Opinion
No. TTD CV 09 4010560
March 3, 2010
I STATEMENT OF APPEAL
The plaintiffs, Brian Rocha and Carol Rocha, appeal from a decision of the defendant, the Ellington Planning and Zoning Commission ("the commission"), to deny the plaintiffs' application for resubdivision of the their residential property, located at 7 Azalea Lane, Ellington ("the subject property"), into two single-family residential lots.
II FACTUAL BACKGROUND
On October 24, 2008, the plaintiffs submitted an application to the commission for a resubdivision of their property located at 7 Azalea Lane, Ellington into two single-family residential building lots. (Return of Record [ROR], Exhibit [Exh.] 1.) The plaintiffs' resubdivision application was accepted by the commission at its meeting on October 27, 2008, at which time the commission scheduled a public hearing for November 24, 2008. (ROR, Exhs. 3 and 4.) Notice of the public hearing appeared in the Journal Inquirer on November 10, 2008, and November 17, 2008. (ROR, Exh. 4.) On November 11, 2008, notices were sent to all abutting property owners within 100 feet of the subject property, by U.S. Postal Service Certificate of Mailing, informing them of the application and the scheduled public hearing. (ROR, Exh. 5.)
At its meeting on November 24, 2008, the commission tabled the plaintiffs' application, rescheduling the public hearing for December 29, 2008. (ROR, Exh. 8.) At the commission's meeting on December 29, 2008, after public hearing testimony by members of the public and the plaintiffs' attorney, the commission held a vote on whether to grant the motion to approve the plaintiffs' application for resubdivision. (ROR, Exh. 14.) The vote resulted in a tie, which was considered an effective denial of the application, and on December 30, 2008, the plaintiffs were notified, through counsel, in a letter from the chairman of the commission, that the commission denied the plaintiffs' application due to a tied vote. (ROR, Exhs. 14, 15.) Notice of the denial of the application appeared in the Journal Inquirer on January 6, 2009. The plaintiffs commenced the present appeal on January 8, 2009. On January 14, 2010, the parties appeared before this court for argument.
III JURISDICTION
"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, 557 A.2d 545 (1989). General Statutes § 8-8(b) governs appeals from decisions of planning and zoning commissions to the Superior Court.
A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to [a] trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003).
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665. The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8-8(a)(1), which provides in relevant part: "[i]n the case of a decision by a . . . planning and zoning commission . . . `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
In their complaint, the plaintiffs allege that they are aggrieved because they are the owners of the property which is the subject of the application for resubdivision that was denied by the commission. At trial, a certified copy of the warranty deed for the subject property was submitted as evidence to prove that the plaintiffs are the owner of the subject property. (Plaintiff's Exh. 1.) Based on this undisputed evidence, the court finds that the plaintiff is aggrieved by the commission's denial.
B Timeliness and Service of Process
Pursuant to General Statutes § 8-8(b), an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." General Statutes § 8-8(f) provides in relevant part: "Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows . . . (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57 . . ." General Statutes § 52-57(b)(5) provides that in an action against a town commission, process must be served "notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the . . . commission . . ."
The commission published notice of its decision to deny the motion to approve the plaintiffs' application in the Journal Inquirer on January 6, 2009. The plaintiffs commenced this appeal by service of two copies of process on the Ellington town clerk, Diane H. McKeegan, on January 8, 2009. Accordingly, the court finds that the plaintiffs' appeal was timely and that service of process was proper.
IV SCOPE OF REVIEW
"[A] local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it. (Internal quotation marks omitted.) Trumbull Falls, LLC v. Planning Zoning Commission, 97 Conn.App. 17, 29, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006). "No plan of resubdivision shall be acted upon by the commission without a public hearing . . . held in accordance with the provisions of section 8-7d . . . The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application or maps and plans submitted herewith, including existing subdivisions or resubdivisions made in violation of this section." General Statutes § 8-26.
