Opinion
No. CV 07 4005848 S
November 5, 2008
MEMORANDUM OF DECISION
Factual Background
On or about October 10, 2006, the plaintiff submitted an application to the Canterbury Planning and Zoning Commission (hereinafter "Commission") seeking subdivision approval for 13 residential building lots. See ROR Item A. The Commission held a public hearing on the application on November 9, 2006 and continuing to December 14, 2006, January 1, 2007, and February 8, 2007. See ROR Item C, Commission Minutes 10/12/06, p. 3; ROR Item BB, Commission Minutes 1/11/07 p. 5; ROR Item PP, Commission Minutes 2/8/07. The Commission voted upon the plaintiff's application on April 12, 2007. The plaintiff instituted this appeal on April 25, 2007.
Aggrievement
The plaintiff proved that at the time of the application and at the time of the hearing he was the owner of the subject property. He maintained his ownership interest throughout the pendency of the matter. The plaintiff is aggrieved.
Issues
This appeal raises the following issues:
1. Does the Commission have discretion to approve a common driveway serving multiple rear lots. If so, is such an approval a "waiver?"
2. Was enough evidence presented, and what weight may be given to comments made by members of the public, to overcome the expert testimony presented by the town engineer who stated that the plan complies with the regulation in all respects?
3. Is the commission's decision to deny the application invalid because it failed to follow its own procedural rules?
Holding
1. The commission had the discretion to allow the common driveway and this would not constitute a "waiver" within the meaning of C.G.S. (8-26.
2. No evidence was presented sufficient to contradict the expert testimony and the commission improperly relied on speculative evidence.
3. The defendant has not met its burden demonstrating that the commission failed to adhere to Robert's Rules of Order. In addition, the deviation from procedure alleged here would not be sufficient to invalidate the commission's action.
Discussion
"When acting in its administrative capacity, a planning commission has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance . . . A municipal planning commission, in exercising its function of approving or disapproving any particular subdivision plan, is acting in an administrative capacity and does not function as a legislative, judicial or quasi-judicial agency . . . When reviewing a site plan application, a planning commission similarly acts in an administrative capacity and may not reject an application that complies with the relevant regulations." (Citations omitted; internal quotation marks omitted.) Pansy Road, LLC v. Town Plan Zoning Commission, 283 Conn. 369, 374-75, 926 A.2d 1029 (2007). The Supreme Court has also held that "[w]hen a commission is functioning in such an administrative capacity, a reviewing court's standard of review of the commission's action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion." (Internal quotation marks omitted.) Loring v. Planning Zoning Commission, 287 Conn. 746, 756, 950 A.2d 494 (2008).
The fact that a commission is acting in its administrative capacity, however, does not prevent that commission from exercising any discretion. For example, it is well established that a zoning commission reviewing a special permit application acts in an administrative capacity, but nevertheless has broad discretion in applying the law to the facts of a particular case. See, e.g., Smith Bros. Woodland Management, LLC v. Planning Zoning Commission, 88 Conn.App. 79, 84, 868 A.2d 749 (2005) ("When ruling upon an application for a special [permit], a planning and zoning board acts in an administrative capacity . . . In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." [Internal quotation marks omitted.]); Oakbridge/Rogers Avenue Realty, LLC v. Planning Zoning Board, 78 Conn.App. 242, 246-47, 826 A.2d 1232 (2003) (same). Accordingly, a planning commission similarly may exercise discretion in applying the law to the facts of a particular application. Therefore, although a planning commission has no discretion to deny an application that meets the criteria in the subdivision regulations, it has discretion in determining whether an application meets those criteria.
