Opinion
No. CV03 034 84 18
December 5, 2003
MEMORANDUM OF DECISION
This is an appeal brought pursuant to General Statutes Section 8-8 by the Plaintiff, Luis Fernandes and Stephanie Fernandes against the Newtown Planning and Zoning Commission (hereinafter referred to as "the Commission"). It is an appeal from the denial of a two-lot resubdivision.
FACTS
The plaintiffs are the owners of 4.3289 acres of land situated on Arlyn Ridge Road, Newtown, CT as shown as Lot 19 on a map entitled "Resubdivision of Lot 2 `Arlyn Ridge' Subdivision Map Platts Hill Rd Arlyn Ridge Rd. Newtown, Connecticut prepared for Quaker-Bernan" filed as Map No. 5754 in the Newtown Land Records. The Arlyn Ridge resubdivision was approved by the Commission February 5, 1987.
In July 2002 the plaintiffs, acting through their agent, Larry Edwards, applied to the Commission for resubdivision into two (2) lots.
The Town Engineer and the Director of Community Development reviewed the application and made comments (July 24, 2002 and August 13, 2002, respectively) relating to certain regulations which the plan as proposed might not meet.
After a revision to the plan requested by the Newtown Conservation Commission acting as the Newtown Inland Wetlands Agency, the Newtown Conservation Commission approved the inland wetlands application and granted a permit for the proposed resubdivision on September 25, 2002.
The subdivision plan as finally submitted to the public hearing for approval was entitled "Resubdivision Plan Lot 19 "Arlyn Ridge" 3 Arlyn Ridge Road Newtown, Connecticut" dated June 10, 2002, revised 6/10/02, 9/4/02, 9/5/02 and 10/2/02. A public hearing on the plaintiffs' application was held by the Commission on October 3, 2002.
The Commission voted to deny the plaintiffs' application for resubdivision on December 19, 2002 and notice of the denial was published in the Newtown Bee in the issue dated December 27, 2002.
The Commission's denial was for the following reasons:
(1) Aryln Road is not an accepted Town road. Subdivision of land on private streets, roads or right of way is prohibited. Section 4.02.110 of the subdivision regulation is not met.
(2) The record map does not list the adjacent property owners. Section 3.01.532 of the subdivision regulations is not met.
(3) The record map shows the driveway serving lot 19A encroaching the access strip for lot 19B. While the supplemental maps show the driveway to be relocated, the record map does not. Section 8.02.520 of the zoning regulations is not met.
(4) The record map does not include the name of the property owners as indicated on the application form. Section 3.01.200 of the subdivision regulations is not met.
(5) The application for resubdivision does not include the required supplemental location map or a calculation of the areas within the subdivision that are steep slopes or rock out croppings. Sections 3.01.110 and 3.01.111 of the subdivision regulations have not been met.
STANDING/AGGRIEVEMENT
The plaintiffs were and are the owners of the property and are therefore aggrieved by the decision of the Commission.
STANDARD OF REVIEW
As to the standard of review, "it is well settled law in Connecticut that the decisions of zoning authorities are given considerable deference and they should be overturned by a court only when it is found that the agency has not acted fairly, with proper motives and upon valid reasons." McMahon v. Board of Zoning Appeals, 140 Conn. 433, 438 (1953).
"Where it appears that an honest judgment has been reasonably and fairly exercised after a full hearing, courts should be cautious about disturbing the decision of the local authority." Id., quoting Kutcher v. Town Planning Commission, 138 Conn. 705, 710 (1952).
"When a zoning commission states the reasons for its action, the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the consideration which the commission is required to apply under the zoning regulations." Zieky v. Town Plan Zoning Commission, 151 Conn. 265, 267.
The commission gave reasons for the denial of the subdivision application. If one of the reasons is valid, the appeal must be dismissed. The question is not whether the trial court would have reached the same conclusion, but whether substantial evidence in the record supports the commission's decision. Property Group, Inc. v. Planning and Zoning Commission, 226 Conn. 684, 697 (1993).
DISCUSSION
The main issue to be discussed is the first reason for the denial of the application.
The Commission found in its letter to the plaintiffs dated December 20, 2002 (ROR Exhibit 1) that "Aryln Road is not an accepted Town road stating that subdivision of land on private streets, roads or right of way is prohibited. Section 4.02.110 of the subdivision regulation is not met."
It is undisputed by the parties that Arlyn Ridge Road has not been formally accepted by the Town of Newtown as a public road.
Private roads, including subdivision streets, become public highways in two ways: (1) by statutory dedication and acceptance under Section 13a-48 of the Connecticut General Statutes; or (2) by common-law dedication and acceptance.
It is the position of the plaintiff that the record was sufficient before the Commission for the Commission to have accepted the road through a common-law dedication and acceptance.
It is the argument of the defendant that the Commission had no authority to accept the road as a public highway under the common-law approach.
A zoning agency has no power to determine property rights. Property Group, Inc. v. Planning Zoning Commission, supra, 694; Cybulski v. Planning Zoning Commission, 43 Conn. App. 105, 110, (1994), cert. denied, 239 Conn. 942 (1996); Beckish v. Manafort, 175 Conn. 415, 422 n. 7, (1978).
The Commission's authority was limited to determining whether or not the subdivision application complied with the applicable regulations. It could not make a determination of legal rights. The Commission was required to proceed on the basis of whether or not the application met the requirements of the regulations. The Commission was not equipped to make the legal decision as to whether or not the easement, or right-of-way, had been abandoned. Property Group, Inc. v. Planning Zoning Commission, supra, 693. The cases where common-law acceptance of a road as a public highway have occurred all involve civil actions in the Superior Court. See Goodrich v. Dwyer, 17 Conn. App. 111 (1988), and Hamann v. Newtown, 14 Conn. App. 521 (1988).
CONCLUSION
The court finds that the Commission properly denied the application and the appeal is dismissed.
FRANKEL, JUDGE.