Opinion
No. CV 07 4006873 S
September 15, 2010
MEMORANDUM OF DECISION
Pursuant to General Statutes § 8-8, the plaintiffs, Amos Lake Development, LLC (Amos Lake) and Weduco Farms, Inc. (Weduco Farms), appeal from the decision of the defendant, the Town of North Stonington Planning Zoning Commission, denying Amos Lake's subdivision application. Each plaintiff alleges that it is aggrieved by the decision and advances the following grounds for appeal: (1) the defendant denied the subdivision application although it met the requirements of the North Stonington subdivision regulations, effective October 15, 1984, and amended through December 9, 2005 (subdivision regulations); (2) the defendant denied the subdivision application for reasons not permitted by the subdivision regulations; (3) the defendant was predisposed to deny the subdivision application; (4) the decision was not supported by substantial evidence in the record; and (5) the defendant failed to apply the appropriate standard of review. For the following reasons, none of the plaintiffs' grounds for appeal has merit and the appeal is dismissed.
I FACTS
Based upon a review of the record, the court finds the following relevant facts: This appeal involves two tracts of land owned by Weduco Farms, totaling approximately 115 acres (property), situated primarily in the Town of North Stonington, Connecticut, with a small portion located in Preston, Connecticut. The property was situated near the intersection of two roads located near North Stonington's western border — Northwest Corner Road, running northwest to southeast, and Hollowell Road, running southwest from its intersection with Northwest Corner Road and continuing into Preston. While the entirety of the property was located on the southwest side of Northwest Corner Road, the majority of the property's acreage was situated to the southeast side of Hollowell Road, with the remainder located on its northwest side.
Amos Lake, a real estate development company, became interested in purchasing the property from Weduco Farms for the purpose of converting a portion of it into a common interest community to be known as the Lime Kiln Woods Subdivision (Lime Kiln Woods). This portion of the property was located entirely within North Stonington. Amos Lake and Weduco Farms entered into a purchase and sale agreement dated December 14, 2005. Pursuant to that agreement, Weduco Farms granted Amos Lake the right to seek subdivision approval for the property and, once obtained, Weduco Farms would convey each subdivided lot.
To that end, on June 1, 2006, Amos Lake filed a subdivision application, including a set of plans, with the defendant. Amos Lake's proposal, as detailed in the plans, was to create a subdivision consisting of eleven residential lots to be serviced by a proposed common driveway that would connect to Northwest Corner Road and would include a dedication of 89.62 acres of land as open space. As a supplement to the subdivision application, Amos Lake simultaneously filed a special permit application. In the special permit application, Amos Lake requested that the defendant grant it development flexibility pursuant to § 510 of the North Stonington zoning regulations, effective January 7, 1985, and amended through December 9, 2005 (zoning regulations). The defendant received the applications and sent notice of them to certain parties, including various North Stonington town officials, the Preston town clerk and James Rabbitt, a senior planner for the Southeastern Connecticut Council of Governments (SCCOG). The defendant, at its meeting on June 8, 2006, accepted the applications and set the date for the opening of the public hearing for August 3, 2006.
The special permit application is the subject of a separate appeal, which was heard at the same time as the present appeal. Its docket number is CV 07 4006874 S.
Section 510 empowered the defendant, by special permit, to allow, among other things, a deviation from the applicable maximum lot density restriction found in § 502 of the zoning regulations where the subdivision application preserved at least 60 percent of the land as open space.
Under § 4.5 of the subdivision regulations, whenever a planned subdivision "will abut or include land in another municipality," the defendant was required to submit such plan to the SCCOG for review of the "intermunicipal aspects of the proposed subdivision."
Craig Grimord, the senior planner and zoning official for the North Stonington, informed Amos Lake, via letter dated June 12, 2006, that a preliminary review of the applications had been conducted and that Amos Lake would need to address a list of issues before the applications could be considered further. The listed items consisted of what Grimord considered to be various deficiencies in the applications and plans. The letter then stated that Amos Lake would be required to submit its revisions at least ten working days prior to the August 3, 2006 meeting. In response to the items listed, Amos Lake filed revised plans on July 20, 2006.
