Opinion
No. CV 07 4014061S
May 9, 2008
MEMORANDUM OF DECISION
The plaintiff, Buttermilk Farms, LLC, appeals from a May 10, 2007 decision of the defendant town of Plymouth Planning Zoning Commission (the commission), denying the subdivision application of the plaintiff because its plans failed to "show sidewalks on the project site."
At the hearing of this case on May 1, 2008, a member of the plaintiff gave uncontested testimony that the acreage for the subdivision had been conveyed to the plaintiff and introduced a deed as well. The court finds that the plaintiff is aggrieved by the denial of his application for subdivision approval.
The relevant facts of record are as follows. On October 6, 2006, the plaintiff submitted an application for approval by the commission to construct a five-lot residential subdivision on its property located on Lane Hill Road in Plymouth. The plaintiff's property is located on the southeasterly side of Lane Hill Road and the westerly side of Allentown Road, consisting of approximately 38 acres located within a RA-Residential Zone. The proposed development consists of five residential building lots for single-family homes with approximately 1,086 feet of combined frontage along Lane Hill Road.
The parties agree, and the record supports, the following description of Lane Hill Road found at page 2 of the plaintiff's brief: "While Lane Hill Road is paved it is poor condition; because of steep slopes, a portion of the road west of the proposed subdivision is closed off in winter." The record also supports the following statement in the commission's brief at page 2: "Lane Hill Road is a narrow, winding, paved road in poor condition . . . The proposed subdivision is located in an isolated and heavily wooded area of Plymouth."
The commission received the plaintiff's application as new business at the October 12, 2006 commission meeting. At that time, the commission's chairman informed the plaintiff's attorney that among the steps that the plaintiff needed to take before the commission considered the application was an addition to the subdivision plans to show sidewalks. The commission proceeded to conduct a public hearing on the plaintiff's application on December 14, 2006, January 11, 2007, March 1, 2007, March 8, 2007 and March 22, 2007.
At the December 14, 2006 public hearing, the plaintiff's attorney described the project, informing the commission that the police and fire departments had not objected to the proposal. There was also discussion of the conditions of Lane Hill Road, the grade of the properties, and open space and wetlands requirements. The plaintiff's attorney stated that the revised plan included sidewalks as required by town regulations, but that he was applying for a waiver or deferment of sidewalk construction.
At the January 11, 2007 continued public bearing, the chairman of the commission and the plaintiff's attorney discussed the ownership of the property by the Tolles family before its conveyance to the plaintiff. The chairman of the commission stated that if sidewalks were added to the plan, the plaintiff would be required to return to the Inland Wetlands Commission for another consideration. Also in the record at that time was an analysis of the project by the director of public works and the commission's engineering consultant. Both recommended addition of sidewalks to the plan.
At the March 1, 2007 continued public hearing the plaintiff's surveyor referred to the commission's engineering consultant's comment that in the plaintiff's revised subdivision plan of February 8, 2007, sidewalk references had been removed. The plaintiff's attorney argued that General Statutes § 8-25 invalidated the commission's regulation requiring sidewalks. The attorney also withdrew his request for a waiver of the sidewalk requirement. At this hearing, an issue arose over whether Lane Hill Road was an existing town road. The issue of the status of Lane Hill Road was also discussed at the continued public hearing of March 8, 2007.
At the continued public hearing of March 22, 2007, the plaintiff's attorney discussed a Superior Court case holding that the commission's statutorily granted powers did not extend to requiring a developer to construct sidewalks along an existing public highway. The plaintiff's attorney introduced materials, including a letter by a former mayor, to demonstrate that Lane Hill Road was an existing town road. The commission referred the matter to its attorney. The public hearing was formally closed.
At its meeting of May 10, 2007, the commission received the town attorney's opinion dated April 26, 2007 that Lane Hill Road was not a public road and also the town attorney's separate conclusion that the town regulation requiring sidewalks was statutorily valid. The town planner indicated that the town attorney's conclusion, relying on his search of the title, was that the plaintiff owned the road to the center line. Therefore, the sidewalks would be on-site improvements.
The commissioners proceeded to discuss the matter. The chairman stated that "my greater concern is that the subdivision regulations clearly state what our requirements are for an application. And one of those requirements is to show the sidewalks as our regulations lay them out. And . . . if that is what the regulations require then that's what the application should present. And if the applicant feels different or feels that there is other case law that would support handling that in a different manner that they still should put what is required by the town and then dispute that with that information on the maps as requested." A commission member noted that "the sidewalks weren't shown on the map . . . it was removed from the map . . . [o]riginally yeah and then when they revised it they removed it." A third commissioner stated: "Well, the question I have is if it was required why wasn't it shown on the map."
