Santarsiero v. Planning & Zoning Commission , 165 Conn. App. 761 ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
DAVID W. SANTARSIERO ET AL. v. PLANNING
AND ZONING COMMISSION OF THE
TOWN OF MONROE ET AL.
(AC 37813)
Alvord, Sheldon and Bear, Js.
Argued February 10—officially released May 31, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Richard P. Gilardi, judge trial referee.)
Kevin J. Gumpper, for the appellants (plaintiffs).
Michael C. Jankovsky, for the appellee (defendant
Real Time Investments, LLC).
Opinion
ALVORD, J. The plaintiffs, Donna MacKenzie, David
W. Santarsiero and Colleen M. Santarsiero, appeal from
the judgment of the Superior Court dismissing their
appeal from the decisions of the defendant Planning
and Zoning Commission of the Town of Monroe (com-
mission) granting a special exception1 to the defendant
Real Time Investments, LLC.2 The commission granted
the defendant a special exception pursuant to article
XVIII, § 117-1800,3 of the February, 2013 revision of the
Monroe Zoning Regulations (regulations), and
approved its request for a zone change pursuant to
article IX, § 117-900,4 of the regulations. On appeal, the
plaintiffs claim that the court improperly (1) concluded
that the commission, in granting the special exception,
possessed the authority to waive landscape buffer
requirements for areas contiguous to an inland wetland
area, and (2) concluded that the commission’s authority
in this action was properly based on a 2009 variance,
granted by the Monroe Zoning Board of Appeals
(board), that could not be subject to collateral attack.
We affirm the judgment of the Superior Court.
The following facts and procedural history are rele-
vant to this appeal. Since 2009 the defendant has
attempted to gain the appropriate approvals to build a
McDonald’s restaurant with a drive-up window on 4.027
acres that the defendant owns at 579 Main Street, Mon-
roe (property). The distance between plaintiffs’ prop-
erty line and the defendant’s property line is
approximately 100 feet, however the plaintiffs’ property
does not abut the defendant’s property.
In 2009, the defendant applied for a variance from
the board to allow a restaurant with a drive-up window.
At the time, 0.65 acres of the defendant’s property was
zoned as ‘‘Design Business District 1’’ (DB1), which did
not permit restaurants with a drive-up window.5 The
remainder of the property was zoned ‘‘Residential and
Farming District C’’ (RC). Written notification of the
application and hearing date were provided to the plain-
tiffs. After a public hearing, the board granted the vari-
ance. The plaintiffs did not appeal from the granting of
the variance.
On November 4, 2010, the defendant, relying on the
2009 variance, filed an application with the commission
seeking a special exception, as allowed in the regula-
tions; see footnote 3 of this opinion; a zone change and
a request for site plan approval in order to construct a
McDonald’s restaurant with a drive-up window on its
property. In its application for a special exception the
defendant sought modifications to the setback and land-
scape buffer requirements that the regulations required
where commercial property abuts residential property.6
In its application for a zone change the defendant sought
to convert an additional 1.15 acres of its property from
a RC to a DB1 zone. During a public hearing on the
applications, the plaintiffs’ attorney, Kevin J. Gumpper,
who at the time represented another party, raised objec-
tions to the defendant’s requests.7 The commission
approved the zone change and the special exception
incorporating the nonconforming setbacks and land-
scape buffer. The plaintiffs appealed to the Superior
Court, but their claims were dismissed. After granting
a petition for certification to appeal, this court reversed
the granting of the special exception and affirmed the
partial zone change. MacKenzie v. Planning & Zoning
Commission, 146 Conn. App. 406, 442, 447–48, 77 A.3d
904 (2013). This court concluded that the commission
lacked the authority to grant a special exception that
varied setback and landscape buffer requirements.
On February 14, 2013, and prior to this court’s deci-
sion in MacKenzie, the defendant returned to the com-
mission with a revised application for special exception,
again in order to construct a McDonald’s restaurant
with a drive-up window. The defendant sought to have
the entire property rezoned as a DB1 zone. The general
location of the restaurant building on the property
remained the same, but the defendant’s new plan
involved installing a septic system in the rear portion
of the property. The variances that were at issue in
MacKenzie were no longer necessary to the project
because the adjacent property had been rezoned from
a RC to a DC1 zone, eliminating the need for a landscape
buffer between those parcels.
