Opinion
No. FST CV 05 4006021 S
June 26, 2007
MEMORANDUM OF DECISION
This administrative appeal was heard on December 1, 2006. During oral argument, the court ruled from the bench on many of the issues presented. On two others, additional briefs were requested. On January 3, 2007, however, appellants sought re-argument/reconsideration of one of the bench rulings, regarding energy conservation.
Thus, the court has before it, essentially having agreed to reconsider the energy issue, three challenges to the granting of the developers' application: road width, blasting and energy conservation.
ROAD WIDTH
The Stamford Planning Board approved a residential subdivision to contain 19 homes on approximately 64 acres of property, with average lot sizes in excess of two acres, with many acres left open.
The first issue left to post-argument further briefing was the Planning Board's modification/allowance that the new road through the subdivision was to be 20 feet wide, rather than the prescribed 24-foot width. (Regulations, § 5.1.4) This was done on the possibly dual basis of the applicant having so requested and the Environmental Protection Board having so recommended. Paragraph 18 of the Planning Board's June 6, 2005 approval (ROR, No. 45) states: "the Planning Board granted a waiver in accordance with Section 8 of the Subdivision Regulations to allow a 20-foot pavement width of Coventry Road in order to reduce environmental impacts. (Note to appear on final map.)"
Plaintiff-appellants have taken issue, that is, have made a basis for appeal, that as one enters the new development, the narrowing of the road will occur "right in front of [the Tarlow] home." (Plaintiff's Brief, January 23, 2006, p. 21.) Plaintiff alleges the width change presents a danger of "accident and/or congestion." Plaintiff cites record item #32 that the development will increase traffic on Coventry Road by 190 additional trips per day. (Return of Record ROR,) exhibit No. 32 is authored by the Stamford Transportation Planner. Beyond safety, plaintiff raises an issue described as "psychological well-being," claiming that the new demarcation will cause neighbors "on one side or the other" to feel as if they are on the "wrong side of the tracks." (Plaintiff's Brief, Jan. 23, 2006, p. 21.)
The purported basis for the modified road width finds its most fully stated articulation in a May 13, 2005 memorandum by David Emerson, Executive Director of the Environmental Protection Board (EPB) of the city. He reported that the Board met on this subdivision on May 12, 2005 and unanimously voted no objection, subject to certain "conditions of approval as recommended." (ROR, exhibit 26.) Their condition or recommendation relevant here is one that states: "[T]he extension of Coventry Road will serve a finite number of home sites with no potential for future further extension. Under these circumstances, subject to the concurrence of the fire marshal and the transportation planner, EPB staff encourages the consideration of a reduction in the width of pavement within the Rockrimmon Estates development as a means of reducing the extent of impervious surfaces and consequent surface water runoff and limiting site disturbance."
Thus, the court is confronted with a road narrowing suggested or "encouraged" by an environmental protection body for the purpose of "reducing the extent of impervious surfaces and consequent surface water runoff" and the limitation of "site disturbance." The site has officially been described as "heavily wooded with varied terrain and extensive wetland, watercourse, and vernal pool resources. It is a likely location for the presence of sites of archeological interest, and has remained undeveloped as surrounding properties in Stamford have been developed with residential homes on two-acre lots." (Overview, EPB Agenda Summary Report, dated May 11, 2005, attached to ROR, Exhibit 26.) Further, "[t]he site is characterized by varied to rugged terrain, rock outcroppings, mature woodlands, and apparent abundant wildlife resources. Wooded areas of the site contribute to its importance as a recharge area for ground water within the Mianus Watershed." ( Id.)
Thus, a road-narrowing in the stated interest of runoff prevention and limitation of site disturbance, given the apparent belief that traffic impact would be minimal, is met with an appellant's claim of traffic bottleneck at a point where narrowing might occur and appellant's claimed appearance of a class distinction ("wrong side of the tracks").
The court is hard put to conclude that a road narrowing step-down would be (a) located where traffic back-up, if any, would sit at plaintiff's direct front, or (b) would be so sharply reduced as to create an abrupt dog leg anywhere forcing stops or surprise turns.
