Opinion
No. CV07 401 16 34 S
January 9, 2009
MEMORANDUM OF DECISION
This administrative appeal involves an application to subdivide into four lots parcels 84 and 85 at Soundview Lane in New Canaan. The subdivision application filed by the applicants sought to add two new buildable lots. Under the subdivision plan, two parallel accessways, each of which are 25 feet in width, serve all four lots. A variance granted in 1975 permits access to the property over a 50-foot right-of-way located in a four-acre zone. The subdivision application was approved by the New Canaan planning and zoning commission (PZC) and the decision was published on April 5, 2007.
"Accessway 84A serves parcel 84 and parcel 144. Accessway 85A serves parcel 85 and parcel 145. Accessway 144A serves parcel 144 and 145."
This Court must decide: (1) whether the PZC acted illegally, arbitrarily and in abuse of its discretion by approving the subdivision application for parcels 84 and 85 at Soundview Lane and if it was supported by substantial evidence: (2) whether the 1975 variance is still valid; and (3) whether the proposed accessway complies with the zoning and subdivision regulations.
A. Facts
On October 30, 2006, the applicants applied to the New Canaan Planning and Zoning Commission for approval to subdivide parcels known as 84 and 85 located at Soundview Lane in New Canaan into four lots. The subdivision application sought to add two new buildable lots. Lots 84 and 85 together total 8.666 acres and are situated in the two-acre residence zone. Lot 84, also known as 33 Soundview Lane, is owned by Andrew C. Pearson and Shiva Sarram. (ROR Exs. 82 83.) Lot 85 is jointly owned by Pamela W. Gores and Gabriel S. Gilligan and Michelle Hubbard, as Trustees, and William Earls is the contract purchaser for this lot (ROR Exs. 81, 83). As required by their warranty deed, Mr. Pearson and Ms. Sarram agreed to convey certain portions of Lot 84 to Pamela Gores to be included in the proposed lots so that the subdivision fully complies with the zoning and subdivision regulations.
Pamela Gores purchased the subject property over 50 years ago. In 2005, Ms. Gores contacted William Earls and offered to sell him parcel 85. Earls accepted the offer and plans to build modest, environmentally responsible homes. Earls created a plan that incorporates environmentally sound water drainage systems which comply with the state regulations concerning the flow of rain water. (ROR, Ex. 6, p. 31.) Three engineers testified that the drainage systems would adequately control drainage. (ROR, Ex. 6, pp. 16-72, 31; Exs. 37 43.) The plaintiffs want to preserve the current state of their neighborhoods and have concerns about drainage.
Under the subdivision plan, the parcels are accessed from Soundview Lane, a public road in New Canaan, by a 50-foot right-of-way. (ROR, Ex. 107.) Some history is required. In 1952, when Pamela Gores took title to the subject property, the warranty deed included:
a right to pass and repass for all lawful purposes in common with others to whom a similar right has been or may hereafter be granted or reserved over a strip of land 50 feet in width to and from Laurel Road (now known as Soundview Lane) as is more particularly set forth in the . . . deed from S. Bayard Colgate to Anne Burr Colgate.
(ROR, Ex. 81). The fifty-foot right-of-way provides the property with frontage on and access to Soundview Lane and extends through the property of the plaintiffs, James A. and Patricia Conforti, which has over 350 feet of direct frontage on Soundview Lane. (ROR, Ex. 84 107.)
In August of 1974, Ms. Gores applied to the New Canaan Zoning Board of Appeals (hereinafter the "Board"), requesting a variance of § 60-4.4 to access "property located in a two acre residence zone over a 50 foot wide right-of-way lying in the 4 acre residence zone." (ROR, Ex. 72.) Section 60-4.4 of the New Canaan Zoning Regulations in effect at that time provided that: "In a Residence Zone, no . . . right-of-way . . . shall . . . used for access to any land, which land is . . . located in a zone in which . . . there is permitted a residential use of greater density than is permitted in the zone in which the . . . right-of-way . . . is located." On September 9, 1974, the Zoning Board unanimously granted the variance without conditions, stating that the applicant demonstrated a valid hardship because no other access to her land existed from Soundview Lane except across the fifty-foot-wide right-of-way. (ROR, Ex. 74.)
Ms. Gores failed to exercise the 1974 variance within the required time. In September 1975, Ms. Gores reapplied to the Board for the same variance, which was granted on October 14, 1975 (ROR, Ex. 80). Neither the 1974, nor the 1975 variance limited or conditioned the approval to any number of lots. It simply said that the Board granted a variance of "Section 60-4.4 to permit access to the property located in a two acre zone over a 50 foot wide right-of-way lying in the four acre zone." (ROR, Exs. 74 80.)
