Opinion
No. CV 02 0279661
May 30, 2003
MEMORANDUM OF DECISION
The plaintiffs, Honey M. Florian and David W. Florian, Sr. (the Florians), appeal from the decision of the defendant, the planning and zoning commission of the town of Cheshire (commission) denying a resubdivision application for a parcel of land consisting of approximately 63 acres. The appeal is dismissed for the reasons set forth below.
On July 12, 2001 the Florians submitted an application to the commission for approval of a resubdivision of approximately 63 acres of land into 42 residential building lots to be known as "Sherwood Acres." (Return of Record [ROR], Item #15.) The application involved detailed plans addressing access to the proposed subdivision, including the construction of a new public street and undertaking improvements to an existing street. On September 17, 2001, October 15, 2001 and November 19, 2001, the commission held public hearings to review the application. (ROR, Items ##147, 149, 153.) On January 14, 2002, the commission denied the application based upon the findings and reasons set forth in the motion to deny. (ROR, Item #87.)
The Florians now appeal the commission's denial of the application. They appeal on the grounds that the commission acted arbitrarily, capriciously and in abuse of its discretion by violating the standards and scope of authority granted to the commission under General Statutes §§ 8-25 and 8-26, it violated the standards and procedures set forth in the town of Cheshire subdivision regulations (subdivision regulations) § 6.2 et seq. and it denied an application that conforms to all of the remaining requirements of the subdivision regulations. The Florians filed a memorandum of law in support of their appeal and, at the court's direction, a supplemental memorandum. The commission also filed both a memorandum of law in opposition and the requested supplemental memorandum.
A. Jurisdiction CT Page 6998-f
General Statutes § 8-8 governs appeals taken from the decisions of a zoning commission to the superior court, including a combined planning and zoning commission. It is well settled that appellate jurisdiction in administrative appeals is created exclusively by statute and may only be exercised in a manner prescribed by statute. See Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
"[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.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Aggrievement is an issue of fact . . . and credibility is for the trier of the facts . . ." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001). The owners of property that is the subject of an application are aggrieved and plaintiffs may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 703.
The Florians allege that they "are the owners of a certain piece or parcel of land consisting of approximately sixty-three (63) acres" (Appeal, ¶ 1); and that they are aggrieved by the decision because "they are the owners of the Subject Property and the Applicants under said resubdivision application" (Appeal, ¶ 5). At the trial, held on September 4, 2002, the Florians introduced warranty deeds demonstrating that they own the land that is the subject of the application, and the parties stipulated to such fact. The court finds that the Florians are aggrieved and, as such, entitled to maintain this appeal.
General Statutes § 8-28 provides, in pertinent part, that "[n]otice of all official actions or decisions of a planning commission . . . shall be published in a newspaper having a substantial circulation in the municipality within fifteen days after such action or decision. Any appeal from an action or decision of a planning commission shall be taken pursuant to the provisions of section 8-8."
General Statutes § 8-8 (b) provides, in pertinent part, that an "appeal shall be commenced by service of process . . . within fifteen days from the date the notice of the decision was published as required by the general statutes." CT Page 6998-g
Notice of the commission's decision was published in The Cheshire Herald on January 17, 2002. The Florians commenced their appeal on January 31, 2002, by service of process upon the town clerk of the town of Cheshire and the chairman of the commission. The appeal is timely.
B. Standard of Review
"Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . 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 unreasonable, arbitrary or illegal . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." (Citations omitted: internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 697-98, 784 A.2d 354 (2001).
"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." (Citation omitted: internal quotation marks omitted.) Reed v. Planning Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988); Belanger v. Planning Zoning Commission, 64 Conn. App. 184, 188, 779 A.2d 833 (2001).
"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 . . . The principle that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action." (Citations omitted: internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 420.
"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 . . . [E]vidence is sufficient to CT Page 6998-h sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).
At its January 23, 2002 meeting, the commission approved the motion to deny the application for multiple reasons. Each reason essentially relates to the commission's conclusion that "neither Honey Drive or Birch Drive meets the conditions of § 6.2 of the Subdivision Regulations, and that the property, therefore, does not have two means of access, each in conformity to the subdivision regulations, required by Section 5.6. This application cannot be approved unless or until noncompliant features have been removed, or two means of access to a through street are otherwise provided." (ROR, Item #87, p. 7.) Each of the stated reasons for denying the application will be analyzed in turn.