The chairman continued: "All right. But what we are being asked to approve right now is that without the maps being shown the way we requested them to be. So I guess the dilemma is just because the applicant believes that our regulations don't meet the statute does that give them the right to remove them and request that we approve something without seeing what we asked. I mean my thought would be that if he truly believes that those sidewalks can't be required to be built, I don't know that there's any statute that says we can't require them to at least be shown. If he truly believes that they can't be built they should I don't know why they still shouldn't be shown so that in the event that the Town would like to build them . . ." (Supplemental Record, Item 2, partial transcript).
After discussion, the following motion was made: "To deny Lane Hill Road, Buttermilk Farms Estates, Buttermilk Farms, LLC plans last Revised 2/8/2007 for failure to show sidewalks on project site per Section 2.04 Application Requirements, Section 4.04 Plan and Profile, and Section 5.04 Sidewalk, and concern for health, safety and welfare of future residents. Also reference memo from Attorney Conlon dated April 26, 2007 including all supporting documentation therein." The motion was unanimously approved. See Return of Record, (ROR), Meeting of May 10, 2007, item 5.
The motion mentioned three of the commission's regulations. Section 2.04 provides as follows: "An application for subdivision approval shall not be considered complete unless all plans and other data as required by the following paragraphs have been submitted . . . (4) Plan and profile drawings . . . of . . . sidewalks . . . Such plans shall conform to the requirements of Section 4.01-(4)." Section 4.04 provides that "Plan profile drawings shall, at a minimum, contain the following information: b. Typical street cross-sections indicating right-of-way, pavement structure, curbs, sidewalks . . ."
The sidewalk regulation (§ 5.04) itself is more detailed and provides in part as follows: "Unless otherwise waived by the Commission, sidewalks shall be installed on both sides of all streets in residential subdivisions for the entire length of the street . . . Where a subdivision abuts an existing street, a sidewalk shall be installed on the subdivision side of such street for the entire frontage of the subdivision. Due care shall be taken in locating such sidewalks in order to preserve existing trees. Additional easement areas for sidewalks beyond the established right of way may be required to accomplish tree preservation."
As indicated above, the plaintiff initially sought a waiver of the sidewalk requirement, but withdrew its request at the time that its revised plans were submitted. See March 1, 2007, public hearing.
The record thus supports the conclusion that the sole reason given by the commission for the denial of the permit was the plaintiff's failure to comply with the above-quoted regulations, requiring the inclusion of sidewalks along Lane Hill Road in its plans. The plaintiff replies that it does not raise an issue of substantial evidence in seeking to set aside the commission's reason. Rather it contends that it was justified in omitting the sidewalks because the requirements of the regulations as applied to an existing street, as opposed to a proposed street in the subdivision, exceed the authority given to the commission under General Statutes § 8-25. See Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980): "The ultimate issue raised by this appeal is whether the trial court correctly concluded that the action of the defendant board was not arbitrary, illegal or an abuse of its discretion." See also Finn v. Planning Zoning Commission, 156 Conn. 540, 545, 244 A.2d 391 (1968) (finding no grant of authority for regulation by planning commission under statutes).
Under the circumstances of this case, this reason appears to be a "formal, official, collective statement of reasons for its action." See RYA Corp. v. Planning Zoning Commission, 87 Conn.App. 658, 675, 867 A.2d 97 (2005). The court may go no further in searching the record for other possible reasons. Id. The plaintiff states in its brief at (b) that the commission denied its subdivision application in part because of its failure to agree to make improvements to Lane Hill Road. The record does not support a conclusion that this was a reason given by the commission for denying the application.
The plaintiff states that § 8-25 and case law thereunder do not allow the commission to impose by regulation a sidewalk requirement; such a regulation would impermissibly allow the commission to order a developer to make off-site improvements. Before reaching this issue, however, the commission in this appeal contends that the issue need not be reached, as the right-of-way where the sidewalks should be placed is not off-site, but is owned by the plaintiff. The commission referred at the May 1, 2008 court hearing to subdivision map S-DA, revised to February 8, 2007 to argue that while Lane Hill Road is a paved city street, it is only 30 feet in width. The sidewalks were to be placed in the adjoining portion of the right-of-way, shown as an additional strip between the pavement and the actual subdivision. The commission argued that title to the twenty-foot strip remains with the landowner as it was never dedicated to the town.
Subdivision map S-DA shows the paved road to be thirty feet in width with ten feet on either side for a full width of fifty feet. The strip is ten feet in width between the paved road and the frontage of the subdivision lots.
The plaintiff replies that the entire fifty-foot right-of-way has been dedicated to the town. A mayor of the town wrote on October 19, 1998 that Lane Hill Road should be upgraded; neither the town planner nor the town's consulting engineer indicated that the right of way was less than fifty feet; the surveyor for the plaintiff found markers to indicate that the width of the right of way is fifty feet; and the full fifty feet is used by pedestrians and the town public works department during a snow storm.
