Opinion
No. CV 05 4002186 S
October 12, 2006
MEMORANDUM OF DECISION
The plaintiff, Douglas Building, Inc., appeals from a decision of the defendant, the planning and zoning commission of Woodstock, denying the plaintiff's subdivision application to develop an eight-lot subdivision.
The plaintiff submitted a subdivision application to the planning and zoning commission on November 17, 2004. (Return of Record [ROR], Exhibit [Exh.] 1.) Its application sought to subdivide approximately 47 acres located on Pulpit Rock Road in Woodstock, Connecticut into eight lots on approximately 20 acres of the proposed site, while leaving approximately 27 acres as open area. (ROR, Exhs. 1, 88, pp. 3-8.) The application was accepted by the commission at its monthly meeting on November 18, 2004, and was scheduled for a public hearing in December. (ROR, Exh. 8.) A public hearing was held on December 16, 2004. (ROR, Exh. 88.) Pursuant to General Statutes § 22a-19(a), Kenneth A. Rapoport filed a verified petition for intervention dated December 16, 2004, for the purpose of raising environmental issues with regard to the plaintiff's application. (ROR, Exhs. 20, 21.) Legal notice of the hearing was published in the Norwich Bulletin December 1 and December 13, 2004. (ROR, Exh. 11.) The hearing commenced on December 16, 2004 and was continued to January 20, 2005. (ROR, Exhs. 24, 88.) A site walk was conducted on January 15, 2005. (ROR, Exh. 30.) The public hearing was continued to February 17, 2005 and concluded on that date. (ROR, Exhs. 40, 90.) The commission voted to deny the application on April 21, 2005. (ROR, Exh. 83, p. 6.) On April 28, 2005, the commission published notice of its decision in the Norwich Bulletin. (ROR, Exh. 73.)
Pursuant to General Statutes § 8-8, the plaintiff commenced this appeal by service of process on the commission's chairperson and Woodstock's town clerk on May 13, 2005. (Marshal's Return.) On July 13, 2005, the intervenor, Kenneth A. Rapoport, a named defendant in the plaintiff's appeal, filed an answer. The commission filed an answer and a return of record on January 12, 2006. The parties filed briefs. The appeal was heard by this court on June 1, 2006.
"It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Bongiorno Supermarkets, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. The owner of the property, which is the subject of the application before the commission, is aggrieved for the purpose of appealing the commission's decision. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). Through evidence, the plaintiff may prove aggrievement at trial. Id.
In the present case, the plaintiff alleges that it is statutorily and classically aggrieved by the defendant's decision as the owner of the premises that was the subject of the application. (Complaint, ¶ 9.) Based on the evidence offered at trial, including testimony from Kevin Douglas, secretary-treasurer of Douglas Building, and the deed between Douglas Building and Mary F. Brown for the subject property, this court found that the plaintiff met its burden of proof on the issue of aggrievement. Winchester Woods Associates v. Planning Zoning Commission, supra, 219 Conn. 308 ("there was sufficient evidence before the court as to the plaintiff's status as owner of the property for the court to conclude that the plaintiff was aggrieved").
General Statutes § 8-8(b), in relevant part, provides, "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. 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. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court." General Statutes § 8-8(f)(2) further provides that "[f]or any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57. Such service shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal."
General Statutes § 52-57(b)(5) provides in relevant part that "[p]rocess in civil actions against the following-described classes of defendants shall be served as follows . . . against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
The commission published notice of its decision to deny the plaintiff's application in the Norwich Bulletin on April 28, 2005. (ROR, Exh. 73.) The plaintiff caused process to be served upon the commission, by service upon the Woodstock town clerk, upon whom two copies were served, and the chairperson of the commission at his place of abode on May 13, 2005. (Marshal's Return.) Process was also served upon counsel for Rapoport on May 13, 2005. (Marshal's Return.) Therefore, the court concludes that service was timely and proper.
"[A] municipal planning commission, in exercising its function of approving or disapproving any particular subdivision plan, is acting in an administrative capacity . . . The planning commission, acting in its administrative capacity herein, has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance . . . If it does not conform as required, the plan must be disapproved." (Citations omitted; internal quotation marks omitted.) Reed v. Planning Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988).
"In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was reasonable, arbitrary or illegal . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." (Internal quotation marks omitted.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 669, 894 A.2d 285 (2006). "In reviewing the actions of an administrative agency, [a court] is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record." (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).
