Opinion
No. CV04 0084881S
May 25, 2005
MEMORANDUM OF DECISION
The plaintiffs, Walter Bespuda, Walter S. Hine and Walter H. Smith Realty, Inc. (Smith Realty), appeal from the decision of the defendant, the Orange town plan and zoning commission (commission), adopting amendments to the zoning regulations and subdivision regulations.
The record reveals the following facts. On May 30, 2003, the commission commenced a review of the subdivision regulations by requesting comments and input from the first selectman, chief of police, fire marshal, building inspector, sanitarian, town engineer, wetlands enforcement officer, superintendent of schools, town attorney, chairman of the wetlands commission, chairman of the conservation commission and chairman of the economic development commission. (Return of Record [ROR], Exh. 3.) The town planning consultant then reviewed the zoning and subdivision regulations of the town of Orange and made suggestions concerning the adequacy of the zoning regulations which included lot, area, shape requirements and exclusion of steep slopes. (ROR, Exh. 4.) With regard to the subdivision regulations, the suggested updates concerned review of soil and erosion standards, open space requirements, frontage improvements, performance bonds, map formats, street layouts and administrative requirements. (ROR, Exh. 4.)
A six-month moratorium was instituted on residential subdivisions to allow the commission to review and update the Orange subdivision and zoning regulations. (ROR, Exh. 3.) Over the six months, public meetings were held to receive comments and recommendations from the town's professional staff and the town's officials and to receive input from the public, On November 15, 2003, the town planning consultant submitted a draft of the proposed amendments for consideration by the commission. (ROR, Exh. 29.) Thereafter, revisions to the proposed amendments were made to address comments of the town's professional staff commission members and the public.
On February 12, 2004, the commission conducted a public hearing with respect to the proposed amendments, and on February 17, 2004, the commission adopted amendments to the zoning and subdivision regulations. The commission made the following amendments to the zoning regulations, which are the subject of this appeal: (1) increasing the required minimum lot area; (2) increasing the required street frontage; (3) increasing the exclusion of slopes from minimum lot size and minimum square requirements; (4) increasing the exclusion of wetlands from minimum lot size and minimum square requirements; (5) increasing the minimum square dimension of building lots; and (6) reducing maximum ground coverage. (Appeal, ¶ 10.) Amendments to the subdivision regulations included: (1) application requirements; (2) administrative requirements; (3) performance bonds and maintenance bonds; (4) planning and design standards; (5) utilities; (6) storm water management; (7) soil and erosion control; and (8) street planning and design standards. (Appeal, ¶ 11.)
At the regular hearing held on February 17, 2004, after a discussion on the proposed amendments, the commission voted, three to one, to adopt the proposed regulations with some modifications from the original proposed draft. (ROR, Exh. 101.) As part of the motion to approve and accept the regulations, the commission incorporated the following findings of the town attorney: "the proposed amendments conform to the Comprehensive Town Plan as found in the Zoning Regulation method used in determining lot size. The proposed amendments change numbers, not the scheme of the regulations. The proposed regulations are made in the best interest of the community; they conform to the Plan of Conservation and Development; they protect the rural character of the area; they protect water quality; they maintain acre-and-a-half zoning; they assure housing choice and density and are within the character of the town." (ROR, Exh. 101.)
The plaintiffs now appeal the decision of the commission to amend the zoning regulations. The appeal was tried to the court on February 4, 2005. On February 18, 2005, the defendant moved to dismiss the appeal for lack of aggrievement. In response thereto, the plaintiffs filed a memorandum of law supporting aggrievement.
At the hearing, the plaintiffs stated that they were not appealing amendments to the subdivision regulations due to the technical nature of those regulations. The court, therefore, will consider only the appeal of the amendments to the zoning regulations.
General Statutes § 8-8 governs appeals from zoning commissions to the superior court. Section 8-8(b) provides in relevant part: "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." "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).
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 410.
The defendant's argument in support of its motion to dismiss is twofold. First, the defendant contends that the plaintiffs are not classically aggrieved because no showing has been made of a specific, personal and legal interest affected by the decision. Second, the defendant argues that the plaintiffs are not statutorily aggrieved because statutory aggrievement does not apply to amendments to zoning regulations that do not involve a particular parcel of land. The defendant, however, then "concedes" that the Appellate Court has held that owners of land within a zone affected by an amendment to zoning regulations are statutorily aggrieved. But nevertheless it maintains that an amendment to a zoning regulation is not a decision involving a parcel of land, and the plain language of General Statutes § 8-8(a)(1) requires that the land be "involved" in the commission's decision.
