Opinion
No. MMXCV 04-4001298 S
April 27, 2006
MEMORANDUM OF DECISION
I BACKGROUND
On July 15, 2004, the plaintiffs filed a subdivision application with the PZC seeking to subdivide land located on Plains Road in the town of Haddam (the property). (ROR, Item 2.) The PZC conducted public hearings concerning the plaintiffs' subdivision application on August 2, 2004; (ROR, Item 7); and September 9, 2004. (ROR, Item 11.) On October 18, 2004, the PZC voted to deny the plaintiffs' subdivision application. (ROR, Item 15.) Thereafter, on October 20, 2004, the PZC published notice of its decision in the Middletown Press. (ROR, Exhibit 16.)
The PZC did not have a proper quorum to consider the application at its meeting on October 4, 2004. (ROR, Item 17, 10/4/04 Public Hearing Transcript, p. 2.)
The motion that the PZC ultimately denied contained six modifications that were intended to address the concerns raised at the public hearing and included a cash bond requirement, as well as a certification from a professional engineer confirming that the drainage system complied with the approved plans. (ROR, Item 15.)
On March 13, 2006, the court heard arguments on the plaintiffs' appeal. The following facts are relevant to the issues in this case. The plaintiffs' property contains approximately 108.86 acres; (ROR, Item 2); and is located in a residential zone designated as "R-2." (ROR, Item 1.) Single-family and two-family dwellings are permitted by right in this zone. (ROR, Item 18, Haddam Zoning Regs., § 6-1(a).) The plaintiffs' application seeks to subdivide a portion of the property abutting Plains Road into three lots. The proposed subdivision meets or exceeds the bulk requirements; (ROR, Item 1); as set forth in § 4, Table 1 of the Haddam zoning regulations. (ROR, Item 18.)
Prior to filing the subdivision application with the PZC, the plaintiffs submitted a proposed subdivision plan to the Haddam town engineer, Robert Tommell. On January 7, 2004, Tommell issued a report in response to the plaintiffs' proposed plan that recommended certain drainage improvements and requested that the plaintiffs submit drainage calculations. (ROR, Item 5.) Thereafter, the plaintiffs made changes to the proposal and submitted revised plans, as well as drainage reports with drainage calculations, to Tommell. On April 5, 2004, Tommell issued a response that recommended additional changes to the drainage system. (Correction to ROR, Item 1.) Once again, the plaintiffs modified their proposal and submitted revised subdivision plans to Tommell.
There were several other recommendations made in this report, however, none are relevant to the present appeal.
The plaintiffs submitted both a drainage report; (Correction to ROR, Item 3); and a roadway drainage report. (Correction to ROR, Item 4.)
On May 3, 2004, Tommell responded to the latest revisions, finding that the plans "substantially addressed those items noted in [his] April 5, 2004, report to the Commission." (Correction to ROR, Item 2.) Concerning the issue of storm drainage, Tommell stated, in relevant part, that: "(4) Infiltration trenches, with controlled overflows across Plains Road provide detention for lots 3 4. The provided calculations support the engineer's conclusion that 25-year detention is provided. The included overflow provides a reasonable safety factor in this case. Proposed storm drainage facilities (i.e.: infiltrator trenches under drains, catch basins and pipe) should be installed when the driveways are constructed. (5) Infiltrator trenches provide detention and directs surface water below ground for lots 1 2. Upstream under drains have been added to direct excess driveway surface water to Plains Road in a controlled manner. However, no existing storm drains exist in Plains Road at this location. Therefore, Plains Road gutter flow may increase and require future stormwater improvements as additional land development occurs." (Correction to ROR, Item 2.)
The plaintiffs originally sought to develop four lots. The plaintiffs' appeal only concerns lots one, two and three except as set forth in modification number six of the PZC's motion sheet dated October 18, 2004.
The PZC held public hearings on the application on August 2, 2004, and September 9, 2004. At these meetings, the discussion centered on three issues: (1) the poor condition of Plains Road; (2) whether the drainage on Plains Road would be adversely affected by the subdivision; and. (3) whether the plan contained adequate storm drainage. The residents of Plains Road expressed concerns about the road's preexisting drainage problems, the road's poor condition, the road's problems with icing during the winter and inquired as to whether the subdivision would aggravate these issues. (ROR, Item 17, 8/2/04 Public Hearing Transcript, pp. 5-9.) Such residents also questioned whether the plaintiffs would be responsible for fixing any of these preexisting problems. For example, one resident asked whether the plaintiffs' proposed drainage system would "solve the problem now with the ice going straight across the road." (ROR, Item 17, 8/2/04 Public Hearing Transcript, p. 6.) Residents further commented that they wanted the road improved before any additional development occurred. (ROR, Item 17, 8/2/04 Public Hearing Transcript, pp. 5-6.)
