2772 BPR, LLC v. Planning & Zoning Commission ( 2021 )

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2772 BPR, LLC v. PLANNING & ZONING COMMISSION
OF THE TOWN OF NORTH BRANFORD
(AC 42866)
Prescott, Suarez and Vitale, Js.
Syllabus
The plaintiff appealed to the trial court from the decision of the defendant
planning and zoning commission denying its application to build a facility
to be used for the bulk storage of propane on certain of its real property
located in an industrial district. The zoning regulations included as a
permitted use the bulk storage of propane in this industrial district. The
plaintiff’s site development plan application met the required site plan
requirements and all applicable zoning regulations. The commission held
a public hearing at which town residents testified about their concerns
regarding the application, specifically about potential safety hazards in
the event of an emergency, the location of the facility at the end of a
dead-end street which would potentially limit the ability of emergency
services to access the area, and potential diminishing property values
as a result of the facility being located near their homes. The commission
thereafter denied the plaintiff’s application. On appeal, the trial court
affirmed the commission’s decision, concluding that the commission
properly had considered off-site traffic concerns, the preparedness of
municipal services in an emergency, and the potential impact of property
values when reviewing the plaintiff’s site plan development application.
The plaintiff, on the granting of certification, appealed to this court.
Held that the trial court erroneously concluded that the commission
properly considered off-site factors when it denied the plaintiff’s site
development plan application, and such error likely affected the judg-
ment: the commission erred in its decision to deny the plaintiff’s applica-
tion on the basis that it did not adhere to regulations regarding the
plan of conservation and development and concerns regarding property
values, as the commission had amended its zoning regulations to permit
the bulk storage of propane as of right in the industrial district in which
the property was located and established a conclusive presumption that
such use did not adversely affect the district, and the commission’s
decision reflected that it would have denied the site development plan
application regardless of the plan’s contents because it took issue with
the use of the property as a place for bulk propane storage, even though
the zoning regulations fully permitted that use; moreover, the commis-
sion erred in its consideration of traffic concerns because, although
the commission was permitted to consider traffic concerns for certain
limited, site-specific purposes, the record revealed that the commission’s
concerns were not limited to the site itself, and improperly encompassed
the entire area, the commission did not consider alternatives to the
planned entrances and exits to the property to increase emergency
access that were presented at the public hearing, and, in amending its
regulations to permit the bulk storage of propane, the commission was
aware of the street’s location and accessibility and considered those
factors when making its decision to amend its regulations; accordingly,
the judgment was reversed and the case was remanded with direction
to the commission to approve the plaintiff’s site development plan appli-
cation.
Argued March 3—officially released September 14, 2021
Procedural History
Appeal from the decision of the defendant denying
the plaintiff’s application for site plan approval for cer-
tain of its real property, brought to the Superior Court
in the judicial district of New Haven and tried to the
court, S. Richards, J.; judgment denying the appeal,
from which the plaintiff, on the granting of certification,
appealed to this court. Reversed; judgment directed.
Jeffrey T. Beatty, with whom, on the brief, was Megan
C. Granfield, for the appellant (plaintiff).
Barbara M. Schellenberg, for the appellee (defen-
dant).
Opinion
SUAREZ, J. The plaintiff, 2772 BPR, LLC, appeals
from the judgment of the trial court denying its appeal
from the decision of the defendant, the Planning &
Zoning Commission of the Town of North Branford
(commission), in which the commission denied the
plaintiff’s site development plan application to build a
facility to be used for the bulk storage of propane. On
appeal, the plaintiff claims that the court erred by (1)
upholding the commission’s consideration of off-site
traffic concerns, the preparedness of municipal ser-
vices, and the potential impact on property values when
conducting an administrative review of its site develop-
ment plan application, and (2) raising independently a
reason to deny the appeal that was not one of the bases
for the commission’s decision to deny the application.
We agree with the plaintiff’s first claim, and, accord-
ingly, reverse the judgment of the trial court and remand
the case with direction to render judgment sustaining
the plaintiff’s appeal and directing the commission to
approve the plaintiff’s site development plan applica-
tion.1
The record reveals the following undisputed facts
and procedural history relevant to the plaintiff’s claims
on appeal. The plaintiff is the contract purchaser of
a parcel of land at 40 Ciro Road in North Branford
(property). The property is located in an I-2 industrial
district. See North Branford Zoning Regs., c. 232, art.