C. The Commission's Grounds of Decision
I. Whether the Application Creates a Nonconformity on Land Adjacent to Honey Drive, Which Impacts Traffic Safety
The commission denied the Florians' resubdivision application, in part, on the ground that the plans create a nonconformity on an adjacent parcel of land and that this nonconformity poses a safety problem. Specifically, the commission determined that (1) "the creation of [Honey Drive] would create a nonconformity on the adjacent Crispino property, in that the garage on that property would be less than 40 feet from the new street line, the minimum required by § 32, Schedule B of the Zoning Regulations"; (2) "[a]lthough Honey Drive is not contiguous to the property to be subdivided, its creation is necessary to make the application comply with the above section, and the applicants have made it an integral part of this application"; (3) "the nonconformity directly affects the visibility, and therefore the safety, of Honey Drive itself, particularly at its intersection with Poplar Drive"; and (4) "Honey Drive . . . is `arranged' in such a manner as to create a substandard street line setback [and] is not compatible with public convenience, safety, nor with other `existing and planned streets' which enjoy the required setbacks [and] its design therefore violates Section 6.2." (ROR, Item #87, § 1.)
The first reason for the denial states, in its entirety:
1. According to Section 5.6 of the Subdivision Regulations, this subdivision may not be a cul-de-sac, and must therefore have at least two means of access to a through street. The subdivision plan as originally filed had only one means of access to a through street (S.R 322), via Birch Drive. It was later modified to include the creation of `Honey Drive' between Poplar Drive and S.R. 322 to create a second access. Although Honey Drive is not contiguous to the property to be subdivided, its creation is necessary to make the application comply with the above section, and the applicants have made it an integral part of this application.
The drawings of Honey Drive, P-7 and P-8A, as submitted by the applicants, shows that the creation of this street would create a nonconformity on the adjacent Crispino property, in that the garage on that property would be less than 40' from the new street line, the minimum required by Section 32, Schedule B of the Zoning Regulations. We CT Page 6998-y note that, although the Crispino property will not adjoin the street (as the applicants would continue to own the abutting strip), `street line' is defined in Section 23 of the Zoning regulations as, "the right of way easement or taking line of any public or private street" [emphasis added], with no reference to property lines. Furthermore, the 40' sideline setback is an objective standard that effects sight lines. This nonconformity does not exist today and would not exist except for the creation of Honey Drive.
The minimum street line setback regulations define a relationship between the uses of building and land and the circulation of traffic through and within the Town, with particular emphasis on providing adequate, safe, and convenient access for traffic to the various uses of buildings and land throughout the Town . . ." [Emphasis added.] The Commission finds that the nonconformity directly affects the visibility, and therefore the safety, of Honey Drive itself, particularly at its intersection with Poplar Drive.
Section 6.2 of the Subdivision Regulations states, in part: "The arrangement of the streets shall be compatible with existing and planned streets, topographic [sic] conditions, public convenience, safety, and the proposed uses of the land to be served by such streets." [Emphasis added.] Honey Drive, which is `arranged' in such a manner as to create a substandard street line setback is not compatible with public convenience, safety, nor with other `existing and planned streets' which enjoy the required setbacks; its design therefore violates Section 6.2.
(ROR, Item #87 § 1.)
Section 32, Schedule B consists of a chart of dimensional requirements for structures and lots in each zone classification.
Section 6.2 provides in part: "Where the land to be subdivided does not abut an accepted town street or state road, the developer shall purchase the necessary right-of-way and construct at his expense access streets between the subdivision and such town street or state road. The location of such access streets shall be subject to approval by the Planning and CT Page 6998-i Zoning Commission. Any such subdivision not abutting an improved town street or state road shall have not less than two separate access streets unless it is of such size and so located that it can meet the requirements of a cul-de-sac street as stated in Section 5.6." (Emphasis added.) (ROR, Item #192.) The second provision, pertaining to the arrangement of streets, states in relevant part: "the arrangement of the streets shall be compatible with existing and planned streets, topographical conditions, public convenience, safety and the proposed uses of the land to be served by such streets." (ROR, Item #192.)
Section 5.6.1 sets forth the limitations related to cul-de-sac or dead end streets and provides in relevant part, that in an R-40 zone the maximum number of dwelling units permitted to be served by a cul-de-sac street or dead end street is seventeen (17) dwelling units and the maximum length of a cul-de-sac street is 1,700 feet. Since the subdivision application proposes to create 42 lots and streets which greatly exceed the maximum permitted length of 1,700 feet, it does not meet the requirements of a cul-de-sac. Accordingly, the Florians must satisfy the requirement of § 6.2 and must provide two separate access streets to the proposed subdivision.
The Florians appeal on the ground that the commission's denial violated the provisions of § 6.2 of the subdivision regulations because their application fully conformed to all the requirements and standards set forth therein. (Appeal, ¶ 6b.) Specifically, the Florians maintain that their application is in conformity with § 6.2 because their application (1) does not create a nonconformity on the Crispino property; (2) even if a nonconformity did exist it would be "off-site" and should not affect their application; and (3) even if a nonconformity exists it would not affect visibility or safety. (Florians' Brief, pp. 6, 10, 12.) The Florians maintain, therefore, that because the proposed Honey Drive does not create a nonconformity their application complies with the provisions of § 6.2 that requires two means of access to the subdivision and compatibility with public convenience and safety.