The plaintiffs respond that they only need to prove statutory or classical aggrievement to pursue an appeal, both of which they have established. The plaintiffs point out that the amendments to the zoning regulations substantially alter how any parcel of land in the town's R-1 district may be used. Further, they contend that any land situated within this R-1 zone is land "involved" in the commission's decision.
The court finds that the plaintiffs are statutorily aggrieved. Under General Statutes § 8-8(a)(1), a statutorily aggrieved person includes "any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." In Lewis v. Planning Zoning Commission, 62 Conn.App. 284, 297, 771 A.2d 167 (2001), and in Cole v. Planning Zoning Commission, 30 Conn.App. 511, 514-15, 620 A.2d 1324 (1993), the Appellate Court held that the plaintiffs, as owners of land within the zones affected by the amendments, were aggrieved parties within the meaning of § 8-8(a)(1). Here, the plaintiff, Smith Realty, owns land located at 389 Racebrook Road, which totals approximately 135 acres. At the hearing held on February 4, 2005, the plaintiff introduced deeds demonstrating such ownership. (Quitclaim Warranty deeds, Exhs. 1, 2.) The property is in the R-1 zoning district and is undeveloped. The court finds that the plaintiff is statutorily aggrieved pursuant to § 8-8(a)(1) by virtue of owning property within the affected zones. In so holding, this court relies on the principles articulated by the Appellate Court in Lewis v. Planning Zoning Commission, supra, 62 Conn.App. 284, and Cole v. Planning Zoning Commission, supra, 30 Conn.App. 511.
Because Smith Realty is statutorily aggrieved, this court has subject matter jurisdiction over this appeal and need not determine whether the other plaintiffs are aggrieved. See Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 529 n. 3, 600 A.2d 757 (1991).
Notably, because this court finds that the plaintiffs are statutorily aggrieved, no further discussion is warranted with regard to classical aggrievement. See McNally v. Zoning Commission, 225 Conn. 1, 8, 621 A.2d 279 (1993).
General Statutes § 8-8(b) provides "[A]ny 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. The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes."
General Statutes § 8-8(f)(1) provides that "process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."
Notice of the commission's decision was published in the New Haven Register on February 21, 2004 (ROR, Exh. 102); and the appeal was commenced by service of process on the chairman of the commission and on the Orange town clerk on March 5, 2004. (Marshal's Return.) Accordingly, the plaintiffs commenced this appeal in a timely manner by service of process on the proper parties.
"The proper, limited scope of judicial review of a decision of a local zoning commission when it acts in a legislative capacity by amending zoning regulations is well established. [T]he commission, acting in a legislative capacity, [has] broad authority to adopt . . . amendments." (Internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 415-16. Further, it "is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change." (Internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 543, 600 A.2d 757 (1991). "In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. 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.) Id., 542-43.
"Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion . . . Within these broad parameters, [t]he test of the action of the commission is twofold: (1) The zone change must be in accord with a comprehensive plan, General Statutes § 8-2 . . . and (2) it must be reasonably related to the normal police power purposes enumerated in § 8-2." (Citations omitted; internal quotation marks omitted.) Id., 543-44. "[Connecticut] 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." (Internal quotation marks omitted.) Paige v. Town Plan Zoning Commission, 235 Conn. 448, 464, 668 A.2d 340 (1995).
"When a zoning [commission] has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, 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." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 420.
In their complaint, the plaintiffs allege that the commission acted illegally, arbitrarily, capriciously, in abuse of its discretion and, ultra vires in one or more of the following ways: (1) the commission made material revisions to the amendments after the close of the public hearing; (2) the decision is not supported by sufficient evidence in the record; (3) the decision was based on erroneous information provided by the town's consulting planner; (4) a majority of the commission members were biased or predetermined their votes prior to the public hearing; (5) the commission failed to state valid reasons on the record for its decision; (6) the public hearing procedure violated fundamental fairness; (7) the amendments are not reasonably related to the zoning purposes in General Statutes § 8-2; (8) the amendments constituted impermissible "fiscal zoning"; (9) the decision fosters urban sprawl; (10) the amendments unfairly overburden the owners of affected parcels; and (11) the amendments are not consistent with the town's plan of conservation and development. (Appeal, ¶ 13.)
