Opinion
No. FST CV 06 4010464 S
March 10, 2010
MEMORANDUM OF DECISION
On October 10, 2006 the Norwalk Planning Commission (hereinafter "the commission") approved a two-lot resubdivision in the B-residence zone on the southeast corner of Maurice and William Streets. The plaintiff has appealed, alleging that the commission acted illegally (1) in failing to require compliance with Sec. 4.07(f) and (l) of the subdivision regulations, (2) in approving the resubdivision when there was a lack of substantial evidence of adequate drainage, and (3) in improperly delegating the determination of adequate drainage to a private engineer.
At trial it was established that the plaintiff has been an abutting property owner at all times relevant to this appeal and is therefore found statutorily aggrieved. C.G.S. §§ 8-30a and 8-8.
Compliance with Sec. 4.07(f) and (l)
Section 4.07 reads in pertinent part as follows:
PRELIMINARY LAYOUT: [Amended 9/16/87] The Preliminary layout drawn at a Scale not smaller than 1" = 40' and not larger than 1" = 20" shall be submitted in four (4) copies, and shall supply the following information:
(f) The location of existing property lines, easements, buildings, water courses, wetlands, swamps, rock outcrops, utilities, and other pertinent features in the general area.
(l) Indication of the area contributing runoff to the proposed storm drainage system in the subdivision.
The plaintiff complains that the commission failed to require that the subdivision map show the existence and location of a certain "tile pipe drain" pursuant to subsection (f) which he claims "contributes to the storm drainage system which should have been shown pursuant to subsection (l)."
On January 23, 2008 the court (Downey, J.), granted the plaintiff's motion to allow additional evidence "absent objection." Pursuant to that order this court took evidence on the issue of whether the resubdivision application was incomplete and therefore defective for the reasons alleged. The court heard testimony from a Connecticut licensed civil engineer and the plaintiff himself. Their testimony revealed the following facts. The tile pipe drain is shown on map 4543 on file with the Norwalk Town Clerk. None of the documents which were presented to the commission contained any data concerning grades, surface water runoff, drainage impact on abutting properties or the municipal storm drainage system which exists in the immediate neighborhood. The engineer's inspection of the neighborhood revealed that surface water flows in a southerly direction to William Street. The plaintiff's property (shown as lot 20) on the subdivision map lies north of the subject property. The drainage flow was confirmed by the court at the time it adjudicated the plaintiff's request for a restraining order. The court, (Adams, J.) found that "historically water has drained in a direction leading from DeMilo's property toward Tchersak's (the subdivider's) property." The engineer did not know where the tile drain pipe originates or how and from what source it obtains water, if any. He dug no test holes and performed no tests to establish its location. He had no knowledge of whether the pipe is functional for any purpose. There was no evidence that the pipe carries water from the plaintiff's property or elsewhere in the neighborhood. The new house location proposed for Lot 22B will not interfere in any way with the pipe. There exists in William and Maurice Streets a surface water drainage system installed and maintained by the City of Norwalk. The subject property can easily be made to drain into this system. The plaintiff's property drains into the subject property, not vice versa.
The plaintiff argues that the commission had none of this evidence before it and in addition cites the following omissions by the Commission:
1. The Tile Pipe Drain was not shown on the preliminary plan submitted by the Applicant;
2. The Applicant did not submit a drainage report indicating that drainage was adequate;
3. The Applicant did not submit drainage calculations revealing the impact of the proposed Subdivision drainage on adjoining properties and in the neighborhood;
4. The applicant's engineer did not testify as to the impacts of the Subdivision drainage on adjoining properties and neighborhood.
5. Neither the Subdivision Map (ROR #2) nor the Defendant's Site Plan Details and Erosion Sedimentation Plan (collectively `Site Plan') show any grading for the Subdivision Site;
6. There were no written comments regarding drainage impacts by the Subdivision on the adjoining properties or neighborhood from the City Department of Public Works;
7. There were no written calculations or comments from the City engineer indicating that there would be no adverse drainage impacts on adjacent properties or the neighborhood.
The subdivider's attorney simply responds that there was no need for the commission to have this evidence because there was no demonstrated drainage problem which the commission needed to address and if drainage was a real concern the commission provided for that by imposing the condition that requires certification from a licensed engineer that "no adverse drainage impacts occur on any adjacent properties and that this note be placed on the subdivision map."
The court must begin by stating the general principles which govern its review of subdivision, or in this case, resubdivision approval. "It is axiomatic that a planning commission, in passing on a [re]subdivision application acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulation . . . it is equally axiomatic that the trial court, in reviewing the action of a planning commission regarding a [re] subdivision application, may not substitute its judgment on the facts for that of the planning commission . . . The evidence, however, to support any [reason stated by the planning commission for its action] must be substantial . . . [E]vidence 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 trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion . . . It is helpful to review Connecticut law concerning incomplete planning and zoning applications. The court can sustain the plaintiff[s'] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal." Pelliccione v. Planning and Zoning Commission, 64 Conn.App. 320, 326-28 (2001).