The commission held a public hearing on July 11,
2013, on the defendant’s revised application. The defen-
dant’s attorney stated at the hearing that the zone
change was necessary because even though the septic
system would be underground and not be visible, it was
for commercial use, and therefore could not be built
on residentially zoned property. The restaurant and
parking area would be built along Main Street, on the
portion of the property that was already zoned commer-
cial and abutted by other commercial properties. The
rear portion of the property, where the septic system
would be installed, was abutted by residential proper-
ties that were not owned by the plaintiffs.
At the public hearing, the defendant’s engineer stated
that much of the rear portion of the property was
‘‘extensively wooded’’ and the defendant was ‘‘not plan-
ning on touching it.’’ However, trees would be removed
from that area where the septic system was to be buried,
and would be replaced with ‘‘no mow’’ grass. The defen-
dant’s engineer stated that additional landscaping
would be added to the property after the septic system
was installed.8 The engineer also stated that an old
driveway that connected the front and rear portions of
the property would be excavated and replaced with veg-
etation.
The rear portion of the property included several
areas that were marked as inland wetlands. As such,
the defendant had submitted its septic system and land-
scaping plans to the Monroe Inland Wetlands Commis-
sion (inland wetlands commission) for its approval. At
the planning and zoning hearing, the defendant’s engi-
neer informed the commission that the presence of
inland wetlands limited its ability to create a landscape
buffer that conformed to the regulations. The planning
and zoning application was continued pending a final
report and approval from the inland wetlands com-
mission.
Additional hearings were held through the summer
of 2013. The plaintiffs’ attorney argued before the com-
mission that the defendant’s landscaping plan did not
provide an adequate buffer between the plaintiffs’ prop-
erties and the proposed McDonald’s restaurant. Attor-
ney Gumpper, representing the plaintiffs, stated to the
commission: ‘‘The area [at the rear of the property] is
presently wooded, heavily wooded as described by the
applicant’s engineer, and that provides a terrific buffer
for the noise and lights that are down presently on Main
Street [where the McDonald’s would be located], so
[for the defendant] to say that this is not going to have
any impact because you are tearing down all the trees
to put in a septic system is quite to the contrary.’’ The
defendant’s attorney argued that the proposed site plan
would result in an adequate buffer: ‘‘[W]e have a very
large open field like area in the rear that will provide
no visual impact at all to any of the residential neighbor-
hoods. . . . We have a wetlands buffer that prevents
the commercial activity from leaking into an area which
is abutting a residential area . . . .’’ At a hearing in
August, 2013, the defendant’s attorney further stated:
‘‘The development of the project itself is on four acres,
of which [the McDonald’s] only basically uses one acre
and creates a three acre buffer.’’ Prior to deliberating on
the defendant’s applications, each commission member
visited the site. The defendant also offered to grant the
town of Monroe (town) a conservation easement on
the rear portion of the property where the septic system
would be installed.
The inland wetlands commission approved the defen-
dant’s site plan. Its report and approval were disclosed
to the commission. During deliberations on the defen-
dant’s planning and zoning applications, commission
members expressed concern about additional develop-
ment of the defendant’s property if the zone change
was approved and the septic system was never installed.
The commission members concluded that the proposed
conservation easement addressed these concerns.9
On August 29, 2013, the commission approved the
defendant’s special exception as requested by a vote
of four to one. The commission also approved the defen-
dant’s zone change request by the same four to one
vote. A conservation easement for the rear portions of
the property was listed as a condition of the special
exception permit. During the public hearings and delib-
erations, the commission members did not specifically
discuss the landscape buffer requirement or the regula-
tory exceptions to that rule. However, when the com-
mission granted approval for the special exception it
adopted the following statement as part of its reasoning:
‘‘This site has been landscaped thoroughly, including
landscaped to meet the inland wetlands requirements.’’
The plaintiffs appealed to the Superior Court to over-
turn the commission’s decisions approving the zone
change and granting the special exception.10 The court
concluded that the commission did not abuse its discre-
tion in granting the special exception because there
was substantial evidence to support the commission’s
decision to waive the landscape buffer requirement.