On August 2, 2006, Grimord reiterated some of his reservations about the applications in correspondence addressed to the defendant. On the same day, the defendant sent to Amos Lake a copy of these comments as well as comments critical of the applications from the town engineer. Upon request of Attorney Harry Heller, counsel for Amos Lake, via letter dated August 3, 2006, the defendant continued the public hearing to September 7, 2006. Heller had stated in the letter that he would not be able to address all of the comments Amos Lake had received the previous day in time for the public hearing if it were to open on its originally scheduled date. Amos Lake also filed a separate letter in which it requested two waivers:(1) allowing them permission to construct the common driveway depicted in the plans; and (2) waiving "§ 510.2(2)" of the zoning regulations, which required them to calculate the "developable area" of the parcel in order to determine how many lots would be allowed under the generally applicable maximum lot density requirement.
As the defendant later noted, there was no such section in the regulations. The section requiring an applicant to calculate "developable area" for the purpose of determining the maximum lot density for a subdivision using development flexibility under § 510 was § 510.2.b.(2). The defendant correctly assumed that Amos Lake was referring to that section. Under § 510.2.b, the maximum lot density that Amos Lake would have been allowed was the lesser of (1) one lot per ten acres of total land or (2) the number of lots that was allowed under the generally applicable requirement in § 502 of the zoning regulations, which provided for a certain maximum number of lots per acre of "developable area," depending on the parcel's zoning district.
Thereafter, Amos Lake further revised the plans in response to the comments received August 2, 2006, filing the revised plans on September 6, 2006.
Heller appeared at the September 7, 2006 meeting of the defendant. Two major issues arose, including: (1) whether, in calculating how many lots Amos Lake would be permitted to subdivide, the portion of the property located in Preston should be counted; and (2) whether the commission had the authority under § 510 to waive, via special permit, the otherwise applicable minimum buildable area requirement of the zoning regulations. Heller and the defendant agreed to continue and extend the hearing to October 12, 2006.
The minimum buildable area requirement was located in § 504 of the zoning regulations.
On September 25, 2006, Amos Lake filed a revised version of the application and a corresponding revised special permit application. The revisions to the subdivision application included a revised figure for the acreage of the property located in Preston and the revised special permit application included the addition of an application for a special permit under § 509 of the zoning regulations in addition to § 510.
Under § 509 of the zoning regulations, the defendant was empowered to modify certain lot dimension requirements, including the minimum buildable area requirement, under certain enumerated circumstances, provided it made certain findings and either (1) at least 15 percent of the land would be preserved as open space or (2) a 200-foot-wide buffer of open space along an undeveloped portion of a road would be dedicated to the town or a conservation organization.
On October 12, 2006, in advance of the meeting that evening, Matthew Davis, a senior planner with the SCCOG, submitted comments to the defendant regarding the revised application and the two legal issues that arose at the previous meeting. At the meeting, Amos Lake submitted an alternate set of plans that would create ten lots instead of eleven, to be used in the event that the defendant declined to consider that portion of the property located in Preston in calculating the property's maximum lot density. Davis was present at the meeting and spoke about the applications. The defendant requested that, at the next meeting, Heller show where contiguous areas of buildable area were located on each lot. The defendant continued the meeting to November 2, 2006, with Heller's consent.
At the November 2, 2006 meeting, Attorney Bill McCoy, present on behalf of Amos Lake, explained that his office had received comments that night about the alternate plans for a ten-lot subdivision from Rabbitt and that they needed more time to address them. The comments, contained in a report attached to two identical letters addressed to G. Russell Stewart, III, chairperson of the defendant, and the defendant itself, consisted of a list of alleged deficiencies in the applications and plans. These alleged deficiencies included the failure of the plans to substantively comply with certain sections of the regulations along with their failure to include necessary information. McCoy stated that the comments would be addressed at the November 9, 2006 meeting. After reviewing the revised plans with Rabbitt and discussing his comments, the defendant agreed to continue the hearing.
