228 Conn. 187

Louis DeBeradinis v. Zoning Commission of the City of Norwalk et al.

(14777)

Peters, C. J., Borden, Norcott, Katz and Palmer, Js.

*188Argued October 27, 1993—

decision released January 4, 1994

Frank W. Murphy, with whom was Barbara Coughlan, for the appellant (plaintiff).

Peter J. Strassberger, for the appellee (named defendant).

David H. Wrinn, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Janet P. Brooks and Joseph Rubin, assistant attorneys general, for the appellee (defendant commissioner of environmental protection).

Norcott, J.

In this administrative appeal, a landowner contests the validity of a trial court judgment *189setting aside the approval of his coastal site plan with conditions because of the statutory invalidity of one of the conditions of the approval. The plaintiff, Louis DeBeradinis, filed with the defendant zoning commission of the town of Norwalk (commission) an application for coastal site plan review1 to allow the expansion of an existing recycling operation onto an adjoining parcel of real estate located within the Connecticut coastal area and Norwalk coastal boundary as delineated by General Statutes § 22a-94.2 The commission approved *190the plan after a public hearing, but added six conditions including a grant by the plaintiff of an easement to provide public access along the Norwalk River. The plaintiff appealed the commission’s decision to the Superior Court. The commissioner of environmental protection (commissioner), on his own motion, was made a party defendant in the appeal. The commissioner argued that a remand was necessary as a result of the commission’s failure to make written findings as required by General Statutes § 22a-106.* *3 The trial court retained jurisdiction over the matter, but ordered a remand “for the *191limited purpose of having the defendant zoning commission submit written findings for the decision entered on the plaintiff’s application.” After the submission of written findings by the commission, the trial court heard the plaintiff’s appeal, found that a condition imposed by the commission was illegal because it did not mitigate the potential adverse impacts of the plaintiff’s plan and reversed the commission’s decision to approve the plan. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm.

The relevant facts are as follows. The plaintiff owns two adjoining parcels of real estate located within the coastal boundary of the town of Norwalk. One of the lots (lot one) is located inland of the other (lot two), which fronts along the Norwalk River. On lot one, the plaintiff operates a recycling business for which he received zoning and coastal site plan approval from the commission in 1988. The operation consists of a warehouse, repair shop and rock crushing machinery. The recycling procedure involves the receipt from local contractors of blasted rock, concrete and other demolition by-products, which the plaintiff processes into crushed stone, aggregate and other usable construction materials. As part of the operation, the plaintiff also stockpiles both raw and recycled materials until they have been processed and sold. In 1990, due to decreased demand for the plaintiff’s product and increased demand from local contractors for the disposal of the raw materials, the plaintiff began stockpiling materials on lot two.

In August, 1990, in order to bring the operation into compliance with the local zoning ordinances, the plaintiff filed an application for zoning approval and coastal site plan review with the commission. The plan called *192for the expansion of the plaintiff's recycling operation. Specifically, the plaintiff sought approval for the temporary stockpiling of recyclable material on lot two. The Norwalk zoning enforcement officer found that this practice complied with the Industrial Zone designation of the lot and approved the use.

In a subsequent letter, the department of environmental protection (department), per General Statutes § 22a-109 (d), offered its comments and recommendations with regard to the plaintiffs application.4 In its letter, the department noted that the expansion of the recycling operation is not a water-dependent use and suggested that it could be made water-dependent by the addition of a public access walkway running along the Norwalk River.