The record reveals that, by virtue of a warranty deed, recorded in Volume 1477, p. 349 of the Cheshire Land Records, Lori and Fiore Crispino (the Crispinos), conveyed a narrow strip of their property located at the northwesterly corner of the proposed Honey Drive and Poplar Drive to David Florian. (ROR, Item #38, 114.) This strip of land ranges in width from seven (7) feet to ten (10) feet and is bordered on the east by the proposed Honey Drive and on the west by the Crispino property. (ROR, Item #189, p. 7.) This strip was incorporated into the parcel of land to be used for the creation of Honey Drive. (ROR, Item #114.) As a result of this transfer, the alleged nonconformity is that the corner of the Crispino dwelling, consisting of an attached garage, would be located 14.1 feet from the proposed easterly property line and right-of-way for Honey Drive, leaving a distance of approximately 24 feet between the Crispino garage and the proposed right of way. (ROR, Item #114, 189, p. 7.) The resubdivision plans indicate that, if the application is approved, the location of the Crispino's garage will not conform to the minimum street line setback requirement of 40 feet mandated by § 32 of the zoning regulations. (ROR, Item #193.)
Poplar Drive, at this location, is an existing road outside of the subdivision area.
The Florians acknowledge that § 32 of the regulations mandates a 40-foot minimum setback from any street line. (Florians' Brief, p. 8.) CT Page 6998-j They further acknowledge that, according to their plan, the Crispino garage will be situated less than 40 feet from the proposed edge of the Honey Drive right-of-way. (Florians' Brief, pp. 8-9.) They argue, however, that the street line setback requirements of § 32 do not apply to the Honey Drive side of the Crispino property because the property is not a corner lot. (Florians' Brief, p. 9.) They argue that the strip deeded to them by the Crispinos acts as a buffer between the Crispino property and the right-of-way and, as such, the minimum setback requirement only applies to the Poplar Drive side of the Crispino property. (Florians' Brief, p. 9.) The Florians reference another provision of the zoning regulations addressing setback requirements: § 32, Schedule B, Footnote 3, which states in relevant part: "[o]n a corner lot, or on a lot fronting more than one street, setback requirements from both streets lines shall be maintained . . ." (ROR, Item #193.) The Florians maintain that this provision would be rendered superfluous if the setback requirements were found to apply to both the easterly and southerly boundaries of the Crispino property, which is not a corner lot because the regulations would not need to specify that setbacks apply to both street lines on a corner lot if the requirement were already imposed elsewhere in the regulations. (Florians' Brief, p. 9.) The Florians maintain, therefore, that the 40-foot setback requirement does not apply to the Honey Drive side of the Crispino property and that their proposal does not create a nonconformity thereon.
The commission counters that the zoning regulations specify that the minimum street line setback for the relevant zone is forty (40) feet and that the record indicates that the corner of the Crispino garage would be 14.1 feet from the proposed property line and right-of-way to Honey Drive. (Commission's Brief, p. 30.) The commission argues that there is substantial evidence in the record to support its determination that the 40 foot street line setback of § 32 of the zoning regulations applies to the Crispino garage and that because the garage is less than 40 feet from the proposed road, the location of the garage will not conform to the minimum street line setback requirement. The commission also maintains that, although the Florians may retain ownership of a small strip of land on the Honey drive side of the Crispino property, this does not alter the commission's conclusion that the application fails to meet the requirements of the regulations. (Commission's Brief, p. 30.)
"Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to CT Page 6998-k the facts . . . 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 unreasonable, arbitrary or illegal . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." (Citations omitted; internal quotation marks omitted.) Wood v. Zoning Board of Appeal, supra, 258 Conn. 697-98. "[A]n agency's interpretation of its own regulations is entitled to deference. [I]t is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement . . . This principle applies with even greater force to an agency's interpretation of its own duly adopted regulations." (Citations omitted: internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 138-39, 778 A.2d 7 (2001).
The commission relied on the opinion of the town attorney, John Knott, who advised the commission that the: "forty foot street line setback of Section 32, Schedule B does apply to the attached garage which is located on the Crispino property to the west of the Florians' proposed road, Honey Drive" (ROR, Item #85, p. 7); and because the garage is less than 40 feet from the proposed road, "the location of the Crispinos' garage will not conform to the minimum street line setback requirement of Section 32 of the zoning regulations." (ROR, Item #85, p. 1.) Knott's opinion was based in part on the use of the term "street-line" in the minimum setback regulations, rather than the term "front lot line." Knott stated that while a street line setback is usually measured from the front property line because houses usually front a street and are adjoined to the rear and sides by separate lots, the town's street line set-back regulation is not limited to those lots which border a street. (ROR, Item #85, p. 3.) Rather, Knott emphasized that the regulations differentiate between the terms "front lot line" and "street line" and that setbacks are measured from street lines, side lines, and rear lines, but not from front lot lines. (ROR, Item #85, p. 3.) Therefore, even though the Crispino property is not a corner lot, setback requirements must be maintained for the Poplar Drive side and the Honey Drive side.
