2772 BPR, LLC v. Planning & Zoning Comm'n of the Town of N. Branford

207 Conn.App. 377

262 A.3d 906

2772 BPR, LLC

v.PLANNING & ZONING COMMISSION OF THE TOWN OF NORTH BRANFORD

AC 42866

Appellate Court of Connecticut.

Argued March 3, 2021

Officially released September 14, 2021

Jeffrey T. Beatty, with whom, on the brief, was Megan C. Granfield, for the appellant (plaintiff).

Barbara M. Schellenberg, for the appellee (defendant).

Prescott, Suarez and Vitale, Js.

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 services, and the potential impact on property values when conducting an administrative review of its site development 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, accordingly, 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 application.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 district as a matter of right, subject to administrative approval of a site development plan by the [c]ommission in accordance with § 41 [of the zoning regulations]. ..." North Branford Zoning Regs., c. 232, art. II, § 23.1. The amended regulations became effective on September 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 hearing on the plaintiff's application. After hearing testimony from the plaintiff, the commission set aside the application pending review of the inland wetlands portion 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 comment dated February 27, 2017, stated that the application "meets required site plan requirements & all applicable 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 storage 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 propane 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 Director, 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 development plan did not meet the following criteria: (1) "The site plan is not in conformance with the [p]lan of [c]onservation 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 published 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 "arbitrarily, illegally, in an abuse of discretion and unlawfully" when it denied the site development plan application 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 development, 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] designation 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 commission 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 memorandum of decision dated December 18, 2018, the court stated that it "agree[d] with the [commission's] interpretation of the Friedman holding in addition to its understanding 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, disagrees 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...