Opinion
No. DBD-CV-09-4010431-S
April 15, 2010
MEMORANDUM OF DECISION
The plaintiff, Mary Liscinsky, appeals pursuant to General Statutes § 8-8 from the decision of the defendant planning and zoning commission of the town of Newtown (commission), which granted the application of the defendants Nick and Gino Vona Mason Contractors and WF Bros., LLC a/k/a WF, LLC, (applicants) for subdivision approval to allow them to subdivide premises owned by them at 46 Eden Hill Road, Newtown, Connecticut (premises) into seventeen building lots for single-family residential homes. The complaint alleges that the plaintiff is the owner of abutting property located at 58 Eden Hill Road, Newtown, Connecticut. At the trial of this matter, counsel for the plaintiff produced a deed to 58 Eden Hill Road, Newtown, Connecticut, vesting title in the plaintiff, and evidence that the plaintiff's property abuts the premises. The court finds that the plaintiff, Mary Liscinsky, is statutorily aggrieved by the commission's decision pursuant to General Statutes § 8-8(a)(1) and therefore has standing to bring this appeal.
The following facts are found based on an examination of the record. The applicants are owners of property located at 46 Eden Hill Road, Newtown, also known as Tax Assessor's map 12, block 2, lot 39. The premises cover an area of 79.328 acres and is the third phase of a larger residential development. (ROR 1, 54, p. 2.) The entire development lies on the westerly side of Eden Hill Road. The first two phases of the development lie to the north of the premises and consist of homes located mostly on Oak Ridge Drive, which is a loop, both ends of which terminate on the westerly side of Eden Hill Road, the northern terminus of which is located at the intersection of Eden Hill Road and Hattertown Road, and the southern terminus of which is located on Eden Hill Road approximately two-thirds of a mile south of the northerly terminus. The subject premises on which proposed phase three of the development is located abuts and lies to the south of the lower end of the loop of Oak Ridge Drive and to the west of Eden Hill Road. Access into the premises is proposed from a new road, Sebastian Trail, which would run southerly from Oak Ridge Drive, and another new road, Nicolina Way, which would run westerly from Sebastian Trail. (ROR 57.) Of the seventeen lots proposed in the subdivision, fifteen are located on either Sebastian Trail or Nicolina Way. One is located on Oak Ridge Drive and one on Eden Hill Road. Both Sebastian Drive and Nicolina Way terminate in dead ends, or, as is more fashionably called today, a "cul-de-sac." (ROR 55-2, 55-3, 55-4.) The plaintiff's property lies to the south of, and abuts, the premises and also fronts on the westerly side of Eden Hill Road.
To the south and to the west, or rear, of the plaintiff's property lies an existing subdivision consisting of thirteen homes on a dead end street, or cul-de-sac, known as Split Rock Road. Split Rock Road runs westerly from Eden Hill Road at a point approximately two-thirds of a mile south of the southern terminus of Oak Ridge Drive at Eden Hill Road. (ROR 57.) Split Rock Road ends in a temporary turnaround with a right of way to the boundary line of the subject premises for purposes of extending an outlet street into the subject premises. The provision for the street right of way or "outlet street" in the Split Rock Road subdivision was made in conformance with the provisions of the subdivision regulations of the town of Newtown (regulations), specifically § 4.01.200 or its predecessor § 2.05 B, which provide in relevant part:
When a proposed subdivision adjoins undeveloped land capable of being subdivided, street rights of way (outlet streets) shall be provided in the proposed subdivision to the boundary with adjoining property at locations acceptable to the commission.
(ROR 58, subdivision regulations, pp. 10, 28; defendant's exhibit "C," p. 2.) There is no change in the language of the regulation from the original provision as adopted on October 2, 1967, and the current regulation.
The applicants' initial application and plans included provisions for the extension of Split Rock Road into the Oak Ridge Road subdivision. The proposed extension road would have run a distance of 880 feet to Nicolina Way at a location midway along its length. (ROR 1.) At the first public hearing held on January 8, 2009, counsel for the applicants indicated that it was not his clients' first choice to complete the connection with Split Rock Road and that they believed the better design was to leave the new streets in their proposal for the premises with the "double ended cul-de-sac design" of Sebastian Trail and Nicolina Way without connecting to Split Rock Road. It was only after consultation with commission staff as a prelude to filing the application that they changed the plans to include the connection. (ROR 54, p. 13.) Counsel did reiterate during the course of the hearing, however, that his clients were amenable to offering the subdivision either with or without the connection in whichever configuration the commission preferred. (ROR 54, p. 34.)
