Opinion
No. CV-06-4006050S
June 7, 2007
MEMORANDUM OF DECISION
The plaintiffs have appealed from a decision of the Newtown Planning and Zoning Commission.
I. STATEMENT OF APPEAL
The Plaintiffs, Kevin Fitzgerald and Robin Lozito, ("Plaintiffs") appealed a decision of the Newtown Planning and Zoning Commission ("Commission") approving a subdivision application of Mastroni Builders of Monroe ("Mastroni") regarding 28 acres of land in Newtown. They claim that:
(1.) The bootstrapping of the public hearings for the prior fatally defective application cannot provide a sound basis for the approval of the second application;
(2.) The second application as approved violates the open space regulations;
(3.) The fee-in-lieu-of open space was improper; and
(4.) The property includes steep slopes and therefore is not of the character that it can be used for building purposes without danger to public health, safety or welfare.
II. BACKGROUND
FIRST APPLICATION/APPEAL: In August 2005 Mastroni filed an application with the Commission seeking to have approximately 22 acres of land he owned subdivided into 6 lots. Mastroni then acquired 4 acres of land and sought to have the property subdivided into 8 lots. He did so without properly noticing or amending the application. On October 6, 2005 a public hearing was held on the application, which was continued to November 17, 2005. On that date the Plaintiffs and others participated in the public hearing. On that date the Commission voted to keep the hearing open for the limited purpose of receiving an appraisal on the land in regards to a fee in lieu of open space. On December 1, 2005 the appraisal was received and the public hearing was closed. On January 5, 2006 the Commission approved the application for an 8-lot subdivision. The plaintiffs filed a timely appeal (CV06-4005217S).
SECOND APPLICATION/APPEAL: While that appeal was pending, on February 5, 2006, Mastroni resubmitted the application, the same as was approved by the Commission of January 5, 2006. On April 20, 2006 a two-hour public hearing was held on the application. The plaintiffs participated. On May 18, 2006 the Commission voted to approve the application. The plaintiffs again filed a timely appeal, which is this case.
RESOLUTION OF FIRST APPLICATION/APPEAL: On November 6, 2006, the parties to the first appeal (which are identical to the parties in this appeal) entered into an agreed upon Stipulation sustaining the appeal on the limited issue of defect in the notice of public hearing without prejudice to the rights of the parties to make their other claims in this appeal.
III. JURISDICTION A. AGGRIEVEMENT
"[I]n order to have standing to bring an administrative appeal, a person or entity must be aggrieved." (Internal quotation marks omitted.) Water Pollution Control Authority v. Keeney, 234 Conn. 488, 493, 662 A.2d 124 (1995). "Aggrievement falls within two broad categories, classical and statutory." (Internal quotation marks omitted.) Cole v. Planning Zoning Commission, 30 Conn.App. 511, 514, 620 A.2d 124 (1993). A party is classically aggrieved if it "successfully demonstrate[s] a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest [and] successfully establish[es] that this specific personal and legal interest has been specially and injuriously affected by the decision." (Internal quotation marks omitted.) Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984). Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest has been adversely affected. (Internal quotation marks omitted.) Gladysz v. Planning Zoning Commission, 256 Conn. 249, 255, 773 A.2d 300 (2001).
In this case the plaintiffs have presented evidence that they are abutting property owners to the subject property. Both plaintiffs have a specific, personal and legal interest in the Property and the application for special exception, which interest was injuriously affected by the Commission's denial of the application. Therefore, the plaintiffs are aggrieved by the Commission's decision.
IV. SCOPE OF REVIEW
The standard of review of questions of fact determined by a zoning authority is that the court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised. Torsiello v. Zoning Board of Appeals, 3 Conn.App. 47, 49, 484 A.2d 483 (1984). The decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given. Id., 50. "The evidence to support any such reason must be substantial." Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 540, 525 A.2d 940 (1987). The Court in Huck stated: "The `substantial evidence' rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of `weight of the evidence' or `clearly erroneous' action." (Internal quotation marks omitted.) Id., 541.