The court need not resolve the extent of the public right-of-way in Lane Hill Road, however. As quoted above, the chairman noted similar dispute on May 10, 2007. But he stated that his concern was not the right of way issue, but the right of the commission to require sidewalks. The two other commissioners that spoke expressed surprise that the developer would not comply with the regulations. The motion, approved unanimously, indicates that the reason for the denial of the application was the "failure to show sidewalks on the project."
The town attorney in his April 26, 2007 opinion declared that the plaintiff owned to the center line of Lane Hill Road and there had been no dedication. The plaintiff's attorney had placed in the record, prior to April 16th, facts to indicate that Lane Hill Road was a public thoroughfare.
The court will not, therefore, speculate that the commission's real reason was that the sidewalks were required on land that was part of the subdivision. "In zoning cases, we have held that, when `a zoning commission has formally stated the reasons for its decision, the court should not go behind the official collective statement . . . [and] attempt to search out and speculate [on] other reasons which might have influenced some or all of the members of the commission to reach the commission's final collective decision.'" Gibbons v. Historical District Commission, 285 Conn. 755, 769, 941 A.2d 917 (2008), quoting Kaufman v. Zoning Commission, 232 Conn. 122, 142, 653 A.2d 798 (1995). See also DiPietro v. Zoning Board of Appeals, 93 Conn, App. 314, 325, 889 A.2d 269, cert. denied, 277 Conn. 925, 895 A.2d 796 (2006) (where board states its reasons on the record, the court looks no further). The commission's denial was based on the lack of sidewalks on the plan, and assumed that the traveled portion of Lane Hill Road, and its shoulder as well, was entirely a public highway.
Alternatively, the court notes that the Appellate Court opinion in Property Group v. Planning Zoning Commission, 29 Conn.App. 18, 21, 613 A.2d 1364 (1992), aff'd, 226 Conn. 684, 628 A.2d 1277 (1993) states: "Rather, that strip abuts the land to be subdivided. It is part of the right-of-way of an existing public road. Its present and future use is determined by its prior dedication as a public road, not by the subdivision plan. We conclude that the trial court correctly determined that the area in question is off-site, not on-site." See also Property Group in the Supreme Court, 226 Conn. 684, 694, 628 A.26 1277 (1993) concurring in the analysis of the Appellate Court on this point.
The court must thus resolve the plaintiff's challenge to the validity of the commission regulation which, in addition to requiring sidewalks on both sides of subdivision streets, provides in § 5.04(1) that "[w]here a subdivision abuts an existing street, a sidewalk shall be installed on the subdivision side of such street for the entire frontage of the subdivision." To begin, § 8-25 provides in relevant part as follows.
Before exercising the powers granted in this section, the commission shall adopt regulations covering the subdivision of land . . . Such regulations shall provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety . . . that the proposed streets are in harmony with existing or proposed principal thoroughfares . . . especially in regard to safe intersections with such thoroughfares, and so arranged and of such width, as to provide an adequate and convenient system for present and prospective traffic needs . . . The commission may also prescribe the extent to which and the manner in which streets shall be graded and improved and public utilities and services provided . . .
In this statute, there is authority for the commission to draft regulations to protect the health and public safety of the public, and this would presumably cover the commission's sidewalk requirement. At the same time, the plaintiff points out that the statute authorizes regulations to insure that "proposed streets" be in harmony with existing streets and intersections. From this, the plaintiff argues that the commission was not authorized to order sidewalks along an existing street. On the other hand, the statute does provide authority to the commission to regulate the manner in which streets are to be graded and improved.
Cases have not considered the issue directly. The closest case, also mentioned during the public hearing by the plaintiff's attorney, is DeCroce v. Planning Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 96 0473198 (August 20, 1997, Maloney, J.) [20 Conn. L. Rptr. 321], DeCroce concerned a similar regulation imposing a sidewalk requirement. Judge Maloney voided the order of the commission on two grounds. The proposed subdivision bordered on an existing street and was a state highway. The commission had no authority to condition approval of the subdivision on construction of sidewalks when such a requirement would illegally force the developer to secure the approval of the state DOT. The second reason given by Judge Maloney was that "the defendant commission was not authorized by General Statutes § 8-25 to require the plaintiffs to install a sidewalk on the state highway right-of-way as a condition of approval of their subdivision application." The judge, however, without further analysis, merely cites Property Group v. Planning and Zoning Commission, 29 Conn.App. 18 613 A.2d 1364 (1992), aff'd 226 Conn. 684, 628 A.2d 1277 (1993). Property Group, while helpful, does not compel the outcome in this case. The commission in that case had conditioned approval of a subdivision application on the developer's improvement of street pavement along the frontage of the subdivision. The Superior Court had voided this condition on the ground that the commission did not have the authority to order off-site improvements. The commission appealed to the Appellate Court. That court first pointed out that the regulation called for the developer to make off-site improvements if they were reasonable and necessary. The Appellate Court stated that it would initially review the record to see if there was substantial evidence of the reasonableness of the need for the street repair and only then would it consider the validity of the regulation itself. It concluded that there was insufficient evidence to support the commission's condition.
