Greenwich Homeowners in Conservation Zones
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BRIEF OF PLAINTIFFS NATURE OF THE ACTION This case is a two-count action: 1 -
an administrative appeal brought pursuant to General Statutes Sections 8-8 and 8-10; and 2
- a petition for a declaratory judgment brought by the plaintiffs Dominick L. Campformio,
Robert G. Donnalley, Jr., William Geisler, Gordon Hale, Individually and as Co-Executor of
the Estate of Albert Clayburgh, Peter W. Jayes, Peter Lauridsen, Priscilla Lauridsen, Alan
Small, George Suter, Paula Sutliffe, and Concerned Homeowners of Greenwich, from the
November 17, 1998 decision of the defendant Greenwich Planning and Zoning Commission (the
"Commission") to adopt certain amendments to the Zoning Regulations of the Town
of Greenwich (the "Zoning Regulations") reducing the floor area ratio
("FAR") for five residential zone districts, and creating new FARs for two
additional residential zone districts set forth in the Zoning Regulations (the
"Amendments"). FACTUAL AND PROCEDURAL BACKGROUND Upon the application of Planning
& Zoning Commission staff, the Commission considered certain amendments reducing the
FAR for five, and creating new FARs for two, residential zones set forth in Section 6-205
of the Zoning Regulations (the "Amendments") at public hearings on October 20,
1998 and November 10, 1998. Return of Record ("ROR") Exhibit Nos. 42, 85,
93 and 99. The first legal notice of the October 20, 1998 hearing was published in the Greenwich
Time on October 9, 1998, noting that the public hearing would be held at Greenwich
Town Hall, 101 Field Point Road, Greenwich, Connecticut. ROR Exhibit No. 32. A
second legal notice of the October 20, 1998 public hearing was published on October 16,
1998 noting the same location. Directly beneath that legal notice another legal notice of
the October 20, 1998 public hearing was published, showing a different location for the
same public hearing. ROR Exhibit No. 34. This notice indicated that the public
hearing would be held in the auditorium of Western Middle School on 1 Western Junior
Highway. This was the first and only published notice that the public hearing would be
held at Western Middle School, and not at the Town Hall. The public hearing of October
20,1998 was not held at 101 Field Point Road, Greenwich, Connecticut. Instead, it was held
in the Auditorium of Western Middle School on 1 Western Junior Highway in Greenwich. ROR
Exhibit No. 42. After receiving some 103 items of
evidence and hearing hours of testimony at two contentious public hearings, the Commission
adopted the Amendments on November 17, 1998. ROR Exhibit No. 93. The Amendments
make the following changes to Section 6-205 of the Zoning Regulations, effective December
2, 1998: (words in bold to be added, parentheses to be
deleted) 1. Amend. Sec. 6-205, Schedule of Required
Open Spaces and Limiting Heights and Bulk of Buildings for Residential Zones for Single
Family Uses as follows: RA-4 Zone: .0625 Floor Area Ratio/.05 Note 7 RA-2 Zone: .09 Floor Area Ratio/.075 Note 7 RA-1 Zone: .135 Floor Area Ratio (.15) RA-20 Zone: .225 Floor Area Ratio (.25) RA-12 Zone: .315 Floor Area Ratio (.35) RA-7 Zone: .36 Floor Area Ratio (.40) RA-6 Zone: .55 Floor Area Ratio (.60) ROR Exhibit No. 93. Legal
notice of the Commission's adoption of the Amendments was published in the Greenwich
Time on December 1, 1998. ROR Exhibit No. 93. The plaintiffs timely served
and filed this administrative appeal of the Commission's action. In addition, in
accordance with Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551 (1998)
and Berlin Batting Cages, Inc. v. Berlin Planning and Zoning Comm'n, 23 Conn. L.
Rptr. No. 17, 572 (March 22, 1999) (Booth J.), the plaintiffs in a second count seek a
declaration that the Amendments are facially invalid. An Order of Notice was published in
the Greenwich Time on April 22, 1999, in accordance with this court's granting of
the motion for order of notice of the declaratory judgment action on March 29, 1999. AGGRIEVEMENT The plaintiffs, except for the
Concerned Homeowners of Greenwich, are statutorily and classically aggrieved by the
actions of the Commission, in accordance with General Statutes Section 8-8, in that they
are the owners of property in the town of Greenwich (the "Town") and they are
directly and adversely affected by the Amendments. As owners of land within several zones
to which the Amendments pertain, these plaintiffs are aggrieved parties under General
Statutes Section 8-8(a)(1). See, Timber Trails Corp. v. Sherman Planning &
Zoning Comm'n, 222 Conn. 374, 376 n.3 (1992); Cole v. Cornwall Planning &
Zoning Comm'n, 30 Conn. App. 511, 514 (1993). In addition, all of the plaintiffs,
including Concerned Homeowners of Greenwich, are classically aggrieved by the decision of
the Commission in approving the Amendments because, as will be shown at trial, the
Amendments will result in a diminution in the real property value of each of the
plaintiffs. The plaintiffs all own or have members who own existing residential structures
on their property and some wish to expand, alter or sell these properties. Because of the
vagueness of the Regulations, plaintiffs have suffered or will suffer loss of property
values and will be unable to submit applications for previously intended work to change,
alter, demolish or construct improvements on their various properties now or in the
future. Concerned Homeowners of Greenwich
consists of members (all the plaintiffs herein and other affected landowners) who will be
adversely affected by the implementation of the Amendments and who will suffer loss of
property values, thus making it classically aggrieved. "An association has standing
to bring suit on behalf of its members where: (a) its members would otherwise have
standing to sue in their own right; (b) the interest it seeks to protect are germane to
the organization's purpose; and (c) neither the claim asserted nor the relief requested
requires participation of individual members in the lawsuit." Connecticut Ass'n of