Under the substantial evidence rule the trial court must determine whether there is substantial evidence to indicate that the Commission acted fairly or with proper motives or upon valid reasons. Oakridge/Rogers Avenue Realty, LLC v. Planning Zoning Board, 78 Conn.App. 242, 248, 826 A.2d 1232 (2003). On questions of fact, a reviewing court cannot substitute its judgment for that of a planning and zoning commission. If there is conflicting evidence in support of the commission's stated rationale, the court cannot substitute its judgment as to the weight of the evidence for that of the commission. A. Auidi and Sons, LLC v. Planning Zoning Commission, 72 Conn.App. 502, 514, 806 A.2d 77 (2002). "Conclusions reached by [local zoning commissions] must be upheld by the trial court if they are reasonably supported by the record, [and] credibility of witnesses and determination of issues of fact are matters solely within" the commission's province. (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 416, 788 A.2d 1239 (2002).
"In passing upon a plan, [a planning and zoning commission's] action is controlled by the regulations adopted for its guidance"; (internal quotation marks omitted) Timber Trails Corporation v. Planning Zoning Commission, 222 Conn. 380, 387, 610 A.2d 620 (1992); and when interpreting its own regulations the commission is endowed with liberal discretion. Double I Limited Partnership v. Plan and Zoning Commission, 218 Conn. 65, 75, 588 A.2d 624 (1991). "[The planning and zoning commission's] action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal "; id., 72; and "[t]he burden of proof is on the plaintiff to demonstrate that the board acted improperly." Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991).
V. DISCUSSION AND FINDINGS.
A. BOOTSTRAPPING: This first issue which the plaintiffs raise is that the bootstrapping of the public hearings for the defective first application cannot provide a sound basis for the approval of the second application. The plaintiff argues that this is not the first time that the Commission has utilized a fatally defective hearing process to support a subsequent approval of a zoning matter. In Qualey v. Newtown Planning Zoning, No. CV05-4004572S (May 15, 2006) 2006 Ct.Sup 10036, 41 Conn. L. Rptr. 432, (Superior Court, Judicial District of Danbury, Schuman, J.), Judge Schuman sustained an appeal where evidence obtained in a hearing infected with fatally defective notice was utilized as a basis to grant approval of a zoning application. The first hearing in Qualey was improperly noticed, it proceeded, and there was a subsequent hearing at which additional summary presentations were made. Similarly, here, the entire process in the first case was defective and by the Commission's and Mastroni's own admission would be a basis for sustaining that appeal. The Plaintiffs argue that the Commission and Mastroni were content to rely on the record of the fatally defective application and supplement it only with a truncated presentation on open space. Utilizing the fruit of the poisonous tree is "fundamentally unfair" and should not be permitted to be utilized by Commission to approve an application. The Plaintiffs further argue that in this case integral parts of the hearing process — in fact the bulk of it — were fatally defective and cannot serve as the factual basis for the Commission's action. The Commission distinguishes the facts of the Qualey case from this one. They argue that the decision in Qualey is irrelevant and distinguishable from this case. Qualey involved an application for a special exception and there was inadequate notice of the first session of the public hearing on the application. The public hearing was continued and the second session of the public hearing was then properly noticed, but the court held that this was inadequate to provide notice of the initial hearing to a neighboring property owner who was required to receive personal notice of the application, and that the procedure did not meet fundamental fairness because most of the presentation for the special exception application occurred at the first hearing. In this case, the applicant made an entirely new subdivision application, and there was proper legal notice of the new subdivision application. This was not a continuation of a public hearing on the same application, which occurred in Qualey. That decision is also distinguishable because the plaintiffs in Qualey who were entitled to notice of the application did not attend the first session of the public hearing, while in this case the Fitzgeralds participated in both the first and second subdivision applications.
The court finds that the Qualey case is not relevant to this case. In this case the Plaintiffs attended and participated in the public hearing on the first application/appeal and also on the second. They were not prejudiced or denied a fair hearing in this matter. Therefore, the court finds that the plaintiffs issue of bootstrapping is without merit.
B. VIOLATION OF REGULATIONS: The next issues raised by the Plaintiffs are that the application as approved violates the open space regulations and the property includes steep slopes and therefore is not of the character that it can be used for building purposes without danger to public health, safety or welfare.
The Plaintiffs make a passing reference to the issue of the steep slopes without fully briefing that particular aspect of their appeal. "Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Cummings v. Twin Tool Mfg. Co., 40 Conn.App. 36, 45, 668 A.2d 1346 (1996), see also Lareau v. Burrows, 90 Conn.App. 779, 780 (2005). Because the plaintiff's claims are inadequately briefed, this court cannot review them.
