Opinion
No. CV06 4004620 S
March 19, 2007
MEMORANDUM OF DECISION
I. STATEMENT OF APPEAL
The plaintiffs, Ettero J. Aiudi and Joseph J. Aiudi, doing business as E. Aiudi and Sons, appeal from the decisions of the defendant, the Haddam Planning and Zoning Commission (the commission), granting with modifications the plaintiffs' special permit application for a conservation subdivision and the plaintiffs' application for a conservation subdivision.
II. BACKGROUND
On July 7, 2005, the plaintiffs filed an application for a special permit for a conservation subdivision and a conservation subdivision application with the defendant planning and zoning commission. (Return of Record [ROR], Exhibits [Exhs.] 3, 4.) The plaintiffs sought to develop a thirteen-lot conservation subdivision on a 69.2-acre parcel of land in the town of Haddam. (ROR, Exh. 4.) The public hearing on the applications began on August 15, 2005 (ROR, Exh. 25); and was continued to September 19, 2005 (ROR, Exh. 26); October 3, 2005 (ROR, Exh. 27); and October 17, 2005 (ROR, Exh. 28). On November 10, 2005, the commission voted unanimously to grant conditional approval for a conservation subdivision special permit for eleven lots. (ROR, Exh. 29, p. 11.) At the same meeting, the commission voted unanimously to grant conditional approval for a conservation subdivision consisting of eleven lots. (ROR, Exh. 29, p. 12.) The commission did not state its reasons for its decision on the record. Notice of the commission's decision was published in the Middletown Press on November 25, 2005. (ROR, Exh. 23.) The plaintiffs commenced this appeal on December 9, 2005.
Haddam zoning regulations § 4A.l provides:
Conservation Subdivisions; Purpose: The Commission finds that certain parcels of land, because of their unique physical characteristics, may benefit from additional flexibility in the design of subdivisions. Such benefits may include: improved living and working environments; more economical subdivision layouts; greater ingenuity and originality in total subdivision and individual site design; and, especially, the preservation of valuable open space to serve recreational, scenic, and other public purposes. The Commission also finds that, in order to achieve these benefits, it will sometimes be necessary to permit modifications of the minimum lot area, frontage, width, and yards, and the maximum building height and percentage of allowable land coverage. These Conservation Subdivision regulations are therefore intended to provide a mechanism to permit such modifications, while, at the same time, assuring (1) adequate maintenance and restricted use of open space areas for maximum public benefit; (2) adequate protection of the neighborhood; and (3) the conservation of natural resources and of Haddam's rural character.
(ROR, Exh. 1.)
Conservation subdivisions are also known as cluster development, which is defined by General Statutes § 8-18 as "a building pattern concentrating units on a particular portion of a parcel so that at least one-third of the parcel remains as open space to be used exclusively for recreational, conservation and agricultural purposes except that nothing herein shall prevent any municipality from requiring more than one-third open space in any particular cluster development . . ." See also R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 4:44, pp. 166-68.
III. JURISDICTION
General Statutes § 8-8 governs appeals to the Superior Court from decisions of a planning and zoning commission. "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).
A. Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiffs . . . [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 is a question of fact for the trial court to determine. Id., 665.
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 . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected 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.
Ownership of property that is the subject matter of an application may constitute aggrievement. See Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). The plaintiffs allege ownership of the property that is the subject of the applications. (Appeal, ¶ 1.) At trial, Joseph Aiudi testified that he and his brother Ettero Aiudi owned the property. (Trial Transcript, pp. 2-3.) The plaintiffs also introduced a deed demonstrating ownership. (Plaintiff's Exh. 1.) The court finds the plaintiffs have sufficiently alleged and proven aggrievement.
B. Timeliness and Service of Process
General Statutes § 8-8(b) provides that "[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." Section 8-8(f)(2) requires that "[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." In an action against a town commission, process must be served "notwithstanding any provision of law, upon the clerk of the town . . . 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 . . ." General Statutes § 52-57(b)(5).
The commission published notice of its decision in the Middletown Press on November 25, 2005. (ROR, Exh. 23.) The appeal was commenced by service of process upon the Haddam town clerk on December 9, 2005. (Marshal's Return.) Accordingly, the plaintiffs timely and properly commenced this appeal.