"A local board . . . is in the most advantageous position to interpret its own regulations and apply them to the situations before it." (Internal quotation marks omitted.) Doyen v. Zoning Board of Appeals, 67 Conn. App. 597, 611, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002). "[A] board, composed of laymen, is entitled to technical and professional assistance regarding matters beyond its expertise . . . This entitlement is necessarily implied in the legislation creating the board and setting forth its duties." (Citations CT Page 6998-l omitted.) Spero v. Zoning Board of Appeals, 217 Conn. 435, 444, 586 A.2d 590 (1991). In Spero v. Zoning Board of Appeals, the court affirmed the trial court's determination that a board did not illegally delegate its decision-making authority to the town counsel or otherwise act arbitrarily in requesting and considering counsel's opinion. The court emphasized that even in a case where "the assistance rendered to the board by town counsel concerned the statutory construction of a zoning regulation . . . [t]he board was no less entitled to such advice on a primarily legal question, a matter certainly within the technical expertise of an attorney, than it is entitled to factual and statistical information supplied by its personnel trained in such matters." Id.
Upon reviewing § 32, the court finds that the commission properly determined the relation of this section to the Crispino property. The commission correctly interpreted § 32 of the zoning regulations and applied it with reasonable discretion to the facts, supporting the commission's determination that the 40-foot minimum setback requirement applied to the Honey Drive side of the Crispino garage.
The Florians further argue that even if the location of the Crispino garage in relation to the proposed Honey Drive creates a nonconformity on the Crispino property, it has no effect on the application because it is "off-site." (Florians' Brief, p. 10.) The Florians argue that they are not responsible for off-site nonconformities which may be created by their application and that the Crispino property is not part of their application. (Florians' Brief, pp. 10-12.) They also cite to a January 4, 2002 opinion of town attorney John Knott, who stated that any off-site nonconformity created by the location of the Crispino garage would not be a valid reason for denying the application. (ROR, Item #85, pp. 5-6.) The Florians also maintain that this issue has been addressed in several superior and appellate court cases that stand for the proposition that the creation of an off-site nonconformity outside the proposed subdivision does not provide an adequate basis for denying a subdivision application. (Florians' Brief, pp. 11-12.) They argue, therefore, that any nonconformity created on the Crispino property is not an adequate reason for denying their application.
The commission counters that the fact that the nonconformity is off-site does not matter because the creation of Honey Drive is an integral part of the application. (Commission's Brief, p. 32.) Specifically, the commission argues that the nonconformity exists on the face of the application and that they were justified in denying the application because of this nonconformity. (Commission's Brief, pp. 32-33.) CT Page 6998-m
"[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. In assessing whether an application meets the requirements of applicable regulations, it is well settled that these "requirements must be read to concern zoning violations inherent in the plan itself as submitted and not . . . use violations. Such requirements relate to [subdivision plans] which in and of themselves would violate zoning regulations." (Emphasis in original; internal quotation marks omitted.) Garrison v. Planning Board, 66 Conn. App. 317, 322, 784 A.2d 951, cert. denied. 258 Conn. 944, 786 A.2d 429 (2001).
Kordiak v. Woodbridge, Superior Court, judicial district of New Haven, Docket. No. CV 92 0336745 (July 21, 1993, Hodgson, J.) ( 9 Conn.L.Rptr. 444), is a case with similar facts to those of the present appeal. In Kordiak, the commission approved a subdivision plan which proposed a subdivision road that would begin at an existing town road and extend along a strip of land in between two properties which were not part of the land to be subdivided. An owner of one of these properties complained to the commission that approval of the plan would make his lot a corner lot. As a corner lot, both sides of the property would have to conform to the 75 foot setback requirement contained in the zoning regulations and the location of the structure on the property violated this requirement. The property owner claimed that the commission erred in approving a subdivision application that resulted in a zoning violation on an adjoining property. The court concluded that, despite the resulting nonconformiry on the neighboring property, the commission did not err in approving the application because the nonconformity was not created in the actual area to be subdivided.