Health Care Facilities, Inc. v. Worrell, supra, 199 Conn. at 619. As set forth
above, the plaintiffs, as members of Concerned Homeowners of Greenwich, are aggrieved by
the decision of the Commission and thus, have standing in their own right to challenge the
actions of the Commission. The organizational purpose of Concerned Homeowners of Greenwich
is to protect the interests of landowners in Greenwich who were adversely affected by the
implementation of the Amendments. Additionally, the claims asserted do not require the
participation of individual members of the lawsuit and individual members of the
organization are participating in this action. All of the plaintiffs have standing
with respect to the declaratory judgment action because there is an actual bona fide
controversy and uncertainty as to the jural relations as between them and the defendant
Commission. ARGUMENT 1. The Amendments Unlawfully Limit Floor
Areas In Certain Residential Zones Because The Preservation Of Community Aesthetic
Character, By Itself, Is An Improper Exercise Of The Protection Of The Community's Public
Health, Safety, And General Welfare And Is Beyond The Commission's Powers Defined In
General Statutes Section 8-2. At the outset of the public hearings
on the Amendments, the Commission identified two bases for the imposition of FARs to limit
house size: ". . . to preserve the quality of residential neighborhoods and reduce
the environmental impact to [sic] oversized residences by providing for controlled growth
of house in the town." ROR Exhibit No. 42 at p. 5. Commissioner Stone
succinctly described the Commission's ultimate concern: As we went through the process of developing
the plan of conservation and development, one recurring theme that we heard in all parts
of town was that the town was being overbuilt, that houses were getting too large, that
the character of the town that people came here for was being lost. ROR Exhibit No. 42 at p. 6.
While the "consideration as to the character of the district" is enumerated in
the State's zoning enabling statute, General Statutes Section 8-2, and the protection of
the environment is arguably a legitimate exercise of the police power, the Commission's
decision is ultra vires since the record shows that it was, in reality,
based on aesthetic considerations. A review of the record as a whole
demonstrates that the actual reasons for the imposition of these restrictions were
aesthetic in nature. It is immaterial in the face of such evidence that the Commission
declared, in a statement carefully crafted and scripted before the hearings began, that
aesthetics was not the controlling factor in its consideration of the Amendments: The action is not to control aesthetics of
the new large houses and additions to existing homes, but it is predominately contextual
or relationship oriented; it is an attempt to bring construction into harmony with
existing neighborhoods. This statement was repeated verbatim
no less than three times, at the beginning of the public hearings and at the beginning of
the deliberative meeting of November 17, 1999. ROR Exhibit Nos. 42 at p. 5; 43; 85
at p. 2-3; 90 at p. 8. Just because the Commission disavowed aesthetics in a mechanistic
incantation on the record does not mean that it acted in accord with this
"canned" statement. Nowhere in the record does the Commission attempt to
describe with specificity the "character" it is trying so desperately to
preserve. This attempt at distancing itself from what it likely knew was an illegal motive
actually betrays the Commission's real concern, i.e. regulating how Greenwich is to look,
by the very terms it employs: "contextual," "relationship-oriented,"
and "harmony." This concern was voiced by Town Planner Diane Fox, when she
stated that the Amendments were an effort to prevent "a Levittown of starter
mansions." ROR Exhibit No. 86 at p. 17. Aesthetics, by itself, is not a
legitimate basis for the exercise of the police power in Connecticut. DeMaria v.
Planning & Zoning Comm'n, 159 Conn. 534, 541 (1970). Aesthetics involve highly
subjective criteria and any regulation founded thereon should be overturned. See, e.g.,
Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 67-69
(1988). The Connecticut General Assembly
recognized this when it recently enacted the Connecticut Village Districts Act, which
expressly authorizes municipalities to regulate community aesthetics through zoning under
certain limited circumstance and only by invocation of the Village Districts Act. Public
Act 98-116, Conn. Gen. Stat. § 8-2j. General Statutes 8-2j authorizes the zoning
commissions of Connecticut municipalities to establish "Village Districts" as
part of their zoning regulations. These regulations "shall protect the distinctive
character, landscape and historic structures of such areas. Conn. Gen. Stat. §
8-2j(a) (Emphasis added). The town must establish compatibility objectives in their
regulations and any applications made under these regulations are subject to review and
recommendation by an architect selected and contracted by the Commission. Conn. Gen. Stat.
§ 8-2j(b) and (c). The defendant Commission, however, made no effort to follow the
requirements of General Statutes Section 8-2j here in adopting the Amendments. The tenets of statutory construction
in Connecticut dictate that the legislature is deemed to know all of its laws, and that
when it speaks on a specific topic, all other statutes should be read to be consistent
thereto. See Butler v. Hartford Technical Institute, Inc., 243 Conn. 454,
461 (1997). To allow the Commission here to regulate aesthetics under general police power
objectives set forth in General Statute Section 8-2 would directly conflict with the
express legislative dictates of the Village Districts Act. The Village Districts Act is
the only zoning enabling legislation in Connecticut that allows for aesthetic
considerations, and its effective date, October 1, 1998 was well before the effective date
of the Amendments, December 2, 1998. To regulate community aesthetics in any other manner
is ultra vires and contravenes the teachings of DeMaria supra.