IV. SCOPE OF REVIEW
A special permit or special exception "allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values . . . An application for a special permit seeks permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district." (Citations omitted; internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 215-16, 779 A.2d 750 (2001). "The basic rationale for the special permit . . . is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated because of the particular topography, traffic problems, neighboring uses, etc., of the site." (Internal quotation marks omitted.) Oakbridge/Rogers Avenue Realty, LLC v. Planning Zoning Board, 78 Conn.App. 242, 246, 826 A.2d 1232 (2003).
"When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity . . . 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 a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." (Citations omitted; internal quotation marks omitted.) Irwin v. Planning Zoning Commission, 244 Conn. 619, 627-28, 711 A.2d 675 (1998).
The plaintiffs challenging the decision of the zoning commission have the burden of proof in demonstrating that the commission acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988). The decisions of a zoning commission acting in an administrative capacity must be supported by substantial evidence in the record. Kaufman v. Zoning Commission, 232 Conn. 122, 151, 653 A.2d 798 (1995). "The substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." (Internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 452, 908 A.2d 1049 (2006). Substantial evidence is "something less than the weight of the evidence, and 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.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 541, 525 A.2d 940 (1987).
"Whenever a commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision." General Statutes § 8-3c(b). When a zoning agency has stated the 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." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). Where, however, as in the present case, the agency fails to provide a statement of reasons for its actions, "the trial court must search the entire record to find a basis for the commission's decision . . ." Parks v. Planning Zoning Commission, 178 Conn. 657, 662, 425 A.2d 100 (1979).
No appellate court has determined specifically whether the language of General Statutes § 8-3c(b) requiring a planning and zoning commission to record the reasons for its decision is mandatory or directory. R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 33:4, p. 244. In Gagnon v. Inland Wetlands Watercourses Commission, 213 Conn. 604, 605, 569 A.2d 1094 (1990), the court noted the "long established rule" requiring the Superior Court to search the record of a planning and zoning authority for reasons supporting its action where no reason was given on the record. The court referenced § 8-3c(b) among other statutes containing similar language, and stated: "Notwithstanding this statutory language, our case law clearly requires the trial court, in appeals from planning and zoning authorities, to search the record to determine the basis for decisions made by those authorities." Id., 607-08.
V. DISCUSSION
Pursuant to Haddam subdivision regulations §§ 4A.2 and 4A.3, the plaintiffs on July 7, 2005 submitted to the commission an application for a special permit for a thirteen-lot conservation subdivision and a separate conservation subdivision application. (ROR, Exhs. 3, 4.)
Haddam subdivision regulations § 4A.2 provides:
Special Permit Requirement: In addition to subdivision approval pursuant to these Subdivision Regulations, Conservation Subdivisions require the issuance of a special permit pursuant to the Haddam Zoning Regulations. The Commission considers the special permit criteria separately, in accordance with the applicable Zoning Regulations and applicable state statutes. No plan for a Conservation Subdivision may be approved pursuant to these Subdivision Regulations unless the Commission first issues a special permit for the proposed Conservation Subdivision in accordance with the Zoning Regulations.
(ROR, Exh. 2.)
Haddam subdivision regulations § 4A.3 provides in relevant part: "All applications for a subdivision or resubdivision that would cause any Original Parcel to be divided, or to have been divided cumulatively since the effective date of this Section 4A.3, into six (6) or more lots shall be in the form of an application for a Conservation Subdivision." (ROR, Exh. 2.)
The plaintiffs sought to develop a parcel of approximately 69.2 acres located in Haddam. (ROR, Exh. 4.) As required by the Haddam zoning regulations, the plaintiffs' applications included a yield plan demonstrating the number of lots feasible under a conventional subdivision of the property. (Supplemental Return of Record [Supp. ROR], Exh. 37.) The plaintiffs' yield plan consisted of thirteen potential lots. (Supp. ROR, Exh. 37.) The plaintiffs' proposed conservation subdivision also contained thirteen lots. (ROR, Exh. 24.)
Haddam zoning regulations § 4A.3.c provides in relevant part: "Applicants shall estimate the maximum, legally permissible lot density on the basis of a `yield plan.' Such `yield plans' shall consist of `conventional' lot and street layouts (i.e., layouts conforming to the provisions of the Zoning Regulations and Subdivision Regulations that would be applicable in the absence of these Conservation Subdivision Regulations)."