The relevant provisions of the regulations concerning subdivision applications and plans where connection to an outlet street in an existing subdivision is possible provide the following:
Where it possible for a street in a proposed subdivision to connect with a temporary dead-end street in an existing subdivision, or to an improved street in an existing subdivision left for future improvement as an outlet street to adjoining property, the plan-profiles of the proposed subdivision shall show, and the application for final approval shall include all work required to connect and complete the outlet street within the existing subdivision and the improvements and utilities between the proposed and existing subdivisions.
Regulations § 4.01.300. (ROR 58, subdivision regulations, p. 10.)
After the applicants' presentation at the first public hearing, the hearing was opened to members of the general public. Several residents of Split Rock Road spoke in opposition to completion of the connection. All expressed concerns with traffic passing through their neighborhood to the connection to the Oak Ridge Road development. (ROR 54, pp. 28-34.) A general discussion ensued between counsel for the applicants and the commission members. Commission members weighed the increased convenience of greater access for town safety and maintenance personnel against cost, environmental impact and aesthetics of the road itself. Commission members specifically noted that the connecting road would be an unusually lengthy 880 feet, substantial portions of which would be required to climb a ten percent grade, the maximum allowed by contemporary engineering standards for new roads within the town. Further, construction of the road would involve substantial cuts, removal of material and sloping. The road would serve no houses along its length, would require increased stormwater control, loss of habitat and future maintenance. After taking a straw poll, the commission members unanimously requested that the applicants revise the plans to eliminate the construction of the road as part of the construction plans but instead provide for a reservation or right of way for completion of the road should the town elect to do so at a future date. (ROR 54, pp. 34-39.) Counsel for the applicants restated his clients' acquiescence to the change and the hearing was continued.
The second public hearing was held on February 5, 2009, at which time the applicants appeared with a revised application and plan which they had put together after consultation with the town conservation commission. The revised plan then showed the fifty-foot-wide extension of Split Rock Road divided down the middle into two parallel twenty-five-foot strips. The strip lying along the southeasterly side would be dedicated open space. The strip along the northwesterly side would be conveyed to the town. Counsel for the applicants restated his clients' position, however, that if the commission preferred a conveyance in fee to the town of the entire fifty-foot-wide strip for future use as a connection to Split Rock Road they would acquiesce. (ROR 55-3, 55-4.) Several members of the general public, notably the plaintiff in this appeal, spoke and indicated their belief that the extension of Split Rock Road, the outlet street, was mandated by the provisions of § 4.01.300 of the regulations. The commission chairman indicated her disagreement and noted her recollection of various subdivision approvals both with and without connection to outlet streets in existing subdivisions. (ROR 68-71, 91.)
The public hearing was held on two additional dates. On February 19, 2009, the commission heard additional information on the cost and environmental impact of the completion of the connection to Split Rock Road. The commission also heard from the applicants' traffic operations engineer, Howard Weissberg, who told the commission that the results of his studies indicated that there would be no "material change in response time [of emergency personnel] with or without a through road" and that the impact on traffic patterns of the through road would be minimal. (ROR 54, pp. 95-120.) The fourth and final evening of the public hearing was that of March 5, 2009, at which time the commission received the opinion of the town attorney as to whether the provisions of § 4.01.300 of the regulations required completion of the connection to Split Rock Road. (ROR 54, pp. 120-26.)
On March 19, 2009, the commission went into executive session to consider the application. The commission first considered the relative merits of completion of the connection to Split Rock Road. The construction of the 880-foot-long road would require clearing 1.5 acres, cutting and removing 8547 cubic yards of material, disturbing 65,782 square feet of land, paving 19,074 square feet of roadway and installing 9 catch basins and 556 feet of drainage pipe. In addition, the town would incur future maintenance costs. As against that cost, the benefit to the residents of either neighborhood or to the town and its public works and safety personnel would be marginal to nonexistent. (ROR 54, pp. 127-30.) The commission next considered the plans before it which called for the parallel twenty-five-foot strips of open space and conveyance in fee simple and determined that that solution would be too restrictive and cumbersome for the town in the event that the town sees fit in the future to develop the connection. (ROR 54, pp. 137-39.) At the conclusion of its deliberations, the commission voted unanimously to grant the application for approval of the subdivision with modifications:
BE IT RESOLVED by the Newtown Planning and Zoning Commission that the application by Nick Gino Vona Mason Contractors and WF Brothers, LLC for the seventeen-lot subdivision, 46 Eden Hill Road, Newtown, Connecticut, as shown on three certain maps entitled "Property Survey Subdivision Map of Oak Ridge phase III prepared for Gino and Nick Vona, 46 Eden Hill Road, Newtown, Connecticut" maps S-1, S-2, and S-3 dated April 12, 2007, last revised 10/17/08, scale 1"`60', Assessor's Map 12, Block 2, Lot 39
SHALL BE APPROVED with the following stipulation:
1. That prior to filing the record maps in the Newtown Land Records:
Split Rock access way (50-foot right of way): The final Mylar Subdivision Map submitted by the Applicant for recording shall show a 50-foot access way labeled as "Parcel B" on the map entitled Property Survey and Subdivision Map of Oak Ridge Phase III prepared for Gino and Nick Vona, 46 Eden Hill Road, Newtown, Connecticut, prepared by Brautigam dated April 1, 2007 and revised through January 28, 2009; sheets S-2 and S-4 (2 of 4 sheets) "Parcel B" is to be conveyed to the Town for a future potential Town road. Map to be modified to show a 50' right of way instead of two 25' rows.