If the Commission desires to regulate aesthetics at all, it must do so under General
Statutes Section 8-2j. There is perhaps no more telling
indication that aesthetics was the Commission's primary concern than the series of
photographs put into evidence by the Commission and various townspeople to demonstrate the
large house phenomenon. ROR Exhibit No. 48. These photographs purport to show
oversized houses, and the back of most of these pictures contain various calculations of
existing FARs and square footages. Ironically, the construction of few, if any, of these
structures would have been prevented by the enactment of these Amendments. The record shows that the Commission
was driven by aesthetic concerns in its attempt to reduce the size of houses in town. As
one resident put it: "The primary objection to houses 'too large for their property'
is visual." ROR Exhibit No. 37. Another was more explicit: "For the past
ten years, we have been appalled at the monstrous, and in most cases, extremely ugly
houses that have been and continue to be built." ROR Exhibit No. 40. Another
citizen stated that "the large size houses being built in the back county. . . in
many instances looked to those of us who have lived here a lifetime to be tasteless."
ROR Exhibit No. 42 at p. 76. Another revealed the real impetus behind the
regulatory effort when describing a recently built house this way: "Now when you look
at that house don't matter [sic] how small you build it, it is a monstrosity." ROR
Exhibit No. 42 at p. 141. Mr. Jim Maloney, staff for the
Commission, admitted that aesthetics is necessarily part of the equation: It is not across the board, but it is, when
we do receive complaints, they are almost always the same. They are almost always made by
folks who have lived in town for quite a long time and have a sense of neighborhood
character and aesthetic and what has happened is, . . ., the homes that are near them are
either being completely raised [sic] and rebuilt in much, much larger contemporary format.
. .. ROR Exhibit No. 42 at p. 62.
Greenwich Town Planner Diane Fox's statement prepared for the October 20, 1998 public
hearing supports this view: Residences and structures recently built are too
visually overpowering for the sites on which they are located. Insufficient land area
for size and location of house [sic], looms over adjacent abutting residences in
more dense zones. . ., ends up tearing down existing structures of historical or architectural
value to the streetscape and replaces [sic] with designs that do not fit
existing neighborhood character. ROR Exhibit No. 44 at p. 1.
(Emphasis added.) This same document also betrays a deeper, more troubling and
inappropriate factor for a public body to consider in regulating: "Where in the past
wealth was hidden behind a long driveway to a large mansion, today's mentality of building
is 'in your face' up close and personal in the front yard." ROR Exhibit No. 44
at p. 1. This sentiment was echoed by the Chair of the Land Use Committee of the
Representative Town Meeting: A recent article in the New York Times
called us a toney enclave. Greenwich has become the right address for those who made it
big in Wall Street in the 90's and space has become the ultimate luxury. Greenwich is the
place to build trophy houses and starter mansions. I don't think that's the image of Greenwich
that most of us share. I think that's what this issue goes to. ROR Exhibit No. 42 at pp. 73
to 74. The underpinnings to support the
adoption of the Amendments is grounded upon aesthetic considerations. This action is ultra
vires and should be overturned. 2. The Amendments Unlawfully Limit Floor
Areas In Certain Residential Zones Because Such An Absolute Prohibition Is Not Rationally
Related Either To The Protection Of The Community's Public Health, Safety, And General
Welfare Or To Any Of The Commission's Defined Powers Under General Statutes Section 8-2. Even if the Commission was
authorized to regulate based on aesthetic character, the means by which it has chosen to
do so, an FAR, is not rationally related to the protection of the public health safety and
welfare, nor is it related to any other defined power in General Statutes Section 8-2. In
exercising its authority to legislate restrictions on land use, the discretion of a
planning and zoning commission is limited to enacting regulations that are rationally
related to the accomplishment of the statutory goals set forth in General Statutes Section
8-2 of protecting and promoting the public health, safety, convenience, property values,
and the general welfare. Builders Service Corp. v. Planning & Zoning Comm'n,
208 Conn. 267, 306 (1988). In Builders Service, the town
of East Hampton amended its zoning regulations to require a minimum floor area of 1300
square feet for single-family houses in a certain residential area of town. The Court
invalidated this regulation because there was no evidence of a rational relationship
between this minimum floor area requirement and any of the legitimate objectives of zoning
in General Statutes Section 8-2. The Builders Service rationale controls here,
where there is no rational relationship between the imposition of a floor area ratio and
the preservation of the community's aesthetic character, even presuming the latter is a
legitimate objective of zoning in Connecticut outside of the Village Districts Act. As shown above, the record is clear
as to the Commission's intention to protect the streetscape and the aesthetic character of
the town. A regulation containing an FAR, by itself, cannot address this purpose because
it does nothing more than control the amount of square footage that can be built on a
given lot. It does not, by definition, control the location of such a building on a lot
relative to the street or other structures. Town Planner Diane Fox admitted this
limitation: ". . . of all the measurable statistics, FAR has the most relevance to
the proportions between buildings and lot size." ROR Exhibit No. 42 at p.
45. (Emphasis added). The location of a residence on a lot is instead regulated by the
building setback lines that determine the building's relationship with the street and
other buildings. In addition, the Commission could institute building height limitations.
Indeed, the Commission was made aware of and seemed to realize the proper role of setbacks
and other types locational land use control at various times during the public hearings. ROR
Exhibit No. 42 at pp. 140-141, 163, 177, 194, 196, 210; Exhibit No.85 at pp. 38, 47, 57,
96, 106. Members of the Commission recognized
that all manner of bulk controls would be needed to effectuate the goals set forth in the
comprehensive plan to limit the size of single-family dwellings, and that the FAR was not
a "stand-alone" solution to the town's problem: MR. OTZMEL: . . . Are you only going to study
FAR now and then make a decision and then later on look at other areas? [COMMISSIONER] EUSTIS: That's correct. MR. OTZMEL: My concern then is that the FAR
is only part of the puzzle. MR. EUSTIS: We agree. * * * {COMMISSIONER] STONE: . . . [W]e felt that we
would take it one step at a time and that the most critical thing of all the issues in the
whole town was size of houses, which traditionally has been addressed through the floor
area ratio. And yes, setbacks, definition, all these things, coverage, all must be
addressed too. We intend to do it. ROR Exhibit Nos. 42 at p.