In their brief, the plaintiffs argue that (1) the commission's amendments must be reviewed under the heightened scrutiny standard of Builders Service Corp. v. Planning Zoning Commission, 208 Conn. 267, 304-05, 545 A.2d 530 (1988); (2) the published notices of the public hearing and commission action were invalid; (3) increasing minimum lot size in order to protect ground and surface water from septic system pollution violates state public health statutes and is irrational; (4) Orange's exclusion of all wetlands from minimum lot size violates the legislature's express delegation of authority to wetlands commissions; (5) the record does not contain sufficient evidence to support the other amendments and reasons for adoption; (6) the commission engaged in illegal "fiscal zoning" and its amendments serve no valid purpose; and (7) the minimum lot size regulations are integrally related and should be invalidated as a whole.
The first contention advanced by the plaintiffs is that the commission's amendments must be reviewed under the heightened scrutiny standard of Builders Service Corp. v. Planning Zoning Commission, supra, 208 Conn. 267. According to the plaintiffs, the court in Builders employed a higher level of judicial scrutiny than the traditional rational basis test. The rule of Builders as viewed by the plaintiffs is that "(1) if a zoning regulation is claimed to be justified only as promoting the `general welfare' and `conserving' property values, and does so only by increasing the cost of housing, this constitutes economic segregation that is not a proper purpose of zoning; and (2) the courts must closely scrutinize the regulation to see whether it serves some other purpose of zoning and if not, invalidate it." (Plaintiffs' Brief, p. 21.)
This court disagrees with the plaintiffs' interpretation of Builders. As the defendant correctly construes Builders, if a regulation generates results that are contrary to the general welfare, a closer scrutiny of the regulation must be undertaken to determine whether the regulation "operates in a manner reasonably related to . . . a legitimate purpose of zoning." Builders Service Corp. v. Planning Zoning Commission, supra, 208 Conn. 284. Contrary to the plaintiffs' argument, the court clearly states that the "standard to be used in examining this regulation is the rational basis standard . . ." (Emphasis added.) Id.
To reiterate, the standard of review for this type of appeal is well settled by the Connecticut Supreme Court. As articulated in one of the Supreme Court's most recent decisions, Harris v. Zoning Commission, supra, 259 Conn. 425, "[t]he justification for zoning in any municipality is that it serves to promote the public health, safety, welfare and prosperity of the community . . . In considering whether [a] regulation works to achieve a proper legislative object of zoning, [the court] must examine it to see if it operates in a manner reasonably related to such a legitimate purpose of zoning . . . Every intendment is to be made in favor of the validity of [an] ordinance and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt." (Citations omitted; internal quotation marks omitted.) In enunciating this standard, the Supreme Court relies on and in fact, cites language from its earlier case of Builders. Accordingly, as previously stated, the rational basis test is the proper standard of review.
The plaintiffs next argue that the published notices of the public hearing and commission action were invalid. The commission's hearing notice, dated January 16, 2004, states, in pertinent part, that "Notice is hereby given that on Tuesday, February 3, 2004 at 8:00 p.m., at the Orange Town Hall, 617 Orange Center Road, the Orange Town Plan and Zoning Commission will conduct a public hearing on the following: PETITION TO AMEND THE ORANGE ZONING REGULATIONS, submitted upon the initiative of the Orange Town Plan and Zoning Commission. Proposed revisions concern the Residential RES District Standards. They include, but are not limited to, Lot Area and Shape, Minimum Lot Area, Minimum Floor Area, Minimum Area, and Minimum Ground Coverage . . . A copy of this notice has been filed with the Orange Town Clerk." (ROR, Exh. 71).
The plaintiffs argue that the notice of the public hearing was misleading in three respects. First, the phrase "including but not limited to" is inherently ambiguous. Second, the notice did not inform the citizens where they could obtain a copy of the proposed amendments. Third, the notice is materially misleading in that it did not state the consequences of the amendments; for example, there was no disclosure that the amendment allegedly made all lots under 60,000 square feet nonconforming. The plaintiffs, therefore, contend that because the commission failed to give proper notice, its action was void under Nazarko v. Zoning Commission, 50 Conn.App. 517, 519, 717 A.2d 853 (1998), cert. denied, 247 Conn. 941, 723 A.2d 318 (1998).