Under the approved subdivision plan, two parallel accessways each of which are twenty-five feet in width together serve all four lots. The subdivision plan depicts two accessways which connect to a third — Accessway 144A, and each accessway serves no more than two lots. (ROR, Ex. 107.) The plaintiffs contend there was not substantial evidence to justify the Commission's decision approving the subdivision application.
Beginning in November 2006, the Commission held five separate public hearings over several months regarding the subdivision application. The applicants presented numerous exhibits, maps, documents, and testimony from expert architects and engineers. The Commission received detailed and extensive reports from the applicants regarding drainage computations. At the hearings, the applicants' engineer explained in detail the provisions made for drainage, the topography, the existing stone walls, the proposed conservation easement and the construction sequencing plan. (ROR, Ex. 6, pp. 16-27.) He explained that, although the property historically had runoff problems, developing the property would not necessarily be detrimental to the neighbors. If the runoff is properly managed, he opined that a change would be positive rather than negative. (ROR, Ex. 6, pp. 16-27-31.)
The Commission obtained reports from the Town Engineer and retained its own independent engineer. In a memorandum dated November 21, 2006, the Town Engineer stated that he was satisfied that the plan was in accordance with the Town's drainage policy. After a thorough review and complete analysis, the engineer retained by the Commission rendered an independent opinion that he was satisfied with the proposed subdivision of the property. He concluded that: "if the proposed plan of development is followed, the property can be developed so that there would not be an adverse impact on adjacent properties or local drainage patterns." (ROR, Ex. 37.) The New Canaan Health Department, as well as the State of Connecticut, approved the proposed septic systems. (ROR, Ex. 56 45.)
While plaintiff's engineer raised concerns he did not express an opinion that the subject property could not, or should not, be developed. While he "expressed concern about the adequacy of the soils to support sewage disposal and expressed apprehension about the proposed septic systems and whether there was adequate renovation time for waste water." He expressed no opinion that the site could not be developed.
As noted, the Commission held five exhaustive hearings over the span of several months and engaged in a frank and thorough discussion at its regular meeting on March 27, 2007; the concerns raised by the plaintiffs were fully addressed.
In light of the evidence presented, the majority of the commissioners found that the subdivision complied with the regulations and sufficiently protected the down gradient properties.
With regard to the issue of whether the lot area of Parcel 144 contains the 112.5 feet required lot width at the western portion of the lot, the portion where the accessway intersects the lot line, the Town Planner states in his memorandum to the commission prepared for the February 27, 2007 hearing, that: "given the difficult and odd shape of the lot, the definition is difficult to apply." (ROR, Ex. 19, p. 2.) He explained further that because lot width is typically measured along the line that is generally parallel with the street, it was his opinion and that of the Town Attorney and the town Engineer that "the northwesterly properly line, which is approximately 194 feet in length, is the correct in line in determining the lot width. Therefore, the northwestern corner of the lot would comply with the lot width (requirement)." (ROR, Ex. 19, p. 2.) He additionally concluded that: "the lot area where the accessway intersects with the lot should not be deducted from the calculations of the lot area because the accessway opens into the widest portion of the lot and that it is up to the Commission to determine if the lot lines as constructed are appropriate." (ROR, Ex. 19, p. 2) the Town Attorney concurred. (ROR, Ex. 71, p. 2.)
During their deliberations on March 27, 2006, the commissioners specifically addressed these issues. (ROR, Ex. 16, pp. 44-45.) They concluded that the Commission was permitted to find that the lot calculations were appropriate because the regulation at issue specifically permits the Commission to exercise such discretion. (ROR, Ex. 26, pp. 44-45; see also Ex. 71, p. 2.)
The Commission additionally heard evidence regarding whether the 1975 variance applied to the entire subject property, and after considering both the plaintiffs' and the applicants' arguments, as well as legal analysis from the Town Attorney, it decided that the variance does in fact apply to the entire property. (ROR, Ex. 11, pp. 22-24; Ex. 71 51.) The town Attorney advised the Commission that neither the 1974 expired variance nor the 1975 variance that is currently valid limited the number of lots to which the variance could apply and the Board at that time did not specifically add any conditions to the variance. (ROR, Ex. 11, p. 23.)
The applicant also presented evidence which demonstrated that the configuration of the accessways complies with the zoning and subdivisions regulations. They submitted two prior subdivision applications approved by the Commission which incorporated a similar layout with two adjacent accessways together serving four lots connected to a separate accessway continuing on and serving the two remaining lots. (ROR, Exs. 51, 86-87.)
