Opinion
No. CV-08-4009169 S
June 4, 2009
MEMORANDUM OF DECISION
The plaintiff appeals from a decision of the defendant denying the plaintiff's application to modify a special exception permit and to re-subdivide his property to allow him to carve out a new lot. Because the court finds that the defendant properly interpreted the zoning regulations at issue and applied them with reasonable discretion to the facts, and its actions concerning the plaintiff's application were not unreasonable, arbitrary or illegal, the court overrules the plaintiff's appeal.
The record on appeal discloses the following facts. The plaintiff is the owner of real property located at 7 Plum Tree Lane, Shelton, Connecticut. He personally resides on the property. The subdivision in which the plaintiff's property is situated is known as Meadow Wood Estates, which development was approved in 2001 as a Conservation Residential Development (CRD) under Section 33.13 of the Zoning Regulations of the City of Shelton ("Regulations"). At the inception of the subdivision, the developer, New Horizons Development LLC, was granted a special exception for a maximum number of seven lots based upon a conventional subdivision plan that met the subdivision and zoning regulations. The plaintiff's property contains approximately 57,697 square feet, which equals approximately 1.32 acres.
Section 33.13 of the Regulations provides that "[i]t is the policy and intent of this Paragraph to accommodate conservation development of tracts of land determined to be environmentally sensitive . . . by allowing permissible and inevitable development to occur in a manner that adapts to the physical circumstances of the land. It proposes to accomplish this by removing the constraints of traditional lot area, shape and frontage requirements except to the extent necessary to assure buildability and service to the lots. The product should be a design that works within the limitations of the site, yields significant conservation features and protects environmentally sensitive aspects of the site . . ."
Section 33.13.5 of the Regulations, pertaining to "Lot Standards," provides that individual lots for single family dwellings in a CRD shall have a minimum lot area of not less than 25,000 square feet.
The plaintiff filed an application to modify the special exception to permit an eight-lot subdivision. The plaintiff also requested in his application that, in the event the modification was granted, he be permitted to re-subdivide his property for the purpose of developing the eighth lot. The record returned on appeal includes a map, entitled "Re-Subdivision Lot 7 Prepared for Kevin Russo, Plum Tree Lane, Shelton, Connecticut, Date: July 28, 2003" ("Russo Map"), which shows two lots designated as 7A and 7B. The plaintiff resides on Lot 7B. That lot contains approximately 27,696 square feet, or approximately .63 acres. The proposed eighth lot is identified as Lot 7A. It contains approximately 30,000 square feet, or approximately .69 acres.
There is no dispute that both Lot 7A and 7B satisfy the minimum lot area requirement set forth in Section 33.13.5 of the Regulations.
The plaintiff's application was the subject of multiple hearings before the defendant from May through November 2007. The minutes of the meeting held on November 13, 2007 show that the defendant unanimously voted (6-0) to deny the plaintiff's application. The minutes further disclose that at a prior meeting the defendant requested that its staff prepare a resolution in support of the defendant's denial of the plaintiff's application, and the resolution was publically read and adopted by the defendant prior to its vote. The resolution recited the history of the plaintiff's application and stated five reasons for the defendant's denial of the application. The resolution is attached to the minutes of the meeting. The record further reflects that the plaintiff's attorney received a letter from the defendant dated November 16, 2007 informing him of the denial of the application "for the reasons stated in the adopted resolution."
The record demonstrates, and the parties agree, that the adopted resolution contains the specific reasons for the defendant's denial of the plaintiff's application. Therefore, the court need not search the record for reasons for the defendant's actions. "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 authority was required to apply under the zoning regulations. The [decision] must be sustained if even one of the stated reasons is sufficient to support it . . . [This] applies where the agency has rendered a formal, official, collective statement of reasons for its action." (Citation omitted; internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991). Where a zoning board of appeals does not formally state the reasons for its decision, however, the trial court must search the record for a basis for the board's decision. Connecticut Resources Recovery Authority v. Planning Zoning Commission, 225 Conn. 731, 743, 626 A.2d 705 (1993); Bloom v. Zoning Board of Appeals, 223 Conn. 198, 208, 658 A.2d 559 (1995).
The plaintiff filed an appeal of the defendant's decision to the superior court. The plaintiff claims that the defendant acted improperly in the following ways: (1) the denial failed to comply with all the standards set forth in the Regulations; (2) the denial is contrary and inconsistent to the Regulations; (3) the reasons for the denial are not substantially supported by the record; (4) the record is void of logical and legally sustainable reasons for the denial; (5) the actions of the defendant were unreasonable, arbitrary and capricious in that the defendant failed to follow and implement its own Regulations in deciding the plaintiff's application; (6) the defendant illegally denied the plaintiff's application because there was evidence in the record that denial of the plaintiff's application would result in an inconsistent and prejudicial interpretation of the Regulations as they have been applied to other similar subdivisions in Shelton; and (7) the defendant acted illegally in denying Richard D. Schultz, the Planning and Zoning Administrator of Shelton, the opportunity to present evidence that would have given the defendant additional information relevant to the issue of interpreting Sections 24.2 and 5.25 of the Regulations. The defendant denies the plaintiff's allegations.