The defendant responds that the notice sufficiently informed the owners of property within the residential RES district of the proposed amendments, and analogizes it to the notice in Edward Balf Co. v. East Granby, 152 Conn. 319, 325-26, 207 A.2d 58 (1965). The defendant argues that copies of the proposed amendments were filed with the town clerk as required by General Statutes § 8-3, but that the failure to include the location of the amendments in the notice did not render the notice misleading as it is not a requirement under Edward Balf Co. v. East Granby, supra, 319. Further, the defendant contends that case law does not require a detailed notice of the proposed action nor does it require a summary of the contents of the proposed amendments. The defendant, therefore, maintains that the notice was proper.
This court is not persuaded by the plaintiffs' claim. "Compliance with prescribed notice requirements is a prerequisite to valid action by a [zoning commission] and failure to give proper notice is a jurisdictional defect . . . Without proper public notice, zoning authority actions are null and void." (Citation omitted; internal quotation marks omitted.) Nazarko v. Zoning Commission, supra, 50 Conn.App. 519-20. "[T]he burden of proving that the [published] notice was defective rests on the persons asserting its insufficiency." Peters v. Environmental Protection Board, 25 Conn.App. 164, 170, 593 A.2d 975 (1991).
General Statutes § 8-3(a) allows a zoning commission to change regulations and boundaries of zoning districts after a public hearing. Section 8-3(a) provides that "[a] copy of such proposed regulation or boundary shall be filed in the office of the town . . . for public inspection at least ten days before such hearing, and may be published in full in such paper." General Statutes § 8-7d(a) provides that "[n]otice of the hearing shall be published in a newspaper having a general circulation in such municipality where the land that is the subject of the hearing is located . . ."
"[T]he purpose behind the notice requirement of § 8-3 is fairly and sufficiently to apprise those who may be affected by the proposed action of the nature and character of the proposed action so as to enable them to prepare intelligently for the hearing." (Internal quotation marks omitted.) Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972); see also R.B. Kent Sons, Inc. v. Planning Commission, 21 Conn.App. 370, 378, 573 A.2d 760 (1990). "There is no requirement that the published notice describe the proposed action in detail or with exactitude." Wells v. East Windsor, 185 Conn. 556, 559, 441 A.2d 174 (1981); Woodburn v. Conservation Commission, 37 Conn.App. 166, 178, 655 A.2d 764, cert. denied, 233 Conn. 906, 657 A.2d 645 (1995).
In this case, the commission published a notice of the public hearing in the local newspaper. (ROR, Exh. 71.) The notice clearly stated that the hearing concerned a petition to amend the Orange zoning regulations and specified the area to be affected by the amendments as well as certain proposed revisions. In response to the plaintiffs' argument, there is no statutory requirement that the notice specifically inform the public as to the location of a copy of the proposed amendments. A copy of the amendments in this case was properly filed with the town clerk prior to the hearing. While the plaintiffs argue that the notice is materially misleading because it failed to state the consequences of the amendments, the notice "is not required to contain an accurate forecast of the precise action which will be taken upon the subject matter referred to in the notice." Neuger v. Zoning Board, 145 Conn. 625, 630, 145 A.2d 738 (1958); R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (1999) § 46.3, pp. 417-18. Thus, the notice is not misleading but rather is consistent with the language of § 8-3(a), and meets the statutory criteria set forth therein. See Edward Balf Co. v. East Granby, supra, 152 Conn. 319 (notice stating that hearing would consider "the re-adoption of the zoning and subdivision regulations" held sufficient). The court finds that the published notice fairly and sufficiently apprised the plaintiffs of the nature and character of the proposed action.
The plaintiffs also claim that the notice of the commission's action was defective in two principal ways. First, there was a typographical error in the notice which should have stated February 17, 2004, not January 19, 2004, as the date of the notice of decision. Second, the post-hearing notice did not reference changes to the regulations made by the commission after the close of the public hearing. The defendant responds that despite the typographical error, the notice clearly stated that the commission's action occurred at a meeting on February 17, 2004. Further, the defendant argues that neither the date on which the notice is signed nor the date of the meeting is relevant to the running of the appeal period, which commences from the date of publication of the notice pursuant to General Statutes § 8-8.