Research further reveals examples of trial court decisions involving subdivision regulations that incorporate regulatory provisions allowing for the exercise of discretion by commissions considering subdivision applications. For example, in King's Highway Associates v. Planning Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV 06 4020001 (August 13, 2007, Corradino, J.), the trial court noted that § 4.8 of the North Haven subdivision regulations provides in relevant part that "[f]ive foot wide, reinforced concrete sidewalks shall be installed on both sides of all streets, except where this requirement may be waived by the Commission, in its discretion, where it finds that the nature of the proposed development will result in little pedestrian traffic." (Emphasis added.) Thus, although a commission must approve a subdivision application that meets the applicable regulations, the commission has discretion to waive certain requirements in those regulations where the regulations confer such discretion on the commission. Another example of subdivision regulations conferring discretion on the commission as to certain requirements may be found in McGlinchey v. Stonington, Superior Court, judicial district of New London, Docket No. CV 04 0568887 (April 19, 2006, Hendel, J.T.R.), which includes a quote from the following relevant portion of chapter VIII(A)(6) of the Stonington subdivision regulations: "If the proposed open space is not in one contiguous parcel, one parcel of the open space shall be at least 50% of the total proposed open space. The [p]lanning and [z]oning [c]ommission, at its discretion, may waive this requirement in the public interest or upon the recommendation of the [c]onservation [c]ommission." Many other examples of similar provisions in subdivision regulations may be found referenced in trial court decisions. See, e.g., Reznik v. Planning Commission, Superior Court, judicial district of Middlesex, Docket No. CV 03 0100429 (July 26, 2004, Aurigemma, J.) (allowing Westbrook Planning Commission to waive sidewalk requirements).
Turning to the issue of whether the commission's approval of a shared driveway would constitute a waiver of the subdivision regulations, such approval would not constitute a waiver. General Statutes § 8-26 expressly allows the commission to waive requirements of the subdivision regulations under certain conditions. Specifically, § 8-26 provides in relevant part: "[Subdivision] regulations may contain provisions whereby the commission may waive certain requirements under the regulations by a three-quarters vote of all the members of the commission in cases where conditions exist which affect the subject land and are not generally applicable to other land in the area, provided that the regulations shall specify the conditions under which a waiver may be considered and shall provide that no waiver shall be granted that would have a significant adverse effect on adjacent property or on public health and safety . . ." In the present case, § 4.22(B) of the subdivision regulations provides: "Shared driveways may be proposed when it is the intent of the developer to conserve natural or scenic resources; protect natural streams, marshes or wetlands; avoid ridges, ravines, ledge outcroppings or any other unusual physical feature or to protect residents by maintaining a safe and approved sight line." Section 4.22(B) of the Canterbury subdivision. The regulations further provide that such a driveway may be allowed only when approved by a two-thirds vote of the commission members present and voting. The regulatory provision at issue is not a waiver provision because it does not fit within the statutory grant of the waiver authority to planning commissions. It allows shared driveways under circumstances different from those required for a waiver, specifically, "when it is the intent of the developer to conserve natural or scenic resources; protect natural streams, marshes or wetlands; avoid ridges, ravines, ledge outcroppings or any other unusual physical feature or to protect residents by maintaining a safe and approved sight line." The circumstance set forth in the statute are "where conditions exist which affect the subject land and are not generally applicable to other land in the area . . ." Further, the regulatory provision requires only a two-thirds vote to approve the shared driveway, whereas the statute allows a waiver only by a three-fourths vote. Moreover, the regulatory provision at issue applies only to one particular situation, shared driveways, while the statutory waiver provision can be applied to any regulatory provision.
If the regulatory provision were a waiver provision, which it is not, it could not exceed the authority granted to the commission by the legislature. "As a creature of the state, the [town, whether acting itself or through its planning commission,] can exercise only such powers as are expressly granted to it, or such powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation . . . In other words, in order to determine whether [a] regulation . . . was within the authority of the commission to enact, we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authority for the enactment." (Citations omitted; internal quotation marks omitted.) Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 100, 616 A.2d 793 (1992). Because the regulatory provision sets a lesser standard for approval, that is, approval by a two-thirds vote rather than a three-fourths vote, and because it applies to circumstances different from those of the statutory waiver provision in § 8-26, the regulatory provision at issue does not fall within the statutorily granted waiver authority.