On November 9, 2006, Rabbitt informed the defendant via memorandum that he had, that week, received another revised set of plans proposing a nine-lot subdivision and that his review would have to be limited in advance of the meeting that evening. That evening, Heller presented the revisions that had been made to the plans.
These revisions included a third waiver request — asking the defendant to waive the requirement of § 5.3.3 of the subdivision regulations that an applicant must document all ledge located on the property. He asserted that the revised plans did not meet the minimum buildable area requirements for any of the proposed lots and that the special permit would need to be granted in order to bring the plans into compliance with the zoning and subdivision regulations. Rabbitt then discussed the revised plans, pointing out what, in his view, were the remaining deficiencies, including the failure to document all ledge existing on the property. Heller expressed his disagreement with Rabbitt's interpretation of some of the regulations. The defendant thereafter closed the public hearing.
At its December 7, 2006 and December 14, 2006 meetings, the defendant considered the comments of Rabbitt; and Grimord; respectively, on the applications and plans. Both planners found them to be incomplete, lacking consistent and accurate information, and substantively deficient.
At the January 4, 2007 meeting of the defendant, Rabbitt discussed two proposed motions, one denying the special permit application and the other denying the subdivision application, citing over seventy reasons in each motion. Thereafter, on January 11, 2007, the defendant, adopting Rabbitt's motion with some revisions, unanimously denied the subdivision application on the basis of its failure to comply with the subdivision regulations, citing seventy-four reasons. The defendant also denied each of the three waiver requests. The defendant denied the requests to construct a shared driveway and to be excused from calculating developable area as moot because of intervening developments. The request to excuse Amos Lake from showing all ledge existing on the property as required by § 5.3.3 was denied because the defendant believed that such information was necessary in order to calculate the applicable maximum lot density. Notice of the denials was published in The Sun, a newspaper circulated in and around Westerly, Rhode Island, on January 18, 2007.
The defendant also denied the special permit application for similar reasons.
Thereafter, on January 31, 2007, the plaintiffs served the present appeal upon the North Stonington town clerk and, on February 23, 2007, filed the appeal in court. The plaintiffs filed their brief on July 1, 2008, and the defendant filed its brief on May 7, 2010. The court heard the appeal along with the related appeal on May 11, 2010. More facts will be recited as needed.
A review of the file reveals that the defendant has filed two identical briefs with respect to this appeal (#123, #124) on May 7, 2010. Each brief contains the case caption for this appeal positioned directly above the case caption for the related appeal. On one brief (#123), the docket number for this appeal is highlighted in yellow, and on the other brief (#124), the docket number for the related appeal is highlighted in yellow.
II JURISDICTION A Aggrievement
"It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002); see also General Statutes § 8-8(b).
"Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Harris v. Zoning Commission, supra, 259 Conn. 410. "Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two-part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest." (Internal quotation marks omitted.) JZ, Inc., Dunkin Donuts v. Planning Zoning Commission, 119 Conn.App. 243, 246, 987 A.2d 1072, cert. denied, 296 Conn. 905, 992 A.2d 329 (2010). On the other hand, "[s]tatutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Pond View, LLC v. Planning Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008).
Amos Lake alleges in the appeal that it is aggrieved for the following reasons. It has a contractual interest in the granting of the application. Absent approval of the subdivision application, the duty of Weduco Farms to convey the property under the contract cannot arise, thus depriving Amos Lake of the benefit of its bargain. Moreover, Amos Lake alleges that the denial has depreciated the value of the property, thus depriving Amos Lake of its full value, by impairing Amos Lake's ability to develop it. The defendant neither concedes nor contests that Amos Lake is aggrieved.