During the public hearing which occurred on August 15, 2005 (ROR, Exh. 25); and which was continued to September 19, 2005 (ROR, Exh. 26); and October 17, 2005 (ROR, Exh. 28), the plaintiffs' engineer, Matthew White, P.E., explained the plaintiffs' proposal and answered questions from the commission. The public hearing concluded with the commission's October 17 meeting, and the commission considered the applications during its November 10, 2005 meeting. (ROR, Exh. 29.) In the course of that meeting, the chairman of the commission, Paul Geraghty, stated: "I don't think that we have wholly taken advantage of our conservation subdivision regulations as we should have. One of the things we're supposed to kind of look at is the location of the lots in conjunction with slope and what that impact is on; and also, in terms of making the open space more contiguous and sort of minimizing, you know, the outward disturbances." (ROR, Exh. 29, p. 1.) Geraghty proposed removing lots number five and ten from the subdivision plan. (ROR, Exit. 29, p. 8.) Motions to approve the special permit and conservation subdivision plan without these two lots were made and passed unanimously by the commission. (ROR, Exh. 29, pp. 9-13.) The commission did not provide a formal statement of the reasons for its decisions.
Although the commission planned to continue the public hearing of the plaintiffs' applications on October 3, 2005, no substantive discussion took place at this meeting. (ROR, Exh. 27.)
The plaintiffs timely appealed the commission's decisions to this court raising two issues. First, the plaintiffs claim that the Haddam subdivision regulations are more restrictive than the town's zoning regulations and thus are illegal and unenforceable. Second, the plaintiffs maintain that the commission's decision to remove lots five and ten from the subdivision plan was illegal, arbitrary and in abuse of its discretion. The commission opposes the plaintiffs' claims, arguing for the legality and enforceability of the regulations and the propriety of its decision concerning the plaintiffs' applications. Further, the commission contends that the plaintiff may not properly challenge the commission's regulations in a statutory appeal, but instead must bring a separate declaratory action for such a purpose.
A.
As a threshold matter, the commission argues that the plaintiffs may not challenge the town's subdivision regulations in this appeal. The commission contends that declaratory judgment proceedings are appropriate for determining questions concerning the validity of the regulations of an administrative agency.
The plaintiffs respond that under Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 715 A.2d 46 (1998), a direct challenge to administrative regulations is proper in an administrative appeal. The court in Stafford Higgins abandoned the rule of Cioffoletti v. Planning Zoning Commission, 209 Conn. 544, 563, 552 A.2d 796 (1989), which required general attacks on the validity of legislation to be brought in the form of declaratory judgment actions rather than in substantive appeals. Id., 582. The Appellate Court has followed and applied the rule set forth in Stafford Higgins. See Berlin Batting Cages, Inc. v. Planning Zoning Commission, 76 Conn.App. 199, 213-14, 821 A.2d 269 (2003); Lewis v. Planning Zoning Commission, 62 Conn.App. 284, 287 n. 6, 771 A.2d 167 (2001).
This court finds that, under the rule of Stafford Higgins, the plaintiffs' challenge to the Haddam subdivision regulations in the course of this appeal is proper and will consider its arguments below.
B.
The plaintiffs argue that the Haddam subdivision regulations are illegal and unenforceable because they are more restrictive than the town's zoning regulations. Specifically, the plaintiffs contend that the subdivision regulations' requirement that proposed subdivisions of land into six or more lots be brought in the form of a conservation subdivision is more restrictive than the zoning regulations because it forbids an applicant from applying for a conventional subdivision, a use which the plaintiffs claim the zoning regulations permit as of right, unless the commission denies the applicant's conservation subdivision proposal.
The plaintiffs cite Cristofaro v. Burlington, 217 Conn. 103, 584 A.2d 1168 (1991), for the proposition that a subdivision regulation may not be more restrictive than a zoning regulation. In Cristofaro, the Burlington planning commission adopted a regulation which established a minimum lot size greater than that established by the town's zoning regulations. Id., 105. The court distinguished the separate yet related functions of planning commissions and zoning commissions: "As a planning commission its duty is to prepare and adopt a plan of development for the town . . . Such a plan is controlling only as to municipal improvements and the regulation of subdivisions of land . . . Zoning, on the other hand, is concerned with the use of property . . ." (Internal quotation marks omitted.) Id., 106. Because the planning regulation in question purported to set a minimum lot size at variance with that established by the zoning regulations, the court found it impermissibly encroached upon the zoning commission's legislative powers granted by General Statutes § 8-2. Id., 107.