II, § 21.1. On August 7, 2014, the commission amended
the town’s zoning regulations to include as a permitted
use in that district the ‘‘[b]ulk storage of propane on
parcels of land south of Route 80, east of Ciro Road
and bounded on all sides at the time of application
by similarly zoned properties.’’ North Branford Zoning
Regs., District—Map Code, Schedule A, Line C-23, p. 7.
This use was coded as ‘‘S,’’ which, pursuant to the
zoning regulations, ‘‘means a use permitted in the dis-
trict as a matter of right, subject to administrative
approval of a site development plan by the [c]ommis-
sion in accordance with § 41 [of the zoning regulations].
. . .’’ North Branford Zoning Regs., c. 232, art. II, § 23.1.
The amended regulations became effective on Septem-
ber 5, 2014. On that date, the plaintiff submitted a site
development plan application to the commission in
which it sought approval to construct on the property
two 30,000 gallon propane storage tanks, a garage, a
connector building, an office building, and canopies.2
On October 2, 2014, the commission held a public hear-
ing on the plaintiff’s application. After hearing testi-
mony from the plaintiff, the commission set aside the
application pending review of the inland wetlands por-
tion of the application. On January 17, 2017, with regard
to the wetlands matter, the Department of Energy &
Environmental Protection issued a final decision in
favor of the plaintiff, which allowed it to proceed with
its application before the commission. The commission
continued the public hearing on the site development
plan application on March 2, March 9, and March 16,
2017. During this period, on March 8, 2017, the plaintiff
revised the site development plan.
The commission was provided with, among other
documents, an ‘‘application referral notification’’ dated
February 16, 2017, which was sent from Carey Duques,
the town planner, to the heads of various town agencies
and commissions. The document provided details about
the application and its status before the commission.
At the bottom of the document was a section titled
‘‘review comments,’’ under which a handwritten com-
ment dated February 27, 2017, stated that the applica-
tion ‘‘meets required site plan requirements & all appli-
cable zoning regulations.’’
Throughout the public hearing, the commission heard
public comment from town residents who opposed the
plan. These residents expressed concern about the
potential safety hazards posed by a bulk propane stor-
age facility in the event of an emergency, such as a
leak, fire, or natural disaster. Residents pointed to the
fact that the property is located at the end of a dead-
end street, which would limit the ability of emergency
services to respond to an incident there. Additionally,
residents who lived near the property testified that they
believed their property values would decrease if a pro-
pane storage facility was located near their homes.
Members of the commission also questioned the
plaintiff and its representatives about their concerns,
including accessibility to the site in the event of any
emergency.3 At the March 16, 2017 meeting,4 Duques
read into the record her correspondences with town
officials regarding questions raised at the March 9, 2017
meeting. Among these correspondences was a letter
from Lieutenant James Lovelace of the North Branford
Police Department, which stated: ‘‘The existing . . .
traffic on Ciro Road has not impacted North Branford
Police when responding to any emergency incident. We
have responded to businesses on Ciro Road for many
different types of emergencies and have not had any
difficulty responding to incidents during the day or
night; therefore, I do not feel that we would have any
difficulty responding to any type of incident on 40 Ciro
Road. . . . In researching our records, I have only
located two parking complaints dating back to 2007.
These parking complaints involved trailers up at the
dead end of Ciro Road. If a parking issue needs to be
addressed in front of these businesses, then that matter
can be brought in front of the North Branford Police
Commission to be investigated. We have not received
any complaints in regards to any entrance issues at Ciro
Road and Crossfield Road.’’ Additionally, an e-mail from
James Buck, the town’s Emergency Management Direc-
tor, provided an assessment of how evacuations would
be conducted in the event of an incident. A portion of
the e-mail stated: ‘‘Individuals located on Ciro Road and
south of 40 Ciro Road currently have no direct roadway
evacuation route available that does not pass near the
incident location. Finding a way to utilize the town-
owned land at the end of Ciro Road to provide safe
access away from Ciro Road would be advisable.’’
On March 16, 2017, the commission voted three to
two to deny the plaintiff’s application. The commission,
citing § 41.2 of the North Branford Zoning Regulations,5
stated in a written ‘‘final motion’’ that the site develop-
ment plan did not meet the following criteria: (1) ‘‘The
site plan is not in conformance with the [p]lan of [c]on-
servation and [d]evelopment’’; (2) ‘‘Neighborhood, the
proposed project is unable to protect property values
of the neighborhood’’; and (3) ‘‘Access, Ciro Road is a
[dead-end] street which limits access both in and out
of the area during an emergency . . . .’’ On March 30,
2017, notice of the commission’s decision was pub-
lished in The Sound.6
On April 10, 2017, the plaintiff, pursuant to General
Statutes § 8-8 (b), timely appealed the denial of the site
development plan application to the Superior Court.