"[A] tie vote on [a] motion to approve [a subdivision application] is tantamount to a rejection of the application." Smith-Groh, Inc. v. Planning Zoning Commission, 78 Conn.App. 216, 224, 826 A.2d 249 (2003). "In such a case, consequently, the board, as a body, [can] give no reason for its failure to act although the result [amounts] to a rejection of the application." Hall v. Planning Zoning Board, 153 Conn. 574, 576, 219 A.2d 445 (1966). "[W]here the commission has failed to state its reasons, the court is obligated to search the record for a basis for its action." Smith-Groh, Inc. v. Planning Zoning Commission, supra, 227; see also Parks v. Planning Zoning Commission, 178 Conn. 657, 662, 425 A.2d 100 (1979). In reviewing the record, "[c]ourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions." (Internal quotation marks omitted.) DeBeradinis v. Zoning Commission, 228 Conn. 187, 199 n. 7, 635 A.2d 1220 (1994).
In the present case, the commission acted in an administrative capacity when it denied the plaintiff's subdivision application. Therefore, its decision will only be invalidated if it is "not supported by substantial evidence in the record." Heithaus v. Planning Zoning Commission, supra, 258 Conn. 221. Since the commission's decision on the plaintiff's subdivision application resulted in a tie vote, it is an equivalent to a rejection of the application, and the commission could not state its reasons for a denial. Because the commission did not state any reasons for its decision, this court must search the record to determine the basis for its decision.
As previously set forth, the commission denied the plaintiff's application for an eight-lot subdivision based upon a tie vote taken by the commission at its April 21, 2005 meeting. (ROR, Exh. 83, p. 6.) The plaintiff appeals on the basis that the commission acted illegally, arbitrarily and in abuse of its discretion when it denied the application because: (1) the application conformed to Woodstock's subdivision regulations; (2) the commission based its decision on factors not contained in the regulations and/or improperly interpreted the regulations; (3) one or more members of the commission voted without having attended or familiarized themselves with the content of all of the public hearings; (4) the commission allowed "irrelevant . . . testimony by the [i]ntervenor and [his] witness . . . [and] failed to follow the statutory requirements for handling an intervention petition"; (5) the commission relied on the opinions of professionals on technical matters as a substitute for its own judgment; (6) the commission failed to approve this application in light of the pending moratorium, which would prohibit the plaintiff from modifying and resubmitting its application; (7) the commission violated the plaintiff's due process rights in "accepting irrelevant or prejudicial testimony and/or in not allowing the plaintiff full opportunity for cross examination of expert witnesses"; and (8) the commission's failure to approve the application in light of the pending moratorium "amounts to a taking . . . without due process of law." (Complaint, ¶ 10.)
Although the plaintiff makes this allegation in its complaint, it subsequently does not brief this allegation. "[The Supreme Court is] not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . These same principles apply to claims raised in the trial court." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). Therefore, because the plaintiff did not brief this allegation, it has abandoned it.
The plaintiff falls to brief this allegation. Therefore, it has abandoned it. Connecticut Light Power Co. v. Dept. of Public Utility Control, supra, 266 Conn. 120.
First, the plaintiff argues that the commission acted illegally, arbitrarily and abused its discretion because the commission failed to approve its subdivision application which conformed to Woodstock's regulations. It contends that the highway foreman determined that its application met all drainage requirements; the health department had previously given its approval to the application; and that the town engineer stated that sightlines from the proposed road were adequate to meet the regulations.
In response, the commission argues that there is sufficient evidence in the record from which it could have concluded that the plaintiff's application did not comply with the subdivision regulations. Specifically, the commission contends that the plaintiff's application violated several sections of the regulations. For example, the commission states that the plaintiff's application violated § 507, entitled "Erosion and Sedimentation Control Plan Requirements." Second, the commission argues that the plaintiff's application does not comply with § 601 of the regulations, which addresses design standards for subdivisions, in that the proposed street does not meet grading standards. Also, it contends that the plaintiff's application does not comply with § 602, entitled "Street Layout," because its proposed plan does not meet sightline requirements as stated therein. Further, it maintains that the plaintiff's proposed subdivision does not comply with § 501(d) which requires applicants to submit drainage information with its application.