"[D]ecisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing." (Internal quotation marks omitted.) Garlasco v. Zoning Board of Appeals, 101 Conn.App. 451, 456, 922 A.2d 227, cert. denied, 283 Conn. 908, 927 A.2d 917 (2007). "[U]pon appeal, the trial court reviews the record before the [commission] to determine whether it has acted fairly or with proper motives or upon valid reasons." (Internal quotation marks omitted.) Jersey v. Zoning Board of Appeals, 101 Conn.App. 350, 354 n. 5, 921 A.2d 683 (2007). "The trial court should reverse the [commission's] actions only if they are unreasonable, arbitrary, or illegal." (Emphasis added; internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 102 Conn.App. 863, 869, 927 A.2d 958 (2007).
"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 [the board] must be upheld by the trial court if they are reasonably supported by the record. The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] 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." (Emphasis added; internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60, 916 A.2d 5 (2007).
"Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 51 n. 8, 808 A.2d 1107 (2002). "When a zoning commission has not stated on the record the basis of its determination, the reviewing court must search the record to determine the basis for the commission's decision . . . If any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld." (Citation omitted; emphasis in original; internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 452, 908 A.2d 1049 (2006).
"Generally, when the court finds the action of an administrative agency to be illegal, it should go no further than to sustain the appeal . . . For the court to go further and direct what action should be taken by the zoning authority would be an impermissible judicial usurpation of the administrative functions of the authority . . . When it appears, however, that the zoning authority could reasonably reach only one conclusion, the court may direct the authority to do that which the conclusion requires." (Citations omitted; internal quotation marks omitted.) Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 153, 365 A.2d 387 (1976).
V DISCUSSION A Whether the Commission is Limited to Determining Whether the Resubdivision Plan Complies with Applicable Regulations
The plaintiffs appeal on the basis that the commission denied the resubdivision application despite the fact that there is no evidence that the application violated any of the applicable regulations. The plaintiff argues that a planning and zoning commission must approve a resubdivision application where it complies with existing regulations. Accordingly, the plaintiffs instituted this appeal and argue that the commission's decision to deny the application despite its compliance with the regulations was an illegal, unreasonable and arbitrary abuse of its discretion.
The commission counters that in deciding whether to approve the resubdivision application the commission was not limited to determining whether the application strictly complied with Ellington's regulations. The commission argues that reliance on appellate authority stating that a commission is limited in such a way when passing on a resubdivision application is misplaced. Additionally, the commission argues that the different statutory requirements for holding public hearings during the review of subdivision applications and the review of resubdivision applications suggests that a commission is not limited to a determination of whether there was compliance with the applicable regulations when deciding to approve or deny the resubdivision application.
As a preliminary matter, "[i]t is axiomatic that a planning commission, in passing on a resubdivision application, acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations . . . It is equally axiomatic that the trial court, in reviewing the action of a planning commission regarding a resubdivision application, may not substitute its judgment on the facts for that of the planning commission . . . The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts . . . The trial court can sustain the [plaintiffs'] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal . . ." (Emphasis added; internal quotation marks omitted.) Azzarito v. Planning Zoning Commission, 79 Conn.App. 614, 617-18, 830 A.2d 827, cert. denied, 266 Conn. 924, 835 A.2d 471 (2003); LePage Homes, Inc. v. Planning Zoning Commission, 74 Conn.App. 340, 348, 812 A.2d 156 (2002).
The commission's argument, that a planning and zoning commission reviewing an application for resubdivisions is not limited to whether the application complies with existing regulations when it decides to approve or deny the application, is without support from any legal authority and directly contradicts precedent established by the Appellate Court.
In its brief, the commission contends that the plaintiffs' reliance on the Appellate Court's opinions in Azzarito and Lepage, which provide that a commission passing on a resubdivision application is limited to determining whether the application complies with the applicable regulations, is misguided. The commission argues that Azzarito and Lepage rely on a string of cases, stretching back to Reed v. Planning and Zoning Commission, 208 Conn. 431, 544 A.2d 1213 (1988), to demonstrate that a commission passing on a resubdivision application must limit its inquiry to whether there was compliance with applicable regulations. The commission points out, however, that Reed was a case that dealt with a subdivision application, not a resubdivision application. In Reed, the court concluded that "[t]he planning commission, acting in its administrative capacity herein, has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance." (Emphasis added.) Id., 433. The commission argues that "[t]he reliance of all those cases on the authority of Reed was misplaced and failed to recognize the differences between subdivision procedures and resubdivision procedures set forth in [General Statutes § 8-26(c)]."