Indeed, if overall run-off reduction inspired the narrower width, one would think no one would object if the greater part of the narrowing were located beyond appellant's home.
As a result, the appellant's traffic safety argument appears to exist only in the unsupported appellant statement of apprehended difficulty.
One should note, in any event, however, that, within the broad traffic realm, the fire marshal's commentary on this subdivision application, speaking to "Roadway Design," states:
The roadway pavement width of 20 feet is wide enough to allow emergency vehicles to pass a parked car. The curves and turnarounds are designed to accommodate the turning radius of fire apparatus. (ROR, No. 30, report of Lewis Belmont, Fire Marshal, dated May 19, 2005.)
While this does not perfectly take on the general bottleneck notion plaintiff expressed without evidentiary or expert support, it is at least inconsistent with any such concern and must be taken as "substantial evidence" in support of this facet of the agency's approval.
The court notes that the EPB recommended the narrower width subject to the concurrence of the fire and the transportation planner. Plaintiffs have not shown any reservation or expression of concern from transportation officials. The EPB's language creates no binding conditioning of the Planning Board's power. The EPB language is tantamount to it having said "barring a quarrel from transportation."
Further about plaintiff's regulation-based claim: Their argument is that subdivision Regulation 5.1.4, clearly compels (for this type of residential street) a pavement width of 24 feet, exclusive of curbs.
Indirectly set against this requirement and put forth in support of the modification by the Planning Board and the successful applicant is Section VIII, the last substantive section of the subdivision regulations, which is entitled: "Modification of Standards."
It states:
In any particular case where the subdivider can show that, by reason of exceptional topographic or other physical conditions, or character of adjacent development; strict compliance with any specific requirement of these regulations would cause practical difficulty or exceptional and undue hardship, the Board may relax such requirement minimally to the extent deemed just and proper, so as to relieve such difficulty or hardship relief may be granted without detriment to the public good and without impairing the intent and purpose of these regulations, or adversely impacting adjacent property.
In considering such requests for modification of specific requirements, the Board shall consider the principles of design and the requirements for the subdivision of land, stipulated in these regulations, and determine whether such requirements may be varied, provided that no modification shall be granted by the Board which would conflict with the intent and purpose of the Stamford Zoning Regulations.
Waiver shall be granted only by three quarters majority of the Board, which shall state upon its record the reason for granting the waiver. The specific standard waived shall be noted on the final subdivision plan.
A reading of this section allowing modifications ostensibly appears problematic in that it posits a situation in which the contemplation at the time the language was composed would have only the subdivider seeking the modification. It was possibly the experience or anticipation of the drafters that the developers would be seeking adjustments to regulations. The matter has not been made easier by the fact that the Board's approval, in condition 18, appears to have adopted as primary the EPB reasoning for the narrowed width rather than the less than clear rationale underlying applicant's request, while still calling it a Section 8 "waiver." Yet, it is difficult to see what substantive difference there is when a reviewing agency initiates the adjustment in the name of other concerns it is supposed to protect, such as environmental ones. Certainly, plaintiffs have not set out law which would delegitimize the narrowing due to the EPB having been its likely heaviest sponsor. Indeed, they have not argued the point.
Plaintiff's argue in their brief of January 3, 2007, p. 4, that the Office of Operations, Engineering Bureau, memo to the EPB's director stated that "the entire roadway of Coventry Road contains more than 20 properties (existing plus proposed). Therefore, the roadway width of Coventry Road shall be 24 feet." But there is nothing to suggest that the Engineering Bureau was speaking against or addressing at all the notion of a suggested narrower road width. Rather, it simply appears that this memo, dated before the work of the EPB, was noting the regulations' requirement.
Indeed, it should be noted that a 20-foot width is not an odd radical notion. The Stamford regulations allow it in subdivisions of less than 20 dwellings, for dead end or loop streets. Thus, but for the difference of but one or two residences, the regulations would dictate a "mere" 20-foot width.