The court found that "[t]he provisions of § 8-26 . . . refer not to adjoining properties but to the land that is to be divided" and that the town's subdivision regulations did not "contain any requirement concerning the effect of a subdivision on the compliance of adjoining lots with setback requirements." Kordiak v. Woodbridge, supra, 9 Conn.L.Rptr. 445. The court concluded that "[s]ince it is well settled that a commission cannot disapprove a subdivision application for a reason not contained in its existing regulations . . . [the commission's approval of the application] cannot be held to be illegal, arbitrary, or an abuse of discretion." Id. Though no appellate level authority CT Page 6998-n addresses this fact situation, another superior court case with similar facts has adopted the same reasoning. See Nizza v. Andover Planning Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV 93 0526193 (August 4, 1994, Leheny, J.) (determining that the commission properly approved a subdivision application even though it caused an existing structure, not part of the application, to violate the minimum setback requirements of the town).
It must be noted that Knott, upon reviewing the subdivision regulations, observed that the regulations did not contain a provision prohibiting the creation of a nonconforming structure outside the proposed subdivision. (ROR, Item #85, p. 7, n. 2.)
While a commission may not approve a resubdivision plan "which conflicts with applicable zoning regulations"; General Statutes § 8-26; it "has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance." (Internal quotation marks omitted.) Belanger v. Planning Zoning Commission, supra, 64 Conn. App. 188. Though the location of the Crispino garage does not conform to the setback requirements of the zoning regulations, it does not provide an adequate basis for denying the application because the Crispino property is not part of the land to be subdivided nor is it inherent in the plan itself as submitted.
The Florians also contend that, even if a nonconformity exists on the Crispino property, it does not affect visibility or safety on Honey Drive or at the prospective intersection of Honey Drive and Poplar Drive. They maintain that the record is devoid of any evidence of a visibility problem and that, to the contrary, relevant evidence points to the adequacy of sight lines at the intersection. (Florians' Brief, p. 12.) The Florians further argue that concerns about visibility and safety were not clearly articulated by the commission, thereby depriving the Florians of an opportunity to respond to such arguments. (Florians' Brief, p. 15.) The Florians argue, therefore, that the absence of any record evidence of a traffic safety problem renders this reason for denial invalid. (Florians' Brief, p. 13.) The Florians are correct.
As discussed previously, the creation of a nonconformity on the Crispino property does not serve as a valid basis for denying the application. However, even if the existence of the nonconformity could serve as a valid basis for denying the application, the commission's use of traffic safety concerns as a reason for denial is improper under these facts.
"While proceedings before zoning and planning boards and commissions CT Page 6998-o are informal and are conducted without regard to the strict rules of evidence . . . nevertheless, they cannot be so conducted as to violate the fundamental rules of natural justice." (Citations omitted.) Pizzola v. Planning Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974).
The Florians' traffic engineer, Bruce Hilson, submitted a report addressing various safety aspects of Honey Drive (referred to therein as Sherwood Drive). (ROR, Item #27.) Hilson also spoke during the public hearing about the capabilities of the proposed road, including the suitability of emergency access. (ROR, Item #186, p. 11-26.) In his report, Hilson engaged in a detailed analysis of the existing and proposed roads serving the subdivision. He concluded that Honey Drive, as planned, will operate at good levels of service; (ROR, Item #27, p. 1); and indicated no problems with safety or visibility on Honey Drive.
A review of the record reveals that neither the staff nor the town engineer ever referenced a sight line problem in any of their memoranda. The Cheshire Police Department reviewed the application and made no negative findings about the visibility or other safety concerns regarding Honey Drive. (ROR, Item #42.) The issue of traffic safety was never discussed at the public hearing except for the brief question of one neighboring property owner who inquired about sight lines. (ROR, Item #184, 19; #187, p. 2-3.) The lack of any evidence in the record to support this conclusion renders this commission claim invalid.
II. Whether the Application Lacks Sufficient Proof of Title to Birch Drive
The commission denied the Florians' application, in part, on the ground that the Florians failed to deliver proof of unencumbered title for an area of Birch Drive. Specifically, the commission determined that the application's reconfiguration of the proposed new section of Birch Drive necessitated a `land swap' with a neighboring property owner for a parcel described in the Property Survey as "Land to be deeded from Mary Burdacki to David and Honey Florian." (ROR, Item #87, § 2; #90.) The commission found that this land exchange implicated § 3.1 of the subdivision regulations which requires that the application "include such maps and other information as may be required for a complete review of the application." (ROR, Item #87, § 2.) The commission concluded that "[t]he applicants have not . . . delivered proof of an unencumbered title for the area" and that "[i]n the absence of this title, the access to the subdivision via Birch Drive cannot be realized as described in the plans." (ROR, Item #87, § 2.) Like the first articulated basis for the commission's decision, this basis cannot withstand close scrutiny. CT Page 6998-p
Section 2 of the commission's reasons for denial states, in its entirety:
2. The second access to the proposed subdivision is through its southwest corner via Birch Drive. At the request of the Commission, the applicants reconfigured the geometry of the junction of their proposed new section of Birch Drive, so as to make it conform to the Town's design standards. This realignment necessitated a `land swap' with a neighboring property owner. Section 3.1 of the Subdivision Regulations requires that the application "shall include such maps and other information as may be required for a complete review of the application." The applicants have not, however, delivered proof of an unencumbered title for the area shown as "Land to be deeded from Mary Burdacki to David and Honey Florian" and shown on the Property Survey Sheet entitled "David and Honey Florian, Birch Street and Poplar Drive, Cheshire, CT scale 1" = 100.' Jan. 20, 2001 revised Sept. 5, 2001. In the absence of this title, the access to the subdivision via Birch Drive cannot be realized as described in the plans.
