Opinion
No. CV 06-4021043-S
July 19, 2011
MEMORANDUM OF DECISION
The plaintiff, Niki Whitehead, appeals from the decision of the defendant, the East Haven Planning and Zoning Commission (commission), approving a resubdivision application submitted by the developer defendant, Clemente Estates, LLC (Clemente). The record of this appeal discloses the following facts and procedural background:
On or around December 2, 2005, Clemente submitted to the commission an application to create Grove Hill Section Two, a nine-lot residential resubdivision on a parcel of vacant and wooded land (site) located at 86 Wheaton Road in East Haven. The site is bounded on all sides by residential property with the exception of a portion of its eastern boundary, which touches Wheaton Road. The site is 6.68 acres in size, 1.2 acres of which constitute wetlands that run north and south and divide the front and rear portions of the land. Stormwater flows through the site by way of the wetlands and exits the site at its southern boundary. The application proposed the creation of eight building lots, one open space lot and the construction of a road known as Victoria Drive that would traverse a section of the on site wetlands and provide access to the site from Wheaton Road.
The commission opened a public hearing with regard to the application on February 1, 2006. Thereafter, Whitehead, an environmental advocate, intervened in the proceedings in accordance with General Statutes § 22a-19(a)., Whitehead is the founder of the Farm River Protective Association, an organization dedicated to the protection of the Farm River, which receives drainage from the wetlands located on the site. Whitehead is also a founder of the East Haven Land Trust, a holder of a conservation easement over property that includes a forested wetlands system extending from the site's southern border. Pursuant to her intervention, Whitehead filed a verified pleading asserting that the resubdivision application involves conduct "which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources" of the state and, specifically, claiming that harm would result to the air, the natural terrain of the site, the proposed open space area, to wetlands on and off the site as well as to the Farm River.
Section 22a-19(a) provides: "In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state."
Two other individuals, Virginia Metaxas and Gary Gustafson, also intervened in the proceedings pursuant to § 22a-19 but did not participate in this appeal.
The commission held further public hearings on April 5, 2006 and May 3, 2006, wherein testimony as to various environmental aspects of the application was provided. Immediately following the May 3 public hearing, the commission voted to approve the application subject to certain conditions. Notice of the commission's approval was published in the East Haven Courier on May 11, 2006. The commission did not provide its reasons for the approval.
Whitehead subsequently commenced this appeal and, on June 20, 2006, filed a complaint alleging (1) that the commission improperly failed to determine that the environmental harms raised in the proceedings were "not unreasonable," (2) that the commission failed to determine the existence of less detrimental alternatives to the activities proposed by the application and (3) further alleging twenty specific claims of impropriety. All parties submitted pretrial briefs and the issues were presented to the court on March 28, 2011.
LEGAL ANALYSIS
As a preliminary matter, in any appeal from the decision of a planning and zoning commission "the plaintiffs have the burden of proof on aggrievement before the court will decide the claims in the appeal." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 34:4, p. 296; see also Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996) ("pleading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal"). Prior to the hearing, the commission and Clemente each moved to dismiss this action on the ground that Whitehead was not aggrieved within the meaning of General Statutes § 8-8 and therefore lacked standing to pursue this appeal. In a memorandum of decision, the court (Corradino, J.) held that Whitehead was "legislatively aggrieved" by virtue of § 22a-19 and therefore properly possessed standing to appeal the commission's decision. See Whitehead v. Planning Zoning Commission, Superior Court, Judicial District of New Haven, Docket No. CV 06-4021043 (April 4, 2007, Corradino, J.) [ 43 Conn. L. Rptr. 695]. "Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). The court finds Judge Corradino's decision to be correct and well reasoned. No new or overriding circumstances have been presented to the court, so the decision will not be disturbed and the court will decide the substantive claims tried before it.
Section 8-8(b) provides in pertinent part that "any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located . . ."
