with on any substantive basis.
I trust that the foregoing answers are responsive to the Board's concerns. I remain ready to
reply further as may be required.
Very truly yours,
Stephen T. Penny
STP:rfk
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y G 1540 SULLIVAN AVENUE • SOUTH WINDSOR, CONN. 06074
R•co��4 AREA CODE 860 / 644-2511
March 8, 2001
CERTIFIED #P462498154
The Stop & Shop Supermarket Co.
Attn: Mr. Robert A. Fuller
75 East Meadow Road
Wilton, CT 06896
Re: Appl. #2489-00—Richard S. Kelley and Stop & Shop Supermarket, Co., Town Center, 1725
Ellington Road, RC zone
Dear Mr. Fuller:
At the meeting of the South Windsor Zoning Board of Appeals held on March 1, 2001, the Board denied
jurisdiction of appl. #24879-00—Richard S. Kelley and Stop & Shop Supermarket Co., an appeal from
the Planning &Zoning Commissions September 19, 2000 decision denying a site plan appliction on
property located at Town Center, 1725 Ellington Road,RC zone.
The Board voted that the Zoning Board of Appeals does not have jurisdiction to receive,hear, decide or
act upon this application.
Very truly yours,
Robert Warren, Vice Chairperson
Zoning Board of Appeals
RW:dr
cc: Building Department