232; 85 at p. 167. In essence, the Commission admits that the Amendments are incomplete.
The Commission even admitted that there were alternatives to its chosen course that they
summarily discarded in favor of "the way things have always been done in
Greenwich:" Now you all know, we all know, there are many
ways of doing that [limiting the size of houses], and our neighbors in Fairfield County,
Westchester, New Jersey, Chicago and so on all have different ways of doing it. But the way housing size has been controlled
in Greenwich for many, many years has been through the floor area ratio. ROR Exhibit No. 42 at p. 7.
The problem with applying the "tried and true" mechanism here, of course, is
that the Commission is not simply trying to regulate house size; it is attempting to
regulate the appearance of these houses through the guise of preservation of the
as-yet-undefined character of Greenwich. Among alternatives readily available to the
Commission were architectural design controls enacted under the authority of General
Statutes Section 8-2j that could, to one extent or another, be implemented by the land use
body in Greenwich ideally suited to do so, the Architectural Review Board. Such
regulations doubtless could address the way buildings affect the streetscape and how the
facades of these structures visible from public ways should relate to one another. The means chosen by the Commission,
i.e. an FAR calculation, is not rationally related to the stated goal of the Commission,
i.e. to preserve the aesthetic character of Greenwich's single-family neighborhoods. The
Commission acknowledged this as only a first and incomplete step. This court should strike
the Amendments on this basis. 3. The Commission's Decision To Adopt The
Amendments Is Not Supported By Substantial Evidence Contained In The Record. The record contains discussion about
protection of the "character" of Greenwich and the protection of the
environment, but the Commission failed to establish how this numerical calculation can
address both of these concerns. The decision of the Commission to adopt the Amendments
must be reasonably supported by evidence contained in the record. Primerica v. Planning
& Zoning Comm'n, 211 Conn. 85, 96 (1989). In the first instance, the
Commission failed to describe in any discernable manner the "character" it was
so desperately trying to protect, and apparently did not seek the help of the
Architectural Review Board. Likewise, the Commission failed to specify how the FAR
protects the environment. The Commission did not relate the difference in FARs to
different environmental conditions, e.g. lower FAR in areas lacking in recharge areas. The
record also shows that the Commission did not consult with the town Conservation
Commission, the only town body with environmental expertise. In addition, as the following
sections show, there are serious flaws in the data serving as the foundation for
establishing the new FARs. a. The Commission's Reliance Upon Admittedly
Erroneous Data In Determining The Calculation Of The Floor Area Ratio For Each Zoning
District Is Insufficient To Support Passage Of The Amendments. In August 1988, the Commission first
broached the subject of concern about the lack of floor area ratios in two and four acre
zones. The Commission entered into a "FAR Study", made part of the record in
this case. In the FAR study, the Commission noted that establishing a very low FAR
"could destroy property values" where it was applied. ROR Exhibit No. 1.
In the ensuing 10 years, the town ultimately arrived at the Amendments, but this
conclusion as to the destruction of property values was never challenged. During the
public hearings on the Amendments, the negative effect of the Amendments on property
values was brought up by citizens, but given short shrift by the Commission. ROR
Exhibit No. 42 at pp. 74, 125, 213; Exhibit No.85 at pp. 39, 52, 102. The Commission then
arbitrarily adopted the Amendments, in contravention of its duty to "protect the
public health, safety, convenience and property values" and to regulate
"with a view to conserving the value of buildings." Conn. Gen. Stat. §
8-2. (Emphasis added). Given the negative effect of this
restriction on property values and the fact that the floor area is a mere numerical
computation, the accuracy of the data supporting the calculation of the FAR becomes
paramount. The record reveals that this critical data, what the town assessor termed
"Square Feet of Living Area" or "SFLA" was primarily found in the
Greenwich Tax Assessor’s computer database. ROR Exhibit Nos. 42 at pages
39-53; 45. This SLFA, which purportedly describes the "living area" of a house,
does not include attics and sometimes does include finished basements, although such data,
to one degree or another, was apparently available on the Assessor’s field cards. In
addition, no town records apparently exist documenting how many or which houses in
Greenwich have basements. The Commission staff used this questionable data, arbitrarily
added factors to account for walls, other interior physical features, basements and
attics, and came up with an ideal maximum "living area" that was
reversed-engineered to develop the FAR for each zone. At various times during the public
hearings there was testimony that it was common knowledge in town that the Assessor’s
records were "notoriously" and "wildly" inaccurate. ROR Exhibit
Nos. 42 at p. 192; 85 at p. 139. Town planner Diane Fox admitted this state of affairs at
the November 11 public hearing in response to this testimony: We thought in the specialized zones that we
would have a better source of data directly with the [computer database] and not use the
field cards that we have found ourselves to have some discrepancies.. . . And I’m not
disagreeing with you in terms of the discrepancies, but obviously that’s something
that we know that has to be addressed through the assessor and not us. ROR Exhibit No. 85 at p. 142.
Earlier in that same hearing, she explained the lack of reliable data that was to form the
foundation of the FAR requirement this way: MR. KWAIT: I have on quick question because I’m
not an expert in calculating all these real estate formulas. This KVS, or whatever it is,
does it take into consideration basements or attics? It’s a simple yes or no. MS. FOX: If the assessor puts it on the card
it is included in your assessment and we used it. ROR Exhibit No. 85 at p. 94.