The Plaintiffs claims herein are fundamentally that the Commission did not comply with the zoning regulations in that it improperly accepted a fee in lieu of open space instead of requiring 15% of more representative land in the subdivision as open space.
Therefore, this court will proceed to the claims of the Plaintiffs as to the fee in lieu of open space.
C. ACCPETANCE OF THE FEE-IN-LIEU-OF OPEN SPACE CT Page 10104
The Plaintiffs claim that the Commission improperly accepted a fee in lieu of open space. They argue that Mastroni did not offer a fee-in-lieu of open space at the public hearing, but rather advocated for an open space allocation that would tie into a perpetual easement which was offered by the Plaintiff. The open space offered, however, did not comply with the regulations due to its character, make up and quality. This fact was presented at the public hearing. The Commission approved the second application with a fee-in-lieu of open space that was not even requested by Mastroni during the public hearing. The Plaintiffs claim that that act was arbitrary, capricious and in violation of the zoning regulations. The Commission argues that it is within its discretion to accept the applicant's offer of a fee in lieu of open space. It further argues that the 4.38-acre parcels of physical open space regardless of their quality and how they were selected is irrelevant and did not have to meet the provisions in the subdivision regulations on open space.The open space provisions in the Newtown Subdivision Regulations are contained in section 4.05.710, which reads as follows:
4.05.710 In lieu of the requirements of Section 4.05.100 to provide open space and with the approval of the Commission, the applicant may pay a fee to the Town of Newtown or may pay a fee to the Town of Newtown and transfer land to provide open space. Such payment or combination of payment and the fair market value of the land transferred shall be equal to ten percent (10%) of the fair market value of the land to be subdivided prior to the approval of the subdivision. The fair market value shall be determined by an appraiser jointly selected by the Commission and the applicant, at the expense of the applicant. A fraction of such payment, the numerator of which is one and the denominator of which is number of approved parcels in the subdivision shall be made at the time of the sale of each approved parcel of land in the subdivision and placed in a fund in accordance with the provisions of the Connecticut General Statutes, as amended.
They are based upon the statutory provision in section 8-25 of the Connecticut General Statutes which states the circumstances under which a planning commission can require open space in a subdivision. Section 8-25 reads as follows:
Such regulations shall also provide that the Commission may require the provision of open spaces, parks and playgrounds when, and in places deemed proper by the planning commission, which open spaces, parks and playgrounds shall be shown on the subdivision plan. Such regulations may, with the approval of the commission, authorize the applicant to pay a fee to the municipality or to pay a fee to the municipality and transfer land to the municipality in lieu of any requirement to provide open spaces. Such payment or combination of payment and the fair market value of land transferred shall be equal to not more than ten percent of the fair market value of the land to be subdivided prior to the approval of the subdivision.
It is clear from the terms of the subdivision regulations that the Commission within its discretion, can request a fee in lieu of open space in any subdivision. Both the statute and section 4.05.710 of the Subdivision Regulations give the Commission the option of either requiring physical open space in the subdivision or electing to have a fee in lieu of open space subject to the 10% limitation in both the statute and the regulation. The Commission was within its discretion to elect to have the payment to the Town. See also Property Group, Inc. v. Planning and Zoning Commission of the Town of Tolland, 226 Conn. 684, 691, 628 A.2d 1277 (1993).
The court finds that since the Commission exercised its discretion to have a fee in lieu of open space, it was not required to go through the evaluation in the open space provisions in section 4.05.200 and subsequent subsections including provisions of how the physical open space is to be determined, and the sequence of priorities for physical open space in section 4.05.230. When the Commission makes the election, the provision in section 4.05.220 of the Zoning Regulations is irrelevant.
The purpose of allowing a planning commission to have a fee in lieu of open space is to allow the municipality to accumulate funds to purchase significant and meaningful parcels of open space in the municipality rather than having a lot of small open space or mini parks scattered throughout the municipality which serve no meaningful public purpose.
VI. CONCLUSION
For the reasons discussed above as to the claims of plaintiff, the court will not substitute its judgment for that of the Commission, especially when the Commission is exercising its discretion as to the acceptance of fee in lieu of open space, therefore, the plaintiff's appeal is dismissed and the approval of the Commission upheld.