The commission counters that under General Statutes § 8-2, a zoning commission may provide for cluster development and under § 8-25(c) a planning commission may provide for, or require, cluster development. The challenged regulations are thus within the planning and zoning commission's statutory authority, the commission argues, and are not an example of a planning commission exceeding its authority.
"It has been said that the whole field of subdivision regulation is peculiarly a creature of legislation. It is therefore imperative that before subdivision regulations may be operative, the necessary statutory authorization of such regulation must exist . . . In other words, in order to determine whether the regulation in question was within the authority of the commission to enact [the court] do[es] not search for a statutory prohibition against such an enactment; rather, [the court] must search for statutory authority for the enactment." (Internal quotation marks omitted.) Smith v. Zoning Board of Appeals, 227 Conn. 71, 81, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S.Ct. 1190, 127 L.Ed.2d 540 (1994).
Chapter 126 of the General Statutes covers municipal planning commissions. General Statutes § 8-25(a) authorizes planning commissions to adopt subdivision regulations: "Before exercising the powers granted in this section, the commission shall adopt regulations covering the subdivision of land." Planning commissions have the authority to review and approve subdivision proposals under § 8-25(a), which provides "[n]o subdivision of land shall be made until a plan for such subdivision has been approved by the commission." In addition, § 8-26 provides that "[t]he commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application or maps and plans submitted therewith . . . within the period of time permitted under section 8-26d."
The General Statutes permit a zoning commission to allow for cluster development. General Statutes § 8-2(a). Planning commissions are also authorized to provide for cluster development in their subdivision regulations, and even to make such development mandatory. General Statutes § 8-25(c) provides in relevant part: "The regulations . . . may, to the extent consistent with soil types, terrain, infrastructure capacity and the plan of development for the community, provide for cluster development, and may provide for incentives for cluster development such as density bonuses, or may require cluster development."
The Haddam zoning regulations provide for cluster development under the term "conservation subdivision." Section 4A.1 describes the purpose of conservation subdivisions as providing additional flexibility in the design of subdivisions in accordance with a particular land parcel's unique physical characteristics. (ROR, Exh. 1.) To accomplish the goal of conservation subdivision, the regulations allow for modification of the conventional subdivision regulations. For example, minimum lot size for a single-family home in an R-2 (residential) zone in a conventional subdivision is two acres (Haddam zoning regulations, table 1; ROR, Exh. 1); in a conservation subdivision, the corresponding minimum lot size is 25,000 square feet. (Haddam zoning regulations, § 4A.3.b; ROR, Exh. 1.) Similar modifications are permitted in areas of minimum lot frontage, front yards, side and rear yards, and maximum percentage of land coverage. (Haddam zoning regulations, § 4A.3.b; ROR, Exh. 1.) Minimum open space requirements for conservation subdivisions are forty-five to fifty-five percent (Haddam zoning regulations, § 4A.3.d (1); ROR, Exh. 1); for conventional subdivisions, the minimum open space required is twenty to twenty-five percent. (Haddam subdivision regulations, § 4.14(3); ROR, Exh. 2.) The conservation subdivision regulations, therefore, present a trade-off: smaller lots and building requirements for more open space within the subdivision.
The Haddam subdivision regulations require an application to subdivide a parcel into six or more lots to be brought in the form of an application for a conservation subdivision. (Haddam subdivision regulations, § 4A.3; ROR, Exh. 2.) If the planning commission determines that the parcel in question is not appropriate for a conservation subdivision, it may require the applicant to submit a standard subdivision application. (Haddam subdivision regulations, § 4A.3; ROR, Exit. 2.)
The court finds that the Haddam subdivision regulation requiring an applicant for a subdivision of a parcel into six or more lots to submit a conservation subdivision is a legitimate use of the authority granted to the planning commission under the General Statutes. In order for the plaintiffs to prevail in their argument, they would have to demonstrate that the zoning regulations permit conventional subdivisions as of right and, further, given the rule of Cristofaro v. Burlington, supra, 217 Conn. 103, that the conservation subdivision regulations are more restrictive than the conventional subdivision requirements. As to the first matter, conventional subdivisions are not permitted as of right by the Haddam zoning regulations. Conventional subdivisions are governed by subdivision regulations, under authority granted by General Statutes §§ 8-25 and 8-26.