Notwithstanding the numerous challenges by the plaintiff to the defendant's denial of his application, the parties agree that the primary issue to be decided is whether the Regulations, particularly Sections 5.25 and 24.2, include or exclude the area of any easement for above ground public utility lines in determining compliance with lot shape requirements. In denying the plaintiff's application for the reasons more fully discussed later in this decision, the defendant concluded that no above ground public utility easement area may be included in considering whether the plaintiff's proposed lot 7A complied with the lot shape requirements in the Regulations. The plaintiff claims that the defendant erred in its interpretation and application of the Regulations in that they do not expressly provide that such an easement must be excluded in considering compliance with lot shape requirements.
Although the plaintiff agrees that the above represents the main issue on appeal, the plaintiff maintains other reasons for challenging the defendant's denial of his application. The court will address the other reasons later in this decision.
The plaintiff's challenge to the defendant's interpretation and application of the sections of the Regulations at issue present a question of law for the court to decide. In this regard, the court sets forth the applicable standard of review of the actions of the defendant. "Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court ha[s] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly . . .
The parties stipulated at the hearing on the plaintiff's appeal that the plaintiff is an aggrieved party in accordance with Section 8-8 of the General Statutes.
"Ordinarily, [a] court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law . . . These principles apply equally to regulations as well as to statutes." Alvord Investment, LLC v. Zoning Board of Appeals of the City of Stamford, 282 Conn. 393, 408-09, 920 A.2d 1000 (2007), quoting Wood v. Zoning Board of Appeals, 258 Conn. 691, 697-98, 784 A.2d 354 (2001).
"A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it . . . Although the position of the municipal land use agency is entitled to some deference . . . the interpretation of provisions in the ordinance is nevertheless a question of law for the court . . . The court is not bound by the legal interpretation of the ordinance by the [board] . . .
"The regulation is a local legislative enactment, and in its interpretation we seek to discern the intent of the legislative body as manifested in the words of the regulation . . . Since zoning regulations are in derogation of common law property rights, however, the regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms . . . The words employed by the local legislative body are to be interpreted in accordance with their natural and usual meaning . . . [W]here more than one interpretation of language is permissible, restrictions upon the use of lands are not to be extended by implication . . . [D]oubtful language will be construed against rather than in favor of a [restriction]. . ." (Citations omitted; internal quotation marks omitted.) Farrior v. Zoning Board of Appeals, 70 Conn.App. 86, 89-90 (2002).
As indicated, the plaintiff's property is part of a CRD that was promulgated in accordance with Section 33.13 of the Regulations. The plaintiff's property is located in a residential zone designated as an R-1 zone in the Regulations. Lot area and shape requirements pertaining to the plaintiff's property are discussed in Section 5.25 of the Regulations. That section provides, in pertinent part, that "[i]n determining compliance with minimum lot area and shape requirements of these Regulations . . . no easement for above ground public utility transmission lines . . . may be included." (Emphasis added.) Section 24.2 also concerns lot area and shape. It provides in pertinent part that "each lot shall be of such a shape that a square with a minimum dimension specified in SCHEDULE B will fit on the lot." The Regulations contain a section entitled "Schedule B — Standards," made part of the Regulations pursuant to Section 24.1, that provides that the minimum dimension of a square on a lot in an R-1 zone is one hundred fifty feet.
"Zoning regulations sometimes have limitations on lot shape . . . The purpose of such requirements is to prevent unusually shaped lots and to avoid the necessity for set back variances in order to located buildings on the lots . . . [M]inimum width, depth and lot shape requirements are clearly authorized by the enabling statute, C.G.S.A. § 8-2. A requirement for a rectangle or square of specified dimensions to fit within the lot is a valid zoning regulation." R. Fuller, 9 Connecticut Practice Series, Land Use Law and Practice (1999) § 4.30, pp. 103-04. The court construes the requirement of a square to be a shape factor, as opposed to an area factor, within the meaning of the Regulations.
The record includes a map captioned "Record Subdivision Map — Conservation Residential Development, Prepared for Meadow Wood Estates, Meadow Street, Shelton, Connecticut, Date: May 10, 2000." ("MWE Map"). The MWE Map shows the plaintiff's property as it presently exists, and also depicts on the southerly portion of the plaintiff's property a sketch of the 150-foot square required by Section 24.2. The square appears on the portion of the plaintiff's property that is designated as Lot 7A on the Russo Map, which is the proposed eighth lot. There is no dispute that a portion of the 150-foot square falls within the area of a Connecticut Light and Power Company easement for above ground public utility transmission lines.
Section 5.25 of the Regulations, entitled "Lot Area and Shape," provides in pertinent part as follows: "In determining compliance with minimum lot area and shape requirements of these Regulations . . . no easement for above ground public utility transmission lines . . . may be included."
Section 24.2 of the Regulations, entitled "Lot Area, Shape and Frontage," provides in pertinent part as follows: "Each lot shall be of such a shape that a square with a minimum dimension specified in SCHEDULE B will fit on the lot . . ." As discussed, "Schedule B — Standards," provides that the minimum dimension of a square on a lot such as the plaintiffs in an R-1 zone is 150 feet.