Evidence
The plaintiff argues that his subdivision application complied with the subdivision regulations and that the defendant commission, therefore, was required to approve the application. The defendant counters that it properly denied the application because "there was ample evidence in the record to support the [c]ommission's decision to deny the shared driveway as proposed on the subdivision map." (Defendant's brief, p. 13.) It further argues that, having denied the shared driveway, it was concerned that the subdivision would have to be redesigned to incorporate alternative access driveways, which may not protect the wetlands, and that such driveways were not depicted on the subdivision plans, as required by § 4.22A of the subdivision regulations.
"Although the reviewing court must sustain the agency's determination if an examination of the record discloses evidence that supports any one of the reasons given, [t]he evidence . . . to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . 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 . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." (Internal quotation marks omitted.) Cornacchia v. Environmental Protection Commission, supra, 109 Conn.App. 350-51.
In Cornacchia v. Environmental Protection Commission, supra, 109 Conn.App. 346, the Appellate Court concluded that the trial court improperly upheld the decision of the commission, which had disregarded the only expert testimony presented and instead relied on mere speculation by members of the public, because the commission's decision was not supported by substantial evidence in the record. The court explained: "The [letter from a commission staff member] and the testimony of the neighbors are, instead, unsubstantiated concerns about possible impacts to the wetlands and the watercourses. In contrast, the commission was presented with evidence from [the plaintiffs' expert] Michael Fishman, a certified professional wetland scientist and wildlife biologist] that no significant impact to the wetlands or watercourses would occur from the construction activities in the upland area. Although the commission is the arbiter of the credibility of witnesses and was, therefore, not bound to accept Fishman's testimony and reports; Toll Bros., Inc v. Inland Wetlands Commission, [ 101 Conn.App. 597, 600, 922 A.2d 268 (2007)]; the conclusions he provided were the only factually based conclusions before the commission substantiated by evidence in the record. Therefore, without his testimony and reports there would be no substantial evidence before the commission regarding any actual impacts to the wetlands and watercourses from the proposed construction. Because concerns and potential impacts are not substantial evidence of a likely adverse impact on the wetlands and watercourses, the [letter from the commission staff member] and the concerns of the plaintiffs' neighbors were insufficient evidence to support the commission's denial of the plaintiffs' application. See id. (`[e]vidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence' [internal quotation marks omitted])." (Emphasis in original.) Cornacchia v. Environmental Protection Commission, supra, 109 Conn.App. 356.
In the present case, all of the concerns of the defendant appear to be based on speculation by the members of the commission, the public and the town engineer. According to the defendant commission, several concerns were raised during the public hearing that support its decision to deny the subdivision application. It argues that Donald Aubrey, the town engineer, submitted a report in which he questioned whether a waiver of the regulations would be required in order to allow a shared driveway to serve four homes because the regulations may have only contemplated two homes using a shared driveway. In support of this concern, the defendant notes, Aubrey stated that the "Public Improvement Standards only depict . . . a shared driveway servicing two homes." (Defendant's brief, p. 2.) The defendant also states in its brief that the commission "heard questions from the public as to whether emergency vehicles could access the lots using the shared driveway." (Defendant's brief, p. 3.) It states that the town engineer discussed the issue of the width of the driveway in correspondence dated January 25, 2007, and that a member of the commission questioned whether the width of the driveway was proper. It states that other questions were raised by the commission, such as when a shared driveway could be considered a cul-de-sac and whether the sight lines were appropriate on Lisbon Road relative to the speed of the cars on that road. It further states that members of the public raised safety concerns relating to having a dead-end driveway at the end of a dead-end street and provisions for access by emergency vehicles. It states that the commission also discussed emergency vehicle access and was concerned that "there were too many questions regarding the driveway to make a knowledgeable decision." (Defendant's brief, p. 5, quoting ROR, Item GGG, Commission Minutes 4/12/07 p. 6.) Other concerns raised by commission members were, according to the defendant, that a significant portion of the subdivision plans would have to be changed as a result of the denial of the shared driveway and that the grade on Lisbon Road might need to be cut by two or three feet. Based on these concerns, the defendant argues that there was "ample evidence in the record to support the [c]ommission's decision to deny the shared driveway as proposed on the subdivision map." (Defendant's brief, p. 13.) It maintains that its decision "was not arbitrary, unreasonable, or illegal, but was soundly based upon evidence in the record, that not only was the shared driveway servicing too many homes to be approved under the regulations, but that there were enough safety concerns to deny it." (Defendant's brief, pp. 13-14.) Nevertheless, the defendant's reasons for denial of the subdivision appear to be based upon speculation and general concerns, rather than substantial evidence supporting those concerns.