In this case the court is called upon to determine whether the failure of the commission to mandate strict compliance with Section 4.07(f) and (l) rendered its action arbitrary, illegal or an abuse of its discretion. It is helpful to review Connecticut law concerning incomplete planning and zoning applications. "An administrative agency has reasonable discretion to determine if sufficient documentation has been submitted to proceed with an application." R. Fuller, 9 Conn. Practice Series Land Series, Land Use Law and Practice (2d ED 1999) Section 15.12 at 360. Therefore, it is within the discretion of a zoning agency to determine whether sufficient documentation has been provided in order to enable it to proceed with an application. See, Woodburn v. Conservation Commission, 37 Conn.App. 166, 176 (1995). Furthermore, a defect in a zoning application by omitting the owner's signature even though mandated by the regulation, constituted "only an irregularity which does not destroy the jurisdiction of the zoning commission to act on the petition." Chesson v. Zoning Commission, 157 Conn. 520, 527 (1969). In Chesson, by failing to make objection at the hearing the plaintiff waived his right to attack the application on that ground. An incomplete zoning application does not deprive a planning and zoning commission of jurisdiction to hear an application. Michel v. Planning and Zoning Commission, 28 Conn.App. 314, 331 (1992). Although an incomplete application may entitle an administrative agency to deny an application, it is not required to do so. Treat v. Town Planning and Zoning Commission, 145 Conn. 406 (1958). So, the court concludes that a failure of a planning commission to enforce strict compliance with a subdivision regulation mandating that a subdivision application include certain engineering data does not prevent the commission from acting on the application or necessarily render its approval of such application null and void where the record is totally bereft of evidence of a need for such data.
Lack of Substantial Evidence
The plaintiff's numerous allegations of evidentiary omissions in the record as detailed above may be summarized as constituting a lack of substantial evidence that the property will have "adequate drainage." An examination of the record discloses the following. On July 26, 2006 Richard P. Linnartz, principal engineer of the City of Norwalk, approved the resubdivision stating that the development would produce "no significant changes in grade" and that "the applicant should not have any drainage impact, etc."
In an undated letter, the plaintiff himself wrote to the commission in opposition on the grounds that erection of a house next door would decrease the value of his property and would cause disturbance to his aging mother. The letter makes no mention of any drainage issue. The court notes that a petition in opposition was presented to the commission signed by the plaintiff's neighbors. The petition offers no grounds for the opposition. Three neighbors wrote letters citing adverse drainage conditions on neighboring streets but mention no particular drainage problem associated with the subject property. The transcript of the public hearing is sparse and contains numerous omissions for inaudibility. However, the court is able to discern that three neighbors expressed generalized concerns about flooding in the neighborhood. The plaintiff himself testified that the house proposed by the subdivider would be out of character with the neighborhood, would decrease property values and would adversely affect the general welfare. The plaintiff's testimony is remarkable for what it did not say. The plaintiff made no mention of an existing flooding condition on his property. Nor did he bring to the commission's attention the existence of the underground tile pipe drain which he now seeks to preserve. Thus, there was no evidence whatsoever before the commission to alert it to the need for specialized treatment of surface water drainage on the subject property. It is well established that generalized fears expressed by challenging property owners do not rise to the level of substantial evidence sufficient to warrant relief. Nader v. Altermatt, 166 Conn. 43 (1974).
Curiously, the record contains a Second Supplement to the Return of Record. Item 25 is an "erosion and sedimentation plan" dated March 27, 2007 which is obviously subsequent to the date of the commission's decision of October 10, 2006. While it is not clear how this map could have been part of the record before the commission it appears that it was prepared and submitted to the commission in response to the condition which it imposed concerning adverse drainage impacts set forth above. This map shows that twenty feet of drainage galleys are proposed for underground installation in the rear of Lot 22B. In addition, a site plan dated March 12, 2007 (Plaintiff's Exhibit 5) shows the same galleys with a pipe feeding to a catch basin in the northwest corner of lot 22B and thence to a twelve-inch plastic pipe which terminates in the city storm drainage system. The court notes that no mention of these proposed improvements has been made by any of the parties and most importantly not by the civil engineer who testified at the supplemental evidentiary hearing. Because of the absence of testimony or even argument concerning these galleys, the court infers that their installation will not interfere with the underground tile pipe drain, despite the absence of any evidence of the pipe's actual existence or functionality. The court therefore concludes that there is no evidence either in the record before the commission or in the evidence presented at the supplementary hearing that there was or is a surface water drainage problem which is likely to result from this resubdivision. Accordingly, because there was no demonstrated drainage issue for the commission to deal with, the claim that the commission illegally delegated the design of drainage protective measures to an engineer is academic and without merit.
For the foregoing reasons the commission did not act illegally, arbitrarily or in abuse of discretion and therefore this appeal is dismissed.