In addition to the commission's arguments, Rapoport also argues that the commission had substantial evidence in the record to conclude that the plaintiff's application did not conform to Woodstock's subdivision regulations. Specifically, he contends that the plaintiff's application violated § 411 of the regulations, entitled "Conformity to the Regulations and Plans," which allows the commission to consider the plan of open space and conservation in determining whether to approve an application.
General Statutes § 8-25 provides in relevant part: "No subdivision of land shall be made until a plan for such subdivision has been approved by the commission . . . 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 . . . and that the proposed streets are in harmony with existing or proposed principal thoroughfares shown in the plan of conservation and. development as described in section 8-23, 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." Similarly, § 101 of Woodstock's subdivision regulations, entitled "Purpose and Authority," provides: "[L]and to be subdivided shall be of such character that it can be used for building purposes without danger to health and safety . . . Proposed streets shall be in harmony with existing and proposed streets and thoroughfares, especially as regards [to] safe intersections, and shall be so arranged and of such width as to provide an adequate and convenient system for present and prospective traffic needs."
"[A] municipal planning commission, in exercising its function of approving or disapproving any particular subdivision plan, is acting in an administrative capacity . . . The planning commission, acting in its administrative capacity herein, has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance . . . If it does not conform as required, the plan may be disapproved." (Citations omitted; internal quotation marks omitted.) Reed v. Planning Zoning Commission, supra, 208 Conn. 433. Because the commission's tie vote resulted in a denial of the plaintiff's application, this court must search the record to determine the commission's basis for its action. Smith-Groh, Inc. v. Planning Zoning Commission, supra, 78 Conn.App. 227.
First, the plaintiff argues that the commission acted illegally, arbitrarily and abused its discretion when the commission failed to approve its subdivision application which conformed to Woodstock's regulations. In response, the commission argues that the plaintiff's application did not conform to the regulations. Specifically, the commission contends that the plaintiff's application did not comply with §§ 507(b), 501, 601 and 602. Each section will be discussed in turn.
Section 507(b) provides in relevant part: "Plans for soil erosion and sediment control shall be developed in accordance with these regulations using the principles as outlined in . . . the Connecticut Guidelines for Soil Erosion and Sediment Control (1985), as amended. Soil erosion and sediment control plans shall result on a development that: minimizes erosion and sedimentation during construction; is stabilized and protected from erosion when completed; and does not cause off-site erosion and/or sedimentation."
Marc Goodin, a licensed professional engineer; (ROR, Exh. 61); retained by Rapoport testified in front of the commission about, inter alia, soil erosion and sedimentation control, and he also submitted a written report. (ROR, Exh. 60; Exh. 90, pp. 13-23.) Goodin reported that "[t]he [p]lans, as currently provided, do not provide for sedimentation basin storage, staging or routing plans." (ROR, Exh. 60, p. 5.) Specifically, Goodin addressed, inter alia, the following soil erosion and sedimentation control issues in his report. "Handling of erosion during the construction of this particular site will be a major concern, due primarily to the steepness of the site . . . Prior to paving and stabilization of the roadside ditches, the construction will result in significant erosion due to steep slopes . . . We recommend that the applicant provide details on the plans in accordance with the [Connecticut Guidelines for Soil Erosion and Sediment Control] for construction of the temporary diversion swales to direct drainage runoff during construction directly into the sedimentation basins, especially between phases." (ROR, Exh. 60, p. 6.) During the public hearing on February 17, 2005, Goodin expressed similar concerns to the commission: "I don't believe that the plans as submitted are complete, that there's [insufficient] information for . . . this commission to know that we have the safety items that are required by your regulations." (ROR, Exh. 90, p. 24.)
Section 501 sets forth the requirements for site plans and profiles that the plaintiff must submit to the commission as its final subdivision plan. Section 501(d) requires that the plaintiff submit the following information on drainage systems: "watershed data used in the design of the system, all calculations used in the drainage design and all drainage structures and easements" with its subdivision application. In Goodin's report, he comments on the potential impact the plaintiff's proposed subdivision would have on drainage systems in the outlying area. "Development, especially when undertaken on steep slopes, is known to increase several pollutants harmful to wetlands, ground water and surface waters . . . [which could] cause harmful effects." (ROR, Exh. 60, p. 4.) He predicted that "[t]he proposed development will increase the peak drainage flow and drainage volume." (ROR, Exh. 60, p. 4.) Finally, he emphasized to the commission that the plaintiff did not provide the calculations of watershed and watercourses, as required by section 501(d). In addition, John Guszkowski, the town planner, submitted a memorandum to the commission on December 29, 2004 in which he stated that drainage issues "merit serious consideration." (ROR, Exh. 28, p. 3.)