Even if conventional subdivisions were permitted as of right by the zoning regulations, the plaintiffs would have to demonstrate that the conservation subdivision requirements are more restrictive than the conventional subdivision requirements. The conservation subdivision requirements are not per se more restrictive than the conventional subdivision regulations; they are different. Indeed, in some respects, for instance, in terms of minimum lot size, the conservation subdivision requirements are less restrictive than the conventional subdivision requirements.
Given the planning commission's statutory authority to regulate subdivisions and to require cluster development, and the fact that Haddam's subdivision regulations are not more restrictive than its zoning regulations, the court finds that the subdivision regulations are legal and enforceable.
C.
The plaintiffs also argue that the decision of the commission to remove lots five and ten was illegal, arbitrary and in abuse of its discretion. They contend that the lots fully met the conservation subdivision requirements set forth in the subdivision regulations. The commission argues that although it did not provide a statement of the reasons for its action on the record, its decision was supported by evidence in the record and therefore must be upheld by the court. The most prominent reason proffered by the commission in its trial brief for the removal of the lots is contiguity of open space in the subdivision.
The plaintiffs' subdivision proposal consisted of thirteen lots divided into two groups of six and seven lots on either side of a dividing road. (ROR, Exh. 24, p. 1.) Lots five and ten were situated across from each other, on either side of the road. (ROR, Exh. 24, p. 1.) The proposal called for open space areas to the west of lot ten and to the east of lot five, in addition to other open spaces within the subdivision. (ROR, Exh. 24, p. 1.) The entire subdivision plan called for 42.23 acres of open space. (ROR, Exh. 24., p. 1.)
Open space occupies a prominent position in the Haddam zoning and subdivision regulations, especially with regard to conservation subdivisions. Preservation of "valuable open space to serve recreational, scenic, and other public purposes" is cited as a primary purpose of conservation subdivisions in both the zoning and subdivision regulations. (Haddam zoning regulations, § 4A.1; ROR, Exh. 1; Haddam subdivision regulations, § 4A.1; ROR, Exh. 2.) The subdivision regulations call for all open space within conservation subdivisions to be "contiguous to the maximum extent practicable." (Haddam subdivision regulations, § 4A.4.a; ROR, Exh. 2.) Where open space is to be held by one entity, such as the town or a homeowner's association, the land should "be directly accessible to the largest practicable number of lots within the subdivision." (Haddam subdivision regulations, § 4A.4.a; ROR, Exh. 2.) The regulations provide that the "majority of lots should abut the contiguous open space in order to provide direct views and access." (Haddam subdivision regulations, § 4A.4.a; ROR, Exh. 2.)
Listed among the evaluation criteria for open space dedications is the requirement that open space be "reasonably contiguous" and the directive that "fragmentation of open space should be minimized so that these resource areas are not divided into numerous small parcels located in various parts of the development." (Haddam subdivision regulations, § 4A.4.b(14); ROR, Exit. 2.) Further, "[t]o the greatest extent practicable, this land shall be designed as a single block with logical, straightforward boundaries." (Haddam subdivision regulations, § 4A.4.b(14); ROR, Exh. 2.) The contiguity of the open space is to be maintained regardless of whether the land is owned by more than one entity. (Haddam subdivision regulations, § 4A.5.a; ROR, Exh. 2.)
In deciding whether to approve a conservation subdivision plan, the commission is to "give particular consideration" to "[t]he provision of such open space, parks and/or playgrounds that are open to the public as the Commission may require pursuant to the authority granted to it under Conn. Gen. Stat. § 8-25." (Haddam subdivision regulations, § 4A.6(10); ROR, Exh. 2.) If, in the opinion of the commission, the proposed plan "could be improved . . . by the reasonable modification of the location of conservation open space . . . the Commission shall so modify the proposed plan or shall deny it." (Haddam subdivision regulations, § 4A.6; ROR, Exh. 2.)