"Adequate posthearing notice is mandatory." R.B. Kent Sons, Inc. v. Planning Commission, supra, 21 Conn.App. 378. "The purposes of the statutory postapproval publication are to give notice to interested parties of the decision and to commence the start of the appeal period." R.B. Kent Sons, Inc. v. Planning Commission, supra, 21 Conn.App. 378. Here, the notice specifically stated the sections of the zoning regulations that had been approved and adopted, and further stated that copies of the amendments were on file in the town clerk's office. The typographical error does not affect the adequacy of the notice because as the defendant correctly claims, the pertinent date for purposes of appeal is the date of publication of the notice. Additionally, "[i]t is implicit in [a zoning] procedure that changes in the original proposal may ensue as a result of the views expressed at the hearing." Neuger v. Zoning Board, supra, 145 Conn. 630. Under these circumstances, the notice was adequate in notifying interested parties of the commission's decision, and the publication thereof properly commenced the appeal period.
The plaintiffs next argue that increasing minimum lot size in order to protect ground and surface water from septic system pollution violates state public health statutes and regulations, and is irrational. Specifically, the plaintiffs claim that the amended regulation is invalid because: (1) it is preempted by Connecticut's public health regulations for septic systems; (2) zoning commissions are not authorized to establish design requirements for septic systems; and (3) even if there is local authority, the public safety basis is irrational because the town has a subdivision regulation that prohibits septic systems from being located in wetlands and watercourses or on steep slopes.
The defendant responds that the plaintiffs misapply and misinterpret the doctrine of preemption. Assuming that the state has preempted the field of regulation in this area, the defendants nonetheless claim that the regulations do not regulate a "single criterion related to septic system design." Relying on General Statutes §§ 8-2, 22a-430g and 19a-207, and Modern Cigarette, Inc. v. Orange, 256 Conn. 105, 774 A.2d 969 (2001), the defendant claims that the legislature did not intend to fully preempt this field of regulation, and the plaintiffs have not indicated any conflict between the regulation and state legislation.
The plaintiffs' argument is misplaced. "[A] local ordinance is preempted by a state statute whenever the legislature has demonstrated an intent to occupy the entire field of regulation on the matter . . . or . . . whenever the local ordinance irreconcilably conflicts with a statute . . . [W]hen the state has, by statute, demonstrated an intent to occupy a field of regulation . . . a local ordinance that conflicts with the purpose of the legislature in enacting the statute cannot stand." (Citation omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 324, 813 A.2d 1003 (2003).
General Statutes § 8-2, the zoning enabling act, provides, in pertinent part, that zoning regulations "shall be designed . . . to facilitate the adequate provision for . . . water, sewerage . . ." and "shall be made with reasonable consideration for the protection of existing and potential public surface and ground drinking water supplies." "General Statutes § 8-2 delegates broad authority to municipalities to enact local zoning regulations." (Footnote omitted.) Arnold Bernhard Co. v. Planning Zoning Commission, 194 Conn. 152, 159, 479 A.2d 801 (1984).
General Statutes § 22a-430(f) permits the commissioner of the department of environmental protection to "establish and define categories of discharges, including . . . small community sewerage systems . . . for which he may delegate authority to any other state agency, water pollution control authority, municipal building official or municipal or district director of health to issue permits or approvals . . ." Section 22a-430(g) requires the commissioner to "delegate to the Commissioner of Public Health the authority to issue permits or approvals" and the commissioner of public health shall "establish minimum requirements for household and small commercial subsurface disposal systems . . ." General Statutes § 19a-207 provides, in relevant part, that "[t]owns, cities and boroughs may retain the power to adopt, by ordinance, sanitary rules and regulations, but no such rule or regulation shall be inconsistent with the Public Health Code as adopted by said commissioner." (Emphasis added.)
Here, the state has not demonstrated an intent to occupy the entire field of regulation. "[T]hat a matter is of concurrent state and local concern is no impediment to the exercise of authority by a municipality through the enactment of an ordinance, so long as there is no conflict with the state legislation." (Internal quotation marks omitted.) Modern Cigarette, Inc. v. Orange, supra, 256 Conn. 119. There has been no showing that the amended regulation irreconcilably conflicts with the state's statutory scheme.
With respect to the plaintiffs' claim that it is irrational for the defendant to assert that a lot size that would exceed what the state public health code requires is necessary to protect the public health, the court reviews certain principles. It is a basic principle that "[e]very intendment is to be made in favor of the validity of [an] ordinance and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt." (Internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 425. Furthermore, "[a] local ordinance, enacted pursuant to the police power, is not necessarily inconsistent with a state law on the same subject just because the ordinance provides higher standards than the statute." (Internal quotation marks omitted.) Lizotte v. Conservation Commission, 216 Conn. 320, 333, 579 A.2d 1044 (1990). The case law is clear that zoning regulations can provide higher standards with respect to water quality than the state public health code. Moreover, the plaintiffs have not shown beyond a reasonable doubt that the amended regulation concerning minimum lot size is inconsistent with state law on this issue.