In response, the plaintiffs' professional engineer and licensed land surveyor, Tom Bulzack, stated that, in his opinion, the proposed subdivision would not increase the water on Plains Road or aggravate the road's existing problems. (ROR, Item 17, 8/2/04 Public Hearing Transcript, p. 6.) Bulzack further noted that the plan would likely improve drainage on the road because the plaintiffs intended to increase the size of the existing culvert across from lot three. (ROR, Item 17, 8/2/04 Public Hearing Transcript, p. 6.) Bulzack also explained that drainage swales were being added to the properties to handle the stormwater runoff and that such swales would contain the water on the lots. (ROR, Item 17, 8/2/04 Public Hearing Transcript, p. 10.)
Pursuant to the plaintiffs' proposal, this improvement would not occur until the lot was sold, but the plaintiffs maintain that no building would occur on lot three prior to making such improvements. (ROR Item 17, 8/2/04 Public Hearing Transcript, pp. 12-14.)
Tommell, the town engineer, also addressed the drainage concerns raised at the hearings. He stated that the proposed development on lot three would not have "significant impact, if any, on Plains Road"; (ROR, Item 17, 9/9/04 Public Hearing Transcript, part I, p. 3); and further noted that the plans for lots one and two had "taken reasonable precautions to minimize the amount of flow that's coming down . . . to the roadway, especially in the wintertime, [because] that's where you really have the problems." (ROR, Item 17, 9/9/04 Public Hearing Transcript, part I, p. 4.) However, Tommell commented that on lots one and two "any additional water that comes down is going to be in the gutter . . . there will be some additional water there . . . my gut feeling is that . . . a ten-year storm . . . you won't see any appreciable problem there. The . . . potential problem comes in the wintertime, will you see icing up in that area. We have taken a lot of measures to ensure that the water coming down the driveway and coming from those properties is turned so that it stays in the driveway and doesn't get out into the roadway." (ROR, Item 17, 9/9/04 Public Hearing Transcript, part I, p. 4.) Following Tommell's statements, Bulzack responded that the plaintiffs had exhaustively addressed the issue of drainage by providing for dry wells, infiltration trenches, swales, as well as improvements to the gutter lines, and that there were no additions that the plaintiffs could make to further improve the drainage on the lots. (ROR, Item 17, 9/9/04 Public Hearing Transcript, part I, p. 4.)
Tommell further noted that he had some concern as to whether a homeowner would be able to maintain the infiltrator over a long-term period of time. However, he did not further address this issue other than to comment that at some point in time the town would need to become involved in fixing the drainage problems on the road. (ROR, Item 17, 9/9/04 Public Hearing Transcript, part I, p. 5.)
Thereafter, a commissioner asked Tommell whether he felt "that reasonable measures have been taken to minimize the impact from these three properties discharging water onto Plains Road" and Trommell responded "yes." (ROR, Item 17, 9/9/04 Public Hearing Transcript, part I, p. 7.) Geoff Colgrove, the town planner, added that "this is the first time we've gone to this extreme to try to deal with the issue, although it's not the first time we've had similar situations around town . . . [M]ost all of them have been handled by . . . adjacent swales and . . . paving, and by making improvements on the . . . public road . . . I think [what] they're trying to do is use a combination of mechanisms to . . . address the issue . . . [P]robably the worst case scenario is that the detention doesn't work over whatever period of time. The swales that are being proposed here hopefully would handle the excess or increase in runoff . . . these improvements could clearly . . . not be adequate . . . but . . . I think this is the first time we went to this extent to try to build in safeguards . . "(ROR, Item 17, 9/9/04 Public Hearing Transcript, part I, p. 7.)
The commissioner is unnamed in the transcript.
The hearing of September 9, 2004, concluded with a discussion concerning the soil tests that had been conducted on the respective lots. Some commission members expressed concern that the plaintiffs did not dig test pits in the proposed location of the infiltration trenches. Bulzack explained that he based "the design on the information obtained for the septic systems." (ROR, Item 17, 9/9/04 Public Hearing Transcript, part I, p. 14.) Thereafter, the public hearing concluded.