The plaintiff claimed that the commission acted ‘‘arbi-
trarily, illegally, in an abuse of discretion and unlaw-
fully’’ when it denied the site development plan applica-
tion for the reasons stated in its written motion. In its
brief to the court, the plaintiff stated: ‘‘Because the
proposed use was permitted as of right, concerns about
conformance with the plan of conservation and devel-
opment, property values and access were conclusively
presumed to have been considered at the time of the
applicable zoning regulations permitting the proposed
use were adopted by the commission. As a result, the
commission was precluded from basing its decision
upon the reasons it gave for its decision.’’ The plaintiff
further stated: ‘‘Even if the law provided otherwise, the
record before the commission at the time it rendered
its decision does not support its conclusion.’’
In response, the commission, in its brief, relied on
Friedman v. Planning & Zoning Commission, 222
Conn. 262, 608 A.2d 1178 (1992), which the commission
contended ‘‘stands for the proposition that [the] desig-
nation of a use as permitted does not preclude inquiry
into specific matters set forth in applicable [zoning]
regulations.’’ According to the commission, it ‘‘properly
applied the . . . zoning regulations . . . to determine
that the plaintiff’s application must be denied because
it failed to comply with the regulations,’’ and that ‘‘the
record amply support[ed] the reasons cited by the com-
mission in support of its denial.’’
Following an August 20, 2018 hearing, the court denied
the plaintiff’s appeal, concluding that the commission
properly denied the plaintiff’s application. In its memo-
randum of decision dated December 18, 2018, the court
stated that it ‘‘agree[d] with the [commission’s] interpre-
tation of the Friedman holding in addition to its under-
standing of the fact that its regulation[s] require such
an undertaking, under the circumstances presented
here, in this case.’’ The court went on to state: ‘‘The
court, in examining the entire return of record, dis-
agrees with the plaintiff’s contention that it does not
support the commission’s decision. The record shows
that the subject property is located on a dead-end street
with traffic that flows in one direction either way. It
further indicates that the volunteer fire department
lacked adequate preparedness capabilities in the event
of an emergency in order to evacuate residents of Ciro
Road and that there was testimony by lay members of
the public who testified about their concerns regarding
the potential impact such use of the property would
have on the property values. The court is not persuaded
that the law requires an expert witness to present an
opinion as [to] valuation under these facts as there was
no specialized knowledge or training necessary to opine
about the potential impact the potential use of the sub-
ject property would have on property values.’’
Subsequently, the plaintiff filed a petition for certifi-
cation to appeal pursuant to § 8-8 (o) and Practice Book
§ 81-1, which this court granted. Additional facts and
procedural history will be set forth as necessary.
The plaintiff claims that the court erred by upholding
the commission’s consideration of off-site traffic con-
cerns, the preparedness of municipal services, and the
potential impact on property values when conducting
an administrative review of its site development plan
application.7 Specifically, the plaintiff argues that the
court misinterpreted Friedman in concluding that the
case allowed the commission to consider off-site factors
when reviewing the site development plan application.
The commission argues, as it did before the court below,
that Friedman controls the present case, and reiterates
that ‘‘Friedman stands for the proposition that [the]
designation of a use as permitted does not preclude
inquiry into specific matters set forth in applicable [zon-
ing] regulations.’’ We agree with the plaintiff.
We begin by setting forth the standard of review. We
view the plaintiff’s claim as one challenging a legal
conclusion of the court. ‘‘When . . . the trial court
draws conclusions of law, our review is plenary and
we must decide whether its conclusions are legally and
logically correct and find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) Villages, LLC v. Planning & Zoning Commission,
149 Conn. App. 448, 456, 89 A.3d 405 (2014), appeal
dismissed, 320 Conn. 89, 127 A.3d 998 (2015).
General Statutes § 8-3 (g) (1) provides in relevant
part: ‘‘The zoning regulations may require that a site
plan be filed with the commission . . . to aid in
determining the conformity of a proposed building, use
or structure with specific provisions of such regula-
tions. . . . A site plan may be modified or denied only
if it fails to comply with requirements already set forth
in the zoning . . . regulations. . . .’’
When reviewing a site development plan application
for a use permitted as of right in a particular zone,
‘‘a planning commission . . . acts in an administrative
capacity and may not reject an application that complies
with the relevant regulations.’’ Pansy Road, LLC v.