In support of his appeal, the plaintiff argues that his subdivision application complied with the applicable regulations. He notes that in correspondence to the commission dated February 8, 2007, "Joseph H. Boucher and Donald R. Aubrey writing on behalf of Towne Engineering, Inc. represented to their client that (i) `the revised plans have now successfully addressed all of the technical issues that we have previously raised with this application' (ROR, Item OO, Page 1) and (ii) `The Applicant's design professionals have responded in a very professional manner throughout our involvement with this application and their cooperation and expertise has resulted in a very practical and sound design of this subdivision.' (ROR, Item OO, Page 5.)" (Emphasis added.) (Plaintiff's brief, p. 9.) He further notes that the minutes similarly state that "D. Aubrey stated in his latest letter that plan meets the town requirements for subdivision." (Plaintiff's brief, p. 10, quoting ROR, Item PP, p. 1.)
The plaintiff also argues that the subdivision regulations pertaining to shared driveways establish "no parameters whatsoever for either (i) the design of a shared driveway or (ii) the evaluation criteria to be considered by the Defendant Commission in determining whether or not a shared driveway should be approved as a component of a subdivision proposal. The regulation simply provides that shared driveways shall be allowed by the Commission only when approved by a two-thirds vote of commission members present and voting." (Plaintiff's brief, p. 20.) He maintains that despite repeated requests for guidance by him and by the commission's own engineers as to the shared driveway, the commission never provided any guidance to the plaintiff. He maintains that the proposed shared driveway complied with the criteria contained in the regulations for shared driveways because it was designed to conserve and protect natural resources, specifically Corey Brook and its associated wetlands.
The plaintiff further argues that even though a shared driveway would meet the requirements of the regulations, the layout of the proposed subdivision is not dependent on such a driveway. He maintains that his engineer was careful in designing the layout so that none of the lots would require use of the common driveway for access, and that this was made clear to the defendant commission at the public hearing. (See ROR, Item III, p. 3.) He further maintains that it "had successfully addressed all of the technical issues that had been raised on behalf of the [d]efendant [c]ommission . . . including the vertical geometry of Lisbon Road." (Plaintiff's brief, p. 23.) In support of this assertion, he notes that the February 7, 2007 revision of the subdivision plan incorporated the recommendations of its consulting traffic engineer, DLS Consulting; (see ROR, Item M); the concerns raised by the defendant commission as to the vertical geometry of the intersection expressed on the site visit and input from the plaintiff's consulting engineers, Bennett Smilas Engineering, Inc. He maintains that these modifications were "acknowledged and approved by the [d]efendant [c]ommission's own consulting engineers in their final report to their client dated February 8, 2007 (ROR, Item OO)." (Plaintiff's brief, p. 24.) He argues that the record does not contain substantial evidence "that the intersection design for proposed Hoopers Lane with Lisbon Road was either unsafe or did not comply with the Canterbury Public Improvement Specifications. In fact, the substantial evidence in the public hearing record demonstrates the opposite; i.e., that the revised intersection design met all applicable guidelines and was safe." (Plaintiff's brief, p. 24.) Finally, the plaintiff maintains that the denial of the shared driveway is not a valid basis upon which to deny the subdivision application because the design of the subdivision did not depend on such approval; the lots on the plan could be served by individual driveways without changing the layout of the lots. The sole criteria for the Commission's discretion in allowing the shared driveway is "to conserve natural or scenic resources . . ." The parties do not argue that this criteria is not met. There is no evidence or claims that it is not met.