On October 18, 2004, the PZC discussed the application and subsequently denied it. The PZC did not state reasons for its denial on the record.
II AGGRIEVEMENT
General Statutes § 8-8 governs appeals from a municipal planning and zoning commission to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82 (1989).
"[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.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 66 Conn. 531, 537-38 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. At trial, the parties stipulated to facts from which the court made a finding of aggrievement.
III SCOPE OF REVIEW
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning] 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 zoning board's findings, it cannot substitute its judgment for that of the board." (Citation omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453 (2004).
"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 . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury . . . The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration." Vine v. Zoning Board of Appeals, 93 Conn.App. 1, 14 (2006). "Where the board states its reasons on the record we look no further . . . Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board's decision . . . More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons." (Internal quotation marks omitted.) DiPietro v. Zoning Board of Appeals, 93 Conn.App. 314, 325 (2006).
IV DISCUSSION
The plaintiffs appeal on the ground that PZC acted arbitrarily, unlawfully and in abuse of its discretion in denying their subdivision application. The plaintiffs maintain that the subdivision application complies with the Haddam zoning and subdivision regulations and that there is not substantial evidence supporting any of the reasons for the PZC's decision to deny the application. The plaintiffs argue that their application contained an adequate stormwater drainage plan, that they were not required to dig test pits or trenches in the exact location where the infiltrators would be located, and that the existing test holes, which were dug for the septic system, sufficiently demonstrated that the infiltrators would function on the property. The plaintiffs further maintain that the PZC improperly considered the poor condition of Plains Road and the inadequacy of the off-site culvert in its decision to deny the application.
At the hearing, the plaintiffs noted that on at least one of the lots, the proposed location of the infiltration trench was approximately the same distance from the test hole as the proposed leach field location.
At the hearing, the plaintiffs also argued that under the applicable zoning regulations, the PZC could have required the plaintiffs to post a bond to ensure that the drainage system installed on the property satisfied all the conditions imposed by the subdivision plan. The court notes that § 2.4.8 of the Haddam subdivision regulations permits the posting of such a bond. (ROR, Item 18.)
The PZC argues that there is substantial evidence in the record justifying the commission's denial of the proposal. The reason, if there is one for the denial, appears to be the commission's belief that the plaintiffs were unable to assure the PZC that their proposed storm drainage system would function properly because the plaintiffs did not dig test pits in the proposed location of the infiltration trenches and, therefore, the commission could not conclude that the trenches were a viable option on the respective lots. The PZC further asserts that the drainage system is inadequate because there is evidence in the record demonstrating the possibility of treezing and flooding during winter storms. Finally, the PZC contends that the condition of Plains Road had no influence on the commission's decision and that even if the court finds that the commission took such condition into consideration, § 4.4.13 of the Haddam subdivision regulations permits the commission to consider the subdivision's impact on road conditions.
"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, LLC v. Planning Zoning Commission, 83 Conn.App. 167, 171-72, cert. denied, 271 Conn. 906 (2004).
Since the PZC did not state specific reasons for the denial, the court must search the record to determine whether there is justification for the commission's decision. The court concludes, after searching the record, that the concerns raised by the PZC, namely the alleged inadequacy of the proposed stormwater drainage system, the possibility of such stormwater flooding onto Plains Road and the plaintiffs' failure to conduct soil tests in the proposed location of the infiltration trenches, fairly state the commission's reasons for denying the subdivision application. There is also evidence in the record that the PZC may have been influenced by the poor condition of Plains Road and the inadequacy of the off-site culvert. Accordingly, the court's decision turns on determining whether there is substantial evidence to support any reason.
The PZC maintains that such considerations did not influence its decision, but the plaintiffs contend that these issues were considered by the commission.
In order to assess the adequacy of the stormwater drainage system proposed by the plaintiffs, the court must consider the evidence in the record in conjunction with the applicable subdivision regulations. Section 3.1.1 of the Haddam subdivision regulations, which is entitled "General Site Suitability and Flood Precautions," provides: "The site shall be suitable for development in the manner proposed without causing hazards to persons or property, on or off the site, from flooding, erosion, subsidence or slipping of the soil, or other dangers, annoyances or inconveniences. All subdivision proposals: (1) shall be consistent with the need to minimize flood damage; (2) shall have public utilities and facilities such as septic systems, electrical, and well water systems located and constructed to minimize flood damage; and (3) shall have adequate drainage provided to reduce exposure to flood damage." (Emphasis added.) (ROR, Item 18.)