A New York trial court considered a case where a subdivision was entirely self-contained and did not face out on to a highway. The court held that a regulation requiring sidewalks along the highway would be unauthorized as the highway was a state highway where the state authority would need to give permission to construct the sidewalks. It also held that the highway was only on the subdivision map for reference purposes and was not an integral part of the subdivision. Valmont Homes v. Town of Huntington, 392 N.Y.S 2d 806 (1977). In contrast, in the present appeal, the subdivision runs along the existing highway.
Clearly the DeCroce decision stands for the proposition that a commission cannot impose its sidewalk requirement along an existing state highway; the general proposition that the regulation is void, however, need not be treated as the holding of the case. See also Ahern v. Planning Zoning Commission, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 95 0369870 (November 28, 1995, Booth, J.) explicitly making the distinction between a regulation that applies to a town road and a state highway.
The Appellate Court declared that the commission must demonstrate that it had the authority to enact its regulation involving off-site improvements under § 8-25, but the court never had to reach that issue. In addition, in finding no substantial evidence to support the commission's order, the Appellate Court stated: "There is likewise no evidence in the record tending to show that the widening of the road is necessary for public health or safety reasons . . ." Property Group, supra, 29 Conn.App. 27.
The Supreme Court granted certification to consider whether "the commission had the authority to condition approval of a subdivision application on an off-site improvement." Property Group, supra, 226 Conn. 686. The Court stated that the grant of certification was based on the Appellate Court's statement that § 8-25 does not authorize a planning commission to require a developer to improve an existing abutting public highway where no intersecting subdivision streets are being created. Id., 691.
The Court decided in the end, however, not to resolve the certified question, although "we recognize that it is a significant one for those persons who have an interest and a stake in land use control." Id.; 695 n. 8. It admitted that in a prior case, Reed v. Planning Zoning Commission, 208 Conn. 431, 544 A.2d 1213 (1988), the Court left unanswered whether the town's regulations could allow it to condition granting an application on the applicant's improvement of the subject public access road. The Court noted that Professor T. Tandro had urged it to resolve the issue, but it was reluctant to give an advisory opinion. Id. The Court proceeded to affirm the Appellate Court on its lack of substantial evidence rationale.
The issue of the authorization provided to the commission under § 8-25 to mandate off-site improvements continues to be an open question. See, e.g., RYA Corp. v. Planning Zoning Commission, 87 Conn.App. 674, n. 12, 867 A.2d 97 (2005). The Supreme Court recently ruled that a planning commission did not have the authority to deny a subdivision application because of off-site traffic congestion. Pansy Road, LLC v. Town Plan Zoning Commission, 283 Conn. 369, 926 A.2d 1029 (2007). This does not mean that the court must also conclude that the commission does not have statutory authority to require sidewalks along an existing town road. Rather the resolution of the issue should depend on the language of the statute, the factual circumstances and public policy as advanced by the commission. See Property Group, supra 226 Conn. 696, n. 8.
The court in King's Highway Associates v. Planning Zoning Commission, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 06 4020001 (August 13, 2007, Corradino, J.) supports a finding that the commission's regulation in this case valid. In King's Highway, the North Haven regulation required sidewalks on both sides of all streets. The court concluded that the regulation could be interpreted to require the developer to install sidewalks even on the other side of the street from the subdivision and that this interpretation could not stand. In footnote three, the court in King's Highway stated that "[T]hese regulations are poorly drafted. The town would certainly have an interest and the right to require a sidewalk all along a subdivision property which borders on a street."
The court did acknowledge that Property Group left open the issue of whether offsite improvements can be required when subdivision applications are before a zoning commission, but held that these regulations involving installation of a sidewalk opposite a subdivision would violate due process.
The court concludes that absent waiver, commission regulation § 5.04(1), requiring the construction of sidewalks on the subdivision side of an existing town road, is valid. This regulation is reasonably related to the functions of the commission, as set forth in General Statutes § 8-25, to adopt regulations to insure the health and safety of the public. Therefore, the plaintiff's appeal from the denial of its subdivision application is dismissed, without costs to either party.
As indicated above, Lane Hill Road is a narrow, winding road in poor condition, blocked off in part in the winter months. The commission certainly could take this fact into account in requiring sidewalks in the plaintiff's subdivision plans.