"In exercising its function of approving or disapproving a subdivision plan, the planning board acts in an administrative capacity." (Internal quotation marks omitted.) Westport v. Norwalk, 167 Conn. 151, 155, 355 A.2d 25 (1974). "On an appeal from an administrative board we have repeatedly stated that the function of the court is to determine whether or not it acted illegally; and while we have frequently added the words `arbitrarily or in abuse of its discretion,' this manner of expression merely points to certain aspects in which the illegality may subsist because the conduct of the board would be in violation of the powers granted to and duties imposed on it." (Internal quotation marks omitted.) Zenga v. Zebrowski, 170 Conn. 55, 58, 364 A.2d 213 (1975).
"An agency's factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Citations omitted; internal quotation marks omitted.) New England Cable Television Assn., Inc. v. DPUC, 247 Conn. 95, 118, 717 A.2d 1276 (1998). Substantial evidence has also been described as "evidence . . . a reasonable mind might accept as adequate to support a conclusion." Corey v. Avco-Lycoming Division, 163 Conn. 309, 322, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S.Ct. 903, 34 L.Ed.2d 699 (1973). "This `substantial evidence' standard is highly deferential and permits less judicial scrutiny than a `clearly erroneous' or `weight of the evidence' standard of review." New England Cable Television Assn., Inc. v. DPUC, supra, 118. "The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached." (Internal quotation marks omitted.) DeBeradinis v. Zoning Commission, 228 Conn. 187, 198, 635 A.2d 1220 (1994).
"In challenging an administrative agency action, the plaintiff has the burden of proof . . . [T]he plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision." (Internal quotation marks omitted.) Finley v. Inland Wetlands Commission, 289 Conn. 12, 37-38, 959 A.2d 569 (2008). In the event that "the commission has not articulated its reasons [in support of its decision], the court must search the entire record to find a basis for the [commission's] decision." (Internal quotation marks omitted.) Azzarito v. Planning Zoning Commission, 79 Conn.App. 614, 618, CT Page 15982 830 A.2d 827, cert. denied, 266 Conn. 924, 835 A.2d 471 (2003).
In her brief, Whitehead argues that her appeal should be sustained because (1) the commission approved an application that lacked an adequate stormwater management plan; (2) the commission did not undertake an independent review of the stormwater management plan but relied on the fact that it had been approved by other agencies; (3) the commission conditioned its approval of the subdivision upon the submission of a "post-construction operation and maintenance schedule" for the proposed stormwater infiltration system; (4) the application lacked a current sediment and erosion control plan; (5) the application's open space proposal did not comply with the town's subdivision regulations; and (6) the commission approved the application without first satisfying various statutory coastal site plan review requirements.
The facts alleged in Whitehead's complaint that are not addressed in her brief are abandoned and will not be addressed. See Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 109 n. 3, 682 A.2d 1073 ("[i]ssues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided"), cert. denied, 239 Conn. 949, 686 A.2d 123 (1996).
Clemente and the commission both argue that the commission did not abuse its discretion and that its decision was justified by the record before it.
Due to Whitehead's status as an environmental intervenor in the proceedings of a planning commission, it is necessary to define the scope of the court's review over her claims. In the usual case, "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." (Internal quotation marks omitted.) Azzarito v. Planning Zoning Commission, supra, 79 Conn.App. 617-18. Where, however, a party intervenes in the proceedings of a planning commission pursuant to § 22a-19(a), the commission's duties are broadened by statute. Section 22a-19(a) is part of the Environmental Protection Act, General Statutes § 22a-14 et seq., the purpose of which "is to give private citizens a voice in ensuring that the air, water and other natural resources of the state remain protected, preserved and enhanced, and to provide them with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction." (Internal quotation marks omitted.) Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 44, 526 A.2d 1329 (1987). The express language of § 22a-19(b) requires that, where an intervention occurs under § 22a-19(a), "the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect as long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare." See, e.g., Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 499, 400 A.2d 726 (1978) ("a duty was imposed upon the commissioner under § 22a-19(b) to consider whether the proposed project does or is reasonably likely to cause unreasonable pollution, impairment or destruction of the river or of destroying the public trust in the air, water or other natural resources of the state, and, if so, to reject the project so long as, considering all the relevant circumstances, there is a reasonable and prudent alternative"); Fort Trumbull Conservancy, LLC v. Planning Zoning Commission, Superior Court, Judicial District of New London, Docket No. CV01-0557775 (August 28, 2002, Hurley, J.T.R.) ("[a]s a result of the . . . intervention under § 22a-19(a), the commission was required to consider the alleged unreasonable pollution, impairment or destruction of the [environment]").