The commission held a public hearing5 regarding the coastal site plan. At the hearing, the plaintiffs attorney, Kenneth Hapke, made opening and closing statements and answered questions posed by the commission. Arguing for the approval of the plan without modifications or conditions, Hapke emphasized the fact that the ongoing recycling operation is in compliance *193with the zoning of lot two, the Norwalk noise ordinance and the air pollution control laws of the state. In response to the department’s letter, he argued that due to issues of safety, public access to the river via lot two would be incompatible with the plaintiff’s proposed industrial use. In response to a question from the commission regarding the future use of lot two, Hapke stated that “a water related use is a real possibility,” but that the plaintiff had not yet settled on a firm plan. The plaintiff testified as to the specific operation of the recycling plant. He stressed the temporary nature of the use, noting that the machinery and equipment used is all portable and could easily be removed from the property. The plaintiff also offered the testimony of nine local contractors. The testimony of all nine focused on the need for a local recycling operation and the good character of the plaintiff. One attendee, Norwalk councilman Hempstead, spoke in opposition to the site plan on behalf of the residents of the neighborhood in which the plaintiff’s operation is located. Hempstead voiced concerns regarding excessive levels of noise and flying dust. He also expressed concern that the proposed stockpiling had already begun without approval and that there was possible dumping in the river.

At its next regularly scheduled meeting, the commission began deliberations on the application. The commission discussed the need to make the use water-dependent as pointed out by the letter from the department and raised concerns regarding containment of the stockpiles. At this meeting, the commission voted to condition any future approval of the plaintiff’s application on the provision, by easement, of a fifteen foot wide public accessway and construction of a nine foot wide earthen berm to protect the riverfront. By way of clarification, the commission decided that the easement was to be granted immediately, but that an actual walkway would not be built until sometime in the *194future. At its next meeting, the commission decided to approve the plaintiffs application for coastal site plan review with six stipulated conditions, including the access easement.6

The plaintiff appealed to the trial court, which reversed the commission’s decision. In reaching its decision, the trial court reviewed the record before the commission and concluded that it contained sufficient evidence to support the commission’s finding that the potential adverse impacts of the plaintiff’s proposal on future water-dependent development opportunities and activities were unacceptable. The trial court, however, also concluded, on statutory grounds, that the commission had acted illegally by conditioning the approval of the plaintiff’s application on the grant of a public access easement along the waterfront because the condition did not mitigate the potential adverse impacts of the proposal. Having determined that the invalid condition was an “essential component” of the approval of the plaintiff’s application, the court rendered judgment reversing the commission’s decision, thereby voiding the approval of the plaintiff’s application.

*195The plaintiff has appealed from the judgment, claiming that the trial court improperly: (1) declined to decide whether conditioning the commission’s approval of the coastal site plan on the grant of a public access easement resulted in an unconstitutional taking without compensation; (2) concluded that there was sufficient evidence in the record to support the commission’s finding that the proposed use had potential adverse impacts on future water-dependent development activities; and (3) concluded that the commission’s entire decision was invalidated as a result of the illegality of the fourth condition.

I

The plaintiff first claims that the trial court improperly failed to conclude that conditioning the commission’s approval of his coastal site plan on the grant of a public access easement resulted in an unconstitutional taking. We disagree. The trial court properly followed “ ‘ “the recognized policy of self-restraint and the basic judicial duty to eschew unnecessary determinations of constitutional questions.” Negron v. Warden, 180 Conn. 153, 166, 429 A.2d 841 (1980).’ ” State v. Champagne, 206 Conn. 421, 437, 538 A.2d 193 (1988). Indeed, wherever possible, it is incumbent upon a court to consider statutory issues before reaching constitutional questions. Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 586 n.4, 590 A.2d 447 (1991).

The trial court first concluded on statutory grounds that the condition was illegal and therefore unenforceable. The power of the commission to require that the plaintiff file a coastal site plan and impose conditions on its approval is derived from the Coastal Management Act (act), General Statutes §§ 22a-90 through 22a-112. The act “delegates the administration of the state-wide policy of planned coastal development to local agencies charged with responsibility for zon*196ing and planning decisions. See General Statutes §§ 22a-105, 22a-106. The act envisages a single review process, during which proposals for development within the coastal boundary will simultaneously be reviewed for compliance with local zoning requirements and for consistency with the policies of planned coastal management.” Vartuli v. Sotire, 192 Conn. 353, 358, 472 A.2d 336 (1984). Toward this end, the city of Norwalk has enacted § 118-1110 of its municipal code, which requires that for property located within the coastal boundary “[a]n application for coastal site plan review in accordance with Sections 22a-105 (c) and 22a-106 (c) of the [act], as amended, shall be filed with the Zoning Inspector in addition to an application for zoning approval, zoning variance, Special Permit or special exception.” Norwalk Code § 118-1110 B (2) (b).