Section 601 of chapter six of Woodstock's subdivision regulations outlines minimum design standards required "[to promote] . . . the public health, safety and general welfare." For example, Table one in section 602, entitled "Street Design Standards," requires a maximum grade of 4 percent within fifty feet from an intersection and the grade at an intersection cannot exceed 1 percent. Goodin explained in his report that the purpose behind these regulations "is to ensure that vehicles entering the intersection from the uphill side will have sufficient time and distance to slow and brake, especially in icy or inclement weather. A steeper intersection will not allow the vehicle to safely stop and proceed into the intersection road." (ROR, Exh. 60, p. 2.) Goodin's report concluded that the plaintiff's application did not conform to these regulations. "Sheet 7 of 8 `Roadway Profile' of [t]he [p]lan depicts an intersection grade in excess of the required 1 [percent], in fact the proposed grade is 4 [percent]. At the very least, the 1 [percent] grade should extend northerly for [twenty-five] feet from the edge of the right of way (the property line) in anticipation of possible future widening of Pulpit Rock Road." (ROR, Exh. 60, p. 2; Exh. 87, p. 7.)
Section 602(c)(4) outlines minimum requirements for sightlines along intersections, "[c]lear sight triangles of fifty feet measured along street right-of-way lines from their points of juncture shall be provided at all intersections." Goodin's report determined that the plaintiff's application did not conform to this regulation. (ROR, Exh. 60, p. 2.) He also explained that the plaintiff's lack of conformity with this regulation would lead to safety issues in the future. (ROR, Exh. 60, p. 2.)
During the February 17, 2006 public hearing, Goodin testified that, in his opinion, the plaintiff's application did not conform to these regulations. Specifically, he hypothesized that under the plaintiff's proposed plans: "[S]omebody could be coming down this road, somebody could be pulling out of that intersection. Because of the crest curve that you can't see over, boom, they both thought it was safe but by the time they could see each other it was too late and an accident was created." (ROR, Exh. 90, p. 10.)
Accordingly, this court finds that the commission had substantial evidence for denying the plaintiff's application based on Goodin's written report and testimony, which outlined the subdivision regulations where he concluded that the plaintiff's application had not conformed to the regulations.
The plaintiff argues that the commission improperly interpreted the regulations and based its decision on factors not contained in the regulations. Specifically, the plaintiff argues that the commission based its decision on: (1) the expense of maintaining Pulpit Rock Road in a safe condition and (2) conservation issues related to the vernal pool area, both of which are improper factors because they are not contained in the regulations. In addition, the plaintiff contends that during the commission's deliberations, one commission member's statement implied that approval of the plaintiff's application was conditioned upon the town's ability to maintain Pulpit Rock Road in a safe condition in light of any increased traffic resulting from the plaintiff's proposed subdivision.
In response, the commission and Rapoport counter that the commission's decision was indeed based on reasons contained in the record and that there was substantial evidence for its decision.
Section 101 provides: "Proposed streets shall be in harmony with existing and proposed streets and thoroughfares, especially as regards [to] safe intersections, and shall be so arranged and of such width as to provide an adequate and convenient system for present and prospective traffic needs."
The record reveals that the commission received testimony during the public hearings from local residents who expressed their concerns regarding traffic safety at the intersection of Pulpit Rock Road and the plaintiff's proposed subdivision. (ROR, Exh. 88, pp. 55, 59; ROR, Exh. 89, pp. 51, 58; ROR, Exh. 90, pp. 44-45.) The commission also received letters from local residents addressing this issue. (ROR, Exhs. 15-18.) Additionally, members of the commission voiced their concerns with regard to safety. (ROR, Exh. 83, pp. 2-3, comments of Commissioners Rotival and Rich, p. 6, comments of Commissioner Dickinson.)
"It is well established that lay members of a commission may rely on personal knowledge concerning matters readily within their knowledge, such as street safety . . . If, however, the commission relies on its special knowledge outside the scope of that of an ordinary trier of fact, it must afford the plaintiff a fair opportunity to respond." (Citation omitted.) United Jewish Center v. Brookfield, 78 Conn.App. 49, 57, 827 A.2d 11 (2003).