The plaintiffs also claim that the commission's exclusion of all wetlands from minimum lot size violates the legislature's express delegation of authority to wetlands commissions. In support of their argument, the plaintiffs rely mainly on CT Page 10306 AvalonBay Communities v. Stratford Inland Wetlands Agency, 49 Conn.Sup. 188 (2003), which was recently reversed by the Appellate Court in AvalonBay Communities, Inc. v. Zoning Commission, 87 Conn.App. 537, 867 A.2d 37 (2005). The plaintiffs rely on AvalonBay to substantiate their claim that the commission cannot substitute its judgment for that of the inland wetlands commission in matters involving the licensing of regulated activities.
It should be noted that the commission revised the proposed amendment to allow wetlands and watercourses to be used in the calculation of up to 10% of the minimum lot area and square requirements. (ROR, Item #105.)
The defendant responds that the regulations adopted by the commission are not preempted by the inland wetlands and watercourses act. In particular, the defendant argues that the amended regulations do not control or seek to regulate activities under that act nor do they remove, alter or eliminate the jurisdiction of the wetlands agency.
Simply stated, the plaintiffs' argument misses the mark. In this case, the commission is not exercising control over regulated activities in the wetlands but rather exercising its broad and exclusive legislative power to exclude certain types of land from the calculation of the minimum lot area required for legitimate zoning purposes. The Connecticut Supreme Court has affirmed this power, stating that "[t]he power to determine what are the needs of a town with reference to the use of the real property located in it and to legislate in such a manner that those needs will be satisfied is, by statute, vested exclusively in the zoning commission." (Emphasis added; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 425; Finch v. Montanari, 143 Conn. 542, 545, 124 A.2d 214 (1956). "The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function." Blakeman v. Planning and Zoning Commission, 82 Conn.App. 632, 644, 846 A.2d 950, cert. denied, 270 Conn. 905, 853 A.2d 521 (2004).
The court finds no case law that would invalidate the amended regulation as adopted by the commission. "[C]ourts cannot substitute their judgment for the wide and liberal discretion vested in local zoning authorities when they have acted within their prescribed legislative powers." Burnham v. Planning Zoning Commission, 189 Conn. 261, 266, 455 A.2d 339 (1983).
The plaintiffs also argue that the record does not contain sufficient evidence to support the other amendments and reasons for adoption. The plaintiffs contend that to limit sloped areas to 1,000 square feet on a 60,000 square foot minimum lot is irrational, and shows that the purpose of the regulation is to prevent new housing rather than to prevent building on slopes. The plaintiffs further contend that there is no evidence to support the amendment to the minimum road frontage requirement. Lastly, they assert that there is no evidence to support the commission's claims that the amendments are in the "best interest" of the town and are consistent with the plan of development.
Conversely, the defendant argues that the amendments are consistent with the plan of conservation and development and are in accord with the comprehensive plan of development. Further, the regulations, as adopted, are within the scope and authority of the commission, rationally related to legitimate zoning purposes and are supported by the record.
Section 8-2 requires that zoning regulations and amendments be in accordance with the comprehensive plan, and provides that the commission "shall consider the plan of conservation and development prepared under § 8-23." "A comprehensive plan has been defined as a general plan to control and direct the use and development of property in a municipality or a large part thereof by dividing it into districts according to the present and potential use of the properties . . . The requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interests of the entire community." (Citation omitted; internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 218, 779 A.2d 750 (2001). "In the absence of a formally adopted comprehensive plan, a town's comprehensive plan is to be found in the scheme of the zoning regulations themselves." (Internal quotations marks omitted.) Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, supra, 220 Conn. 551.
In approving the amendments to the regulations, the commission specifically found that the amendments conformed to the comprehensive town plan as found in the zoning regulations and to the plan of conservation and development. (ROR, Item 101.) The stated purposes for the amendments are the following: "The proposed regulations are made in the best interest of the community . . . they protect the rural character of the area; they protect water quality; they maintain acre-and-a-half zoning; they assure housing choice and density and are within the character of the town." (ROR, Item 101.)