Interpreting the regulations and, specifically, § 117-902
(G) (4) that authorized waiver of the landscape buffer
requirement for inland wetland areas, the court con-
cluded: ‘‘The regulations afford the commission the dis-
cretion to determine that an alternative buffer may be
necessary in areas not strictly wetlands in order to
preserve the wetlands themselves.’’ The court also
rejected the plaintiffs’ argument that the 2009 variance
should be subject to collateral attack in this case,
observing that the plaintiffs had failed to directly appeal
the variance when it was originally granted. The court
dismissed the plaintiffs’ appeal.
The plaintiffs thereafter filed a petition for certifica-
tion to appeal pursuant to General Statutes § 8-8 (o).
We granted the petition and this appeal followed.
I
The plaintiffs claim on appeal that the court improp-
erly concluded that the commission had the authority to
waive the landscape buffer requirement in accordance
with a regulatory exception for inland wetland areas.
The plaintiffs argue that the commission abused its
discretion when it approved the defendant’s special
exception without requiring the landscape buffer of
three rows of evergreen trees. See footnote 6 of this
opinion. We conclude that the commission was within
its discretion to find that the application for special
exception complied with the regulations.11
The following additional facts are relevant to the
plaintiffs’ claim. The rear portion of the defendant’s
property bordered residentially zoned properties. Once
the defendant’s entire property was rezoned to DB1,
the regulations required a landscape buffer between it
and the residentially zoned properties. Monroe Zoning
Regs. (Rev. to February, 2013), art. IX, § 117-902 (G)
(2). Section 117-902 (G) (2) specified that the landscape
buffer, for property zoned DB1, must consist of at least
three rows of evergreen trees planted fifteen feet apart.
The regulations provided two exceptions: (1) if the com-
mission concluded that the property’s natural vegeta-
tion formed an effective buffer then the commission
had the discretion to augment or satisfy the landscaping
requirement,12 or (2) if the buffer area was an inland
wetlands area, then the commission, in order to pre-
serve and protect the inland wetlands, had the discre-
tion to waive the buffer requirement or prescribe
alternative requirements.13 The commission did not spe-
cifically address the landscape buffer requirement or
either of these exceptions when it deliberated on the
defendant’s applications.
‘‘As a preliminary matter, we set forth the standard
of review. . . . The trial court had to decide whether
the board correctly interpreted the section [of the regu-
lations] and applied it with reasonable discretion to
the facts. . . . Because the court, in interpreting the
regulations, made conclusions of law in its memoran-
dum of decision [in this case], our review is plenary.’’
(Internal quotation marks omitted.) Raymond v. Zon-
ing Board of Appeals, 76 Conn. App. 222, 228–29, 820
A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177(2003).
‘‘When ruling upon an application for a special permit,
a planning and zoning board acts in an administrative
capacity. . . . Generally, it is the function of a zoning
board or commission to decide within prescribed limits
and consistent with the exercise of [its] legal discretion,
whether a particular section of the zoning regulations
applies to a given situation and the manner in which it
does apply. . . . In applying the law to the facts of a
particular case, the board is endowed with a liberal
discretion, and its action is subject to review by the
courts only to determine whether it was unreasonable,
arbitrary or illegal.’’ (Citations omitted; internal quota-
tion marks omitted.) Double I Ltd. Partnership v.
Plan & Zoning Commission, 218 Conn. 65, 72, 588 A.2d
624 (1991).
‘‘We, in turn, review the action of the trial court. . . .
The burden of proof to demonstrate that the board
acted improperly is upon the party seeking to overturn
the board’s decision [in this case, the plaintiffs]. . . .
Courts are not to substitute their judgment for that of
the board . . . .’’ (Citations omitted; internal quotation
marks omitted.) Raymond v. Zoning Board of Appeals,
supra, 76 Conn. App. 229.
‘‘The ultimate issue is whether the trial court was
correct in ruling that the commission’s decision to grant
the special permit was not arbitrary, illegal or an abuse
of its discretion. . . . The rules of statutory construc-
tion apply to the interpretation of local regulations.
. . . We look first to the language of the regulation to
determine the intent of the enacting body. . . . If the
language of the regulation is ambiguous, the court can
look to its purpose as an aid in construing it.’’ (Citations
omitted.) Double I Ltd. Partnership v. Plan & Zoning
Commission, supra, 218 Conn. 72–73.
