Sofia's Plazas, LLC v. East Windsor Planning and Zoning Commission

Sofia’s Plazas, LLC v. East Windsor Planning and Zoning Commission et al.

Nos. LNDCV186097131S, LNDCV6097307S

Superior Court of Connecticut, Judicial District of Hartford, Hartford, Land Use Litigation Docket

January 8, 2020

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Berger, Marshall K., J.T.R.

MEMORANDUM OF DECISION

Berger, JTR

I

The plaintiff, Sofia’s Plazas, LLC, appeals decisions of the defendant, the East Windsor planning and zoning commission (commission), approving the special permit and site plan applications of the codefendant, MMCT Venture, LLC ^[1] to develop a 188, 000-square-foot casino with gaming restaurants, bars and retail uses at 105 Prospect Hill Road also known as Route 5, in East Windsor. (Return of Record [ROR], Item 1; Item 2.) The 28.575-acre parcel is comprised of five former lots at 93, 105, 113, 115 and 119 Prospect Hill Road, and is bounded by Interstate 91 to the west, Route 5 to the east and Route 140, also known as Bridge Street, to the north. (ROR, Item 1; Item 11.)

Prior to the applications being filed, the town of East Windsor and the defendant entered into a development agreement (agreement) on February 28, 2017. (ROR, Item 1.) In exchange for payments by the defendant of $3 million before the casino opened and for $3 million each year after the casino received its certificate of occupancy, ^[2] among other things, the town agreed to "actively cooperate with and publically support" the defendant’s efforts to get all necessary permits, including zoning permits, for the casino. (ROR, Item 1.) On January 29, 2018, the zoning for all of the former lots was changed to the highway interchange floating zone (HIZ). (ROR, Item 1; Item 23.)

The applications were filed on May 21, 2018. (ROR, Item 1.) A public hearing was held on June 13, 2018, and June 19, 2018. (ROR, Items 20-21.) On June 19, 2018, the commission conditionally approved the special permit application and notice of the decision was published in the Journal Inquirer on June 22, 2018. (ROR, Item 5; Item 18.) On June 27, 2018, the commission conditionally approved the site plan application and notice was published in the Journal Inquirer on July 2, 2018. (ROR, Item 6; Item 19.)

On July 5, 2018 and July 9, 2018, respectively, the plaintiff commenced these appeals alleging that the commission acted illegally, arbitrarily and in abuse of its discretion in conditionally approving the defendant’s special permit and site plan. On December 27, 2018, this court granted a motion to consolidate the two appeals. The commission and the defendant filed their answers on January 2, 2019, and the commission filed the return of record on January 15, 2019.^[3] On January 25, 2019, the plaintiff filed an amendment to the record^[4] as of right pursuant to Practice Book § 14-7B(e) (pleading #125.00) and its brief. The commission and the defendant filed their joint brief on February 26, 2019, and the plaintiff filed a reply brief on May 2, 2019. The court heard oral argument on June 11, 2019. Additional briefs were filed by the parties on July 23, 2019. On August 27, 2019, the court heard further oral argument. The parties filed further briefs on September 10, 2019.

II

General Statutes § 8-8(b), in relevant part, provides that "any person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3 or a special permit or special exception pursuant to section 8-3c, may take an appeal to the superior court ..." Additionally, § 8-8(a)(1), in relevant part, provides that" ‘aggrieved person’ includes any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."

The plaintiff owns property, known as Sofia’s Plazas, on the easterly side of Prospect Hill Road directly across and approximately ninety-nine feet from the site of the proposed casino. The parties stipulated that the plaintiff owned the property at the time of the hearing and continues to own it. Accordingly, this court finds that the plaintiff is statutorily aggrieved. General Statutes § 8-8(a)(1) and (b).

III

"General Statutes § 8-2(a) provides in relevant part that local zoning regulations may provide that certain ... uses of land are permitted only after obtaining a special permit or special exception ... subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values ... The terms special permit and special exception are interchangeable." (Internal quotation marks omitted.) Meriden v. Planning & Zoning Commission, 146 Conn.App. 240, 244, 77 A.3d 859 (2013).

"[T]he nature of special exceptions is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site ... We also have recognized that, if not properly planned for, [such uses] might undermine the ... character of the neighborhood ... Thus, we have explained that the goal of an application for a special exception is to seek permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 426-27, 941 A.2d 868 (2008).

"When [considering] an application for a special permit, a planning and zoning board acts in an administrative capacity ... [Its] function ... [is] 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 ... Review of a special permit application is inherently fact-specific, requiring an examination of the particular circumstances of the precise site for which the special permit is sought and the characteristics of the specific neighborhood in which the proposed facility would be built." (Citations omitted; internal quotation marks omitted.) Meriden v. Planning & Zoning Commission, supra, 146 Conn.App. 244-45.

"Our Supreme Court has concluded that general considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit. Also, [it has] stated that before the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns ... would adversely impact the surrounding neighborhood ... The ... trial court ha[s] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts ... 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." (Internal quotation marks omitted.) Id., 246.

"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which ... [c]onclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] ... The question is not whether the trial court would have reached the same conclusion ... but whether the record before the [commission] supports the decision reached ... If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board ... If there is conflicting evidence in support of the zoning commission’s stated rationale, the reviewing court ... cannot substitute its judgment as to the weight of the evidence for that of the commission ... The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. 427. "The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, 53 Conn.App. 636, 640, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999).

IV

In 2015, the legislature promulgated No. 15-7 of the 2015 Special Acts which authorized the defendant to enter into a development agreement with a municipality to construct a casino. The town of East Windsor was chosen and the defendant and the town entered into the agreement for the subject property on February 28, 2017.^[5] (ROR, Item 1.) Thereafter, the legislature passed No. 17-89 of the 2017 Public Acts authorizing, among other things, the defendant to operate the casino. General Statutes § 12-578f.

The defendant sought the permits to develop a casino on the subject property in the HIZ and the commission considered it a "new commercial recreation facility/casino" throughout the administrative proceedings. (ROR, Items 18-19.) Section 502 of the zoning regulations of the town of East Windsor (regulations) allows certain uses by right in the HIZ, without the need for a special permit, and others with the approval of a special permit. (ROR, Item 23, pp 40-41.) It is undisputed that a general development plan (GDP) special permit was required under § 504.3^[6] for the use in the present case....