This example demonstrates that the underlying data is inherently and admittedly flawed,
arbitrarily applied upon the whim of the Assessor, and, as such, does not support the
Commission's decision to enact the Amendments. The relationship between the record
and the Amendments in this case are reminiscent of those in Primerica v. Planning and
Zoning Comm'n, supra, 211 Conn. 85, a case in which the Connecticut Supreme
Court found that this very Commission adopted a regulation that was not supported
by the evidence in the record. In Primerica, the Commission amended the Greenwich
Zoning Regulations to allow the number of occupants that would be possible on a site. The
Supreme Court found that the record did not contain any reasons underlying that numerical
calculation: [T]he commission gave no specific reasons why
it put a limit of three occupants on the subject property, other than it wished to
accommodate the number of users that would be possible if the site were subdivisible,
while retaining the concept of a single use per fifty acres. Rather, the Commission made a
general statement that multiple occupancy in the BEX-50 zone would lead to greater
congestion during peak traffic. We agree with the trial court that there is nothing in the
record to support this proposition. Id. at 100. Here, not only
was the purpose for the Amendments ultra vires, the method utilized was not
rationally related to the purpose. To add insult to injury, the underlying data itself was
admittedly inaccurate. Thus any numerical calculation to create floor area ratios derived
from that data cannot, by definition, be supported by the record. b. The Commission's Reliance Upon Admittedly
Erroneous Data In Determining The Extent Of The Nonconformities To Be Created By The
Amendments Is Insufficient To Support Passage Of The Amendments. During its deliberations, it became
apparent that the Commission did not have a sufficient understanding of the role the
Amendments would play in creating nonconformities throughout Greenwich. ROR Exhibit
No.90 at pages 10-38. This lack of understanding, once again, was caused in no small part
by the reliance by staff on admittedly flawed data concerning the living area that formed
that basis of the FAR. What the Commission did understand, however, was that it was
increasing nonconformities throughout Greenwich, although it could not determine with any
degree of accuracy how many it was creating. ROR Exhibit No. 90 at pages 10-12,
24-28. Town planner Diane Fox succinctly encapsulated her intent concerning this issue
early in the first public hearing: "Obviously, choosing a number which causes no
nonconformities would not be accomplishing very much." ROR Exhibit No. 42 at
p. 44. This method of regulating is in
direct contravention with the familiar admonition to Connecticut land use bodies that
nonconformities should be abolished or reduced as soon as quickly as possible since
nonconformities are the antithesis of sound zoning practice. See, e.g., Hyatt
v. Zoning Board of Appeals, 163 Conn. 379, 383-4 (1972). Simply put, the Commission
here should be reducing, and not actively increasing, nonconformities in
town. To the extent nonconformities might be created, the Commission should have
understood the degree of the impact before deciding if the Amendments were appropriate. Lawfully established nonconforming
uses are vested property rights. O&G Industries, Inc. v. Planning & Zoning
Comm'n, 232 Conn. 419, 430 (1995). These rights are also protected by General Statutes
Section 8-2. They are, however, subject to many restrictions, including those on
expansion. See, e.g., Zachs v. Zoning Board of Appeals, 218 Conn. 324
(1991). Thus, the Commission, by design or accident, seems to have found another way to
prevent to the expansion of houses in town. This type of regulation, which will
significantly reduce the manner in which single-family houses in Greenwich can be expanded
to suit to needs of growing families, is clearly in derogation of a property right, and to
be valid it must be supported by reliable data. As was the case in the base data
underpinning the FAR, the record does not support the Commission's decision to enact the
Amendments because it did not have reliable data to perform its duty to balance the
financial effect on private property rights of particular owners for the greater public
good. The Commission’s adoption of the Amendments was arbitrary and irrationally
increased the number of nonconformities in Greenwich. c. The Commission's Claim On The Record That
The Zoning Board Of Appeals ("ZBA") Would Provide Relief From The Amendments
Where Necessary Was Unsubstantiated Because It Has Became Apparent That The ZBA Has Not
Yet Granted Such Relief. During the public hearings on the
Amendments, the Commission received letters and heard from citizens who would be directly
affected by the reductions in their FARs because they had up until the time of the
hearings expended considerable amounts of time and money in preparing applications for
expansions to their residences under the regulations in effect at the time. ROR
Exhibit Nos. 42 at pp. 233-234; 54; 58; 60; 61; 85 at pp. 64-66, 148-150. Rather than
fairly dealing with these cases by altering the Amendments before adoption, the public was
simply reminded by the Commission that they should seek administrative relief from the
Amendments by filing variance applications with the Planning and Zoning Board of Appeals. ROR
Exhibit No. 85 at pp. 21, 24, 66. In response, one member of the public related that he
had sought "an FAR variance" under the existing Zoning Regulations. That request
was denied, and he concluded after his experience "that the Zoning Board of Appeals
was not inclined toward granting FAR variances." ROR Exhibit No. 85, p.