The plaintiffs rely upon the Appellate Court's conclusions in Azzarito and Lepage that "a planning commission, in passing on a resubdivision application, acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations." (Emphasis added; internal quotation marks omitted.) Azzarito v. Planning Zoning Commission, CT Page 6144 79 Conn.App. 614, 617-18, 830 A.2d 827, cert. denied, 266 Conn. 924, 835 A.2d 471 (2003); LePage Homes, Inc. v. Planning Zoning Commission, 74 Conn.App. 340, 348, 812 A.2d 156 (2002).
This language in the Appellate Court's Azzarito and Lepage opinions is cited from Pelliccione v. Planning Zoning Commission, 64 Conn.App. 320, 326-27, 780 A.2d 185, cert. denied, 258 Conn. 915, 782 A.2d 1245 (2001), which cites R.B. Kent Son, Inc. v. Planning Commission, 21 Conn.App. 370, 373, 573 A.2d 760 (1990), which cites, inter alia, to Reed v. Planning and Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988).
Section 8-26(c) provides in relevant part: "The commission may hold a public hearing regarding any subdivision proposal if, in its judgment, the specific circumstances require such action. No plan of resubdivision shall be acted upon by the commission without a public hearing." (Emphasis added.). That a hearing is mandatory before a planning and zoning commission acting upon a resubdivision application, according to the commission, suggests that the commission's inquiry should be broader than simply determining whether the application complies with regulations. The commission takes the position that "[b]ecause the legislature determined that a hearing is required in one case and not the other, there must be a difference in the standards to be applied in the consideration of a resubdivision application. Since the [l]egislature is presumed not to have made a useless provision and every word and phrase of a statute is presumed to have meaning, a statute must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant."
Accordingly, the commission contends that "[t]he only way to give effect to the requirement of a hearing [in resubdivision cases] is to find that the Commission's inquiry is broader than a simple test as to whether the proposed lots" comply with the applicable regulations and that in acting on the resubdivision application it may take into account factors such as conflicts between the application and Ellington's plan of conservation and development, the commission's reliance on the underlying plan for the Crystal Ridge subdivision in which the subject property was located and the expectations of abutting property owners.
The commission's argument, that it is not limited to a determination of whether a resubdivision application complies with applicable regulations in deciding to approve or deny the application, is unpersuasive. The plaintiffs point to appellate authority supporting their position that a planning and zoning commission must approve a resubdivision application that complies with the town's applicable regulations. The commission is correct that § 8-26(c) mandates a public hearing in the case of resubdivision applications and not in the case of subdivision applications, however, the commission's conclusion that this mandatory hearing requirement also means that a commission may disregard an application's compliance with all applicable regulations is purely speculative. There is no legal authority to support the assertion that this distinction as to hearing requirements would allow a commission to disregard the appellate authority that clearly states that such a commission is limited in passing on a resubdivision application to a determination of whether there is compliance with applicable regulations.
B Whether the Plan of Conservation and Development Controls
The commission also argues that it could rely upon Ellington's Plan of Conservation and Development ("POCD") in passing on the resubdivision application because the POCD has been incorporated into Ellington's subdivision regulations. The plaintiffs contend that the commission cannot rely upon the POCD in denying a resubdivision application.