"In the context of aggrievement determinations, courts of this state have held that the interest of a contract purchaser is sufficiently analogous to that of an owner to support a finding of classical aggrievement." Worldwide Properties, LLC v. Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 05 4004496 (January 5, 2007, Markle, J.) ( 42 Conn. L. Rptr. 643), citing Fletcher v. Planning Zoning Commission, 158 Conn. 497, 502-03, 264 A.2d 566 (1969). The court finds, based on the evidence adduced at trial, that Amos Lake entered into a purchase and sale contract with respect to the property, which was the subject of the denied application. The court also finds that, absent the granting of the application, Amos Lake would be unable to purchase the property and reap the benefit of its bargain as the subdivision approval contingency clause of the contract would render the contract void. Therefore, the court finds that Amos Lake is aggrieved.
In order to have subject matter jurisdiction over the appeal, the court need only find that one plaintiff is aggrieved. Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 529 n. 3, 600 A.2d 757 (1991). Since Amos Lake is aggrieved, whether Weduco Farms is also aggrieved is irrelevant. The court therefore finds that it has subject matter jurisdiction over the appeal.
B Timeliness and Service of Process
Section 8-8(b) provides that an "appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published as required by the general statutes." The notice of denial was published in The Sun on January 18, 2007. According to the marshal's return, the marshal served this appeal thirteen days later, on January 31, 2007. Therefore, the court finds that the appeal was timely filed.
Under § 8-8(f)(2), "[f]or any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57." General Statutes § 52-57(b) provides: "Process in civil actions against the following-described classes of defendants shall be served as follows . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ." According to the marshal's return, the marshal left two true and attested copies of the process in the hands of Norma Holiday, town clerk of North Stonington. Thus, the court finds that service of process was proper.
II DISCUSSION
Under General Statutes § 8-8(b), "any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located . . ." "It is axiomatic that a planning commission, in passing on a [subdivision] application, acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations . . . The commission is entrusted with the function of interpreting and applying its zoning regulations . . . The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts . . . The plaintiffs have the burden of showing that the commission acted improperly . . . The trial court can sustain the [plaintiffs'] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal . . . It must not substitute its judgment for that of the . . . commission and must not disturb decisions of local commissions as long as honest judgment has been reasonably and fairly exercised." (Internal quotation marks omitted.) 200 Associates, LLC v. Planning Zoning Commission, 83 Conn.App. 167, 171-72, 851 A.2d 1175, cert. denied, 271 Conn. 906, 859 A.2d 567 (2004).
In their appeal, the plaintiffs advance five grounds: (1) the defendant's denial of the application was illegal because their application met the requirements of the regulations; (2) the defendant denied the application for improper reasons, i.e., reasons not justified under the regulations; (3) the defendant was predisposed to deny the application; (4) the defendant's denial of the application was not supported by substantial evidence in the record; and (5) the defendant failed to consider or apply the appropriate standard of review in considering the application.
Also, in section III.D of their brief, but nowhere in their appeal, the plaintiffs raise a sixth ground for appeal — that the defendant's denial of their application resulted in a "practical confiscation" of their property. The court will not consider a ground for appeal not stated in the appeal; raising a ground for appeal in the brief alone is improper and deprives "the opposing party of the notice to which it is entitled." See Fasig v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket Nos. 321845, 322616 (August 21, 1996, Riefberg, J.). "Because an administrative appeal exists only under statutory authority there must be strict compliance with the applicable statutory provisions." Avery v. Planning Zoning Commission, Superior Court, judicial district of Tolland, Docket No. 044737 (March 17, 1992, Klaczak J.). This includes § 8-8(h), which provides, in relevant part: "The appeal shall state the reasons on which it has been predicated . . ."