160-161. Indeed, after the public hearing was closed, during its deliberations, the
Commission recognized the Sisyphean task facing those who would need to establish the
hardship necessary to secure a variance from the Amendments. ROR Exhibit No. 90 at
pp. 44-48. Plaintiff's offer of proof is that
since the adoption of the Amendments a number of such variance applications have been
filed, yet no application for relief from the regulations has been granted to the date of
this brief. The plaintiffs will shortly file a motion with this court seeking to admit
additional evidence outside the record to support this assertion. This evidence will be
necessary to equitably dispose of this aspect of the appeal. See Conn. Gen. Stat. §
8-8(k). 4. Section 6-205 Of The Zoning Regulations
And The Amendments Thereto Violate The Uniformity Requirements Of General Statutes Section
8-2 Since There Are Insufficient Standards Set Forth To Guide An Applicant On How To
Properly Calculate What Is Included Or Excluded In The Floor Area To Which The Ratio Is
Applied. Even if the FAR calculation is
rationally related to the goal of the preservation of single-family neighborhoods in
Greenwich, the Zoning Regulations and the Amendments thereto violate the uniformity
provisions of General Statutes Section 8-2. General Statutes Section 8-2 provides, in
pertinent part, that zoning regulations shall be uniform for each class
or kind of buildings, structures or use of land throughout each district, but the
regulations in one district may differ from those in another district, . . . An FAR regulation could, in theory,
satisfy this section, e.g., the RA-20 Zone has a .225 FAR, while the RA-12 Zone has a .315
FAR, because they are required throughout each zone and the exact percentages may differ
from zone to zone. A closer look at this enactment, however, reveals that these
Regulations and the Amendments thereto cannot be uniformly applied. "The obvious purpose of the
requirement of uniformity in the regulations is to assure property owners that there shall
be no improper discrimination, all owners of the same class and in the same district being
treated alike." Bartsch v. Planning & Zoning Comm'n, 6 Conn. App. 686 ,
689 (1986) (quoting Veseskis v. Bristol Zoning Comm'n, 168 Conn. 358, 360 (1975)).
No such assurance can be made to the people of Greenwich by the Commission here. The
Amendments as written actually invite an ad hoc, discriminatory application because
the critical determination of how one is to compute a the square footage to which the
ratio is to be applied is not spelled out in any fashion in the Regulations. One does not
know, for example, whether to include attics, basements, or stairwells in the computation
of floor area. This controversial issue was the subject of heated discussion during the
public hearings. ROR Exhibit Nos. 42 at pp. 192, 219; 67; 68; 85 at pp. 52, 53, 58,
88, 91, 93, 94, 107. The regulations simply do not contain any directions or standards to
be applied by staff or the Commission to apply these ratios to any given application.
Thus, application of these regulations cannot be uniform, and should be invalidated by
this court. In fact the evidence relied on was flawed in exactly this manner, as explained
above. 5. Section 6-205 Of The Zoning Regulations
And The Amendments Thereto Are Unreasonable, Arbitrary, And Void For Vagueness, In
Violation Of The Fifth And Fourteenth Amendments To The United States Constitution And Are
Fundamentally Unfair, Unduly Vague, Unenforceable And Unconstitutional In Violation Of
Article First, Section 8 Of The Connecticut Constitution, Making It Impossible For The
Commission To Properly Administer The Standards Listed In The "Floor Area Ratio"
Column Of The Chart Contained In Section 6-205 And The Amendments Thereto. In order to ensure uniformity and
fairness in the treatment of applicants, regulations must be controlled by fixed standards
to be applied in all cases of similar nature. See, e.g., Ghent v.
Planning Comm'n, 219 Conn. 511 (1991). FAR calculations should do this by taking the
square footage of the lot in question, and multiply it by the FAR to determine the
interior space of a residential building a particular zone in Greenwich. As discussion
during the public hearings indicates, however, this seemingly routine and cold calculation
requires much more interpretation, especially, as noted above, how to include attics and
basements in the floor area allotted to a given property. A plain reading of the language
in Section 6-205 of the Regulations and the Amendments thereto show only a formulaic
number. There is no supporting documentation in the Regulations as to what is included in
arriving at this number. Aside from testimony by town officials, the only record item that
explains how to calculate floor area is a handout prepared by the town building
department. ROR Exhibit No. 47. There is simply no way to avoid an arbitrary
application of the FARs given the manner in which the original FAR Regulations and the
Amendments thereto have been adopted short of further amendments. Thus, the FAR
Regulations and amendments are unduly vague. 6. The Imposition Of These Amendments
Without A Factual Basis Is Unconstitutional. The plaintiffs are also seeking a
declaratory judgment that Section 6-205 and the Amendments thereto are facially invalid.
"Whether specific regulations meet the test of a constitutional exercise of the
police power must be determined in the light of the circumstances shown to exist in a
particular case". Helbig v. Zoning Comm'n, 185 Conn. 294, 304-305 (1981). A
declaratory judgment action is "a special proceeding." Wilson v. Kelley,
224 Conn. 110, 121 (1992). It must be based on a cause of action that would be cognizable
in a non-declaratory action. Id. at 116. "The purpose of a declaratory
judgment action is to secure an adjudication of rights where there is a substantial
question in dispute or a substantial uncertainty of legal relations between parties."
Connecticut Ass'n of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 613
(1986) (citing Practice Book § 390(b) (now Practice Book § 17-55(2)); Lipson
v. Bennett, 148 Conn. 385, 388 (1961)). It is particularly well suited for the
"judicial determination of controversies concerning constitutional rights." Horton
v. Meskill, 172 Conn. 615, 626 (1977). The validity of a regulation is a question that
is proper for a declaratory judgment action. Bombero v. Trumbull Planning & Zoning
Comm'n, 218 Conn. 737, 742 (1991). A declaratory judgment action, however,
"cannot be used to review the question whether the administrative agency acted
correctly or erroneously in rendering its [decision]." Hartford Electric Light Co.
v. Water Resources Comm'n, 162 Conn. 89, 105 (1971) (citations omitted). "To be entitled to declaratory
judgment, the plaintiff must have 'an interest, legal or equitable, by reason of danger of
loss or of uncertainty as to . . . [its] rights or other jural relations.'" St.