"An intervening party under § 22a-19(a), however, may raise only environmental issues." Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 715, 563 A.2d 1339 (1989). Specifically, "an intervenor's standing pursuant to § 22a-19 strictly is limited to challenging only environmental issues covered by the statute"; (emphasis added) Pond View, LLC v. Planning Zoning Commission, 288 Conn. 143, 157, 953 A.2d 1 (2008); and "it is axiomatic that the statute encompasses substantive environmental issues only . . ." (Emphasis added.) Id., 159. "[A] plaintiff seeking to assert a claim under § [22a-19] . . . must articulate a colorable claim of unreasonable pollution, impairment or destruction of the environment . . . [and] must set forth facts to support an inference that unreasonable pollution, impairment or destruction of a natural resource will probably result from the challenged activities . . ." (Citation omitted; internal quotation marks omitted.) Finley v. Inland Wetlands Commission, supra, 289 Conn. 34. On the other hand, "[a]llegations of noncompliance with procedural requirements do not give rise to standing to challenge the commission's action pursuant to § 22a-19(a)." Douglas v. Planning Zoning Commission, 127 Conn.App. 87, 104, 13 A.3d 669 (2011).
"[A] party under § 22a-19(a) in filing a verified pleading . . . set[s] the parameters of the issues it could raise on [the] appeal . . ." Mystic Marinelife Aquarium, Inc. v. Gill, supra, 175 Conn. 490. Consequently, the scope of the court's review in this appeal is limited to the issue of whether the activities proposed by the subdivision application would have the adverse environmental impact interdicted by § 22a-19(b). ("[T]he limited environmental issue involved [in the intervening plaintiff's administrative appeal] is whether the proposed project . . . is reasonably likely to cause unreasonable pollution, impairment or destruction of the Mystic River"). Id., 500. See also Groton Open Space Association, Inc. v. Inland Wetland Commission, Superior Court, Judicial District of New London, Docket No. CV 07 4007723 (February 9, 2011, Purtill, J.T.R.); Oppenheimer v. Redding Conservation Commission, Superior Court, judicial district of Danbury, Docket No. CV 01 0343722 (December 16, 2003, Moraghan, J.T.R.).
Preliminarily, four of Whitehead's six claims on appeal are purely procedural and therefore she lacks standing to pursue them. "The issue of standing implicates subject matter jurisdiction" (internal quotation marks omitted); St. Paul Travelers Cos., Inc. v. Kuehl, 299 Conn. 800, 808, 12 A.3d 852 (2011); which "involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by . . . the court sua sponte, at any stage of the proceedings . . ." (Citation omitted; internal quotation marks omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).
First, Whitehead's claim that the commission did not undertake an independent review of Clemente's stormwater management plan but instead relied on the approval of other agencies implicates the process in which the commission made its decision and not any substantive environmental harm. Indeed, paragraphs 9(f) and 9(g) of the complaint, which contain the corresponding allegations, do not allude to any environmental impact but rather a "violation of . . . fundamental fairness in administrative proceedings" and the commission's unlawful delegation of "its power." Accordingly, the court cannot adjudicate this claim.