Once an application for coastal site plan review is filed, the zoning commission is empowered to “approve, modify, condition or deny the activity proposed . . . to ensure that the potential adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities are acceptable.” General Statutes § 22a-105 (e). The scope of the conditions that may be imposed by the commission is limited by the requirement that they mitigate the adverse impacts of the proposed use. General Statutes § 22a-106 (e).

The trial court held that the commission was not authorized to condition its approval of the plaintiffs coastal site plan as it did “because the condition does not mitigate the adverse impacts as required under General Statutes § 22a-106 (e).” Having found the condition unenforceable under the act, the trial court properly concluded that “the constitutional issues raised by the plaintiff need not be reached.”

*197Although none of the parties has challenged the trial court’s ruling invalidating the condition under the act, the plaintiff, nonetheless, claims that it was improper for the court not to decide his claim that the imposition of the condition resulted in an unconstitutional taking. He argues that the clear intention of the commission to reimpose the condition of a public access easement requires us to reach this issue. This claim is without merit.

Before being entitled to judicial review of his takings claim, the plaintiff has the burden of showing that he has been finally deprived by the commission of the use of his property. Smith v. Zoning Board of Appeals, 227 Conn. 71, 99, 629 A.2d 1089 (1993); Gil v. Inland Wetlands Agency, 219 Conn. 404, 415, 593 A.2d 1368 (1991). As a threshold matter, the plaintiff thus bears the difficult burden of proving that the commission will not allow any reasonable use of his property. Gil v. Inland Wetlands Agency, supra. The plaintiff has failed to cite to, and our review has failed to reveal, any evidence in the record manifesting an intent on behalf of the commission to disregard the ruling of the trial court. Although the commission may in fact impose a condition on a subsequent application, this court may not speculate as to whether or how the commission might condition its subsequent approval of a future application. Consequently, we decline, as the trial court properly did, to address the plaintiff’s constitutional claim.

II

The plaintiff next claims that the trial court improperly concluded that there was sufficient evidence in the record to support the commission’s finding that the proposed use had potential adverse impacts on future water-dependent development activities. The plaintiff argues that, as a result, the commission lacked the power to impose conditions on the approval of his appli*198cation. We disagree. While it is true that the act requires a finding of adverse impact antecedent to the imposition of conditions, the plaintiffs claim must fail because, as the trial court properly concluded, there was substantial evidence in the record to support the commission’s finding.7

With respect to review of a coastal site plan, “ '[proceedings before planning and zoning commissions are classified as administrative.’ Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 733, 563 A.2d 1347 (1989). ‘Conclusions reached by the 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 agency. The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached. Calandro v. Zoning Commission, 176 *199Conn. 439, 440, 408 A.2d 229 (1979). The action of the commission should be sustained if even one of the stated reasons is sufficient to support it.’ Primerica v. Planning & Zoning Commission, 211 Conn. 85, 96, 558 A.2d 646 (1989); see also Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-40, 525 A.2d 940 (1987). ‘The evidence, however, to support any such reason must be substantial . . . .’ Huck v. Inland Wetlands & Watercourses Agency, supra, 540. ‘This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. . . . [It] is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and *200capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration. . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.’ (Citations omitted; internal quotation marks omitted.) Id., 541.” Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 697-98, 628 A.2d 1277 (1993).