The following Haddam subdivision regulations address drainage systems and flood control in greater detail: (1) the requirements for a stormwater runoff control plan are set forth in § 3.7; (2) the standards for storm drainage design are established in § 4.6; and (3) the procedures and rules governing storm drainage construction are set forth in § 4.7. (ROR, Item 18, Haddam Subdivision Regulations.) There are no arguments before the court that the plaintiffs' subdivision application violates any of the specific requirements set forth in Haddam subdivision regulations §§ 3.7, 4.6 and 4.7. Further, after reviewing the foregoing sections, the court finds that the plaintiffs' application does not violate the requirements set forth in such sections. Accordingly, the court limits its discussion concerning the adequacy of the storm drainage to the requirements set forth in § 3.1.1 of the Haddam subdivision regulations.
In R.B. Kent Son, Inc. v. Planning Commission, 21 Conn.App. 370, 375-77 (1990), the Appellate Court addressed subdivision provisions containing language analogous to the regulatory language in the present matter. The court ruled that the trial court erred in finding that the resubdivision plan at issue failed to comply with such subdivision regulations. Id., 377. The court found that the "regulations, read together, implicitly recognize that a proposed development may create some additional water runoff, and that a balance must be struck between development and the need to maintain flood control. Under these regulations, the commission is required to evaluate the likely flood effects, if any, of a proposed subdivision by reaching factual conclusions concerning whether appropriate measures for protective flood control have been taken, whether the subdivision design is consistent with the need to minimize flood damage, whether any safety risk due to aggravation of flood hazard has been eliminated, and whether the subdivision plan has minimized the risk of flood damage or infiltration." (Emphasis added.) Id., 376.
Following are the relevant regulations as quoted by the R.B. Kent Son Court: "Section 3-1 provides in pertinent part: `Land of such character that it cannot be used safely for building purposes because of . . . aggravation of flood . . . hazard . . . shall not be plotted for human occupancy until appropriate measures have been taken by the subdivider to eliminate such hazards.' Section 5-3A provides in pertinent part: `No subdivision shall be laid out in a manner which will obstruct or prevent the efficient drainage of the land or surrounding lands or cause flooding in downstream areas. Drainage easements shall be required where necessary.' Section 4-4 provides in pertinent part: `The Commission shall require that any proposed subdivision is designed consistent with the need to minimize flood damage. When a subdivision is proposed for land subject to flooding, the Commission shall require written confirmation from the Building Official that utilities, water and sanitary sewer systems are located or designed so as to minimize or eliminate flood damage or infiltration. Adequate drainage systems shall be provided to reduce exposure to flood hazards." R.B. Kent Son, Inc. v. Planning Commission, supra, 21 Conn.App. 375-76.
Pursuant to the Haddam subdivision regulations, subdivision proposals "shall be consistent with the need to minimize flood damages . . . and shall have adequate drainage provided to reduce exposure to flood damage." (Emphasis added.) (ROR, Item 18, Haddam Subdivision Regs., § 3.1.1.) This regulation "implicitly recognize[s] that a proposed development may create some additional water runoff . . ." (Emphasis added.). R.B. Kent Sons, Inc. v. Planning Commission, supra, 21 Conn.App. 376. In the present case, the plaintiffs have taken extensive and exhaustive steps to minimize the potential for flooding by developing a subdivision proposal that incorporates dry wells, infiltration trenches, swales and improvements to the gutter line. (ROR, Item 17, 9/9/04 Public Hearing Transcript, part I, p. 4.) There is no evidence of further measures available to the plaintiffs to improve the drainage on the lots. (ROR, Item 17, 9/9/04 Public Hearing Transcript, part I, p. 4.) The plaintiffs' efforts to address the issue of drainage are reflected in the numerous plans and revisions that were submitted to Tommell prior to filing an application with the PZC and the fact that the plaintiffs incorporated each of Tommell's drainage recommendations into the application that they filed with the PZC. The testimony of Bulzack, Tommell and Colgrove at the public hearings further demonstrates the steps that the plaintiffs took to minimize the potential for flooding as a result of the subdivision. Tommell explicitly acknowledged, in response to a commissioner's question, that reasonable measures had been taking to minimize the impact of stormwater drainage onto Plains Road. (ROR, Item 17, 9/9/04 Public Hearing Transcript, part I, p. 7.)