The evidence indicates that the appeal should be sustained because the defendant's decision is not supported by substantial evidence in the record. The defendant seems to have based its decision on speculation and general concerns of members of the public and of commission members. According to the plaintiff, the concerns of the defendant have been addressed by its own experts, and the defendant's expert acknowledged this fact. Accordingly, the only remaining concerns are those of the commission itself, and those concerns are based on speculation, rather than evidence. The plaintiff refers to expert evidence in support of its position that the design of the subdivision, including the proposed shared driveway, is safe and in compliance with the applicable regulations. The defendant has not referred to any evidence, beyond mere speculation, to the contrary. Accordingly, because the defendant commission disregarded the only expert evidence before it, i.e., the opinions of both the plaintiff's and defendant's experts that the plans complied with the applicable regulations. See Cornacchia v. Environmental Protection Commission, supra, 109 Conn.App. 356 (overturning decision of commission because it improperly disregarded expert testimony and relied instead on speculation by members of the public in concluding that application would have adverse impact on wetlands).
Procedural Rules
The plaintiff argues that although an administrative body may reconsider its decisions during a session, the commission's second vote on the motion to approve the shared driveway, which was defeated by a vote of three votes to five, was invalid because the commission failed to follow its own procedural rules in reconsidering the motion, specifically, Robert's Rules of Order. He maintains that no motion to vacate, motion to reconsider or motion to deny the proposed shared driveway was made by any member of the commission. Further, the plaintiff contends, Robert's Rules of Order require that "only a [c]ommission member who voted with the prevailing side has the authority to make a motion to reconsider the [c]ommission action." (Plaintiff's brief, p. 17.) He maintains that because no such procedures were followed, the denial of the second motion to approve the shared driveway was a nullity.
The defendant argues that the plaintiff has not proven that the defendant is required to follow Robert's Rules of Order because it has not shown that it has elected to be governed by Robert's Rules of Order in its regulations or otherwise; the commission has the right to reconsider its decisions as often as its members deem proper; and "no other body or tribunal has the right to treat a reconsideration as void." (Defendant's brief, p. 8.) It further maintains that "a court will not parse parliamentary procedure for the purpose of invalidating an action of an administrative board or commission." (Defendant's brief, p. 8.)
"When a commission is functioning in . . . an administrative capacity, a reviewing court's standard of review of the commission's action is limited to whether it was `illegal, arbitrary or in abuse of [its] discretion . . .' Forest Construction Co. v. Planning Zoning Commission, 155 Conn. 669, 676, 236 A.2d 917 (1967); accord R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 33.3, p. 159. In determining whether a zoning commission's action was illegal, arbitrary or in abuse of its discretion, a reviewing court's principal inquiry is whether the commission's action was in violation of the powers granted to it or the duties imposed upon it. See Zenga v. Zebrowski, 170 Conn. 55, 58, 364 A.2d 213 (1975) (`function of the court is to determine whether or not [the board] acted illegally . . . because the conduct of the board would be in violation of the powers granted to and duties imposed upon it'); R. Fuller, supra, § 33.1, p. 152 (`words "arbitrarily or in abuse of its discretion" is a form of illegal conduct where the agency's action is in violation of the powers granted to it and the duties imposed upon it'); see also Belanger v. Planning Zoning Commission, 64 Conn.App. 184, 192, 779 A.2d 833 (2001) (`[w]e give to lay administrative boards wide discretion on the inner workings of their bodies as long as no regulation or statute is violated'). In addition, [the Supreme Court] has stated that `[t]here is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission . . .' (Citation omitted; internal quotation marks omitted.) Frito-Lay, Inc. v. Planning Zoning Commission, 206 Conn. 554, 573-74, 538 A.2d 1039 (1988)." Clifford v. Planning Zoning Commission, 280 Conn. 434, 440-41, 908 A.2d 1049 (2006); accord Loring v. Planning Zoning Commission, supra, 287 Conn. 777.