(ROR, Item #87, § 2.)
The Florians appeal on the ground that the commission's denial was invalid and illegal because their application conforms to all the requirements of the subdivision regulations and, therefore, should have been granted. (Appeal, ¶ 6c.) While the Florians acknowledge that the subdivision, as proposed, could not be actualized without acquiring a fee interest in the piece of land, they argue that there is no requirement in either the zoning or subdivision regulations that, in the application process, an applicant must demonstrate legal title to the entire area of the proposed subdivision. (Florians' Brief, p. 17.) The Florians further argue that "in many subdivision applications of this nature, applicants are often required to secure agreements with neighboring property owners for land swaps, easements and the like [and] [i]f a subdivision plan is approved showing these land swaps and/or easements and the applicant is later unable to consummate the agreement with the neighboring property owner the approval can become worthless." (Florians' Brief, p. 17.) The Florians maintain that no request was made of them to demonstrate title to this piece of land. In addition, the issue was not raised at the public hearings or in comments of either the town planner or the engineer. (Florians' Brief, p. 18.)
The commission counters merely that it does not have the authority to decide factual issues related to title and that the applicants failed to provide sufficient evidence to resolve the issue. (Commission's Brief, p. 23.)
The commission's review process required it to determine whether the Florians' application conformed to the applicable zoning and subdivision regulations, not title to a parcel of land. See Reed v. Planning Zoning Commission, supra, 208 Conn. 433. In Gagnon v. Municipal Planning Commission, 10 Conn. App. 54, 521 A.2d 589, cert. denied 203 Conn. 807, 525 A.2d 521 (1987), a case involving a subdivision application and a dispute over the existence of an easement, the Appellate Court explained that "[b]ecause a commission is not a court of law, its authority is stringently limited. It can only apply its regulations to the proposals which appear before it. It cannot make law." Id., 57. "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." (Citation omitted; internal quotation marks omitted.) Reed v. Planning Zoning Commission, supra, 433.
The Florians accurately point out that there is nothing in the relevant regulations requiring applicants to submit proof of title to all areas of CT Page 6998-q land subject to a subdivision application. (ROR, Item #192, 193.) The provision referenced by the commission, § 3.1 of the subdivision regulations, merely provides a general requirement that all applications contain relevant material necessary for the commission's review of an application. (ROR, Item #192.) The commission is not empowered to impose upon the Florians this added requirement that they produce proof of title to the disputed area of Birch Drive.
Section 3.1 of the subdivision regulations provides in relevant part: "All applications for approval of a subdivision shall . . . include such maps and other information as may be required for a complete review of the application." (ROR, Item #192.)
The Florians also maintain, correctly, that this ground for denial implicates issues of due process because the issue of title was never raised prior to the close of the public hearing. (Florians' Brief, pp. 18-19.) The record is devoid of any indication that a request was made of the Florians to demonstrate their title to this area or that the Florians would, for any reason, be unable to procure such title. At no time were the Florians put on notice that the lack of proof of title was relevant to the commission's consideration of their application. The Florians were never given an opportunity to respond to the commission's concerns as these concerns were not raised at the public hearings.
The importance of providing the applicant an opportunity to respond to a commission's concerns, particularly concerns that form the basis of a denial of an application, is well settled. In Feinson v. Conservation Commission, 180 Conn. 421, 429 A.2d 910 (1980), the court considered the sufficiency of the commission's review and decision making process involving an application to conduct a regulated activity in an inland wetland. The court determined that "[t]he sparsity of reliable evidence in this record is underscored by the fact that the commission . . . acted in a manner which placed its data base beyond the plaintiff's scrutiny. Nowhere in the public hearing, or at any other time and place, was the plaintiff afforded a fair opportunity to hear the commission's fears and to attempt to allay them." Feinson v. Conservation Commission, supra, 428; see also Frechette v. Coventry, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 96 059673 (April 8, 1997, Bishop, J.) (applying Feinson and determining that because agency members did not publicly express concerns used as basis for denying application, applicants were not given opportunity to allay these concerns); Gonthier v. Planning Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. CV 940119318 (July 12, 1995, Fasano, J.) (applying Feinson and determining that one of the grounds for denying the application was not raised during public hearing and applicant lacked opportunity to respond to commission's concerns; therefore, ground was invalid basis for denial).