Second, Whitehead's claim that the commission conditioned its approval of the application upon the submission of a "post construction operation and maintenance schedule" for Clemente's stormwater infiltration system also does not fall within the scope of § 22a-19. The complaint alleges in paragraphs 9(h), 9(i) and 9(j), respectively, that the commission's conduct was "in violation of the common law right to fundamental fairness in administrative proceedings"; was "so vague as to make it impossible to determine in advance what action by the applicant would constitute compliance" and was without "statutory authorization." This claim is also procedural and does not constitute a colorable claim of unreasonable pollution, impairment or destruction of the environment.
Whitehead's final two procedural claims are that the commission approved the application without first satisfying certain coastal site plan review requirements imposed by statute and town zoning regulations, and that the application did not have an up to date soil erosion and sediment control plan. Neither her brief nor the allegations of her complaint, however, allude to or contain any inference of probable environmental harm. Cf. Douglas v. Planning Zoning Commission, supra, 127 Conn.App. 102-04 (holding that intervening plaintiffs' claim that commission illegally failed to follow regulations requiring it to submit an environmental impact statement in connection with its adoption of a zoning amendment was procedural and not within ambit of statute). Because Whitehead lacks standing to pursue the foregoing claims, the court cannot adjudicate them in this appeal.
Specifically, Whitehead alleges the pertinent portions of paragraph nine of her complaint that the commission's decision was improper:
n. In that the Applicant failed to comply with the requirements of [General Statutes §§] 22a-105 and 22a-109, and [s]ection 46 of the East Haven zoning regulations, for the submission of a complete, current and adequate coastal site plan.
o. In that the Commission failed to determine that the proposed resubdivision was consistent with the coastal management policies of [General Statutes §] 22a-92.
p. In that the Commission failed to consider the criteria and make the findings required by the Coastal Management Act, [General Statutes §§] 22a-92, 22a-93, 22a-105, 22a-106 and 22a-109, and [s]ection 46 of the East Haven zoning regulations.
q. In that the Commission failed to conduct an adequate coastal site plan review and make the findings required by §§ 22a-106 and 22a-109, and [s]ection 46 of the East Haven zoning regulations.
r. In that the Commission failed to approve the coastal site plan within the time required by law.
The corresponding allegation is found in paragraph 9(e) of the complaint. Whitehead alleges that the commission's decision was improper "[i]n that the Commission approved an incomplete resubdivision application, particularly with respect to information required by the East Haven subdivision regulations and East Haven zoning regulations that is necessary to make a determination of the impact of the resubdivision on the environment."
Whitehead asserts that the commission approved an application that did not have an adequate stormwater management plan and that this inadequacy is "central to the environmental harms raised by the Plaintiff as an intervenor." In particular, Whitehead argues that the stormwater management plan, which is required by section 48.3 of the East Haven zoning regulations, does not include information required by section 48.5 of the zoning regulations, including "information on the soil characteristics of the site, [the] depth to groundwater, the proposed maintenance for the infiltration area, and calculations of pre-and post-development stormwater runoff rates and soil infiltration rates . . ." According to Whitehead, the absence of this information precludes the commission from making the findings required by sections 48.7.2, 48.7.3 and 48.7.8 of the zoning regulations. Whitehead, however, does not articulate how any of these alleged violations implicate the conduct prohibited by § 22a-19.
Section 48.3 of the East Haven zoning regulations provides in pertinent part: "Any applicant, seeking an approval on a . . . resubdivision . . . shall include, as part of said application, a Storm Water Management Plan when . . . [s]aid application pertains to . . . any residential subdivision or resubdivision containing 6 or more residential units."
Section 48.5 of the East Haven zoning regulations provides in pertinent part: "In the event that a Storm Water Management Plan is required as per Section 48.3 of these Regulations, said plan shall include, at a minimum, the following information . . . (1) the soil characteristics of the site . . . (3) the location of the closest surface water bodies and/or wetlands to the site, and the depth to any groundwater or aquifer areas to the site . . . (6) the proposed maintenance and operation annual or schedule for any trash hoods, catch basins, or other "BMP" devices used to prevent and/or treat stormwater . . . (7) calculations of stormwater runoff rates, suspended solids removal rates, and soil infiltration rates before and after completion of the activity being proposed in the application."