Moreover, the plaintiffs could have amended the appeal to include this ground but chose not to do so. See General Statutes § 8-8(p) ("The appeal shall be considered to be a civil action and . . . pleadings may be filed, amended or corrected, and parties may be summoned, substituted or otherwise joined, as provided by the general statutes." [Emphasis added.]); see also R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2007) § 25:4, p. 6 ("If an important issue was omitted initially [from the appeal], it can always be added by a motion to amend the appeal before trial"). Therefore, the court will not consider the sixth ground for appeal. Instead, it will consider the third ground for appeal first and then the remaining grounds for appeal together.
A Whether the Defendant Was Predisposed to Deny Amos Lake's Application.
The plaintiffs' third ground of appeal is that "[t]he [defendant] was predisposed to deny the Plaintiffs' subdivision application; and, the [defendant's] staff created a biased and predetermined atmosphere . . . by, among other things, utilizing a succession of three (3) different planners to review the Plaintiffs' subdivision application with differing interpretations of the applicable regulations, which precluded the Plaintiff from receiving a fair and unbiased evaluation of its subdivision application in accordance with the evidence presented into the public hearing record before the [defendant]."
The plaintiffs argue that the defendant was predisposed to deny the application because its commissioners disapproved of the substance of §§ 509 and 510 of the regulations, under which the plaintiffs sought a special permit they believed necessary for the viability of the subdivision application. The plaintiffs assert that the defendant repealed those two sections on the same day that Amos Lake filed the application, demonstrating that the defendant disapproved of the level of flexibility those sections permitted. They also assert that the defendant's commissioners made comments critical of §§ 509 and 510 and that the defendant engaged an excessive number of planners to review the application. Thus, the plaintiffs conclude, the defendant prejudged their application.
The defendant responds by arguing that the plaintiffs' claim is based on speculation and is contradicted by the evidence. It asserts that it had granted previous applications under §§ 509 and 510 and that its members had spoken favorably about those regulations during the public hearing. Furthermore, it argues that the defendant exercised its discretion to give Amos Lake the opportunity to correct errors in the application prior to ruling. The defendant explains that its employment of multiple planners was not indicative of bias and that those planners were also used in other pending applications.
"A claim of predisposition is essentially a claim that a commissioner actually had made up [his or her mind] prior to [a] public hearing, regardless of any arguments that might have been advanced at the hearing." (Internal quotation marks omitted.) 53 Prospect Street, LLC v. Zoning Commission, Superior Court, judicial district of Windham, Docket No. CV 07 4006674 (June 30, 2009, Riley, J.); see also Daviau v. Planning Commission, 174 Conn. 354, 358, 387 A.2d 562 (1978). Therefore, the plaintiffs have the burden to prove that (1) the members of the board made up their minds as to the application prior to the public hearing and (2) that their commitment to their preconceived opinion was sufficiently strong that no evidence presented at the public hearing would have swayed it. See Woodburn v. Conservation Commission, 37 Conn.App. 166, 175, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995). Board members are permitted to hold a tentative preliminary opinion about an application as long as they remain willing to consider the evidence presented. See Daviau v. Planning Commission, supra, 358.
The court finds that the plaintiffs have failed to prove that the defendant was predisposed to deny the application. There is no evidence that the defendant repealed §§ 509 and 510 for the purpose of blocking or otherwise hindering the application. Compare Marmah, Inc. v. Greenwich, 176 Conn. 116, 122-23, 405 A.2d 63 (1978) (upholding trial court's finding that commission was predisposed to deny application because it properly found commission amended applicable building zone regulations for purpose of blocking application). In fact, other than a stray comment by one of the defendant's commissioners relaying a concern about "[opening] up undevelopable back lands with a small amount of frontage;" (Plaintiffs' Brief, p. 26, n. 9); the plaintiff cites no evidence at all as to the reason those sections were repealed.