Adverse impacts on future water-dependent development opportunities and activities “include but are not limited to (A) locating a non-water-dependent use at a site that (i) is physically suited for a water-dependent use for which there is a reasonable demand or (ii) has been identified for a water-dependent use in the plan of development of the municipality or the zoning regulations . . . .” General Statutes § 22a-93 (17). “ ‘Water-dependent uses’ means those uses and facilities which require direct access to, or location in, marine or tidal waters and which therefore cannot be located inland, including but not limited to: Marinas, recreational and commercial fishing and boating facilities, fínfish and shellfish processing plants, waterfront dock and port facilities, shipyards and boat building facilities, water-based recreational uses . . . and uses which provide general public access to marine or tidal waters.” (Emphasis added.) General Statutes § 22a-93 (16).

*201It is undisputed that the stockpiling of materials on lot two is a “non-water-dependent use.” In order to prevail, therefore, the plaintiff must show that there is not substantial evidence in the record that the property either is suitable for a water-dependent use for which there is a reasonable demand or is identified for such use in the Norwalk plan of development.8

A review of the record reveals substantial evidence that the site is suitable for a water-dependent use and that there is a reasonable demand for that use. The department, in its letter to the commission, stated its opinion that the site was reasonably suited for a water-dependent use. Specifically, the department suggested that the site was suitable to provide general public access to the Norwalk River through the erection of a walkway that could easily be linked to an existing riverfront walkway located on property abutting lot two to the north.

The record also contains a list of six improved properties located along the Norwalk River, including the site abutting lot two to the north, that have provided public access to the river in order to gain coastal site plan approval. The plaintiff argues that these grants of public access do not support the commission’s findings *202because they are merely examples of acquiescence by other property owners and not evidence of adverse impacts. These grants, however, do support the commission’s finding in two ways. First, they are evidence that similarly situated properties are suitable for a water-dependent use. The commission could have inferred from this evidence that the plaintiff’s property was also so suited. Second, they are evidence of a demand for this water-dependent use in the plaintiff’s locality.

Moreover, there is substantial evidence in the record showing that the plaintiff’s property has been identified for a water-dependent use in the plan of development of the city of Norwalk. The commission had before it six separate plans of development passed by the Norwalk common council and other municipal agencies dating from 1979 through 1990. These plans advocate obtaining public walkway easements from riverfront property owners to increase public access to the Norwalk River and are evidence of a longstanding plan of development contemplating the same.

On the basis of this record, we conclude that there is substantial evidence supporting the commission’s finding of potential adverse impacts on future water-dependent development opportunities and activities.

Ill

The plaintiff next claims that the trial court improperly reversed the entire decision of the commission. He argues that the trial court should have stricken from the commission’s decision the illegal condition requiring a public access easement, but permitted its approval of his application to stand. Although the imposition of an unlawful condition does not necessarily render a zoning authority’s entire decision illegal and inefficacious; Beckish v. Planning & Zoning Commission, 162 Conn. 11, 18, 291 A.2d 208 (1971); where the void condition *203was an essential or integral component of the zoning authority’s decision it cannot be upheld. Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 66, 574 A.2d 212 (1990). We conclude that in this case, the grant of public access was an essential and integral element of the commission’s decision and that its invalidation required reversal of the entire decision.

As noted earlier in this opinion, the commission found that the plaintiff’s proposal had potential adverse impacts on future water-dependent development opportunities and activities. The void condition was imposed by the commission in order to mitigate the potential adverse impacts of the plaintiff’s proposal by adding a water-dependent component to the proposed use that was not water-dependent. See General Statutes §§ 22a-105 and 22a-106. None of the other five conditions imposed on the approval of the plaintiff’s coastal site plan can be read as serving this purpose. See footnote 6. Under these circumstances, we cannot conclude that the commission would have approved the plaintiff’s application if it had been aware that the condition it had imposed could not be enforced. The condition was, therefore, an essential component of the commission’s decision. As a result, the trial court properly held that the avoidance of the condition required reversal of the commission’s decision in its entirety.

The judgment is affirmed.

In this opinion the other justices concurred.

DeBeradinis v. Zoning Commission
228 Conn. 187

Case Details

Name
DeBeradinis v. Zoning Commission
Decision Date
Jan 4, 1994
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228 Conn. 187

Jurisdiction
Connecticut

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