The court's reasoning, if correct, would render it unnecessary to determine whether the developer showed hardship. If the motivation of the environmental protection agency is sufficient support, as the court finds it to be, it would border on the absurd to further measure that support through the prism of the developer's "hardship." A modification, sufficiently supported, especially in the face of such a slim basis for the opposition, must not be required to fail due to the notion that it had the wrong "sponsor."
The record is not clear on what grounds the 20-foot, narrower width was sought by the applicant. The minutes of the planning board's May 24, 2005 meeting mention no reason for applicant's waiver request. The applicant's oral presentations to the planning board are also without elaboration. The court wrote to all parties on April 23, 2007 and did not receive a clear answer.
The broad and primary truth about Section 8 is that modifications such as occurred here are permitted and the lesser, incidental truth about the section is that a developer may too seek it, on proper showing.
It cannot and should not be the law that an appropriate environmental concern is barred as a modification basis when a governmental agency, independent of self-interest, sees the need and said need then goes as relatively unchallenged as it did here.
Thus, this court believes the planning board is empowered to modify the width, as both the applicant and EPB urged, for reasons given by the EPB, as the Planning Board phased it, "to reduce environmental impacts." (Subdivision Approval condition 18, ROR, Item 45.)
Our law does have somewhat instructive case holdings regarding an agency's discretion involving issues of fact and the record supports the modification as found in the expression of the EPB that this narrowing will reduce run off and site disturbance.
In Shailer v. Planning Zoning Commission, 26 Conn.App. 17 (1991), a subdivision applicant applied for several waivers, including a request for an increase in the maximum permissible road grade from ten to twelve percent. The commission granted this waiver "[b]ecause waiver will introduce safer road design"; (internal quotation marks omitted); id., 20; and the trial court upheld the commission's decision. On appeal, the Appellate Court recognized that Haddam's municipal regulation "essentially tracks the language of general Statutes § 8-26, the enabling statute, which grants municipal zoning commissions the authority to approve a waiver of their regulations in appropriate circumstances." Id., 21-22. The court further emphasized that the safety of a proposed road design is a question of fact and that "the trial court reviews the record before the [commission] to determine whether it has acted fairly or with proper motives or upon valid reasons." Id., 25. It also reiterated that "[t]he burden of proof to demonstrate that the [commission] acted improperly is upon the [plaintiff]." (Internal quotation marks omitted.) Id. The court concluded that the record, which included the town engineer's testimony and a traffic study, amply supported the trial court's determination that the commission had not acted arbitrarily, illegally or in an abuse of its discretion. Id., 26.
In addition, decisions of the Superior Court further acknowledge such principles. In Cameron v. Planning and Zoning Commission, Superior Court, judicial district of Litchfield, CV 03 0091123 (July 2, 2004, Bryant, J.), the commission, despite its regulations, approved a subdivision application that did not contain a connecting road. The commission determined that the topographical conditions unique to the application, which included the "location of wetlands [and] grading . . ." rendered a connecting road impractical, and that "the design for [a] loop . . . provided benefits in terms of maintenance costs for the town and was superior in design in terms of traffic flow overall." Id. The court agreed and emphasized that "[t]he role of the court is not to second guess the local authority, but to defer to its judgment if there is adequate evidence on the record to support it." Id.
Similarly, in Cahill v. Planning Commission, Superior Court, judicial district of Middlesex, CV 99 0089791 (June 19, 2000, Arena, J.), an applicant sought a waiver to allow a driveway grade in excess of the allowable twelve percent. The commission granted the application, and, upon appeal, the court acknowledged that "whether the application will cause . . . problems on Merritt Lane [is] an issue of fact before the commission." Id. It reiterated that "[t]he determination of issues of fact are matters solely within the province of the agency." (Internal quotation marks omitted.) Id. The court ultimately concluded that "the record reflects that the commission adequately considered the potential for erosion and sedimentation due to the proposed driveway." Id.
"[I]t 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." (Internal quotation marks omitted.) 200 Associates v. Planning and Zoning, 83 Conn.App. 167, 171-72 cert. denied, 271 Conn. 906 (2004).