‘‘A special [exception] allows a property owner to
use his property in a manner expressly permitted by
the local zoning regulations. . . . The proposed use
. . . must satisfy standards set forth in the zoning regu-
lations themselves as well as the conditions necessary
to protect the public health, safety, convenience, and
property values. . . . Acting in this administrative
capacity, the [zoning commission’s] function is to deter-
mine whether the applicant’s proposed use is expressly
permitted under the regulations, and whether the stan-
dards set forth in the regulations and the statute are
satisfied.’’ (Internal quotation marks omitted.) MacKen-
zie v. Planning & Zoning Commission, supra, 146
Conn. App. 441.
The trial court interpreted the scope of the inland
wetlands exception, however, we find it unnecessary
to do so. The defendant argues that the commission had
the authority to waive the landscape buffer requirement
under either the inland wetlands exception or the natu-
ral vegetation exception. The commission did not spe-
cifically address these regulatory exceptions, but it did
deliberate about the landscaping of the rear portion of
the defendant’s property. In its review of the defen-
dant’s application for a special exception, the commis-
sion was acting in an administrative capacity.
The commission was presented with evidence that
showed that significant portions of the perimeter of the
defendant’s property were in inland wetland areas. The
regulation was unambiguous as to the commission’s
authority to waive the landscape buffer requirement
when a buffer would be located within an inland wet-
land area: ‘‘[T]he Commission, at its discretion, may
prescribe alternative buffer requirements or waive
buffer requirements in order to preserve and protect
[inland] wetland area[s] . . . .’’ Monroe Zoning Regs.
(Rev. to February, 2013), art. IX, § 117-902 (G) (4). The
commission did not mandate an alternative buffer, but
it did accept the defendant’s plan to add plants and
trees as alternatives to evergreens and to grant the
town a conservation easement on the rear portion of
the property.
The remainder of the perimeter of the defendant’s
property, where it abutted residential property, sup-
ported natural vegetation consisting primarily of heavy
woods. The commission was aware that some trees
would be removed, and each commissioner visited the
property. We reasonably can infer that by approving
the special exception, four commissioners accepted
that the remaining natural vegetation provided a suffi-
cient buffer. This is a judgment that was within the
commission’s discretion: ‘‘Where in the judgment of the
Commission sufficient natural vegetation exists it may
be substituted in total . . . to establish an effective
buffer within the intent of the regulations.’’ Monroe
Zoning Regs. (Rev. to February, 2013), art. IX, § 117-
902 (G) (3).
The commission’s decision to accept the natural vege-
tation as an effective buffer was further buttressed by
the accepted terms of the special exception. The only
structure that was approved for the rear portion of the
property was an underground septic system. In addi-
tion, the conservation easement granted by the defen-
dant to the town would ensure that natural vegetation
stayed in place. The commission also noted that the
existing variations in elevation between the properties
would screen the commercial development. Finally, the
defendant’s attorney stated to the commission that the
proposed McDonald’s restaurant and the nearest home
were at least 500 feet apart.
The commission was within its authority to exercise
liberal discretion to apply the regulations to the facts
that it was presented with concerning the property and
landscaping. See Double I Ltd. Partnership v. Plan &
Zoning Commission, supra, 218 Conn. 72. It was within
the commission’s discretion to determine if the
remaining natural vegetation provided an effective land-
scape buffer. The plaintiffs have not presented suffi-
cient evidence to overcome their burden to demonstrate
that the commission’s decision to grant the special
exception was unreasonable, arbitrary or illegal. See
id. Accordingly, the plaintiffs’ first claim fails.
II
The plaintiffs also claim that the court improperly
concluded that a 2009 variance granted to the defendant
by the board was not subject to collateral attack. The
variance granted the defendant the right to construct
a restaurant with a drive-up window on its property
even though a drive-up window was specifically prohib-
ited in the DB1 zone. The plaintiffs did not appeal the
decision of the board. The 2009 variance formed the
basis of the commission’s authority to grant the 2013
special exception to the defendant. The plaintiffs argue
that the variance should not be allowed to stand
because the board exceeded its authority when it
granted the variance in 2009. We disagree.