Town Plan & Zoning Commission, 283 Conn. 369, 375,
926 A.2d 1029 (2007) (Pansy Road). In other words,
‘‘[w]hen [a planning commission] undertakes consider-
ation of a site plan application, it has no independent
discretion beyond determining whether the plan com-
plies with the site plan regulations and applicable zon-
ing regulations incorporated into the site plan regula-
tions by reference.’’ Borden v. Planning & Zoning
Commission, 58 Conn. App. 399, 408, 755 A.2d 224,
cert. denied, 254 Conn. 921, 759 A.2d 1023 (2000).
Before examining the applicability of the holding in
Friedman to the present case, it is first necessary to
discuss two cases that came before it. In Beit Havurah
v. Zoning Board of Appeals, 177 Conn. 440, 443, 418
A.2d 82 (1979), our Supreme Court stated that ‘‘[t]he
designation of a particular use of property as a permit-
ted use establishes a conclusive presumption that such
use does not adversely affect the district and precludes
further inquiry into its effect on traffic, municipal ser-
vices, property values, or the general harmony of the
district.’’ (Emphasis added.) This principle was reaf-
firmed in TLC Development, Inc. v. Planning & Zoning
Commission, 215 Conn. 527, 577 A.2d 288 (1990) (TLC).
In TLC, a plaintiff sought site plan approval for a shop-
ping center in a zone in which such use was permitted
as of right. Id., 528. After a public hearing, the defendant
planning and zoning commission denied the applica-
tion, citing concerns about, among other things,
‘‘increased traffic on Route 1’’ and ‘‘increased traffic on
local streets in the vicinity . . . .’’ Id., 528–29. The trial
court sustained the plaintiff’s appeal challenging that
denial, concluding that the defendant ‘‘lacked the
authority to consider [off-site] traffic impact when deter-
mining whether to approve or deny the plaintiff’s site
plan application.’’ Id., 529. Our Supreme Court affirmed
the trial court’s judgment, stating that ‘‘the language of
the Branford zoning regulations [did] not permit [off-
site] traffic considerations to serve as the basis for
denying a site plan application . . . .’’8 Id. In addition
to examining the town’s zoning regulations, the court
relied on the conclusive presumption set forth in Beit
Havurah. Id., 532–33. The court stated that ‘‘the com-
mission’s decision was inconsistent with the fact that
the plaintiff’s application was for site plan approval of
a use that concededly was already fully permitted under
the Branford zoning regulations.’’ (Emphasis added.)
Id., 532.
In Friedman, our Supreme Court addressed its hold-
ings in Beit Havurah and TLC and clarified when a
planning and zoning commission is permitted to con-
sider the traffic consequences of a proposed use that
is permitted as of right. In that case, the plaintiffs
applied for approval of a site plan to construct a three-
story office building in Rocky Hill. Friedman v. Plan-
ning & Zoning Commission, supra, 222 Conn. 263. The
property was located within a commercial zone; id.,
263; in which an office building was a permitted use
‘‘ ‘subject to [s]ite [p]lan [a]pproval in accordance with
[§] 9.4 [of the Rocky Hill Zoning Regulations].’ ’’ Id.,
266. Section 9.46 of the zoning regulations was entitled
‘‘ ‘Criteria for Approval,’ ’’ and ‘‘ ‘specifically require[d]
a traffic study addressing the impact of the proposed
development upon the street system in the area.’ ’’
(Emphasis omitted.) Id. The defendant planning and
zoning commission denied the application for failing to
comply with a number of applicable zoning regulations,
and the plaintiffs appealed to the Superior Court. Id.,
263–64. The court dismissed the appeal, ‘‘concluding
that the plaintiffs’ application had been incomplete in
that it had not been accompanied by an appropriate,
required traffic study.’’ Id., 264.
On appeal to our Supreme Court, the plaintiffs
claimed that the court ‘‘erred in concluding that the
commission could even consider [off-site] traffic issues
in determining their site plan application. Specifically,
the plaintiffs argue[d] that since an office building was
a permitted use in the zone in question, [the] holdings
in TLC . . . and Beit Havurah . . . precluded the
commission’s consideration of any [off-site] traffic mat-
ters.’’ (Emphasis added.) Id. Our Supreme Court dis-
agreed, stating that neither TLC nor Beit Havurah
‘‘[preclude] an examination into the special traffic con-
sequences of a given site plan when the applicable zon-
ing regulations permit it.’’ (Emphasis added.) Id., 266.