There is ample evidence in the record demonstrating that the amendments promote the best interests of the community and are consistent with the plan of conservation and development. As set forth in the plan of conservation and development, one of the objectives of the land use policies is that "[l]and uses will be consistent with the unique characteristics of the land such as topography, soils, wetlands, streambelts and historical features." (ROR, Item 108, p. 10.) The record demonstrates that the commission considered this objective when amending the regulations. For example, at the February 12th hearing, the planning consultant mentioned that the proposal "is consistent with the plan [of development]. It is consistent with land use policies of the plan, particularly the policy that says land uses will be consistent with the unique characteristics of the land such as topography, soils, wetlands, streambelts and historical features. It is also consistent with the storm water management section of the plan. It is consistent with the zoning section of the plan taken as a whole . . ." (ROR, Item 99, pp. 256-57.)
The record illustrates concerns addressed by the commission regarding water quality, septic system failure, public health and safety. The amendments are consistent with the plan of conservation and development, which albeit, is only advisory. Additionally, there is sufficient evidence in the record, as will be further discussed, that the commission was acting with "the intention of promoting the best interests of the entire community"; Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, supra, 220 Conn. 551; and, therefore, was in accord with the comprehensive plan.
The next inquiry is whether the amendments are reasonably related to the police powers enumerated in § 8-2. "A zoning commission will be upheld in creating large lot zoning if based on a valid statutory purpose." R. Fuller, supra, § 22.9, p. 500. As previously stated, concerns over water quality and septic system failure formed a basis for proposing an increase in lot size. Enacting adequate provisions for water and sewerage are within the police powers conferred by § 8-2.
A review of the record reveals the following. The town sanitarian recommended increasing minimum lot size to 60,000 square feet if the lot was served by city water and 90,000 square feet if served by a well. (ROR, Item 11.) The stated reasons for this recommendation are the following:
These changes are recommended to enhance septic system design layout and to protect ground water quality. The soils on remaining vacant land in Town are becoming increasingly difficult to work with when it comes to sewage disposal design. Ground water, ledge and compact, slowly permeable sub-soils often hinder the successful operation of septic systems unless careful designs are developed. The U.S.D.A. Soil Conservation Service classifies these soils as "severe" for septic tank absorption fields and states that, in some instances, "even carefully designed systems often fail prematurely."
Preservation of the ground water quality and subsequent surface water quality is another reason for increasing building lot size. The overall quality of ground water and surface water in the Town can be described as only good to fair. In my opinion, one of the reasons for this lesser quality is poor nitrate and bacteria renovation due to ill designed older septic systems and the increasing density of new home construction. The State Health Department and the Department of Environmental Protection have expressed concern over nitrate generation and housing density. Unfortunately, neither State offices account for background levels of nitrates in pollutant renovation studies of septic system effluent. In addition, the Federal Environmental Protection Agency (E.P.A.) recommends that a minimum of two feet of unsaturated soil beneath a leaching system be provided for virus elimination. The Connecticut State Health System Department only requires eighteen inches. Several vacant land areas in Town have only eighteen inches of unsaturated soil below ground level in its natural state. Most of these areas are not considered wetlands but yet would be considered suitable for a septic system despite the concern for virus elimination.
Increasing the size of building lots allows more soil to be utilized for pollutant renovation and allows for the possibility of avoiding the use of "wet" soils for leaching systems.
(ROR, Item 11.)
With regard to the amendments excluding wetlands, ponds, watercourses and slopes exceeding 25% from the calculation of minimum lot area, the court finds support in the record. The town engineer, the town sanitarian and the wetlands enforcement officer all expressed their support for the proposed amendments. They stated:
Wetlands, ponds, watercourses and excessive slopes are areas that are either unusable or unsuitable for the construction of a dwelling or septic system. Excavation is difficult in many places where slopes exceed 25 percent because of shallowness to bedrock. Blasting may be required in these areas, which may threaten neighboring foundations, wells and drainage systems. Where septic systems are located in these areas, septic tank effluent may seep to the surface downslope of the system and there may be a hazard of septic tank effluent seeping into the cracks of the bedrock, which could pollute ground water. In addition, these areas frequently require intensive conservation measures during construction, which include diversions, sedimentation basins, vegetative cover, and mulching to prevent excessive runoff, erosion and siltation. Elimination of wetlands, ponds, watercourses and excessive slopes would preclude the need for a 90,000 S.F. minimum lot size served by a well and would improve the construction and siting of homes and septic systems.
(ROR, Item 40.)
The first selectman of Orange testified that "to maintain the character of the town, septic systems and reserve systems are . . . important . . . [T]he water runoff [is] one of the most pressing problems I hear . . . We have to have more room for that water to go. We have a high water table town." (ROR, Item 99, p. 144.)