Section 48.7.2 of the East Haven zoning regulations provides: "No net increases in stormwater runoff from the site shall result from the proposed activity."
Section 48.7.3 of the East Haven zoning regulations provides: "Design and planning for site development shall provide for minimal disturbance of pre-development, natural hydrologic conditions, and shall reproduce such conditions after the proposed activity to the maximum extent feasible."
Section 48.7.8 of the East Haven zoning regulations provides: "Stormwater runoff rates and volumes shall be controlled by slowing runoff velocities and encouraging infiltration. Post development runoff rates and volumes shall not exceed pre-development rates and volumes."
Whitehead focuses the court's review to various written comments submitted to the commission and made part of its record. Significant, according to Whitehead, are the comments of George Logan, a certified professional wetlands scientist employed by REMA Ecological Services, LLC and the only expert referenced by Whitehead who expressed an opinion as to whether Clemente's storm water management plan would cause any environmental harm. In particular, Logan stated that the storm water infiltration trench is not designed in conformity with the standards published in the 2004 Connecticut Storm Water Quality Manual (manual) and the current design, which places the bottom of the infiltration trench closer to the seasonally high groundwater elevation than recommended by the manual, will not effectively treat the water drained to it and will result in "downgradient degradation of regulated resources."
Some information regarding infiltration trenches and pollution from stormwater runoff is instructive. According to the manual, found in the return of record: "Infiltration trenches are shallow, excavated, stone-filled trenches in which stormwater is collected and infiltrated into the ground. Infiltration trenches can be constructed at a ground surface depression to intercept overland flow or can receive piped runoff discharged directly into the trench. Runoff gradually percolates through the bottom and sides of the trench, removing pollutants through sorption, trapping, straining, and bacterial degradation or transformation . . . Because infiltration practices recharge stormwater directly to groundwater, they can potentially contaminate groundwater supplies with dissolved pollutants contained in stormwater runoff or mobilized from subsurface contamination. Runoff sources that cause particular problems for infiltration structures include sites with high pesticide levels; manufacturing and industrial sites, due to potentially high concentrations of soluble toxicants and heavy metals; and snowmelt runoff because of salts. Infiltration practices should be carefully sited and designed to minimize the risk of groundwater contamination."
A review of the record, however, also reveals a number of memoranda written by David Lord, a certified soil scientist and environmental consultant, expressing confidence in Clemente's proposed stormwater management system. In the memoranda, Lord observed that a "hydrodynamic swirl separator structure" in Clemente's stormwater management system that removes sediments, hydrocarbons and floatables, would effectively be able to remove 80% of all suspended solids from the passing stormwater and thereby satisfy the stormwater standards recommended by the 2004 manual. Lord also stated that the design of the proposed "water quality basin" and "catch basin sumps" would allow the system to exceed those standards. Lord opined that the offsite wetlands referenced by REMA "is not now or proposed to be impacted by the discharge of stormwater runoff from this project," and moreover, "[n]o measurable impact to the existing vegetation or functioning of the onsite wetlands is anticipated from the proposed site generated stormwater runoff."
"[D]ecision makers for an administrative body may not disregard competent expert testimony and rely, without more, on their own knowledge of technically sophisticated and complex issues on which they have not been shown to possess expertise . . ." (Internal quotation marks omitted.) Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 296-97, 947 A.2d 944 (2008). Rather, "evidence [must exist] in the record to support its decision not to believe the experts — i.e., evidence which undermine either the experts' credibility or their ultimate conclusion." (Internal quotation marks omitted.) King's Highway Associates v. Planning Zoning Commission, 114 Conn.App. 509, 523, 969 A.2d 841 (2009). Although Whitehead has referenced the opinion of an expert that Clemente's stormwater management system would cause "downgradient degradation of regulated resources," there exists conflicting evidence in the record that the system would in fact not cause any unreasonable harm to those resources. "The reviewing court must take into account [that there may be] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Unistar Properties, LLC v. Conservation Inland Wetlands Commission, 293 Conn. 93, 114, 977 A.2d 127 (2009). Because the commission possessed substantial evidence to conclude that the stormwater management system would not cause unreasonable harm to the environment, Whitehead has not satisfied her burden with respect to this claim.