(ROR 54, p. 140.) In compliance and in agreement with the decision of the commission, the applicants filed a revised set of maps and plans depicting the conveyance of the entire fifty-foot wide strip to the town in fee. (ROR 59, 60, 61 and 62.)
The plaintiff brought this appeal claiming that the commission acted illegally, arbitrarily and in abuse of its discretion and assigns four such instances of error. Nevertheless, it is essentially the position of the plaintiff that (1) § 4.01.300 of the regulations mandates that "where it is possible" a new subdivision connect and complete an outlet road left in an existing and abutting subdivision, (2) in the instant application "possibility of connection" is proven, and (3) the commission had no recourse but to deny the application.
DISCUSSION
The standard of review by the Superior Court in an appeal from a decision by a planning commission or combined planning and zoning commission to approve a subdivision application is well established. "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 [plaintiff's] 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 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 Osborne v. Zoning Board of Appeals, 41 Conn.App. 351, 675 A.2d 917 (1996), the court stated: "Ordinarily, the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." (Internal quotation marks omitted.) Id., 354.
"With respect to the commission's factual findings, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the commission] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a [commission's] findings, it cannot substitute its judgment for that of the [commission] . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The [commission's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Gerlt v. Planning Zoning Commission, 290 Conn. 313, 322-23, 963 A.2d 31 (2009).
I
General Statutes § 8-25 mandates that local planning commissions adopt regulations covering the subdivision of land prior to exercising the powers granted under the statute. When adopting subdivision regulations, a planning commission acts in its legislative capacity. Lord Family of Windsor, LLC v. Planning Zoning Commission, 288 Conn. 730, 735, 954 A.2d 831 (2008). The commission adopted the regulations in substantially their current form on October 2, 1967. The regulation at the center of the controversy in this appeal is § 4.01.300 which, as noted above, reads in relevant part: "Where it is possible for a street in a proposed subdivision to connect with . . . an improved street in an existing subdivision left for future improvement as an outlet street to adjoining property, the plan-profiles of the proposed subdivision shall show, and the application for final approval shall include all work required to connect and complete the outlet street within the existing subdivision and the improvements and utilities between the proposed and existing subdivisions." (ROR 58, subdivision regulations, p. 10.)
It is the contention of the plaintiff that this provision alone requires every outlet street in an existing subdivision to connect to a street in every proposed abutting subdivision unless such connection is an impossibility. There are no other provisions within the regulations which speak to this issue.
The court first notes that regulations are local legislative enactments, the interpretation of which is the responsibility, in the first instance, of the commission. Trumbull Falls, LLC v. Planning Zoning Commission, 97 Conn.App. 17, 21-22, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006). The court in Schwartz v. Planning Zoning Commission, 208 Conn. 146, 543 A.2d 1339 (1988), noted that zoning "regulations must be interpreted in accordance with the ordinary rule of statutory construction that, where the language of the statute is clear and unambiguous, courts cannot by construction read into the statutes provisions which are not clearly stated . . . In addition, words employed in zoning ordinances are to be interpreted in accord with their natural and usual meaning." (Citation omitted.) Id., 153.
The commission in the instant case was not persuaded that § 4.01.300 required a connection to the outlet street. This court can find no basis to disagree with the commission. The court also notes that the regulation does not appear to contain any ambiguities. The regulation provision speaks solely to what an applicant must show in the application and plan-profiles for the proposed subdivision. Neither the provision of the regulation in question nor any other provision of the regulations mandate that the connection to Split Rock Road be made in this development or, as a general matter of principle, that a connection be made in any proposed subdivision which abuts an existing subdivision where an outlet street has been created pursuant to the provisions of § 4.01.200 of the regulations.
II
The plaintiff, in her reply brief, puts forth the following proposition and rhetorical question: "If the regulation in question is interpreted as not requiring construction of a connection in every instance, then it cannot be interpreted as requiring a connection in any instance. What criteria does the Commission see in § 4.01.300 that would allow it to demand construction of the connection in one instance but not require it in another?" (Reply Brief of the Plaintiff Mary Liscinsky, dated February 11, 2010.)