The following additional facts are relevant to this
claim. In 2009, the board approved the defendant’s
application for a variance from the DB1 zoning regula-
tions after concluding that the defendant suffered an
unusual hardship. The defendant’s hardship claim
derived from the commission’s adoption of a town wide
plan of conservation and development in 2000 that
called for the merger of the DB1 and design business
district two (DB2) zones in order to form a single design
business district zone.14 In 2009, when the defendant
applied for the variance, the town had not yet changed
its zoning regulations to reflect the plan’s vision.
According to the defendant’s variance application, new
zoning regulations were proposed in 2007 that would
allow restaurants with drive-up windows in the new
zone if certain conditions were met, but the regulations
had not been adopted as of the time the defendant
applied for a hardship waiver.15 The board approved
the variance after concluding that the defendant had
established the requisite hardship. The plaintiffs were
notified of the hearing, but did not appeal the decision.
We begin by setting forth our standard of review.
‘‘[W]e have long held that because [a] determination
regarding a trial court’s subject matter jurisdiction is a
question of law, our review is plenary. . . . [A] court
lacks discretion to consider the merits of a case over
which it is without jurisdiction . . . .’’ (Internal quota-
tion marks omitted.) Caltabiano v. L & L Real Estate
Holdings II, LLC, 122 Conn. App. 751, 758, 998 A.2d
1256 (2010).
‘‘First, we have uniformly held that failure to file a
zoning appeal within the statutory time period deprives
the trial court of jurisdiction over the appeal. . . . We
have also consistently held that when a party has a
statutory right of appeal from the decision of an admin-
istrative agency, he may not, instead of appealing, bring
an independent action to test the very issue which the
appeal was designed to test. . . . Moreover, we have
ordinarily recognized that the failure of a party to appeal
from the action of a zoning authority renders that action
final so that the correctness of that action is no longer
subject to review by a court. . . . All of these rules
rest in large part, at least in the zoning context, on the
need for stability in land use planning and the need for
justified reliance by all interested parties—the inter-
ested property owner, any interested neighbors and
the town—on the decisions of the zoning authorities.’’
(Citations omitted; internal quotation marks omitted.)
Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96,
102, 616 A.2d 793 (1992).
Our Supreme Court has recognized ‘‘that there may be
exceptional cases in which a previously unchallenged
condition was so far outside what could have been
regarded as a valid exercise of zoning power that there
could not have been any justified reliance on it, or
in which the continued maintenance of a previously
unchallenged condition would violate some strong pub-
lic policy. It may be that in such a case a collateral attack
on such a condition should be permitted.’’ Id., 104–105.
‘‘As [the] language in Upjohn Co. indicates, it must
be an ‘exceptional [case]’ that will justify disturbing the
stability of unchallenged land use decisions. . . . Thus,
a litigant who seeks to invoke this exception must meet
a very high standard.’’ (Citation omitted.) Torrington
v. Zoning Commission, 261 Conn. 759, 768, 806 A.2d
1020 (2002).
In 2009, the plaintiffs received notice of the pendency
of the variance application and the hearing date. They
did not appeal from the board’s decision made after
the public hearing. More than six years later the plain-
tiffs now seek to overturn that decision, arguing in this
appeal that this is an exceptional case because the
variance for a restaurant with a drive-up window was
not a valid exercise of zoning power and there could
not have been any justified reliance on it. However,
when these same plaintiffs appeared before this court
in MacKenzie, challenging the defendant’s similar res-
taurant plan that also relied on the 2009 variance, the
plaintiffs did not raise this claim. See MacKenzie v.
Planning & Zoning Commission, supra, 146 Conn.
App. 408–409.
After a careful review of the documents in the record
of this case that relate in any way to the 2009 variance
hearing, we cannot conclude that the board exceeded
its authority by granting the 2009 variance. The variance
granted the defendant the right to construct a restaurant
with a drive-up window on its property despite language
in the zoning regulations that prohibited use waivers.
However, ‘‘[i]t is not enough that the conduct in ques-
tion was in violation of the applicable zoning statutes
or regulations. It must be shown that the conduct was
so far outside what could have been regarded as a valid
exercise of zoning power that there could not have
been any justified reliance on it.’’ Torrington v. Zoning
Commission, supra, 261 Conn. 768.
