Agenda - Planning Commission - 08/04/1998

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Page 4 -- June 25, 1998 Z.B. Thompsons' business. Though the Thompsons' claims, if true, might raise questions about the issue of negligence, the city was protected from negligence claims by immunity. Even if a firefighter had said, "Let the damned thing burn down," this didn't prove that the city damaged the Thompsons' barn to shut down their business or deprive them of the use of their property. Even if the city had intentionally allowed the Thompsons' barn to burn down just to shut down their business, the Thompsons..didn't prove this was done for_ a public purpose. Although the city may have regarded the barn as a nuisance, as the Thompsons claimed, the city never took possession of the barn for public use. see also: Robinson v. City of Ashdown, 783 S. W. 2d 53 (1990). Special Use -- Must city rely on applicant's expert testimony regarding noise levels? Citation: Swaim v. Norwalk Zoning Commission, Superior Court of Connecticut, Judicial Dist. Of Stamford-Norwalk at Stamford, No. CV 960151026S (1998) Swain owned industrial land in Norwalk, Conn. Nearby properties consisted of a commercial distribution center, railroad tracks, the city public works garage, a contractor's yard, and police headquarters. Swain wanted to run a contractor's yard with soil screening and recycling of concrete and asphalt by means of a rock crusher. He applied to the city zoning commission for a special use permit. The commission could grant a special use permit if the proposed use was in harmony with the general purpose of the city zoning regulation, but only after considering adverse impact from noise, odor, fumes, and dust. The commis- sion also had to consider the impact the use would have on neighboring properties, compared to uses permitted as of right. During the several hearings it held, the commission was primarily concerned with the impact of noise on the environment and the surrounding neighborhood. Swain's expert, an acoustical engineer, testified extensively about his opinion on the decibel levels of the proposed rock crusher and its motor. The commission questioned the engineer, the only expert to testify regarding noise, at length. The engineer was emphatic that the recycling equipment with the electric motor would produce noise levels within the maximum limit permitted by the county noise ordinance, which was 61 decibels. The engineer said he couldn't pinpoint the precise level of noise be- cause of background noises from the industrial area and a nearby highway, but said the noise level would never exceed 59 decibels and could go as low at 49. The commission denied Swain's request, finding the noise levels would be unacceptable. Swain appealed to court, arguing the evidence didn't support the commission's decision. Swain claimed that because the only expert to testify I I I I I I I ! I I I I