III. Whether the Record Contains Substantial Evidence that Birch Drive's Status Is Unclear CT Page 6998-r
The commission also denied the Florians' application because of issues relating to the status of Birch Drive which, as one of two means of access to the subdivision, is integral to the application. The commission expressed concern that Birch Drive may not be a public highway and could not, therefore, serve as one of two means of access to the subdivision. The commission determined that "the applicants have not provided evidence sufficient to convince the Commission that the State of Connecticut has abandoned its ownership of a section of Birch Drive . . . or that the Town considers this section to be a town street." (ROR, Item #87, § 3.) The commission concluded that "there is no clear evidence of the public highway status for this portion of Birch Drive, and it cannot therefore be considered as providing access to the property." (ROR, Item #87, § 3.).
Section 3 of the commission's reasons for denial states, in its entirety:
3. Furthermore, the applicants have not provided evidence sufficient to convince the Commission that the State of Connecticut has abandoned its ownership of a section of Birch Drive [see Overview Subdivision Map sheet OV-1 and Property Survey prepared for David Honey Florian Jan 20, 01 revised Sept. 5, 01], or that the Town considers this section to be a town street, de facto or de jure. To the best knowledge of the Commission, this right of way may very well still be private property, and unavailable for use as a public road. Section 6.2 states, in part: "Where the land to be subdivided does not abut an accepted town street or state road, the developer shall purchase the necessary right-of-way and construct at his expense access streets between the subdivision and such town street or state road. The location of such access streets shall be subject to approval of the Planning and Zoning Commission." At present, there is no clear evidence of the public highway status for this portion of Birch Drive, and it cannot therefore be considered as providing access CT Page 6998-aa to the property.
(ROR, Item #87, § 3.)
Section 6.2 of the subdivision regulations provides in relevant part: "Where the land to be subdivided does not abut an accepted town street or state road, the developer shall purchase the necessary right-of-way and construct at his expense access streets between the subdivision and such town street or state road . . . [a]ny such subdivision . . . shall have not less than two separate access streets unless it . . . can meet the requirements of a cul-de-sac . . . in Section 5.6." (ROR, Item #192.)
The proposed subdivision does not abut an accepted town street or state road and exceeds the cul-de-sac size limitations of Section 5.6. Poplar Street, a loop, would provide one access street and, via Honey Road, connect to state route 322. Birch Drive, which at one end connects with Route 322, would be the essential second access road for the subdivision.
The Florians appeal on the ground that the commission's denial was made in violation of the provisions of § 6.2 because their application fully conforms with all the requirements and standards set forth therein. (Appeal, ¶ 6b.) Specifically, the Florians maintain that there is substantial evidence in the record demonstrating that Birch Drive is a public road for its entire length of 0.55 miles and that there is no evidence in the record indicating that the state condemned a portion of Birch Drive. (Florians' Brief, pp. 19, 23.)
The commission counters that the Florians failed to provide clear evidence that Birch Drive is a public highway for its entire length and that the commission lacks the authority, itself, to determine that Birch Drive is a public road. (Commission's Brief, pp. 17-19.) The commission argues that it is not authorized to make a legal determination of the fee title to and/or legal status of Birch Drive (Commission's Brief, p. 19); CT Page 6998-s and, even if it had such authority, there was substantial record evidence contradicting the Florians' claim that Birch Drive is a public road. (Commission's Brief, p. 20.) The commission concludes that "given the conflicting evidence contained in the record and the limited scope of its authority to decide issues of title, [it] properly declined to adjudicate the status of Birch Drive as a public highway." (Commission's Brief, p. 19.)
"A planning commission can exercise only those powers expressly granted to it, and in determining whether it has the authority for a specified act, we do not search for a statutory prohibition against such an [action]; rather, we must search for statutory authority for the action." (Internal quotation marks omitted.) Krawski v. Planning Zoning Commission, 21 Conn. App. 667, 678, 575 A.2d 1036, cert. denied, 215 Conn. 814, 576 A.2d 543 (1990). It is well settled that a commission cannot decide issues of title or ownership of real property. See Cybulski v. Planning Zoning Commission, 43 Conn. App. 105, 110, 682 A.2d 1073, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996), citing Beckish v. Manafort, 175 Conn. 415, 422 n. 7, 399 A.2d 1274 (1978). It has, therefore, been determined that a municipal planning and zoning commission does not have the authority to adjudicate whether a portion of land is a public highway. See Cybulski v. Planning Zoning Commission, supra, 110, citing Gagnon v. Municipal Planning Commission, supra, 10 Conn. App. 58. It can, however, determine whether an applicant proves that it has met existing regulations, including as to the existence of a public highway. See Cybulski v. Planning Zoning Commission, supra. On review, it is the function of the trial court to examine the commission's conclusions and determine whether the evidence before the commission was sufficient to sustain its finding. See Heithaus v. Planning Zoning Commission, supra, 258 Conn. 221.