In the present case, the commissioners could have relied on Goodin's testimony and report, letters and testimony of local residents, and their own personal knowledge with regard to traffic safety. Although the plaintiff argues that it was improper for the commission to consider traffic safety issues, § 101 requires that "[p]roposed streets . . . be in harmony with existing and proposed streets and thoroughfares." Additionally, § 101 requires the commission to consider "safe intersections" in determining whether to approve a subdivision application. "[I]t is well established that a [planning and] zoning commission has reasonable discretion in applying and interpreting its regulations." Graff v. Zoning Board of Appeals, supra, 277 Conn. 667. Therefore, this court finds that the commission interpreted its regulations properly when it addressed traffic safety concerns.
Section 411 of Woodstock's subdivision regulations provides: "No final plan of subdivision . . . shall be approved by the Commission unless it shall conform to these Regulations, The Zoning Regulations, The Plan of Conservation and Development, and the Plan of Open Space and Conservation."
The plaintiff relies on RK Development Corp. v. Norwalk, 156 Conn. 369, 377, 242 A.2d 781 (1987) and argues that "a planning commission cannot disprove a subdivision application for a reason or based upon a standard not contained in its existing regulations." In support of its argument, the plaintiff cites to testimony in the record regarding conservation issues around the vernal poor area. The commission and Rapoport do not specifically address this argument in their briefs.
As stated previously, "it is well established that a [planning and] zoning commission has reasonable discretion in applying and interpreting its regulations." Graff v. Zoning Board of Appeals, supra, 277 Conn. 667. Section 411 allows the commission to consider the plan of conservation and development and the plan of open space and conservation when determining whether to approve a subdivision application. The record reflects that the commission heard testimony related to the vernal pool area. For example, Rapoport's attorney, Greg McCracken explained: "In [§]3A of the plan of open space and conservation, one of the values that's mentioned is the objective of protecting vernal pools . . . Our argument is that this particular proposal does not protect [the vernal pool] because . . . there should be a 650 foot buffer around vernal pools . . . And the buffers that are provided are not anywhere near that. In some of the studies they actually went out to over 1,000 feet or so. [O]ur suggestion is that by not providing that big of a buffer, the proposal does not protect the wetlands, in particular this vernal pool, in accordance with the objectives of the plan of open space and conservation." (ROR, Exh. 88, pp. 32-34, comments by Greg McCracken, Rapoport's attorney; ROR, Exh. 90, pp. 25, 29-30, comments by Rapoport.) Therefore, this court finds that the commission acted properly when it considered conservation issues related to the vernal pool area.
Additionally, the plaintiff argues that one member of the commission improperly considered the expense of altering Pulpit Rock Road to accommodate the increased traffic from the plaintiff's proposed subdivision. "[I]ndividual reasons given by certain members of the commission [do] not amount to a formal, collective, official statement of the commission . . . and are not available to show the reason[s] for, or the ground[s] of, the [commission's] decision." (Internal quotation marks omitted.) Smith-Groh, Inc. v. Planning Zoning Commission, supra, 78 Conn.App. 226.
In the present case, a member of the commission, at the December 16, 2004 meeting, stated, "Nobody in his right mind would try and enter Pulpit Rock Road from coming east on 171 so this is going to require some — assuming this application is approved, this is going to require some extensive, I mean some very very serious — there's no question I recognize this . . . is going to require an enormous amount of work at considerable cost." (ROR, Exh. 88, p. 15.) Although the plaintiff argues that this statement tied the approval of its application with the town's ability to maintain a safe road, the statement of an individual commission member is "not available to show the reason[s] for, or the ground[s] of, the [commission's] decision." Smith-Groh, Inc. v. Planning Zoning Commission, supra, 78 Conn.App. 226. Thus, this court will not consider this statement as a representation of the reasons or grounds for the commission's decision.
The plaintiff argues that the commission failed to approve its application in light of the pending moratorium which prohibited the plaintiff from modifying and resubmitting its application in the near future. Specifically, the plaintiff argues (1) that the commission should have approved the plaintiff's application with modifications; (2) that the commission implemented the moratorium prematurely in response to public pressure to deny the plaintiff's application and (3) that this amounts to a taking of the plaintiff's property without due process.
In response, the commission and Rapoport argue that the commission is not obligated to modify and approve an application just because a moratorium would preclude the plaintiff from resubmitting a modified application in the near future. Additionally, they argue that the plaintiff "should have challenged the moratorium in a separate action at the time that it was adopted." Finally, they contend that the moratorium does not amount to a taking because it is temporary. In fact, the commission and Rapoport explain that the moratorium has expired as of August 25, 2005.