The court stated that ‘‘§ 9.46 [of the Rocky Hill Zoning
Regulations] [did] not deal with general matters such
as the volume of traffic that might be generated by an
office building, but rather with specific issues such as
the placement of entrances and exits in order to disturb
arterial traffic minimally and provisions to minimize
the impact of traffic on nearby residential areas. It is
reasonable to conclude that a commission regulation
dealing with the placement of entrances and exits so
as to minimize the disturbance of existing traffic flow
could require, as a predicate, a traffic study concerning
the existing streets so that both the applicant and the
commission would know what volumes of traffic were
likely to be disturbed by the proposed use.’’ Id., 267.
Accordingly, the plaintiffs’ failure to supply a traffic
study provided ‘‘an adequate legal basis’’ for the plan-
ning and zoning commission’s decision to deny the
application. Id., 268.
We note that Friedman did not purport to overrule
Beit Havurah or TLC. Former Judge Robert A. Fuller,
in his treatise, reconciles the holdings of TLC and Fried-
man. Citing to TLC, he states that a planning and zoning
commission ‘‘cannot turn down a site plan because of
traffic problems on streets adjacent to the property.’’
R. Fuller, 9B Connecticut Practice Series: Land Use Law
and Practice (4th Ed. 2015) § 49.18, pp. 153–54. He goes
on to note: ‘‘There is a difference between considering
the special traffic consequences of development under
a particular site plan when the applicable zoning regula-
tions permit it, to be certain that the location of exits
and entrances to the property do not adversely affect
traffic flow, in contrast with attempting to deny a per-
mitted use because of existing off-site traffic volumes
and patterns. The Friedman case should not be con-
strued as overruling TLC . . . by implication or as
adopting a different standard on this issue and can be
considered on its facts to be limited to the proposition
that a zoning commission can require a traffic study to
make sure that the proposed exits and entrances to the
property are safe.’’ (Footnote omitted.) Id., pp. 154–55.
More recently, in Pansy Road, our Supreme Court
reaffirmed the principle set forth in Friedman that
when a landowner has submitted an application for a
permitted use, the planning and zoning commission may
consider off-site traffic conditions ‘‘only for the limited
purpose of reviewing the internal traffic circulation on
the site and determining whether the location of the
proposed [roads and driveways] would minimize any
negative impact of additional traffic to the existing traf-
fic . . . .’’ Pansy Road, LLC v. Town Plan & Zoning
Commission, supra, 283 Conn. 380; see also American
Institute for Neuro-Integrative Development, Inc. v.
Town Plan & Zoning Commission, 189 Conn. App. 332,
342, 207 A.3d 1053 (2019). In Pansy Road, a developer
proposed to subdivide land on Pansy Road, a public
street in Fairfield, into five lots, and to construct a
single-family home on each lot. Pansy Road, LLC v.
Town Plan & Zoning Commission, supra, 371. The
developer planned to build a cul-de-sac named Pansy
Circle, to which each lot would have direct access,
which would intersect with Pansy Road. Id. The town’s
planning and zoning commission, citing concerns about
existing off-site traffic congestion on Pansy Road, voted
unanimously to deny the application. Id., 372–73. The
plaintiff appealed the denial of its application, and the
trial court dismissed the appeal. Id., 370–71. Our
Supreme Court reversed the trial court’s decision and
concluded that the town’s planning and zoning commis-
sion ‘‘did not consider the existing traffic congestion
on Pansy Road for the proper limited, site-specific pur-
pose of addressing traffic flow within the site and enter-
ing and exiting the site.’’ Id., 380. The court further
stated that ‘‘[t]he record reveals no consideration by
the defendant of alternate locations for the intersection
of Pansy Circle and Pansy Road or other similar, prop-
erly limited considerations.’’ Id. In reaching that conclu-
sion, our Supreme Court also quoted from Fuller’s trea-
tise for its analysis of Friedman. Id.; see R. Fuller, 9B
Connecticut Practice Series: Land Use Law and Practice
(3d Ed. 2007) § 49.14, p. 140.