The Commission voted to approve the subdivision application, along with conditions, at the Planning and Zoning meeting on March 27, 2007. (ROR, Exs. 25-26.) Legal notice of the decision was published in the New Canaan Advertiser on April 5, 2007. (ROR, Ex. 27.)
B. Standing
"The question of aggrievement is essentially one of standing." McNally v. Zoning Commission, 225 Conn. 1, 7, 621 A.2d 279 (1993). Those who own land which abuts or is within a radius of one hundred feet of the land involved in any decision of a zoning commission, planning commission, planning and zoning commission or zoning board of appeals are statutorily aggrieved and need not prove aggrievement. See General Statutes § 8-8(a); Smith v. Planning Zoning Board, 203 Conn. 317, 321, 524 A.2d 1128 (1987).
C. Scope of Review
General Statutes 8-6 entrusts [a zoning] commission with the function of interpreting and applying its zoning regulations. This court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts. The plaintiffs have the burden of showing that the commission acted improperly. This court can sustain the [plaintiffs'] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal. It cannot substitute its judgment for that of the zoning commission and must not disturb decisions of local commissions as long as honest judgment has been reasonably and fairly exercised. Dimopoulos v. Planning and Zoning Commission, 31 Conn.App. 380, 383, 625 A.2d 236, cert. denied, 226 Conn. 917, 628 A.2d 987 (1993).
"Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). "When a zoning agency 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." Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
D. PZC Conformity with Zoning and Subdivision Regulations and the Substantial Evidence Standard
"In appeals from administrative zoning decisions . . . the decisions will be invalidated even if they were reasonably supported by the record, if they were not supported by substantial evidence in that record. The substantial evidence standard requires enough evidence 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." (Citations omitted; internal quotation marks omitted.) Kaufman v. Zoning Cominission, 232 Conn. 122, 151, 653 A.2d 798 (1995). "If even one of the reasons given by the board for its denial is supported by substantial evidence, the board's decision must stand." Mobil Oil Corp. v. Zoning Board of Appeals, 35 Conn.App. 204, 210, 644 A.2d 401 (1994). Where the zoning authority has not provided the reasons for its decision, the court must review the record to determine whether the decision is supported by substantial evidence in the record. See A.P.W. Holding Corp. v. Planning and Zoning Board, 167 Conn. 182, 186, 355 A.2d 91 (1974). "Where a zoning authority has stated the reasons for its action, a reviewing court may only determine if the reasons given are supported by the record and are pertinent to the decision." Spectrum of Connecticut, Inc. v. Planning and Zoning Commission, 13 Conn.App. 159, 164-65, 535 A.2d 382, cert. denied, 207 Conn. 804, 540 A.2d 373 (1988).
The PZC did not act illegally, arbitrarily or in abuse of its discretion in determining that the New Canaan zoning and subdivision regulations relevant to connected accessways, interior and rear lots were complied with in the subdivision application at issue where substantial evidence in the record demonstrates such compliance.
Zoning regulation § 2.2 defines lot area. Although the lot widths of parcels 85, 144 and 145 were disputed as not being within what is required by § 2.2, the applicant's surveyor determined the width meets the § 2.2 lot area regulation. The PZC had no reason to reject the surveyor's finding where no evidence was presented to contradict such. Kaufman v. Zoning Commission, 232 Conn. 122, 156-57, 653 A.2d 798 (1995) ("Although the commission would have been entitled to deny an application because it did not believe the expert testimony . . . the commission [would have] the burden of showing evidence in the record to support its decision not to believe the experts — i.e., evidence which undermined either the experts' credibility or their ultimate conclusions"). Further, the PZC's decision may cannot be overturned where the record shows it was based on substantial evidence presented. See Rockville Fish Game Club, Inc. v. Inland Wetlands Commission, 231 Conn. 451, 459, 650 A.2d 545 (1994).
In the defendants' briefs, it is made clear that the PZC relied on various sources of information in approving the subdivision application under the above stated subdivision and zoning regulations. "The applicants presented numerous exhibits, maps, documents, and testimony from expert architects and engineers, in support of the subdivision application." Testimony from the applicants' engineer included discussion of "drainage, topography, the existing stone walls, the proposed conservation easement and the construction sequencing plan." The commission "also obtained [favorable] reports from the town engineer . . . and retained its own independent engineer" who was satisfied with the "proposed subdivision of the property as a whole." "The New Canaan health department as well as the State of Connecticut approved the proposed septic systems." "[T]he commission held five public hearings over the span of several months and engaged in a thorough discussion at its regular meeting held on March 27, 2007." Further, the attorneys for the defendants represented at oral argument on November 14, 2008, that the town fire marshal approved the accessway. Thus, the PZC's stated grounds for supporting the subdivision application are supported by the record with substantial evidence which was apropos to its decision to grant the application.