"A commission may, at its discretion, choose between disapproval or approval with conditions." Krawski v. Planning Zoning Commission, 21 Conn.App. 667, 673, 575 A.2d 1036 (1990). Similarly, § 406 of Woodstock's subdivision regulations provides: "The Commission shall approve, modify and approve, or disapprove any application . . . after the public hearing."
In Arnold Bernhard Co. v. Planning Zoning Commission, 194 Conn. 152, 479 A.2d 801 (1984), our Supreme Court held that "a zoning moratorium is not beyond the statutory powers of the zoning commission." Harlow v. Planning Zoning Commission, 194 Conn. 187, 192, 479 A.2d 808 (1984) (explaining the Supreme Court's holding in Arnold Bernhard, decided on the same day). In fact, in Arnold Bernhard Co., our Supreme Court explained that General Statutes § 8-2 provides broad legislative power to local zoning boards to enact zoning regulations and that "[a] moratorium [is] within the power delegated to the local zoning authority by [§]8-2." Arnold Bernhard Co. v. Planning Zoning Commission, supra, 164-65.
Because "[a] moratorium is effectively an `interim' zoning regulation . . . zoning moratoriums fall within the scope of [General Statutes] § 8-2h." 137 East Aurora, LLC v. Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. CV 98 0146592 (December 11, 2000, Rogers, J.) ( 29 Conn. L. Rptr. 180, 183). General Statutes § 8-2h provides in relevant part: "An application filed with a zoning commission, planning and zoning commission, zoning board of appeals or agency exercising zoning authority of a town, city or borough which is in conformance with the applicable zoning regulations as of the time of filing shall not be required to comply with, nor shall it be disapproved for the reason that it does not comply with, any change in the zoning regulations or the boundaries of zoning districts of such town, city or borough taking effect after the filing of such application."
In the present case, the plaintiff filed its subdivision application with the commission on November 17, 2004. (ROR, Exh. 1.) The nine-month moratorium on subdivision applications was to take effect on November 21, 2004. (ROR, Exh. 77, p. 7.) On August 25, 2005, the moratorimn expired with the passage of Woodstock's new subdivision regulations, which took effect on that date and "replaced all previous subdivision regulations" as outlined in chapter one, section G of its regulations.
The plaintiff cites to passages in the record from which it argues that the commission was influenced by public pressure to prematurely apply the moratorium on subdivisions. Specifically, it cites to an e-mail from Mike Garry to the commission in which he states, "I hope the moratorium on building subdivisions continues indefinitely, and this Pulpit Rock Road development never gets past the [commission's] site walk." (ROR, Exh. 14.) Although there is evidence that local residents made statements concerning the premature application of the moratorium, there is no evidence in the record that the commission members failed to approve the plaintiff's subdivision application because they implemented the moratorium prematurely. Our Supreme Court has stated, "[i]f 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." (Emphasis in original; internal quotation marks omitted.) Graff v. Zoning Board of Appeals, supra, 277 Conn. 670. Therefore, this court finds that the commission did not act illegally, arbitrarily, or in abuse of its discretion when it denied the plaintiff's application.
In addition, the plaintiff argues that the commission should have approved its application with modifications instead of denying its application outright. "A commission may, at its discretion, choose between disapproval or approval with conditions." Krawski v. Planning Zoning Commission, supra, 21 Conn.App. 673. Accordingly, this court finds that the commission did not act illegally, arbitrarily, or in abuse of its discretion when it decided to deny the plaintiff's application instead of approving the application with conditions.
Finally, the plaintiff argues that the commission's moratorium amounts to a taking of the plaintiff's property without due process. In Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 312, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002), the Tahoe Regional Planning Agency implemented a thirty-two month moratorium on development along the Lake Tahoe Basin. The petitioners, in that case, argued that the moratorium constituted takings of their property without just compensation, in violation of the fifth amendment to the United States constitution. Id., 313. The United States Supreme Court determined that: "The Fifth Amendment forbids the taking of private property for public use without just compensation. We have recognized that this constitutional guarantee is designed to bar [the] Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." (Internal quotation marks omitted.) Id., 336.