The chairman of the conservation commission testified that "[o]ne of our major problems is septic systems, but we have talked about that quite a bit tonight. The streams of Orange have become much more polluted over the last thirty years. In wet season, the bacterial count in the streams and lakes become uncomfortably high." (ROR, Item 99, pp. 190-91.) The chairman further testified that "[i]n the zoning regulations the exclusion of wetlands, ponds and watercourses and high slope areas to both the lot size and minimum square are certainly helpful, and we support those . . ." (ROR, Item 99, pp. 151-52.)
The court is mindful that "[t]he action of the commission should be sustained if even one of the stated reasons is sufficient to support it." Burnham v. Planning Zoning Commission, supra, 189 Conn. 265. "If any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld." (Internal quotation marks omitted.) Paige v. Town Planning Zoning Commission, supra, 235 Conn. 464.
It is well settled that an upgrading of a zone such as the one involved in this case is a type of regulation that is generally upheld. See Young v. Town Planning Zoning Commission, 151 Conn. 235, 245, 196 A.2d 427 (1963); Senior v. Zoning Commission, 146 Conn. 531, 534, 153 A.2d 415 (1959), appeal dismissed, 363 U.S. 143, 80 S.Ct. 1083, 4 L.Ed.2d 1145 (1960). "Upgrading based on concerns about water supply and sewage disposal is directly related to the purposes of zoning in Section 8-2." R. Fuller, supra, § 22.9, p. 500; see also Chucta v. Planning Zoning Commission, 154 Conn. 393, 225. A.2d 822 (1967) (upgrading of zone was desirable to provide adequately for safe water supply and proper disposition of sewage); DeMars v. Zoning Commission, 142 Conn. 580, 115 A.2d 653 (1955) (larger lot sizes for disposal of sewage and to increase distance from residential water supply was held reasonably related to public health and welfare). Here, the court finds that the amendments are reasonably related to the control of water quality and septic systems, and are within the commission's police powers.
Moreover, there is no question that the commission may revise the regulations in an effort to eliminate potential problems in the future. See Blakeman v. Planning and Zoning Commission, supra, 82 Conn.App. 643 (commission may amend regulations for future conditions). Exercising its limited role in reviewing the commission's actions, the court cannot substitute its judgment for that of the commission, especially where there has been no showing that its action was arbitrary or illegal.
With regard to the increase in minimum street frontage and minimum lot square, the commission properly relied on its own judgment and particular knowledge of the town in enacting these amendments. The commission also analyzed the regulations of similarly situated towns. (ROR, Item 16.) "The burden of proof to demonstrate that the [commission] acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) Horace v. Zoning Board of Appeals, 85 Conn.App. 162, 165, 855 A.2d 1044 (2004); Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). The regulations are presumed valid; Pollio v. Planning Commission, 232 Conn. 44, 49, 652 A.2d 1026 (1995); and thus, the plaintiffs must establish the invalidity of a regulation beyond a reasonable doubt. Mario v. Fairfield, 217 Conn. 164, 176, 585 A.2d 87 (1991). The plaintiffs have failed to meet their burden.
The court now turns to the plaintiffs' argument that the commission engaged in illegal "fiscal zoning" and its amendments serve no valid purpose. The crux of the plaintiffs' contention, if not their appeal, is that the purpose of the amendments was to reduce education expenditures and local property taxes. To quote the plaintiffs: "the amendments plainly have the adverse effect of substantially raising the cost of new housing in Orange, but do not serve any health, safety or other purpose of zoning." (Plaintiffs' Brief, p. 34.)
While the plaintiffs recast the commission's reasons for enacting the amendments in terms of fiscal purposes, the court reiterates, as found above, that the amendments are rationally related to the protection of the public health, safety and general welfare of the community of Orange. "If there is a reasonable ground for upholding [the legislative regulation], courts assume that the legislative body intended to place it upon that ground and was not motivated by some improper purpose . . . This is especially true where the apparent intent of the enactment is to serve some phase of the public welfare." (Emphasis added; internal quotation marks omitted.) Modern Cigarette, Inc. v. Orange, supra, 256 Conn. 118; Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 22-23, 523 A.2d 467 (1987).
Because the court upholds all the amendments, the plaintiffs' final argument is defeated. For the foregoing reasons, the plaintiffs' appeal is dismissed.
The Court
By Upson, J.