Thus, as important as any factor behind this court's denial of this ground of appeal is the apparent statutory empowerment for this agency to act as it did. General Statutes § 8-26 authorizes a planning board to "waive certain requirements under the regulations by a three-quarters vote of all the members of the commission . . . where conditions exist which affect the subject land . . . provide[ed] that no waiver shall be granted that would have a significant adverse effect on adjacent property or on public health and safety."
The planning board's action as to the Section 8 waiver was unanimous. (R of R No. 52, minutes).
Section IV of the Stamford subdivision regulations further provides that "[n]o land shall be subdivided for residential use which is held by the Board to be unsuitable for such use by reason of flooding or bad drainage, adverse geologic formation, traffic safety or any other feature likely to be harmful to the health, safety, and welfare of the adjacent residents or future residents of the proposed subdivision." It also provides that "[t]o the extent feasible, existing natural features which are of ecological value to the City, such as wetlands, water courses, water bodies, rock formations, stands of trees, views and vistas, and similar irreplaceable assets, shall be preserved." (Section 4.1, Regulations).
The waiver granted by the planning board, obviously influenced by the recommendation of the environmental planning board, considers the various characteristics of the property. Accordingly, the court finds that the planning board properly granted the waiver based upon the physical conditions of the property in compliance with § VIII of its regulations and in accordance with the general policies set forth in § IV, subsection 4.1, all in accord with C.G.S. § 8-26.
In addition, the court notes that the plaintiff has not met her burden of demonstrating that the planning board improperly waived the roadway width. The court finds no record support for a finding that the granting of the waiver would constitute "detriment to the public good"; (Regulations § VIII); or impact "traffic safety or any other feature likely to be harmful to the health, safety, and welfare of the adjacent residents . . ." (Regulations § 4.1.)
Accordingly, this ground of appeal is denied.
BLASTING
In plaintiff's first appellate brief dated January 23, 2006, plaintiff listed appeal topics lettered A though T, none of which concerned blasting. Later in said brief, under a heading, "Point III," (entitled "The General Health, Safety and Welfare of the Existing Residents . . . are threatened by the Development"), plaintiff writes "The Planning Board's disregard of the possibility that defendants will be setting off explosions just 15 feet from [plaintiff's] property makes one's jaw drop." (The paragraph atop page 23 of said brief, goes on to state that the planning board "out-lawed blasting on another property at the same time it granted defendants' application, but took no action to prevent blasting in [plaintiffs'] quiet neighborhood.").
It is this appellant's position that, on this issue, the court should reverse the Planning Board because "the proposed development is likely to require dangerous blasting of rock that will endanger and otherwise disturb plaintiff without providing any adequate remedy of these conditions post-approval."
Plaintiff does correctly state that blasting is treated as an "ultra hazardous activity." So too, a board may condition approval of a subdivision in relation to public safety matters, including, one would presume, a prohibition of blasting.
Whitman Hotel Corporation v. Elliott Watrous Engineering Co., 137 Conn. 562, 565 (1951).
C.G.S. § 8-26; Shailer, supra, 26 Conn.App. 17, 28 (1991), citing Nicoli v. Planning and Zoning Commission, 176 Conn. 89, 96 (1976).
No specific provisions of the Stamford subdivision regulations are invoked by plaintiff in suggesting the illegality of failure to specifically address blasting issues in the board's approval of the application.
What is then set forth by plaintiff is on the specific point of blasting and it is, in the developers' term, "the expert "report of Curtis Verdi, President of Verdi Construction. (ROR, #33.)
Included in this "report," a one page letter, may be found the following comments:
a) In our professional opinion, only a very limited amount of blasting, if any, may be required to complete the work.
b) In reference to the apparent area of the road (Coventry) of plaintiffs' residence, Verdi notes: ". . . a rise in road elevation will require only a shaving of the hill by a few feet. This can probably be done with no blasting whatsoever."
In other places and/or in argument, plaintiff points to sections 3.6.3 and 4.1 of the subdivision regulations. (Policies — General). ("No land shall be subdivided for residential use which is held . . . to be unsuitable . . . by reason of . . . any . . . feature likely to be harmful to the health, safety, and welfare of the adjacent residents . . ."
"The Board shall consider the layout . . . with due regard to . . . safety requirements . . ."