The court further determined that: "Unlike the extraordinary circumstance in which the government deprives a property owner of all economic use . . . moratoria . . . are used widely among land-use planners to preserve the status quo while formulating a more permanent development strategy. In fact, the consensus in the planning community appears to be that moratoria, or interim development controls as they are often called, are an essential tool of successful development." (Citation omitted; internal quotation marks omitted.) Id., 337. The Supreme Court affirmed the Court of Appeals' holding that the moratorium "had only a temporary impact on [the] petitioner's fee interest in the properties [and that] no categorical taking had occurred." Id., 318, 343.
Similarly, in Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 365 A.2d 387 (1976), our Supreme Court stated, "[z]oning regulations, so far as they reasonably promote the public health, safety and welfare, are constitutional even though their effect may be to limit the exercise of private property rights . . . An ordinance which permanently restricts the use of land for any reasonable purpose, however, goes beyond permissible regulation and amounts to `practical confiscation.' "(Citation omitted; emphasis added.) Id., 151.
In the present case, the commission voted to approve a temporary moratorium; (ROR, Exh. 77, p. 7.); which has subsequently expired. "There are no reported Connecticut inverse condemnation cases awarding damages for pure regulatory takings, namely restrictions on the use of land by land use regulations." 9A R. Fuller, supra, § 54.6, p. 608. Similarly, this court cannot find any Connecticut caselaw stating otherwise. For the foregoing reasons, this court finds that the commission's moratorium on subdivision applications does not amount to a taking of the plaintiff's property without due process.
The plaintiff argues that the commission failed to follow the statutory requirements for handling an intervention petition pursuant to § 22a-19. Specifically, the plaintiff argues that the commission failed to make a determination on whether it was "reasonably likely that the project would cause unreasonable pollution, impairment or destruction of the public trust in the resource involved" before it considered alternatives to the plaintiff's proposed application. The plaintiff also argues that the commission allowed the intervenor to discuss non-environmental issues during the public hearing.
In response, the commission and Rapoport argue that the commission followed proper procedure for handling intervention petitions pursuant to § 22a-19. In fact, they argue that the commission is not required to make a determination on whether the plaintiff's application was "reasonably likely to unreasonably pollute an identified natural resource" before the commission can receive any evidence on possible alternatives to the plaintiff's proposed subdivision.
Section 22a-19 provides in relevant part: "In any administrative . . . proceeding . . . any person . . . may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state . . . In any administrative . . . proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare."
"It is clear that one basic purpose of [§ 22a-19] is to give persons standing to bring actions to protect the environment." (Internal quotation marks omitted.) Red Hill Coalition, Inc. v. Town Plan Zoning Commission, 212 Conn. 727, 734, 563 A.2d 1347 (1989). "[Section] 22a-19 grants standing to intervenors to raise only those environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding into which the party seeks to intervene." (Internal quotation marks omitted.) Keiser v. Zoning Commission, 72 Conn.App. 721, 725, 806 A.2d 103, cert. denied, 262 Conn. 909, 810 A.2d 274 (2002). Section 411 of Woodstock's subdivision regulations provides: "No final plan of subdivision . . . shall be approved by the Commission unless it shall conform to these Regulations, The Zoning Regulations, The Plan of Conservation and Development, and the Plan of Open Space and Conservation." "[B]y its plain terms . . . § 22a-19(b) requires the consideration of alternative plans only where the commission first determines that it is reasonably likely that the project would cause unreasonable pollution, impairment or destruction of the public trust in the natural resource at issue." (Emphasis in original; internal quotation marks omitted.) Evans v. Plan Zoning Commission, 73 Conn.App. 647, 657, 808 A.2d 1151 (2002), quoting Paige v. Town Plan Zoning Commission, 235 Conn. 448, 462-63, 668 A.2d 340 (1995).
"Where, as here, a commission does not make an explicit finding that the proposed activities were . . . reasonably likely to cause unreasonable impairment to a natural resource, the court must examine the record to determine whether it contains substantial evidence to support such a finding." Committee To Save Guilford Shoreline, Inc. v. Planning Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV 03 0483939 (April 18, 2005, Martin, J.), citing Evans v. Plan Zoning Commission, supra, 73 Conn.App. 657-59. See also R. Fuller, 9A Connecticut Practice Series § 32.6, p. 127 (explaining that when commission fails to make finding, court should follow "customary rule that it will not substitute its judgment for the findings of the agency if they are reasonably supported by the record . . ."