The documents relating to the record of the 2009
variance hearing are devoid of any evidence placed
before the board relevant to the contention that a drive-
up window changes the ‘‘use’’ of a restaurant for pur-
poses of the regulations. Interpretation of the zoning
regulations is a function of a zoning board of appeals.
‘‘The variance power exists to permit what is prohibited
in a particular zone. . . . [T]he zoning board of appeals
is the court of equity of the zoning process . . . .’’
(Citations omitted; internal quotation marks omitted.)
MacKenzie v. Planning & Zoning Commission, supra,
146 Conn. App. 429.
The record does reflect that, in deciding to grant the
variance, the board credited the defendant’s hardship
claim that the regulations were at odds with changes
to the town’s plan for conservation and development.
After considering the language of the regulations and
its plan for development, we conclude that the board’s
decision was not ‘‘so far outside what could have been
regarded as a valid exercise of zoning power that there
could not have been any justified reliance on it . . . .’’
Upjohn Co. v. Zoning Board of Appeals, supra, 224
Conn. 105. Therefore we are not persuaded that the
2009 variance should be subject to collateral attack.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The commission also granted the application filed by the defendant Real
Time Solutions, LLC, to rezone its entire property from residential zoning
to commercial zoning. The plaintiffs did not appeal this decision to this court.
2
Although the commission also was named as a defendant in the underly-
ing proceeding, it has not filed an appellate brief with this court. For clarity,
we refer in this opinion to Real Time Investments, LLC, as the defendant.
3
Article XVIII, § 117-1800, of the February, 2013 revision of the Monroe
Zoning Regulations (regulations) provides in relevant part: ‘‘Application may
be made to the Planning and Zoning Commission for a special exception
permit to establish uses specified elsewhere in these regulations as being
permitted by special exception. . . .’’ All references in this opinion are to
the February, 2013 revision of the regulations unless otherwise indicated.
4
Article IX, § 117-900, of the February, 2013 revision of the Monroe Zoning
Regulations provides in relevant part: ‘‘The owner or owners of a tract
of land may petition for the establishment of a design district (D) only,
coincidentally with an application for special exception permit and develop-
ment proposal which shall be proposed and developed in conformance with
these regulations. . . .’’
5
Permitted uses within DB1 included: ‘‘Restaurants and diners only where
customers are seated at tables or counters and where seventy-five percent
(75%) of the seats are within an enclosed building. Such food service may
include catering and takeout service, but shall not include a take-out or
drive-up window, or opening to the outdoors (Class F).’’ (Emphasis added.)
Monroe Zoning Regs. (Rev. to February, 2013), art. XVIII, § 117-1101 (A) (5).
6
Article XI, § 117-1104 (B), of the February, 2013 revision of the Monroe
Zoning Regulations states: ‘‘All required yards abutting a residential and
farming district shall be a landscaped buffer, as provided in Section 117-
902 [G].’’ Article IX, § 117-902 (G) (2), of the February, 2013 revision of the
Monroe Zoning Regulations states in relevant part: ‘‘[A] landscape buffer
shall consist of no fewer than three (3) rows of suitable evergreen trees of
one and one-half (11/2) inches caliper . . . .’’
7
‘‘At that public hearing, Gumpper stated that ‘I am here tonight on behalf
of Duchess [restaurant] of Monroe, which has an operation at 139 Main
Street in Monroe.’ ’’ MacKenzie v. Planning & Zoning Commission, 146
Conn. App. 406, 411 n.5, 77 A.3d 904 (2013). Attorney Gumpper represented
the plaintiffs on appeal in MacKenzie as well as in the present appeal.
8
At the public hearing, the following exchange took place among one
commissioner, Karen Martin, the defendant’s counsel, Raymond Rizio, and
its engineer:
‘‘[Commissioner Martin]: Would you . . . [c]onsider putting in additional
landscaping on the parcel that you’re asking us to do a zone change on?
. . . [The] [b]ack three acres.
‘‘[Attorney Rizio]: We are putting [in] additional landscaping . . . .
‘‘[Commissioner Martin]: I know you can’t do a lot because of the sep-
tic, but.