E. 1975 Variance
"[I]t is well settled that variances run with the land and are not personal in nature." Reid v. Zoning Board of Appeals, 235 Conn. 850, 859, 670 A.2d 1271 (1996). "Once a variance is granted by the zoning board of appeals and recorded pursuant to § 8-7 [of] the General Statutes, it is a legal status granted to the parcel of land without regard for ownership and runs with the land. It is an authorization obtained from the zoning board of appeals to use the property in a manner otherwise forbidden by the zoning regulations." (Citations omitted.) Adams v. Warren Planning and Zoning, Superior Court, judicial district of Litchfield, Docket No. CV 97 0074240 (December 19, 2007, Pickett, J.T.R.). "By its very definition, a variance is granted with respect to a particular piece of property; it can be enjoyed by not only the present owner but by all subsequent owners." Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972). Unless a variance by its own terms limits the variance, there is no limit. See Dodson Boatyard, LLC v. Planning and Zoning Commission, 77 Conn.App. 334, 339, 823 A.2d 371, cert. denied, 265 Conn. 908, 831 A.2d 248 (2003).
General Statutes § 8-6(b) provides: "[a]ny variance granted by a zoning board of appeals shall run with the land and shall not be personal in nature to the person who applied for and received the variance. A variance shall not be extinguished solely because of the transfer of title to the property or the invalidity of any condition attached to the variance that would affect the transfer of the property from the person who initially applied for and received the variance."
"In Chatlos v. Planning and Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV 86 0218899 (January 22, 1986, Jacobson, J.) (1 C.S.C.R. 58), the court held that the Fairfield planning and zoning commission abused its discretion when it chose to ignore a variance [granted] by the zoning board of appeals. The court stated that a planning and zoning commission is not within its authority to deny a subdivision or resubdivision application on the grounds that the applicants are not in compliance with the town's zoning regulations where the applicants have already received a variance from those zoning regulations . . . In Camp v. Planning and Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 95 0319318 (October 13, 1995, Riefberg, J.), the court held that a planning and zoning commission was not within its authority to deny a subdivision application on the grounds that the applicants are not in compliance with the town's zoning regulations where the applicants have already received a variance from those zoning regulations. Similarly, in Adams v. Planning and Zoning Commission, . . . the court concluded that after the zoning board of appeals granted the variance, that became the applicable zoning regulation for the subject property." (Citations omitted; internal quotation marks omitted.) Scandia Construction and Development Corp. v. Planning and Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 01 0341705 (November 16, 2001, Ginocchio, J.).
In the present matter, the zoning board unanimously granted a variance of zoning regulation § 60-4.4 (now § 3.6.D.3) for land then owned by Pamela W. Gores to access "property located in a two acre residence zone over a 50 foot wide right of way lying in the 4 acre residence zone," without any conditions, on September 9, 1974. That variance lapsed but was reapplied for and granted on October 14, 1975. The board granted in 1975 a variance of "Section 60-4.4 to permit access to the property located in a two acre zone over a 50 foot wide right-of-way lying in the four acre zone." The 1975 variance contained no limitations or conditions of approval and is still valid today. Therefore, the 1975 variance is currently valid and operates as the relevant zoning regulation for the property at issue, allowing access to the property, including the proposed subdivision lots, over the fifty-foot-wide right-of-way described in the variance. The PZC's decision to allow the subdivision application in light of the 1975 variance was supported by both Connecticut law and by substantial evidence in the record where it examined the variance certificate in the land records and the minutes of the New Canaan zoning board of appeals relative to that variance.
It is well settled that "[a] zoning board of appeals may, without express authorization, attach reasonable conditions to the grant of a variance." Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 161, 763 A.2d 1011 (2001). The PZC did not attach any such conditions here, however.
F. Proposed Connected Accessway
New Canaan zoning regulation § 2.2 defines an accessway in relevant part as "[l]and containing a driveway intended to provide access to a rear lot or to land(s) of others . . . [T]he extent of an accessway shall be that area beginning at the public street providing access and ending at the point where fifty percent (50%) of the required lot width is obtained, or that area as approved by the commission." New Canaan subdivision regulation § 55-2.1 "defines [an] accessway as `[a] private way for vehicular traffic serving not more than two (2) interior residential lots, each of which shall conform to the minimum area required for a zone unit without including the area of such accessway.' Section 55-4.7 of the subdivision regulations provides that accessways shall be at least 25 feet in width, and that where two accessways abut one another, the commission may require the installation of a common traveled way in lieu of two separate traveled ways."
"Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes . . . An agency's factual and discretionary determinations are to be accorded considerable weight . . . [A] court that is faced with two equally plausible interpretations of regulatory language properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation." Wood v. Zoning Board of Appeals, 258 Conn. 691, 698-99, 784 A.2d 354 (2001). A zoning board of appeals must "correctly [interpret] the section of the regulations and [apply] 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 decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal." (Citations omitted; emphasis added.) Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). "The planning commission, acting in its administrative capacity . . . has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance." Reed v. Planning and Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988).
In the present matter, the PZC "approved a common traveled way for the abutting accessways (accessway 84A and 85A), but each segment is still 25 feet wide, for a combined width of 50 feet, and the combined segments serve no more lots in total (4) than the sum that could be served by the individual segments (2 each). After two lots branch off . . . the remaining segment narrows to what is allowed for an accessway serving two lots (25 foot width)." Under the substantial evidence in the record with which the PZC made its decision, the PZC did not act unreasonably, arbitrarily or illegally in finding that the application in this matter complied with relevant subdivision and zoning regulations. See Paige v. Town Plan Zoning Commission, 35 Conn.App. 646, 656, 646 A.2d 277(1994), rev'd on other grounds, 235 Conn. 448, 668 A.2d 340 (1995) (finding that Fairfield planning and zoning commission did not act unreasonably, arbitrarily or illegally in finding a horseshoe road with one name and one entrance from a public road was three separate intersecting streets and not a cul-de-sac). The PZC enjoys discretion to approve the extent of an accessway under the plain meaning of zoning regulation § 2.2 and that regulation does not specifically prohibit connected accessways. See Wood v. Zoning Board of Appeals, supra, 258 Conn. 699 ("[A] court that is faced with two equally plausible interpretations of regulatory language properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation"). Each accessway, considered individually, does not violate zoning regulation § 2.2 or subdivision regulation § 55-2.1. See Paige v. Town Plan Zoning Commission, supra, 35 Conn.App. 656. Further, evidence was before the PZC that a similar design was provided for in the "multiple lot-accessway per definition" diagram in § 2.2 of the zoning regulations and that it had approved similar accessway plans under its regulations in the past.
The proposed accessways do not each serve more than two lots. The plaintiffs Confortis' lot is not an interior lot under the subdivision regulations nor a rear lot under the zoning regulations and thus should not be included in the number of lots serviced by the accessways. Subdivision regulation § 55-2.1 prohibits an accessway from serving "more than two (2) interior residential lots." Zoning regulation § 2.2 defines an accessway in relevant part as "[l]and containing a driveway intended to provide access to a rear lot or to land(s) of others." Zoning regulation § 2.2 defines a rear lot as "[a] lot: not having the required lot width on a public street, and having access to the street via an accessway or a strip of land that may be part of a rear lot, and where the building site is located generally to the rear of other lots having frontage on the same street." The Confortis' lot is a front lot because it has substantial direct frontage on a public street and may directly access the public street. This is true regardless of the Confortis' decision to relocate their driveway onto the right-of-way. Thus, the accessway is not providing access to an interior or rear lot of the Confortis' as defined by the regulations, and the Confortis' lot is not included in the analysis of the number of lots serviced by the accessway.
Similarly, lot 84 does not meet the definition of a rear lot under zoning regulation § 2.2 because no lot is located between it and the public street. Rather, the subject property to be subdivided has frontage on the public street of Soundview Lane through the right-of-way. No "lot" is in between lot 84 and the public street, only a strip of the right-of-way. Lot 84 is therefore not a rear (or in the alternative, interior) lot and should not be included in the number of lots serviced by the accessway. Thus, the accessways comply with the applicable subdivision and zoning regulations, and the PZC did not act illegally, arbitrarily or in abuse of its discretion by permitting the subdivision application in this regard where it based its decision on the substantial evidence before it.
The PZC did not act illegally, arbitrarily, or in abuse of its discretion by approving the subdivision application for lots 84 and 85 since its decision was supported by substantial evidence. The 1975 variance is still valid and the proposed accessway complies with the relevant zoning and subdivision regulations because the plaintiffs Confortis' lot is not an interior lot and lot 84 does not meet the definition of a rear lot.
The decision of the New Canaan Planning and Zoning Commission is sustained.