In the present case, the commission made no explicit finding that it was "reasonably likely that the project would cause unreasonable pollution, impairment or destruction of the public trust in the natural resource at issue." General Statutes § 22a-19. Therefore, this court must search the record to determine whether there is substantial evidence to support such a finding.
The commission received a report by Robert S. DeSanto, Ph.D., a certified environmental professional, entitled "Environmental Sensitivity Site Site Assessment, Biogeographical Observations and Probable Development Pollution and its Cumulative Impacts, Pulpit Rock Road and Taylor Brook, Woodstock Connecticut." (ROR, Exh. 53.) In De Santo's report, he summarized his findings: "Environmental impacts quantified herein are associated with [the plaintiff's proposed application and] will contaminate parking and road surfaces, soils, and ground water on-site and which contaminants will be carried in storm water runoff and ground water in the watershed of Taylor Brook and thus will affect its ecology." (ROR, Exh. 53, p. 1.) Specifically, his report explains that changes to the site, proposed in the plaintiff's application, will lead to the following adverse environmental impacts: (1) canopy removal will lead to an increase in temperature and sedimentation; (2) the vernal pool will be ecologically disrupted as construction will encroach on the buffer zone around the vernal pool; (3) vehicular traffic will create chronic residual pollution; (4) lawn management through the use of pesticides and fertilizers will pollute the surface drainage system; (5) groundwater will be polluted by septage; (6) and an increase in impervious ground surfaces will lead to an elevation of runoff volumes of contaminants into Taylor Brook. (ROR, Exh. 53, pp. 1-3.)
Evidence in the record suggests that it is "reasonably likely that the project would cause unreasonable pollution, impairment or destruction of the public trust in the natural resource at issue." General Statutes § 22a-19. Therefore, the commission did not act illegally, arbitrarily or in abuse of its discretion in allowing Rapoport to present evidence of reasonable and prudent alternatives to the plaintiff's proposed subdivision application.
Additionally, the plaintiff argues that the commission acted "unreasonably, illegally, and arbitrarily" in allowing Rapoport to submit evidence regarding traffic safety issues. In response, the commission argues that Woodstock's subdivision regulations authorizes the commission to consider traffic safety. Rapoport does not specifically address the plaintiff's argument.
Woodstock's subdivision regulations allow the commission to consider traffic safety in determining whether to approve or disapprove a subdivision application. For example, section 101 of Woodstock's subdivision regulations provides: "Proposed streets shall be in harmony with existing and proposed streets and thoroughfares, especially as regards [to] safe intersections, and shall be so arranged and of such width as to provide an adequate and convenient system for present and prospective traffic needs."
Rapoport lives at 211 Pulpit Rock Road. (ROR, Exh. 90, p. 3.) As a local resident to the plaintiff's proposed site, he has a right, just like any other local resident, to address his concerns to the commission regarding an issue that the commission is authorized to consider, traffic safety. Accordingly, the commission did not act illegally, arbitrarily or in abuse of its discretion in allowing Rapoport to present evidence of the proposed plan's impact on traffic safety concerns.
The plaintiff argues that "one or more members of the [c]ommission acted without having attended all the dates of the [p]ublic [h]earing or having familiarized themselves with the content of the [p]ublic [h]earing." The commission and Rapoport argue that the plaintiff has failed to meet its burden in establishing that any commission member voted without becoming familiar with the record.
"The general test [to be applied to a claim that an agency member is not sufficiently informed to vote on an application] is that in order for an agency member to participate in decisions, the member must be sufficiently acquainted with the issues raised and the evidence and arguments presented at the public hearing and the evidence before the agency in order to exercise an informed judgment." 9A R. Fuller, supra, § 47.1, pp. 429-30. "This is a question of fact in each case, and the appellants have the burden of proving by a preponderance of the evidence that the challenged agency members were not sufficiently aware of the material presented at a hearing which they did not attend to make an informed judgment of the application." 9A R. Fuller, supra, (2005 pocket part) § 47.1, p. 121.
In the present case, the plaintiff did not offer any evidence at trial to prove that a commission member was not sufficiently informed to vote on the plaintiff's application. In fact, the plaintiff does not even state which commission member voted without having attended all of the public hearing or familiarizing himself/herself with the record. Therefore, the plaintiff has not met its burden of showing that a commission member voted without being sufficiently informed to do so.
For the foregoing reasons, this court dismisses the plaintiff's appeal.