Another important land use case was decided by the Appeals Court in Connecticut this week, affirming a town’s right to deny a retail store based on “the size and intensity of the proposed use.” This ruling will help many other communities that are bringing lawsuits against a city or town based on the incompatible scale of a big box store. The CVS case arose out of a dispute in the town of Glastonbury, Connecticut. A landowner, the Hayes Family Limited Partnership, wanted to build a 13,013. s.f. CVS drug store in Glastonbury. When the town’s Planning and Zoning Commission denied their application, the Hayes Family filed suit in Superior Court to have the P&Z decision overturned. When the trial court agreed with the town’s ruling, the landowner continued its appeal. The Hayes family claimed that the P&Z commission did not have discretion to deny an application for a special permit when the Hayes Family had complied with all applicable zoning regulations. Hayes also charged that the trial court had improperly concluded that there was substantial evidence in the record to support a denial of the application. This case dates back four years ago to June 27, 2005, when the Hayes Family filed an application for a special permit to construct a CVS pharmacy on a 2.4 acre parcel of land on a corner lot in Glastonbury. The CVS was a 13,013 s.f. thirty-two foot high building with seventy parking spaces and a drive-through window on the property. By big box standards, this is a very small project. The property has a ledge, which rises steeply from the edges of the roadways to a heavily wooded plateau abutting an established single-family neighborhood in the rural residential zone. To build the CVS, the developer had to excavate 80,000 cubic yards of rock and build a 225 foot retaining wall. The Hayes property is located in the planned business and development zone. To the south of the property all the surrounding land is zoned rural residential. The Glastonbury zoning code requires that all uses in the planned business and development zone must get a special permit and design review approval. The P&Z Commission held hearings on the CVS plan in the fall of 2005, and on November 29, 2005, denied the CVS project because of 1) its scale and intensity in relation to the size and topography of the parcel, 2)its impact on and lack of compatibility with the existing neighborhood and 3) the inadequacy of the proposed landscaping. The Hayes family appealed to the Superior Court, which dismissed the appeal, stating that the P&Z decision was supported by substantial
evidence in the record. The Appeals Court decision this week began with the premise that special permits must satisfy certain conditions and standards to protect the public health, safety, convenience and property values. The court said that “the nature of special permits 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… 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.” The landowner claimed that because they complied with the town’s building zone regulations with regard to the size of the building, the distance it must be set back from the roadways and the number of parking spaces permitted, that the P&Z Commission did not have the authority or the discretion to deny their application. But the Appeals Court said the Hayes Family “misstates the law and ignores the regulations regarding special permits.” Under Glastonbury’s zoning code, the commission must consider four general criteria: 1) appropriateness of location or use; 2) conformance with Glastonbury building zone regulations or other applicable laws, codes or ordinances; 3) safety, health and
environment; and 4) overall design, architectural treatment and aesthetic character. Included in these general categories there are also specific considerations of the size
and intensity of the proposed use and its effect on and compatibility with the neighborhood; the topography and landscaping of the site; and the effect on values and utilization of neighborhood properties; the preservation of the character of the neighborhood. The zoning code requires the Commission to consider factors such as the size and topography of the property, and the relationship of the proposed uses with the land. The commission denied the CVS project based on this language in the town’s regulations. “Thus,” wrote the court, “the Commission had the discretion to deny the plaintiffs’ application for a special permit on the basis of the reasons cited. The Appeals Court also said the Superior Court was bound to uphold the town’s decision if it was “reasonably supported by the record.” The court does not decide issues of fact — the court instead looks to see whether the town’s decision was supported by the record. “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.” The Appeals Court ruled that Glastonbury had ample record to support its decision. The Court said: “The Commission heard evidence that to build the largest CVS possible, the plaintiffs [Hayes] sought to remove the existing hillside comprising the subject property, excavating to within twenty-five feet of the property lines of abutting residential properties, more than 80,000 cubic yards of material, and build a steep-sloped 225 foot long, fourteen foot high retaining wall to accommodate a 13,013 square foot building with a drive-through window, surrounded on three sides by six foot wide sidewalks, two dumpsters, loading docks and seventy parking spaces. The record reflects that the proposed retaining wall was among the largest that the commission had ever reviewed and that it was atypical in that such steep slopes are generally found in connection with road construction projects, not residential neighborhoods. The evidence revealed that the removal of the excavated material from the site would require more than 5,700 dump truck loads and more than 11,000 round trips, with a truck leaving the site every two minutes. All existing vegetation would be stripped, and the newly formed slope would be so steep as to render it unlikely to sustain the sparse vegetation proposed by the plaintiffs as a buffer to nearby homes.” In addition, evidence was introduced that the project “would directly impact neighboring residential properties not only by way of increased noise and traffic, but also in that it would adversely affect their property values.” Based on these facts, the Court concluded that “there was adequate evidence to support the commission’s reasons for denying the special permit.” The CVS store was denied on appeal.
When the Glastonbury Planning & Zoning Commission rejected this plan, they wrote: “(1) The scale of the proposal (building size and associated infrastructure) is inappropriate based upon the project intensity in relationship to the parcel size and steep topography. Site development activity and topographic modifications in the form of grading, excavation, vegetation removal and construction of a large retaining wall exceeds acceptable conditions and therefore does not meet the intent and standards of the building zone regulations. (2) The project would result in an unacceptable level of impact on neighboring properties, in the form of both noise and visual intrusions, and
on the environment, and is therefore incompatible with the existing neighborhood.(3) Landscaping proposed will not adequately replace existing vegetation nor provide adequate buffering to residential properties.” The landowner tried to argue that the town had no right to look at the impact the CVS would have on the neighboring residential zone,because “neighborhood” meant only the existing commercial zone. The Court ruled that there was “no basis for this argument either in the law or in the regulations, nor have we found any.” The decision found that the landowner’s claim was without merit. This Connecticut case is important for several reasons: 1) it uses size and intensity of use as a reason to deny a project 2) it affects a project that is located on land already zoned commercial, and shows that if a developer needs a special permit, they cannot build anything they want ‘as of right,’ even if the land is already zoned commercial 3) it underscores the need to enter concrete, expert testimony into the record, such as a real estate appraiser’s estimate of the negative impact on residential properties from an abutting commercial use. The language in this case would be useful to any neighborhood group located next to a proposal big box store — as long as a special permit of some kind is required. Citizens must then review the city or town zoning code to see if the criteria for a special permit are of any use — such as requiring that a project not adversely impact surrounding properties. Finally, this case is a reminder the courts will not substitute their judgement for that of local officials regarding their local zoning code. As long as the town’s decision was based on substantial evidence in the record — even if that evidence was debatable — the courts are unlikely to overturn a local decision, unless citizen’s can show that the decision was arbitrary and capricious because it ignored the overwhelming evidence in the case, or had no basis in findings of fact in the record. For a copy of the CVS Appeals Court decision, email [email protected]