Essentially the regulations are silent about blasting and our case law appears to teach cautionary tales about the impropriety of courts dishonoring the holdings and findings of agencies without clearer violations of pertinent regulations. See, Sowin Associates v. Planning and Zoning Commission, 23 Conn.App. 370, 375-76 (1990) cert. den. 216 Conn. 832 (1990). See also, Ahuja v. Stamford Planning Board, 1993 Ct.Sup. 2037, judicial district of Stamford (Mottolese, J.).
Plaintiff's expression of concern constitutes a very slim reed upon which a court should be asked or compelled to overrule a failure to prohibit.
Plaintiff has simply not carried the burden of establishing that the board acted improperly. Wood v. Zoning Board of Appeals, 258 Conn. 691 (2001).
Defendant-applicant also notes, it would appear correctly, that the applicable regulations are silent as to blasting, and that if applications conform to regulations, they are not to be denied. However, because safety, in the most general terms, is also referenced, the court pushes on.
Plaintiff notes that the use of blasting explosives is regulated and would require approval and permits. This is true, as may be seen in the lengthy provisions of C.G.S. § 29-349. Indeed, it also appears, as plaintiffs concede, that a person who considers himself aggrieved by the "doings" of the fire marshal regarding blasting may apply for "appropriate relief" to the Superior Court within thirty days.
The statutory scheme referenced, C.G.S. § 29-343 through 29-355 rather uniformly refers to the Commissioner of Public Safety or the local fire marshal as alternative regulators. This court assumes, without knowing or having been informed by any party, that such matters are in fact handled by the local fire marshals at least in this state's major cities.
Given the uncertainty existing regarding whether any blasting at all will occur and the location thereof, this would seem to be enough to suggest that appellant a) has not shown anywhere near enough and b) even so, has adequate although not perfect, recourse.
However, no party has addressed a factor appellants mention without elaboration about being "effectively shut out" of the process if left to such future devices. The court has not been informed by any party as to how the permit process works in practice, including whether notice is given to nearby residents. Thus, while plaintiffs might have in court recourse, the court has not been given to understand whether that recourse has meaning unless one understands the degree to which these appellants are likely to learn whether blasting near to them is intended.
Yet, this court is not convinced that it is empowered, in the context of the narrow scope of review existing in an administrative appeal, to order that notice flow from agency or applicant to plaintiff when a blasting permit is sought. However, it would so clearly be the fair and equitable response to this situation that, if clearly empowered, the court would order it.
Withal, however, it must be said that an insufficient showing has been made to compel the court to deny the approval for its silence on blasting.
This ground of appeal is denied.
ENERGY CONSERVATION
The court denied many facets of this appeal during the oral argument appeal hearing on December 1, 2006. One of those in-court denials was addressed to energy conservation issues sought to be promoted in subdivision regulation 4.3.
At the hearing before the Planning Board on May 24, 2005, Mr. Leonard D'Andrea testified as to several issues. A professional engineer, his firm "provided the surveying and engineering services" for the applicant. (Hearing, ROR, #53, p. 11.) He spoke to the directions of the roadways intended, the lot size (for subsequently more detailed orientation of the homes) and the topography, including ridges which appeared to him very suitable for the use of the kind of season-related trees contemplated by the regulation.
The Board was obviously satisfied that the groundwork was appropriate for the need to conserve energy. No condition was imposed in the Board's approval.
The court is not clear whether the applicant intends to be the exclusive builder for the new homes contemplated or whether lots will be sold to citizens or builders. In either event, plaintiff has not suggested nor shown how the various prospective reviewers of site plans and buildings will fail to appropriately weigh the energy conservation concerns which presumably pervade the other, later regulated contexts.
It seems fair to say that in the raw status now existing, it has to be sufficient for the planning board to protect energy concerns from threshold mistakes which might be hard to reverse as review goes on. It appears that the Board has done so, and has done so in the absence of pointed objection or expert disagreement. Too, this is a factual issue (see case law discussed above) on which the Board's determination cannot be disturbed on the record this court has been provided by appellants.
This ground of appeal is thus also denied.