John's Roman Catholic Church Corp. v. Darien, 149 Conn. 712, 718 (1962) (quoting
Practice Book § 277(a) (now Practice Book § 17-55(1))). "An essential requirement
is that there be an actual bona fide and substantial uncertainty of legal relations which
requires settlement between the parties." Id. at 717 (citing Practice
Book § 277(b) (now Practice Book § 17-55(2)). "In an action seeking
declaratory judgment, the sole function of the trial court is to ascertain the rights of
the parties under existing law." Middlebury v. Steinmann, 189 Conn. 710, 715
(1983) (citing Ginsberg v. Post, 177 Conn. 610, 616 (1979). "[T]he
trial court may, in determining the rights of the parties, properly consider equitable
principles in rendering its judgment." Id. At the outset, the plaintiffs have
established that there is an actual bona fide and substantial uncertainty of the legal
relations as between them as property owners in the affected zones that are directly
affected by the passage of the original FAR Regulations and the Amendments thereto. The
plaintiffs respectfully submit that the FAR Regulations are not designed to promote the
public health, safety or welfare of Greenwich and on their face do nothing more than
improperly regulate aesthetics in the various residential zone districts at issue. "Zoning regulations, so far as
they reasonably promote the public health, safety and welfare are constitutional, even
though their effect may be to limit the exercise of private property rights." Poneleit
v. Dudas, 141 Conn. 413, 417-418 (1954). Since these regulations are on their face
unreasonable, then their application is unduly confiscatory. The crux of the problem here
is that the FAR regulations as enacted have no rational basis for restricting the
properties of the affected owners. The plaintiffs are not seeking
compensation for either a temporary or permanent taking in this action, but simply seek a
declaration that theses FAR Regulations and their Amendments are facially invalid. The
takings jurisprudence developed by both the United States Supreme Court and the
Connecticut Supreme Court, however, is instructive in showing how these Regulations and
Amendments are constitutionally suspect and violate the Substantive Due Process provisions
of the Fifth and Fourteenth Amendments to the United States Constitution and Article
First, Section 8 of the Connecticut Constitution. In Dolan v. City of Tigard,
512 U.S. 374 (1994), the United States Supreme Court fashioned a two-step test to
determine whether a regulation like the Amendments amounts to a taking for which
compensation must be paid. The first step of that test is relevant at this point, i.e.,
there must be an "Essential Nexus," or legal connection, between the legitimate
state interest as embodied by the regulation and the regulation as written. If such a
qualitative nexus fails to exist, the condition is invalid, as it was in Nollan v.
California Coastal Comm'n, 483 U.S. 825 (1987). The Commission has failed to establish
a nexus between a legitimate state interest and the regulation. As explained in Section 1,
the overriding concern of the Commission was aesthetic in nature, and aesthetics are not a
legitimate state interest except as permitted under the Village Districts Act, General
Statutes Section 8-2j. The Connecticut courts have held
that "An ordinance which permanently restricts the use of land for any
reasonable purpose, however, goes beyond permissible regulation and amounts to ‘practical
confiscation.’" (citations omitted, emphasis in original) Chevon Oil Co. v.
Zoning Board of Appeals, 170 Conn. 146, 151 (1976). The plaintiffs contend here that
their substantive due process rights guaranteed by Article First, Section 8 of the
Connecticut Constitution have been violated by the Commission’s enactment of the FAR
Regualtions and the Amendments thereto. Unlike the situation in Kelley Property
Development, Inc. v. Lebanon, 226 Conn. 314, 330-31 (1993), the plaintiffs here are
not, at this time, seeking to fashion a damages remedy for the violation but seek to
declare these offending enactments unconstitutional under Connecticut’s Constitution. Since the FAR Regulations are
unreasonable on their face because no nexus has been established, their imposition upon
the plaintiffs results in a confiscation. Since the Commission’s enactments fail the
first prong of both the Dolan and Chevron Oil tests, the FAR’s effects
could result in a practical confiscation of all uses otherwise allowed in the zones at
issue and should be declared unconstitutional. 7. The Commission Improperly Noticed The
Public Hearing On The Amendments And Conducted The Hearing In A Fundamentally Unfair
Manner. a. The Commission Violated General Statutes
Section 8-3b And Offended Fundamental Fairness When It Failed To Read Aloud The Referral
Letter From The Southwestern Connecticut Regional Planning Agency. General Statutes Section 8-3b
contains explicit directions to the Commission regarding reports from regional planning
agencies: When the zoning commission of any
municipality proposes to establish or change a zone or any regulation affecting the use of
a zone, any portion of which is within 500 feet of the boundary of another municipality
located within the area of operation of a regional planning agency, the zoning commission
shall give written notice of its proposal to the regional planning agency or agencies of
the region in which it and the other municipality are located not later than thirty-five
days before the public hearing could be held in relation thereto. The regional planning
agency shall study such proposal and shall report its findings and recommendations thereon
to the zoning commission and/or before the hearing, and such report shall be read aloud at
the hearing. The Commission gave written notice
of the Amendments to Mr. Richard Carpenter, Executive Director of the Southwestern
Connecticut Regional Planning Agency, the regional planning agency governing the
Commission's jurisdiction, on August 31, 1998. ROR Exhibit No. 19. The return of
record, however, does not contain a report issued by the Southwestern Connecticut Regional
Planning Agency. A review of the transcript of the public hearings on this matter (ROR
Exhibit Nos. 42 and 85) reveals that a report was not referred to nor was it "read
aloud at the hearing," in contravention of the plain language of General Statutes
Section 8-3b. The Commission's failure in this
regard also offends the doctrine of fundamental fairness expressed by the Connecticut
Supreme Court in Grimes v. Conservation Comm'n, 243 Conn. 266 (1997), because the
members of the public in attendance at the hearing were not furnished with information