The POCD, adopted on March 24, 2008, and effective on April 15, 2008, identifies Ellington's residential neighborhoods, including "Crystal Lake," the neighborhood in which the subject property is located. (Second Supplemental [2d Supp.] ROR, Exh. 1, pp. 3-8, 3-13.) The POCD states that "[t]he minimum lot size recommended in the Buildout Analysis is 80,000 square feet" for a lot in the Crystal Lake neighborhood. (2d Supp. ROR, Exh. 1, p. 3-8.) The commission argues that Ellington's subdivision regulations incorporate the POCD and, therefore, the commission properly denied the plaintiffs' application because the resubdivision would create two lots, both smaller than the required 80,000 square feet. The commission relies on § 1.03ii of the Subdivision Regulations for the Town of Ellington ("the subdivision regulations") to support its argument that the subdivision regulations incorporate the POCD.
Section 1.03ii of the subdivision regulations provides that the regulations therein are adopted "[t]o guide the future growth and development of the Town of Ellington in accordance with the [POCD]." (ROR, Exh. 18, p. 5.) Section 1.05 of the subdivision regulations states that the subdivision regulations "are not intended to interfere with, abrogate, or annul any other ordinance, rule or regulation, statute, or provision of law. Where any provisions of these Regulations imposes restrictions different from those imposed by any other provision of law, whichever provisions are more restrictive or impose higher standards shall control." (ROR, Exh. 18, p. 6.) The commission argues that these provisions of the subdivision regulations demonstrate that the provisions of the POCD concerning lot size should control and, consequently, that the commission was justified in denying the plaintiffs' application because it did not provide for lots of at least 80,000 square feet in area.
The commission's argument is without merit. The POCD is not an ordinance, rule or regulation, statute or provision of law that directs the decision making of the commission passing on a resubdivision application, nor does the language of § 1.03ii incorporate the POCD into the regulations.
A community's master plan, or POCD, is prepared by a planning and zoning commission pursuant to General Statutes § 8-23. "[Our Supreme Court] repeatedly has recognized that a [plan of conservation and development] is merely advisory . . . The purpose of the [plan of conservation and development] is to set forth the most desirable use of land and an overall plan for the town . . . Because the overall objectives contained in the town plan must be implemented by the enactment of specific regulations, the plan itself can operate only as an interpretive tool." (Citations omitted; internal quotation marks omitted.) AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 573-76, 775 A.2d 284 (2001).
General Statutes § 8-23 provides in relevant part: "At least once every ten years, the [planning and zoning] commission shall prepare or amend and shall adopt a plan of conservation and development for the municipality."
In the present case, the POCD itself states that "[o]ne purpose of the [POCD] is to establish a common vision for the future of the community by identifying positive future outcomes, strategies, and directions for Ellington to go in. Another purpose is to outline action steps that will help attain that vision when implemented. If steadily implemented by Ellington residents and officials, this [POCD] can help protect important resources, guide appropriate development, address community needs, protect community character, and enhance the quality of life of current and future residents." (Emphasis added.). (2d Supp. ROR, Exh. 1, p. i.)
The recommendation in the POCD that lots in the Crystal Ridge neighborhood have an area of at least 80,000 square feet has not been implemented as a regulation by the commission. The only lot size restriction on the subject property is found in Ellington's zoning regulations, which require residential lots in Zone A to have an area of at least 40,000 square feet, a requirement that is met by both proposed lots in the plaintiffs' resubdivision application (ROR Exh. 17; Supplemental [Supp.] ROR, Exh. 1, p. 3-4.) Since a planning and zoning commission in passing on a resubdivision application is limited to a determination of whether the application complies with applicable regulations, and since Ellington's regulations have not been amended to require lots to have an area of at least 80,000 square feet in the Crystal Ridge neighborhood in which the subject property is located, this lot size recommendation in the POCD cannot be the basis for the denial of the plaintiffs' resubdivision application.
C Whether the Application Complied with Applicable Regulations
Since the commission denied the application and failed to give a specific reason for doing so, the court is required to search the record to determine whether substantial evidence exists to support the decision of the commission to deny the resubdivision application or if the commission acted illegally, unreasonably and arbitrarily in denying the application. There is no evidence that the plaintiffs' resubdivision application fails to comply with any of the applicable regulations. Consequently, this court does not find any substantial evidence supporting the commission's decision to deny the application.