Whitehead next asserts that the commission approved an application that does not comply with the open space provisions of the town's subdivision regulations and therefore its decision has the effect of "unreasonably compromising the environmental purpose and value of the open space dedication." Citing section 7.15 of the East Haven subdivision regulations, Whitehead claims that (1) the regulation requires the application to allot a minimum of one acre for an open space; (2) this acre cannot be comprised of more than ten percent wetlands and (3) the application improperly dedicated 1.03 acres of open space that was comprised of over 10 percent wetlands, resulting in less nonwetland open space than is prescribed by the regulation. In addition, Whitehead argues that the application could not propose to use one-third of the nonwetland open space for the placement of stormwater management facilities, and in so doing violated section 7.17.4 of the subdivision regulations.
Section 7.15 of the East Haven subdivision regulations provides in relevant part: "Open Spaces . . . for Parks and Playgrounds: In all subdivisions proposed for residential development, open spaces for parks and playgrounds shall be provided in places deemed proper by the Commission. In requiring the provision of such open space, the Commission shall be guided by a minimum standard of ten {10} per cent of the area of the subdivision. The minimum area for any open space shall be one {1} acre, unless the area is an addition to an existing or proposed park, playground, open space or public land; or unless a lesser area is approved by the Commission as being appropriate for the open space purposes intended . . . Areas of wetlands, steep slopes or depression, and/or large rock outcroppings shall constitute no more than ten {10} percent of the area of calculated open space."
Section 7.17.4 of the East Haven subdivision regulations provides: "Passive Open Space: Land to be provided as Open Space for the purpose of conservation and protection of wildlife and/or natural, and/or scenic resources shall typically be preserved in its natural state, except for such improvement or maintenance as may be expressly permitted or required by the Commission."
The court must "interpret and construe local ordinances according to the principles of statutory construction." Miller v. Zoning Board of Appeals, 36 Conn.App. 98, 102, 647 A.2d 1050 (1994). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case . . . In seeking to determine that meaning, General Statutes § 1-2z directs us to first consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 756, 900 A.2d 1 (2006).
Section 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
Even if Whitehead's calculations are correct, she cannot prevail on her claims. Section 7.15 of the subdivision regulations, which requires the application to set aside open space for parks and playgrounds, unambiguously provides: "The minimum area for any open space area shall be one {1} acre . . . unless a lesser area is approved by the Commission as being appropriate for the open space purposes intended." (Emphasis added.) Section 7.15 further provides: "The Commission, in requiring the provision of open space, shall give due consideration to the proper development of the Town, density of population, the existing public open spaces in the vicinity of the subdivision, and the preservation and potential enhancement of existing natural features, large trees and other scenic points." There is substantial evidence in the record that the commission gave due consideration to the propriety of the amount of open space allotted, including evidence that adjacent open space lies south of the proposed open space area, and evidence that stormwater management facilities play an important role in preserving natural resources on and off the site, as Whitehead has passionately argued. Moreover, section 7.17.4 of the subdivision regulations is inapposite because it concerns land "to be provided as Open Space for the purposes of conservation and protection of wildlife and/or natural, and/or scenic resources" and not land to be set aside for parks and playgrounds. Therefore, Whitehead has not met her burden on this claim.
Based on the foregoing, the court finds the decision of the East Haven Planning and Zoning Commission to be appropriate and proper under the circumstances. Accordingly, the appeal is ordered dismissed.