that would allow them to meaningfully participate. b. The Commission Failed To Give Proper
Legal Notice Of The Public Hearing Since The Published Notices Were Misleading And
Confusing As To The Location Of The Public Hearing, In Violation Of General Statutes
Section 8-3. The notice of the October 20, 1998
public hearing was defective, and deprived the Commission of jurisdiction to effectuate
the Amendments, because the notice failed to accurately identify the place of the hearing,
as required by § 8-3(a). Wright v. Zoning Board of Appeals, 174 Conn. 488, 491
(1978). General Statutes Section 8-3
provides in pertinent part that Notice of the time and place of [a public
hearing on zoning regulation amendments] shall be published in the form of a legal
advertisement appearing in a newspaper having a substantial circulation in such
municipality at least twice in intervals of not less than two days, the first not more
than fifteen days nor less than ten days, and not less than ten days, before such hearing,
. . . The Commission published three legal
notices in the Greenwich Time. It published one on Friday, October 9, 1998 (ROR Exhibit
No. 32), and two on Friday, October 16, 1998 (ROR Exhibit No. 33). Two of these
notices met the time frames established in Section 8-3, but the third notice identifying a
changed location failed to satisfy the requirement that the legal notice be published
twice. The second notice, appearing on October 16, 1998, stated that the hearing would be
held "at 8 o'clock p.m. in the Town Hall Meeting Room at 101 Field Point Road,"
the same as the notice that appeared on October 9, 1998. This second notice would have
been sufficient except that the public hearing of October 20, 1998 was not held at 101
Field Point Road in Greenwich, but rather in the Auditorium of Western Middle School on 1
Western Junior Highway in Greenwich. The Commission attempted to publish the change of
location of meeting to the 1 Western Junior Highway location, but did so only once, on
October 16, 1998. This hearing notice was placed directly underneath the one with the
wrong address in an apparent attempt to alert people to the new location. By this action,
the Commission created substantial confusion in exactly where the first public hearing on
the Amendments would take place, significantly reducing the chance for interested parties
to know the location of the hearing, let alone to intelligently prepare and participate in
the hearing. "Our courts have consistently
refused to consider the adequacy of public notice to be merely a procedural matter and
have unwaveringly treated failure to give proper public notice as a jurisdictional defect
. . . Without proper public notice, zoning authority actions are null and void." Cocivi
v. Planning and Zoning Comm'n, 20 Conn. App. 705, 707 (1990), cert. denied,
214 Conn. 808 (1990). In Cocivi, supra, the plaintiffs, neighboring property
owners, appealed the commission's grant of a zone change and special permit to the
defendant. The dispositive issue on appeal was "whether the [trial] court erred in
holding that a published notice stating an incorrect date for the public hearing to be
held by the commission satisfied the statutory notice requirement." Id., 706.
In that case, the heading of the first of two notices published by the commission
correctly identified the hearing date but the text of the notice did not. The text of the
notice contained a date that had already passed. The second notice contained no error. The
plaintiffs argued that the first publication "constituted improper notice because the
defect in the date was misleading." Id., 707. The Appellate Court agreed, and
remanded the case to the trial court with direction to render judgment sustaining the
plaintiffs' appeal. The court found that "[f]ar from giving the average reader
reasonable warning of a hearing . . . this notice invited speculation." Id.,
708. The court stated that the defect was not cured by the second, correct notice
"because a single publication does not satisfy the statutory mandate." Id. While the court in Cocivi addressed
the statutory requirement relating to notice of the time of a public hearing, the decision
is applicable to defects in the notice of the place of the hearing as well. Section 8-3(a)
requires that "[n]otice of the time and place of such hearing shall be
published . . . ." (Emphasis added). The Commission's action in publishing one
correct notice stating that the hearing would take place at the Western Middle School
location, does not cure the defect. As stated in Cocivi, compliance with the notice
procedures requiring that proper notice be published at least twice is a
prerequisite to valid zoning authority actions. Id., 707 (discussing publication of
notice of time of public hearing). "A defect in the content of the notice cannot be
cured by proof that some of the public received actual notice, or appeared at the
hearing." Peters v. Environmental Protection Board, 25 Conn. App. 164, 168
(1991). Indeed the manner by which the Commission attempted to correct the notice by
publishing two conflicting notices on October 16, 1998, "invited speculation." Cocivi,
supra at 708. Here, the notice of the public
hearing was patently defective. The notice failed to comply with the statutory mandates of
§ 8-3(a) in that the place was not correctly identified on both legal notices and the
ensuing confusion created unwarranted speculation. Accordingly, this court should find
that the Commission did not have jurisdiction to adopt the Amendments. CONCLUSION The plaintiffs respectfully submit
that it has shown how the Commission committed an illegal and arbitrary act and abused its
discretion when it adopted the Amendments without support in the record, that the
Commission was not enabled to adopt the Amendments, that the Amendments violate
uniformity, that the errors in advertising the first public hearing on the Amendments
deprived the Commission of jurisdiction, and that the FAR Regulations and Amendments
thereto are constitutionally infirm on their face. For all of the foregoing reasons, the
plaintiffs respectfully request that this court sustain its appeal, grant its request for
declaratory judgment. PLAINTIFFS DOMINICK L. CAMPFORMIO, ET AL. By______________________________ Robert J. Sitkowski Fax No.: (860) 275-8299 CERTIFICATION This is to certify that a copy of
the foregoing was mailed, postage prepaid, to Haden P. Gerrish, Esq., Assistant Town
Attorney, Town of Greenwich, 101 Field Point Road, P.O. Box 2450, Greenwich, CT
06836-2540, on this 31st day of August, 1999. ________________________________ Brian R. Smith Commissioner of the Superior Court
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