As a threshold matter, the plaintiff has offered evidence that the defendant's proceedings are governed by Robert's Rules of Order. The plaintiff has submitted, with its motion to take judicial notice and/or amend the return of record dated July 21, 2008, a copy of the Canterbury planning and zoning commission bylaws, which has been marked as plaintiff's exhibit C. Section 4 of article VII provides: "Unless otherwise specified, Robert's Rules of Order shall govern the proceedings at the meetings of this [c]ommission." Accordingly, the defendant's first argument, that the plaintiff has failed to show that the defendant commission has elected to be governed by Robert's Rules of Order in its regulations or otherwise, is not persuasive. The court must consider whether the plaintiff has demonstrated that the defendant failed to abide by Robert's Rules of Order, and if so, whether such a failure invalidates its decision to deny the second motion to approve the shared driveway.
Even if the court were to credit plaintiff's assertions on the requirements of Robert's Rules, this appeal should not be sustained on that basis. The Supreme Court has stated, in the context of an appeal based, in part, on a challenge to the validity of a commission's vote, that in a situation where there is "but one session of the board and one announcement of its decision," the rule is that "unless some right of a third person intervenes, all deliberative bodies have a right to reconsider their proceedings during a session as often as they think proper, when not otherwise provided by law, and it is the final result only which is to be regarded as the thing done." Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 565, 236 A.2d 96 (1967). The Supreme Court has also stated: "We are not disposed too rigorously to apply technical rules to the action of administrative boards and commissions . . ." Strain v. Mims, 123 Conn. 275, 283, 193 A. 754 (1937); see also Hough v. Bridgeport, 57 Conn. 290, 295, 18 A. 102 (1889) ("[w]e are not disposed to discuss the technics of parliamentary law relating to a reconsideration of votes; much less to resort to such technics for the purpose of invalidating these proceedings"). For these reasons, even if the plaintiff has proven that the defendant had violated its procedural rules, the violation is not of a nature that would warrant the court's reversal of the defendant's decision.
It is worth noting that this court has previously remanded an agency's decision to that agency for further proceedings when that agency failed to follow its own procedure. In Thornhill v. Inland Wetlands Agency, Superior Court, judicial district of New Haven, Docket No. CV 93 00348356 (December 17, 1993, Booth, J.), the Milford inland wetland agency had issued a notice of violation and a cease and desist order relating to the plaintiff's property, which was not designated as containing wetlands on the wetlands map. Although the plaintiff was given an opportunity to be heard regarding the designation of her property as a wetland at the public hearing on the appeal from the notice and order, the agency relied upon the opinion of the inland wetlands compliance officer, who was not a soil scientist, in upholding the order. In remanding the decision to the agency, this court explained that "[t]he [t]own of Milford has shown its sensitivity to the rights of its citizens by requiring the expert testimony of a soil scientist before it makes a wetlands determination." Id. "By designating [the plaintiff's] property without such testimony the town has failed to follow its own procedure. Accordingly, the [c]ourt holds that the town's action was `made upon unlawful procedure' and that the failure to follow its procedures has deprived [the plaintiff] of a right to have the determination supported by the testimony of a soil scientist." Id. Although this court emphasized the agency's failure to follow its own procedure in that case, it is significant that the effect of the agency's failure to follow its procedures in that case caused it to act without having substantial evidence to support its decision. Accordingly, this court's decision in Thornhill is distinguishable.
This appeal is taken pursuant to Conn. Gen. Stat. § 8-30a which applies to it the appeal provisions of Conn. Gen. Stat. § 8-8. This court, after hearing thereon, sustains the appeal and remands the matter to the commission for action consistent with this opinion.