In fact, § 4.01.300 of the regulations has little or nothing to do with setting forth the authority of, or the criteria to be applied by, the commission in its approval or disapproval of a subdivision application and whether or not it shall require connections to outlet streets in abutting, existing subdivisions. The following provisions of the regulations authorize the commission to act on applications for subdivision approval pursuant to the provision of General Statues § 8-25 and § 8-26.
3.09.100 After a completed application has been submitted to the Commission, the Commission shall approve, modify and approve, or disapprove any subdivision or re-subdivision application or maps or plans . . .
3.09.110 No subdivision plan shall be approved unless each lot, and the roadway shown thereon complies with the Newtown Subdivision Regulation, the Zoning Regulation of the Town or Borough as applicable, the Newtown Road Ordinance and the Newtown Flood Damage Ordinance.
(ROR 42, p. 8). The language of § 3.09.100 mirrors the provisions of General Statutes § 8-26(d). With regard to the layout of streets in the proposed subdivision, the substantive provisions of the regulations provide in relevant part the following.
4.01.100 Proposed streets shall be appropriate to the topography and location, giving due consideration to contours, natural features, historic factors, and existing streets, and shall conform to the objectives of the Plan of Conservation and Development. Proposed street shall be in harmony with existing or proposed principal thoroughfares shown in the Plan of Conservation and Development as amended from time to time, especially in regard to safe intersections with such thoroughfares. When required by the Commission, provision shall be made for future extension of streets into the adjoining land. Construction and layout of proposed streets shall conform to the Newtown Road Ordinance, including without limitation, a minimum width of fifty (50) feet and adequate storm drainage facilities . . .
(Emphasis added.) (ROR 42, p. 9.) It is this criteria to which the commission must look to determine whether a connection to an existing outlet street as shown in an application for a subdivision and its accompanying plan-profiles is appropriate. When these various provisions are read together as a whole, the subdivision regulatory scheme proceeds as follows: (1) the applicant must submit plans showing all possible connections to outlet streets in abutting existing subdivision "where possible," (2) the commission must review the application and plans to determine whether the streets, including the streets connecting to outlet streets, are "appropriate to the topography and location," (3) the commission "shall approve, modify and approve, or disapprove" the application. Therein lies the authority for a planning commission to determine whether completion of a connection to an outlet street is appropriate.
The difficulty that this court has with the plaintiff's argument is that its application would reduce the commission's function from administrative to merely ministerial. See Loring v. Planning Zoning Commission, 287 Conn. 746, 770-71, 950 A.2d 494 (2008) (discussing limitations on commission's discretion while acting in administrative capacity). While acting in an administrative capacity, a board or commission properly interpret its regulations and applies them to the facts. See 200 Associates v. Planning Zoning Commission, supra, CT Page 13571 83 Conn.App. 171-72. By contrast, a ministerial function is to be performed in a prescribed manner without the exercise of judgment or discretion. See Durrant v. Board of Education, 284 Conn. 91, 95 n. 4, 931 A2d 859 (2007). The regulations at issue call for the exercise of the commission's judgment in determining whether a connection to Split Rock Road is appropriate in light of the information presented to it.
The commission had before it an application together with plan-profiles which properly depicted the connection to the outlet street, Split Rock Road, as required by the provisions of § 4.01.300 of the regulations. The applicants expressed their willingness to complete or not complete construction of the road, and if not to be completed, to preserve rights for the town to complete the road in the future in whatever form the commission saw fit. The commission held public hearings over four nights on the original application as well as the revised application, giving interested parties and the general public ample opportunity to comment on the application and to respond to application amendments and questions of law and fact raised during the course of the hearings. The commission accumulated a considerable amount of information and facts, most notably concerning the disproportionate cost, both from a financial as well as from an environmental, aesthetical and practical point of view, of the completion of the connection to Split Rock Road in contrast to the dubious benefits that might be derived by the respective neighborhoods affected as well as by the town at large. The commission determined that the application and plans as approved, which provided for no connection with Split Rock Road to be completed as part of the immediate subdivision development, and was modified to include a conveyance to the town of the fifty-foot wide strip necessary for future completion of the connection, complied with the regulations. The commission modified and approved the application and plans accordingly. The court finds that this determination is supported by substantial evidence in the record.
CONCLUSION
For the foregoing reasons, the court finds that the plaintiff has not sustained her burden of demonstrating that the approval of the subdivision with modifications was illegal, arbitrary or in abuse of the discretion vested in the commission. The appeal therefore is dismissed.