The regulatory language at issue contemplates a balancing between the right to develop and the need to minimize flooding. R.B. Kent Son, Inc. v. Planning Commission, supra, 21 Conn.App. 376. The commission based its decision, in large part, on statements that there was a possibility of some icing in the winter and a chance that the infiltrator trenches would become clogged over an extended period of time. However, there is no substantial evidence to support this fear, nor is there substantial evidence that the plaintiffs have failed to minimize the likelihood of flooding. As previously discussed, the plaintiffs have developed an extensive stormwater drainage plan and the possibility of such occurrences does not demonstrate a failure to conform to the applicable regulations. Further, Plains Road already ices during the winter; (ROR, Item 17, 8/2/04 Public Hearing Transcript, pp. 5-6); and there is little evidence in the record that the proposed development will aggravate such conditions.
The commission was troubled by the plaintiffs' failure to conduct soil tests in the proposed location of the infiltration trenches. This failure does not justify the decision to deny the application. First, the regulations do not require the plaintiffs to conduct such tests prior to installing infiltration trenches, nor do the regulations require the plaintiffs to demonstrate with absolute certainty that their proposed drainage system will function perfectly. Furthermore, the plaintiffs have conducted soil tests on the property in close proximity to the proposed location of the trenches, and, based on such tests, Bulzack concluded that the infiltration trenches would be a viable option on such properties.
It should be noted that modification number four in the PZC's motion to approve requires that the plaintiffs to post a cash bond, which would cover the infiltration trenches, prior to any soil disturbance. (ROR, Item 15.) Such motion also requires a professional engineer to certify such drainage systems. (ROR, Item 15.)
At oral argument, it became clear that, on at least one of the lots, the location of the soil test that was conducted for the septic system was as close to the proposed trench location as it was to the proposed leach field location.
The court must grant deference to the PZC's decision. The court also recognizes that determinations regarding a witness' credibility, as well as conclusions of fact, are solely the responsibility of the commission. Municipal Funding, LLC v. Zoning Board of Appeals, supra, 270 Conn. 453. Notwithstanding these considerations, the court finds that there is a lack of substantial evidence in the record demonstrating that the plaintiffs' stormwater drainage system is inadequate or that the plaintiffs' proposal fails to comport with the requirements set forth in the Haddam subdivision regulations.
The general rule is that a PZC may not require a subdivision applicant to make improvements to an abutting road or off-site drainage systems. See R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2nd Ed. 1999), § 22.19, p. 513 ("subdivision statutes do not allow a planning commission to order a subdivider to make off-site improvements"); see also Property Group, Inc. v. Planning Zoning Commission, 29 Conn.App. 18, 23 (1992), aff'd, 226 Conn. 684 (1993). There are two exceptions: (1) a developer may be required to improve an existing abutting road when intersecting subdivision streets are being created; see RYA Corp. v. Planning Zoning Commission, 87 Conn.App. 658, 679 (2005) (upholding a Superior Court decision finding that the town planning and zoning commission improperly denied a subdivision application on the ground that the abutting road was in poor condition); and (2) a developer may be required to upgrade "any down stream ditch, culvert or other drainage structure which, through the introduction of additional drainage due to such subdivision, becomes undersized and creates a potential for flooding on a state highway." Dunham v. Planning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 01 0085538 (August 20, 2002, Cremins, J.) ( 33 Conn. L. Rptr. 231, 233), citing General Statutes § 8-25.
The court finds that PZC did not have authority to deny the plaintiffs' application based on concerns about Plains Road. With regard to the off-site culvert, the court finds that the proposed drainage systems do not connect to or directly drain into the off-site culvert. (ROR, Item 1.) Further, there is little evidence in the record that the subdivision will introduce any significant additional drainage into the off-site culvert. See Dunham v. Planning Commission, supra, 33 Conn. L. Rptr. 233.
The PZC's reliance on § 4.4.13 of the Haddam subdivision regulations is misplaced. Section 4.4.13 only governs situation where the subdivision plan "would endanger public safety or compromise the general welfare unless [the abutting] road were widened, altered and/or improved." (ROR, Item 18.) The problems with flooding and icing on Plains Road are preexisting conditions; (ROR, Item 17, 8/2/04 Public Hearing Transcript, pp. 5-7); and there is little evidence in the record that the subdivision will aggravate these issues. Accordingly, the court finds insufficient evidence in the record that the subdivision will be responsible for endangering the public welfare or public safety and, consequently, § 4.4.13 does not apply.
The court also notes that there is no evidence in the record that Plains Road is a state highway under § 8-25. Nevertheless, the court declines to address this issue because it is not necessary to the resolution of the plaintiffs' appeal.