Turning to the present case, the commission, in
reviewing the site development plan application, was
acting in an administrative capacity that limited its dis-
cretion such that it properly could determine only
whether the plan complied with the applicable site plan
and zoning regulations. The commission stated three
grounds for denying the plaintiff’s site development
plan application. We first address the commission’s con-
clusions that ‘‘[t]he site plan [was] not in conformance
with the [p]lan of [c]onservation and [d]evelopment,’’
and that ‘‘the proposed plan is unable to protect prop-
erty values of the neighborhood . . . .’’ In reaching
these two conclusions, the commission relied on §§ 41.2.1
and 41.2.2 of the North Branford Zoning Regulations,
which address the plan of conservation and develop-
ment and concerns about property values, respectively.
Section 41.2.1 provides in relevant part: ‘‘The site devel-
opment plan shall be in conformance with the purpose
and intent of any plan of development . . . adopted
by the [c]ommission and pertaining to the area in which
the use is to be located, particularly in regard to but
not limited to . . . the provision of streets . . . the
setback, bulk and appearance of buildings and other
structures; and . . . the provision and location of land-
scaping features.’’9 North Branford Zoning Regs., c. 232,
art. IV, § 41.2.1. Section 41.2.2 provides: ‘‘The use of
land, buildings, and other structures, the location and
bulk of buildings and other structures and the develop-
ment of the lot shall be of a character as to harmonize
with the neighborhood, to accomplish a transition in
character between areas of unlike character, to protect
property values and to preserve and enhance the
appearance and beauty of the community.’’ North Bran-
ford Zoning Regs., c. 232, art. IV, § 41.2.2.
We reject the commission’s argument that Friedman
permitted it to rely on these criteria to deny the plain-
tiff’s application merely because these criteria are
included in the applicable zoning regulations. A conclu-
sive presumption is one ‘‘that cannot be overcome by
any additional evidence or argument because it is
accepted as irrefutable proof that establishes a fact
beyond dispute.’’ Black’s Law Dictionary (11th Ed.
2019) p. 1435. The conclusive presumption first set forth
in Beit Havurah lists traffic, municipal services, prop-
erty values, and the general harmony of the district
as categories into which zoning commissions are not
permitted to inquire once the commission has permitted
a particular use as of right. Beit Havurah v. Zoning
Board of Appeals, supra, 177 Conn. 443.
As we previously have noted, approximately one month
prior to the plaintiff’s submission of its site development
plan application, the commission amended the zoning
regulations to permit the bulk storage of propane as of
right in the I-2 industrial district in which the property is
located. Doing so established a conclusive presumption
that this use did not adversely affect the district. In
making its decision, the commission presumably had
determined that the use was in conformance with the
plan of conservation and development and would not
negatively impact property values. Otherwise, it would
not have included such a specific use in the regulations.
The holding in Friedman is limited to site specific
concerns that are related to a permitted use. Under
Friedman, the commission properly could consider, for
example, the placement and location of buildings on
the property in order to minimize adverse effects on
property values. The commission’s decision, however,
reflects that it would have denied the site development
plan application regardless of the plan’s contents because
it took issue with the use of the property as a place for
bulk propane storage, even though the zoning regula-
tions fully permitted that use. Accordingly, §§ 41.2.1
and 41.2.2 of the North Branford Zoning Regulations
could not serve as bases for denying the plaintiff’s site
development plan application.
We next address the commission’s decision to con-
sider emergency access to the area in rejecting the site
development plan application. The commission cited
§ 41.2.3 of the North Branford Zoning Regulations in
concluding that ‘‘Ciro Road is a [dead-end] street which
limits access both in and out of the area during an
emergency . . . .’’ Section 41.2.3 is entitled ‘‘Access,’’
and provides in relevant part: ‘‘Provision shall be made
for vehicular access to the lot in such a manner as to
safeguard against hazards to traffic and pedestrians in
the street and on the lot and to avoid traffic congestion
on any street. . . .’’ North Branford Zoning Regs., c.
232, art. IV, § 41.2.3. This section goes on to list criteria
with which a site development plan must comply.10
Although the conclusive presumption established in
Beit Havurah was triggered when the commission per-
mitted this use as of right, the commission was permit-
ted to consider traffic concerns for the limited, site-
specific purposes set forth in Friedman and its progeny.
Our review of the record reveals that the commission’s
traffic concerns were not limited to the site itself, but
rather encompassed the entire area.
We first note that the present case is distinguishable
from Friedman. Unlike in Friedman, there is no indica-
tion that the plaintiff’s application was incomplete or
that the applicable zoning regulations required the
plaintiff to submit a traffic study. Rather, as Duques
stated in her February 16, 2017 memorandum, the appli-
cation ‘‘[met] required site plan requirements & all appli-
cable zoning regulations.’’ Furthermore, in Friedman,
the commission only considered internal traffic on the
property and the means of ingress to and egress from
the property onto the public road. Friedman v. Plan-
ning & Zoning Commission, supra, 222 Conn. 267–68.