The subject property is located within the Crystal Ridge subdivision in the Residential — A Zone ("Zone A") of Ellington. (ROR, Exhs. 1, 13.) Section 3.2.1 of the Town of Ellington Zoning Regulations ("the zoning regulations"), which concerns lot area, width and yard requirements, requires that single family residential lots in Zone A have an area of at least 40,000 square feet. (Supp. ROR, Exh. 1.) Such lots are also required to have a minimum width of 150 feet, a front yard of 35 feet, side yards of 10 feet and a rear yard of 10 feet. (Supp. ROR, Exh. 1.) The plaintiffs' resubdivision application would create two lots having areas of 47,006 square feet and 43,484 square feet respectively. (ROR, Exh. 17.) The lots would have a lot width of 127.32 feet and 130.23 feet respectively and both lots would meet the front yard, side yard and rear yard requirements. (ROR, Exh. 17.)
Section 3.2.1 provides that "[w]hen connected to public sewers, the minimum frontage shall be 125 feet."
There is no indication that the plaintiffs have submitted a resubdivision application that fails to comply with any specific provision of either the zoning regulations or the subdivision regulations. In its brief, the commission did not point to any provision of the applicable regulations with which the plaintiffs' application failed to comply. In a letter to the commission from the town planner, Robert A. Phillips, dated December 29, 2008, Phillips indicates that there had been approval of the resubdivision application by the Wetlands Pollution and Control Authority and the North Central District Health Department and that it is his "opinion that this application is ready for approval pending the addition of a condition to satisfy the Town Assessor." (ROR, Exh. 13.) As noted at the public hearing, and evidenced by the Ellington Planning Department's staff review sheets, there were no negative comments concerning the resubdivision application from the building official, fire marshal, public works director or traffic authority. (ROR, Exh. 16, pp. 16-17; Exh. 10.)
The assessor indicated that the plaintiffs used an invalid Assessor Parcel Number (APN) and that a correction should be made to the final plans prior to submission to the commission for signatures. The plaintiffs contend that this error was easily corrected by a simple revision to the plan to add a proper APN to identify the new parcel.
At the public hearing, vice chairman of the commission, Robert Hoffman, asked attorney Brenda Draghi, who identified herself as "speaking for the other residents of Azalea Drive," if there was anything in the plaintiffs' application that failed to comply with the applicable regulations. (ROR, Exh. 16, pp. 9, 12.) Attorney Draghi did not identify any specific regulation with which the application failed to comply. Instead, she identified several concerns that prompted the neighbors to oppose the plaintiffs' resubdivision application including the negative effect approval of the application would have on property values, traffic, and the integrity of the neighborhood and noted that the proposed resubdivision would be contrary to the expectations of the plaintiffs' neighbors that the subdivision would remain unchanged. (ROR, Exh. 16, pp. 12-14.) Additionally, Draghi noted that the plaintiffs' application did not comply with the recommendations of the POCD concerning lot size and that the application may violate certain deed restrictions in the subdivision (ROR, Exh. 16, pp. 15, 23).
These claims and concerns are not sufficient to justify a denial of the plaintiffs' resubdivision application. A planning and zoning commission in passing on a resubdivision application is limited to a determination of whether the application complies with applicable regulations. Neither the individuals who opposed the approval of the plaintiffs' resubdivision application nor the members of the commission who voted to deny the application identified any regulation with which the application failed to comply. This court, in reviewing the record, has similarly found no regulation with which the application failed to comply. Accordingly, this court concludes that substantial evidence does not exist to support the commission's decision to deny the plaintiffs' resubdivision application.
VI CONCLUSION
The court finds that there is not substantial evidence in the record to support the commission's denial of the plaintiffs' application for resubdivision. There is no evidence that the application failed to comply with the applicable regulations. Accordingly, the plaintiffs' appeal is sustained. The court concludes that since the resubdivision application conforms to the applicable regulations, the commission could reasonably reach only one conclusion, to approve the application. Therefore, the court orders that the application be approved.