Furthermore, and significantly, the plaintiffs admit in their brief that the defendant showed no animosity toward them, but rather only toward the type of development allowed under §§ 509 and 510. Even if the court agreed that the defendant's commissioners expressed disfavor during the hearing toward the type of development allowed by §§ 509 and 510, it would not prove that they made up their minds about the application prior to the public hearing and that no amount of evidence would have swayed their decision.
Finally, there is no evidence that the defendant's employment of the SCCOG planners, Davis and Rabbitt, indicated a predisposition against Amos Lake's application. The plaintiffs failed to show that such a practice was even abnormal, much less that it reflected a desire to deny the application without a fair hearing. In fact, there was evidence that the SCCOG planners were involved in other pending applications as well, as the defendant indicates.
B Whether the Application Complied with the Subdivision Regulations.
To dispose of the remainder of the plaintiffs' grounds for appeal, the court need only determine whether the application conformed to the subdivision regulations. Under General Statutes § 8-26(d), the defendant is empowered to approve or deny subdivision applications. "The planning commission, acting in its administrative capacity herein, has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance . . . If it does not conform as required, [however] the plan may be disapproved." (Citation omitted; internal quotation marks omitted.) Reed v. Planning Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988). An application may be denied even for technical or minor violations of the applicable regulations. Krawski v. Planning Zoning Commission, 21 Conn.App. 667, 674, 575 A.2d 1036, cert. denied, CT Page 18165 215 Conn. 814, 576 A.2d 543 (1990). The applicant has the burden to persuade the board, by presentation of sufficient evidence, that it is entitled to approval of the application. Cf. Upjohn Co. v. Planning Zoning Commission, 224 Conn. 82, 89, 616 A.2d 786 (1992) (holding applicant has burden to prove entitlement to the permits it sought from the board).
Section 8-26(d) provides in relevant part: "The commission shall approve . . . or disapprove any subdivision or resubdivision application or maps and plans submitted therewith . . ."
Under § 8-26(d), "[t]he grounds for [the commission's] action shall be stated in the records of the commission." "When a commission states its reasons in support of its decision on the record, the court goes no further . . ." (Internal quotation marks omitted.) 200 Associates, LLC v. Planning Zoning Commission, supra, 83 Conn.App. 177. The defendant denied the application because it failed to conform to the subdivision regulations, listing seventy-four reasons for that conclusion. If any one of these reasons is founded in the regulations and supported by the evidence, the appeal must be dismissed. See Weatherly v. Town Plan Zoning Commission, 23 Conn.App. 115, 119, 579 A.2d 94 (1990).
While making no determinations as to any of the other reasons for denial, the court will consider reason number thirty-two, which states: "The applicant does not comply with Section 6.6.2(10) (Subdivision — Open Space). The [applicant's] proposed deed to Avalonia Land Conservancy, Inc. [(Avalonia)] does not include a provision required by the regulations stating that . . . such fee title or conservation easement include a clause that the ownership shall revert to the Town for recreation or conservation purposes if such corporation or association shall cease to exist or shall relinquish ownership."
The plaintiffs, in their brief, do not argue that they were in technical compliance with § 6.6.2(10) of the subdivision regulations. Rather, they argue that (1) they were not required to submit a draft deed to the defendant, (2) Avalonia's charter required that any grant be deeded to it as open space in perpetuity, which prevented them from including the required reverter clause, (3) the defendant has previously accepted applications wherein land was deeded to Avalonia without requiring a reverter clause, and (4) the plaintiffs granted a conservation easement in favor of North Stonington on the land it deeded to Avalonia, which satisfied the "purpose and intent" of § 6.6.2(10).
The defendant specifically addresses reason number thirty-two in its brief. First, it argues that, even if Amos Lake was not required to submit a draft deed, it did so and the deed did not comply with the regulations. Thus, the defendant was within its right to deny the application. Second, it contends that no condition that might have been present in Avalonia's charter could have excused the plaintiffs from complying with the regulations. Finally, the defendant argues that Amos Lake could have requested a waiver of this requirement but did not.