In contrast, in the present case, the commission consid-
ered access in and out of the area of Ciro Road, which
is broader than the site itself. In other words, the com-
mission considered traffic on Ciro Road as a whole and
access to the entire street, as well as in neighboring
areas. Thus, the commission’s concerns were not site
specific, and, instead, presumably also applied to other
properties on Ciro Road. Cf. Pansy Road, LLC v. Town
Plan & Zoning Commission, supra, 283 Conn. 379 (‘‘the
consideration of the traffic study in Friedman was lim-
ited to site-specific issues such as internal traffic circu-
lation within the site and the location of exits and
entrances’’).
Furthermore, as in Pansy Road, LLC v. Town Plan &
Zoning Commission, supra, 283 Conn. 380, the record
in the present case reveals that the commission did not
consider alternatives to the planned entrances and exits
to the property. For example, there was evidence pre-
sented that town owned land is located at the end of
Ciro Road, and it was suggested that there might exist
a way to utilize this land to provide safe access for
evacuations in the event of an emergency. The commis-
sion did not inquire as to this possibility.
The commission’s concern about the dead-end nature
of Ciro Road as a whole belies its prior decision to
amend its zoning regulations to permit the bulk storage
of propane as of right on every property on Ciro Road
that is located within the I-2 industrial district. The
commission likely would have had similar concerns
about emergency accessibility if, for example, the appli-
cation pertained to a neighboring property on Ciro
Road. Yet, § 23.1 of the North Branford Zoning Regula-
tions, which the commission amended to permit this
use as of right, specifically refers to Ciro Road as a
means of specifying where in the I-2 district this use
would be permitted. This fact suggests that the commis-
sion was aware of the street’s location and accessibility
when it amended the zoning regulations, and consid-
ered these factors when making its decision. The com-
mission could not then walk back this decision once it
received an application to use a property on Ciro Road
in this manner.
Accordingly, we conclude that the court erred in its
application of Friedman, and erroneously concluded
that the commission properly considered off-site fac-
tors when it denied the plaintiff’s site development plan
application. The plaintiff has demonstrated that the
error likely affected the judgment. We conclude that
the proper remedy is to remand the case to the trial
court with direction to render judgment sustaining the
plaintiff’s appeal and directing the commission to
approve the plaintiff’s site plan application.
The judgment is reversed and the case is remanded
with direction to render judgment sustaining the plain-
tiff’s appeal and directing the commission to approve
the plaintiff’s site development plan application.
In this opinion the other judges concurred.
1
We do not reach the merits of the plaintiff’s second claim because our
conclusion with respect to its first claim is dispositive of the appeal. We
note, however, that even if we were to reach the merits of this claim, the
plaintiff readily would prevail.
In its memorandum of decision dismissing the plaintiff’s appeal, the court
concluded, among other things, that the record contained substantial evi-
dence that ‘‘the volunteer fire department lacked adequate preparedness
capabilities in the event of an emergency in order to evacuate residents of
Ciro Road . . . .’’ As we discuss in more detail later in this opinion, the
commission stated three written grounds for denying the plaintiff’s applica-
tion. None of those grounds can reasonably be interpreted as implicating
the ‘‘preparedness capabilities’’ of the fire department. The court, in opining
on the preparedness of the fire department, improperly looked beyond the
three written bases for the commission’s decision. See American Institute
for Neuro-Integrative Development, Inc. v. Town Plan & Zoning Commis-
sion, 189 Conn. App. 332, 336–37, 207 A.3d 1053 (2019) (‘‘Where a zoning
agency has stated its reasons for its actions, the court should determine
only whether the assigned grounds are reasonably supported by the record
and whether they are pertinent to the considerations which the authority
was required to apply under the zoning regulations. . . . The principle that
a court should confine its review to the reasons given by a zoning agency
. . . applies where the agency has rendered a formal, official, collective
statement of reasons for its action.’’ (Emphasis added; internal quotation
marks omitted.)).
2
The plaintiff also included in the site development plan application a
proposal to make site improvements associated with the proposed construc-
tion.
3
At the March 9, 2017 meeting, the following colloquy occurred between
Commissioner Frances Lescovich and Robert Sonnichsen, the plaintiff’s
engineer:
‘‘[Lescovich]: Oh. The other thing was on the site plan, the question came
up and that would be for the architect. There’s one . . . entrance and exit
on Ciro Road, right?