In considering the plaintiff's application, the defendant was required to interpret the Regulations as they apply to the fact that Lot 7A of the plaintiff's proposed re-subdivision of his property indisputably contains a 150-foot square that falls within an easement area for above ground public utility transmission lines. The requirement of a minimum dimension square is a shape, as opposed to an area, requirement. The shape requirements set forth in Sections 5.25 and 24.2 are clear and unambiguous. In determining whether the plaintiff's proposed re-subdivision of Lot 7A complies with the minimum shape requirements of the Regulations, Section 5.25 states that the easement area concerning the above ground transmission lines on the property may not be included. The shape requirement of a lot is contained in Section 24.2, which states the plaintiff's lot must be shaped in such a way that a square with 150-foot sides must fit on some portion of the lot. Reading the sections in conjunction with each other in determining the plaintiff's compliance with the shape requirements, as is the proper construction of them, the Regulations expressly state that the area of the CL P easement on Lot 7A cannot be included. The plaintiff's claim that Sections 5.25 and 24.2 exist wholly independent of each other is legally incorrect and illogical.
"Zoning regulations sometimes have limitations on lot shape . . . The purpose of such requirements is to prevent unusually shaped lots and to avoid the necessity for set back variances in order to located buildings on the lots . . . [M]inimum width, depth and lot shape requirements are clearly authorized by the enabling statute, C.G.S.A. § 8-2. A requirement for a rectangle or square of specified dimensions to fit within the lot is a valid zoning regulation." R. Fuller, 9 Connecticut Practice Series, Land Use Law and Practice (1999) § 4.30, pp. 103-04.
The court notes that Section 5.25 states that no such easement may be included "[i]n determining the . . . shape requirements of these Regulations." (Emphasis added.) By its express terms, that section contemplates that sections pertaining to shape requirements will be read together in determining whether the plaintiff's application complies with the shape requirements of the Regulations.
"We interpret and construe local ordinances according to the principles of statutory construction." Czajkowski v. Planning Zoning Board, 14 Conn.App. 283, 288, 540 A.2d 716 (1988). It is a fundamental principle of statutory construction that `the legislature is always presumed to have created a harmonious and consistent body of law . . . [T]his tenet of statutory construction . . . requires [this court] to read statutes together when they relate to the same subject matter . . . Accordingly, [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction . . . [T]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have [on] any one of them." (Citations omitted; internal quotation marks omitted.) Shemitz Designs v. Newark Corporation, 291 Conn. 224, 967 A.2d 1188 (2009).
In view of the foregoing, because the 150-foot square on Lot 7A fails to satisfy Section 5.25 in that a portion of the square falls within the easement area of the public utility transmission lines, the defendant properly denied the defendant's application for modification of the special exception permit and for re-subdivision of his property.
The record includes the minutes of the September 11, 2007 regular meeting of the defendant. At that meeting, Anthony Panico, a consultant to the defendant, stated that the required 150-foot square "is a shape factor. The definition says that in determining compliance with the shape factor, the overhead utility line easement is not included. That is the Staff's interpretation, and it has been for the last 30 years." Counsel for the plaintiff vehemently disagreed at the meeting with Panico's position.
The plaintiff further challenges the defendant's denial of his application claiming that such action was illegal because the defendant approved other subdivisions where the minimum dimension square requirement was not followed or was "waived." The plaintiff submitted at the hearing on September 11, 2007 an exhibit of ten (10) subdivisions where he asserts there was no adherence to the requirement. The plaintiff's attorney identified the specific subdivisions for purposes of the record. The thrust of the plaintiff's argument is that his application should be treated the same as he claims were the identified subdivisions.
The defendant referred the claim for research by its staff. In the resolution adopted as part of its denial of the plaintiff's application, the defendant responded to the plaintiff's claim as follows: "Staff research confirmed that the previous lots in question, as submitted by the Applicant, were either pre-existing non-conforming lots that predate current Regulations or were created years ago by previous Commissions who did not have the benefit of professional staff reviews for compliance." In view of the foregoing, the plaintiff has failed to meet its burden that the board acted improperly in denying his application based on the foregoing analysis.
In view of this finding by the defendant, and based on the record, the court rejects the plaintiff's claim that Richard Schultz, the Zoning Administrator, was improperly precluded from discussing with the defendant the plaintiff's claim as to disparate application of the Regulations concerning the minimum square requirement.
The plaintiff further challenges the defendant's denial of his application for the reason that "[t]he City Engineer notes in his letter/report of 11/1/07 that the re-subdivision application is deficient with respect to the storm water management plan and that appropriate Inland Wetlands Commission approvals have not been received." The plaintiff claims that this reason is improper for two reasons: (1) because no wetlands were shown on the survey map for the re-subdivision of the plaintiff's lot and that the City Engineer was referencing a prior subdivision map; and (2) "the [defendant], by its own Regulations, would not have scheduled the matter for a public hearing if, in fact, the applications were not complete." The plaintiff's claims in this regard wholly unsupported by the record.
In view of the foregoing, the plaintiff's appeal is overruled.
CT Page 9338