Section 6.6.1(1) of the subdivision regulations requires "every subdivision of land for residential use" to provide for open space. Under § 6.6.1(2), "[t]his open space requirement may, with the approval of the Commission, be met through . . . dedication of land within the proposed subdivision or resubdivision or by conveyance of a conservation easement." (Emphasis added.)
Section 6.6.2 applies if the applicant is to fulfill the open space requirement through a dedication of land. Subsection (9) of that section provides that "[f]ee title or a conservation easement shall be deeded in perpetuity and the applicant shall designate which entity is . . . proposed to own the fee title or conservation easement to ensure its permanent protection as provided in these Regulations." (Emphasis added.) The provision at issue here is subsection (10), which provides in relevant part: "Fee title or a conservation easement deeded to a private organization . . . shall provide in such deed that ownership shall revert to the Town for recreational or conservation purposes if such corporation or association shall cease to exist or shall relinquish ownership."
The court finds that, as stated in the defendant's thirty-second reason for denial, the application failed to comply with the subdivision regulations because the proposed deed granting land to Avalonia for open space; submitted as Exhibit R before the defendant (deed), did not contain the reverter clause required by § 6.6.2(10). The plaintiffs' arguments to the contrary are unavailing.
First, regardless of whether Amos Lake was required to submit the deed as part of the application, an open space provision, made with the approval of the defendant, was required by § 6.6.1 as part of the application. Amos Lake sought to provide for open space by deeding land to Avalonia, but the deed did not have the required reverter clause and the defendant was justified in not approving the application for failure to have a proper open space provision.
Second, the court notes that, under § 6.6.2(9), a dedication of land must be deeded as open space in perpetuity, consistent with the alleged requirement of Avalonia's charter. There is no conflict between deeding land as open space in perpetuity pursuant to subsection (9) and including the reverter clause required by subsection (10). The reverter clause requirement exists to ensure that if a conservation organization like Avalonia ceases to exist or tries to transfer the dedicated land, such land will continue to be maintained as open space.
Third, assuming that the defendant has previously not required reverter clauses in deeds of land to Avalonia, such waivers by themselves do not deprive the defendant of the right to enforce the requirement in the present case. See Fisette v. DiPietro, 28 Conn.App. 379, 386, 611 A.2d 417 (1992) ("A zoning body does not forever surrender the right to enforce its regulations because it finds that enforcement is not required at an earlier time").
Finally, the plaintiffs' argument that the "purpose and intent" of subsection (10) was satisfied by a proposed grant of a conservation easement on the same land in favor of the town; is unpersuasive as no such conservation easement was provided for in the final versio of the subdivision application. The conservation easement referred to was a proposed grant of a conservation easement on 89.62 acres of the approximately 115 acre property in favor of both North Stonington and Preston that was filed with the original application on June 1, 2006. This conservation easement was reflected on the original public offering statement for Lime Kiln Woods. On June 21, 2006, however, Avalonia provisionally accepted Amos Lake's offer to deed to it the 89.62 acres for use as open space. It notified the defendant of the acceptance and amended its public offering statement for Lime Kiln Woods to reflect the dedication to Avalonia. Moreover, the dedication of land as described in the deed was not made subject to any conservation easement in favor of either town. The proposed conservation easement cited by the plaintiffs in their brief was therefore abandoned in favor of deeding land to Avalonia.
The court finds that the defendant's thirty-second reason for denial is legal and founded in § 6.6.2(10) of the subdivision regulations. It also finds that such reason is supported by substantial evidence in the record, namely the text of the proposed deed itself. Finally, the court finds that the defendant's determination that § 6.6.2(10) was not met was not the product of the application of an improper standard of review — either the required reverter clause was present in the deed or it was not. The defendant rightfully concluded that it was not.
IV CONCLUSION
Based on the above analysis, the court finds that none of the plaintiffs' grounds for appeal has merit. Therefore, the appeal is dismissed.
It is so ordered.