‘‘[The Defendant’s Engineer]: Well no, we can’t do a lot because of the
wetlands too. In this area in right in here we are going to excavate the
driveway that was created there, you know, a long time ago. We are entirely
landscaping that area, and also this area in here with plants that the [Monroe
Inland] Wetlands Commission has approved as appropriate for that use
. . . .
‘‘[Commissioner Martin]: What about the borders between the proper-
ties? . . .
‘‘[The Defendant’s Engineer]: Well, what we’ve proposed is this, to the
extent that’s possible, we’ll leave the traits. The only areas [inaudible] these
bushes in here are, vegetation, outside limits of the septic system that will
create a buffer and are compatible with being next to the septic system and
the root system and will grow under the shade of the trees. The only place
it will not have landscaping is this area [where the septic system will go] that
has to have this ‘no mow’ grass because that’s what’s consistent with . . . .
‘‘[Commissioner Martin]: What about on the top? . . . It’s all wooded?
‘‘[The Defendant’s Engineer]: It’s all extensively wooded. And no we were
not planning on touching it. . . . [A]ll this area in here is an overstory of
oak, maple, I think there’s a couple beech in there . . . .’’
9
During deliberations, three commissioners concurred with the statement
of Commissioner Jim Weinberg: ‘‘The main concern to me was if you do a
zone change to the rear part of that lot, and the project that’s scheduled
for this does not come to [inaudible] what happens? . . . [Based on the
defendant’s presentation] [t]here’s so many safeguards . . . that the rear
lot will never get, be developed . . . in any practical sense unless there’s
a huge change in our own regulations simply because of the . . . wetlands
issues . . . there’s nothing that’s going to be built back there other than
that septic system that’s envisioned by this project. So I actually have no
objection or no question whatsoever about the zone change at this point.’’
Commissioner Patrick O’Hara stated during deliberations on the special
exception permit: ‘‘[A]s far as an appropriate building, the current residential
properties will be screened not only from woods, but from an elevation in
height . . . .’’
10
In addition to the claims raised with this court, the plaintiffs also argued
to the trial court that the zone change should be found invalid because the
defendant had not complied with statutory notice requirements regarding
a rezoning application. The court ruled that there was sufficient evidence
to conclude that the statutory requirements had been met. The plaintiffs
did not appeal the court’s judgment on this claim.
11
We agree with the court that the commission did not abuse its discretion
by granting the special exception, although on different grounds from those
articulated by the court. The court reached its conclusion only after interpre-
ting the meaning of the inland wetland exception to the landscape buffer
requirement contained within § 117-902 (G) (4) of the regulations. We con-
clude that it was not necessary to interpret that regulation in order to resolve
this case.
12
Article IX, § 117-902 (G) (3), of the February, 2013 revision of the Monroe
Zoning Regulations states: ‘‘Where in the judgment of the Commission suffi-
cient natural vegetation exists it may be substituted in total or portions in
lieu of (1) or (2) [the sections requiring rows of evergreen trees] or may be
augmented by the requirements of (1) or (2) . . . to establish an effective
buffer within the intent of the regulations.’’
13
Article IX, § 117-902 (G) (4), of the February, 2013 revision of the Monroe
Zoning Regulations states: ‘‘Where area required for buffer is an inland
wetland area, the Commission, at its discretion, may prescribe alternative
buffer requirements or waive buffer requirements in order to preserve and
protect said wetland area consistent with the intent of the Connecticut
General Statutes.’’
14
The 2000 Plan of Conservation and Development stated in relevant part:
‘‘The Design Business districts (DB-1 and DB-2) are essentially identical
with regard to development requirements (lots size, dimensions, etc.). The
only major distinction between the zones relates to some uses that are
permitted only in the DB-2 zone (such as service stations, take-out food
service, vehicular sales and service).
‘‘To simplify the structure of the zoning regulations, the regulations should
be changed to merge the DB-1 and DB-2 zones together. The uses that are
currently allowed should be reviewed and categorized as permitted uses,
accessory uses, conditional uses, or eliminated from the zone.’’
15
Monroe’s zoning regulations were changed in October, 2013. The revised
regulations allow restaurants with a drive-up window in the business district
1 zone conditioned upon approval of a special exception permit. Monroe
Zoning Regs., art. 4, § 4.1.3 (N).