‘‘[Sonnichsen]: That’s correct.
‘‘[Lescovich]: Okay, so if Ciro Road has such a backup . . . where Cherry
Hill is and a lot of the other companies and we don’t have any other way
of in and out, how would you suggest that this is safe?
‘‘[Sonnichsen]: We’ve taken a look at the—one of the questions, and I
know I’m not supposed to be answering the questions, but one of the
questions that came up had to do with why there was not a traffic study
done as part of our application, and we took a look at it, and I do have a
response for that in my letter, and it was provided to us by our traffic
consultant.
‘‘[Lescovich]: But this is above a traffic study. This was the congestion
on the road that the emergency facilities would have to get in and out of,
and if the roads are so congested, how are they supposed to get in or out?
‘‘[Sonnichsen]: Which road are you talking? On Ciro Road?
‘‘[Lescovich]: Right.
‘‘[Sonnichsen]: Ciro Road has a travel way that is approximately forty
feet wide. That’s [a] very wide industrial road. And normal driveways are
around the area of twenty-four feet. So it has a substantial amount of area
along the sides, which should still leave adequate travel way down the
middle. You could have cars or trucks parked on either side of the road,
and you still would be able to get up and down Ciro Road.’’
4
We use the term ‘‘meeting’’ to refer to the public meetings that took
place before the commission, spanning from when the plaintiff submitted
the site development plan application to when the commission denied the
application. The meetings were open to the public and the commission
heard public comment. Together, the meetings comprise a single ‘‘public
hearing’’ on the application.
5
Section 41.2 of the North Branford Zoning Regulations provides general
standards that ‘‘apply to all uses subject to approval of a site development
plan by the [c]ommission . . . .’’
6
In its application to appeal the commission’s decision to the Superior
Court, the plaintiff alleged that The Sound is ‘‘a newspaper having circulation
in . . . North Branford . . . .’’
7
As previously stated, the commission listed as a ground for denying the
application that ‘‘[t]he site plan is not in conformance with the [p]lan of
[c]onservation and [d]evelopment . . . .’’ Accordingly, we interpret the
plaintiff’s claim as challenging that ground as well.
8
Branford’s zoning regulations contained a section entitled ‘‘Site Plan
Standards,’’ which provided that the defendant ‘‘may require such modifica-
tions of the proposed plans as it deems necessary . . . to assure the accom-
plishment’’ of certain ‘‘general objectives’’ such as traffic circulation. (Inter-
nal quotation marks omitted.) TLC Development, Inc. v. Planning & Zoning
Commission, supra, 215 Conn. 530. The text of this section ‘‘[made] it clear
that the general objectives [were] to serve solely as the basis for requiring
a modification of the proposed site plan . . . .’’ Id., 532. The defendant,
however, impermissibly ‘‘used these general objectives as the basis for
denying the application altogether.’’ Id.
9
We note that the commission summarily stated that the site development
plan application was not in conformance with the plan of conservation and
development without specifying the provisions with which the application
failed to comply. Accordingly, we are unable to ascertain which facts support
this conclusion.
10
Section 41.2.3 provides in relevant part that ‘‘[a]ccess shall also conform
to the following:
‘‘a. Where reasonable alternate access is available, the vehicular access
to the lot shall be arranged to avoid traffic use of existing local residential
streets situated in or bordered by [r]esidence [d]istricts.
‘‘b. The street giving access to the lot shall have traffic carrying capacity
and shall have suitable paving and other improvements to accommodate
the traffic generated by the proposed use as well as other existing traffic
on the street.
‘‘c. Provision shall be made for turning lanes and traffic controls within
the street as may be necessary to provide safe access and avoid traffic
congestion.
‘‘d. Access driveways shall be of a design and have sufficient capacity to
avoid back up of entering vehicles within any street.
‘‘e. Driveways into the lot shall not exceed a grade of 8 % and shall
conform to [t]own [o]rdinances or regulations of the State of Connecticut
as applicable. Driveways connecting to a street shall not exceed a width of
30 feet unless a greater width is required by the [t]own [o]rdinance, the
[c]ommission, or the State of Connecticut.
‘‘f. Unless otherwise approved by the [c]ommission, there shall be no
more than one (1) driveway entering any lot from any one street, except
that there may be one (1) additional driveway for each 300 feet of lot frontage
in excess of 150 feet.’’ North Branford Zoning Regs., c. 232, art. IV, § 41.2.3.