The plaintiffs' proposed plan contained open space areas at various points within the subdivision. Large portions of the open space were situated to the west of lot 10 and to the east of lot 5, on either side of the subdivision. (ROR, Exh. 24, p. 1.) At the September 19, 2005 public hearing of the plaintiffs' proposal, commissioner Geraghty described the origin and purpose of the conservation subdivision regulations: "the way these regulations came into being was that what we were seeing is large subdivisions where basically all of the land was being consumed . . . So, we looked at this and said if you want to get more and what developers would do they would come in and say `Yup, here's our open space, it's called a wetland' and, you know, that's it and we don't want it. We need more meaningful open space, more contiguous and not just connected and that's, you know, sort of what we've got." (ROR, Exh. 26, pp. 29-30.)
During the course of its deliberations, the commission discussed the topic of contiguity of open space. Geraghty stated: "[T]hen we have this piece of open space over here which is now bigger by a few acres, but not connected to the larger parcel. Um, and not that like I want to just slash and burn here, but on some level it seems to me that maybe Lot 5 ought to be removed from the equation in part to rest the conservation issues, but also to make this entire area open space." (ROR, Exh. 29, p. 3.) When commissioner Stasia DeMichele asked Geraghty which lots he thought should be removed, Geraghty responded: "I'd say, Lot 5, which would then make this whole area, um, and then Lot 10 connect essentially." (ROR, Exh. 29, p. 3.) Geraghty went on to say that removing the two lots "just makes for a more contiguous piece of open space" to which Geoff Colegrove, the town planner, responded: "Right. So, that would add on to the connectivity and access of the residents." (ROR, Exh. 29, p. 4.) A motion was made and passed unanimously to approve a special permit for a conservation subdivision for eleven lots, not including lots five and ten. (ROR, Exh. 29, pp. 9-11.) A similar motion to approve the plaintiffs' conservation subdivision with the same eleven lots was also made and passed unanimously. (ROR, Exh. 29, pp. 12-13.)
It is proper for the court to consider carefully the statements of the commissioners during the public hearings and deliberations in determining the legitimacy of its ultimate decision. In 200 Associates, LLC v. Planning Zoning Commission, 83 Conn.App. 167, 851 A.2d 1175, cert. denied, 271 Conn. 906, 859 A.2d 567 (2004), the defendant commission appealed from the trial court's decision sustaining the plaintiff's appeal. The commission had denied the plaintiff's proposed subdivision because, inter alia, the commission did not accept the land the plaintiffs proposed for open space in the subdivision. Id., 170. On appeal, the trial court held that this decision of the commission was unlawful and arbitrary because the commission did not exercise its authority to designate appropriate open space. Id., 170-71. The Appellate Court reversed this portion of the trial court's decision and remanded the case for determination of whether substantial record evidence existed to support the commission's denial of the plaintiffs application due to its concerns over the proposed open space. Id., 178. In the course of remanding the case, the court cited record statements of the commissioners expressing concern over potential liabilities attendant to the town accepting ownership of the open space. Id., 176. On remand, the trial court considered the statements highlighted by the Appellate Court and determined they supported the commission's decision to deny the plaintiff's proposal on the basis of the open space issue. 200 Associates, LLC v. Planning Zoning Commission, Superior Court, judicial district of Windham, Docket No. CV 02 0067123 (September 16, 2004, Foley, J.).
The pertinent regulation, Section VIIA of the Thompson subdivision regulations, provided in relevant part: "The land so reserved shall be chosen by the Commission for the purpose of conserving natural or scenic resources . . ." See 200 Associates, LLC v. Planning Zoning Commission, supra, 83 Conn.App. 170 n. 5, 175.
The court has searched the record and determined that providing for contiguity of open space within the subdivision was a legitimate reason for the commission's decision to remove lots five and ten from the plaintiffs' proposed plan. The Haddam zoning and subdivision regulations provide ample evidence that open space and particularly contiguity of that open space is a primary concern of the commission when considering a proposed conservation subdivision. The plaintiffs' site plan shows that open space on either side of the subdivision, i.e., land to the west of lot ten and to the east of lot five, was not contiguous. (ROR, Exh. 24, p. 1.) Although the commission failed to provide a formal statement of the reasons for its decision, statements of the commissioners at the public hearings demonstrate that they considered contiguity of open space when deciding to remove lots five and ten. In light of the commission's discretion in determining whether the plaintiffs' proposal met the standards of the regulations, Irwin v. Planning Zoning Commission, supra, 244 Conn. 627-28, the court finds the commission's decision was neither unreasonable, arbitrary nor illegal.
VI. CONCLUSION
For the foregoing reasons, the plaintiffs' appeal is dismissed.
CT Page 9836