There are four methods for establishing a public highway: (1) through direct action by the legislature; (2) through authorized proceedings involving an application to a court; (3) through authorized proceedings by agents appointed for that purpose such as selectmen of towns, specified officials of municipalities and the state highway commissioner; and (4) through private dedication of land and its acceptance by the public. See R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice, (2nd Ed 1999) § 49.2, p. 475; see also Makepeace v. Waterbury, 74 Conn. 360, 361, 50 A. 876 (1902).
The Florians maintain that Birch Drive is a public highway by virtue of its implied dedication and acceptance as such. (Florians' Brief, pp. 24-27.) "Dedication is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use by and in behalf of CT Page 6998-t the public . . . Both the owner's intention to dedicate the way to public use and acceptance by the public must exist, but the intention to dedicate the way to public use may be implied from the acts and conduct of the owner, and public acceptance may be shown by proof of the actual use of the way of the public . . . Thus, two elements are essential to a valid dedication: (1) a manifested intent by the owner to dedicate the land involved for the use of the public; and (2) an acceptance by the proper authorities or by the general public . . . No particular formality is required in order to dedicate a parcel of land to a public use; dedication may be express or implied . . . Whether there has been a dedication and whether there has been an acceptance present questions of fact." (Internal quotation marks omitted.) Drabik v. East Lyme, 234 Conn. 390, 394, 662 A.2d 118 (1995); see also Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321, 327-28, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002). The issue for the court, therefore, is to determine whether the record before the commission substantially supported its conclusion that the evidence was insufficient to permit it to make a finding that Birch Drive had been impliedly accepted as a public highway.
In Cybulski v. Planning Zoning Commission, supra, our Appellate Court reviewed the decision of the trial court to sustain the plaintiffs' appeal on the ground that the commission incorrectly determined that the road in question was a public road. The Appellate Court reversed the trial court and found that there was substantial and uncontroverted evidence in the record to support a finding that the road, indeed, was public.
In the present case, the record is replete with conflicting evidence as to whether Birch Road is a public road to the subdivision's boundaries. The evidence included (1) documentation from the Cheshire Town Clerk's office that Birch Drive appears on a list of town maintained roads as .55 miles long (ROR, Item #48); (2) testimony from area residents that the town plows Birch Drive for its entire length (ROR, Item #86, pp. 27-28, pp. 18-19); (3) conflicting testimony as to whether the .55 mile extends to, or fall short of, the application property; (4) evidence that the town only improved a limited section of Birch Drive and the remainder has deteriorated and is in poor condition (ROR, Item #27, p. 3); and (5) evidence that a portion of Birch Drive may be a private right of way (ROR, Item #33).
As stated previously, whether a road has been dedicated as a public highway and whether there has been acceptance of the road present questions of fact. See Drabik v. East Lyme, supra, 234 Conn. 390. "The settled standard of review of questions of fact determined by a zoning CT Page 6998-u authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised." (Internal quotation marks omitted.) Torrington v. Zoning Commission, 63 Conn. App. 776, 786 778 A.2d 1027, aff'd., 261 Conn. 759, 806 A.2d 1020 (2002). "Furthermore, a reviewing court cannot substitute its judgment as to the weight of the evidence before the commission and on factual issues material to the reasons for the commission's decision . . . The question is not whether the trial court would have reached the same conclusion but whether the record before the [commission] supports the decision reached." (Citations omitted; internal quotation marks omitted.) Pelliccione v. Planning Zoning Commission, supra, 64 Conn. App. 333.
While it is beyond dispute that the Florians submitted some evidence that Birch Drive may be a public highway, it was within the commission's discretion to determine how much weight to accord this evidence and, more importantly, whether or not it amounted to substantial evidence. Regardless of whether this court would have reached the same conclusion as to the weight of the evidence, the conclusions of the commission will not be overturned.
It is well settled that a planning commission "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; Belanger v. Planning Zoning Commission, supra, 64 Conn. App. 188. Sections 5.6 and 6.2 of the subdivision regulations, when read in conjunction, require that a subdivision have not less than two separate access streets. (ROR, Item #192.) The Florians' subdivision plan did not comply with the applicable regulations because it failed to demonstrate two means of access to the subdivision. The decision of the commission is upheld and the appeal dismissed on this ground.
IV. Whether the Application Proposes Improvements the Town Is Not Entitled to Undertake
The commission also denied the Florians' application because it found that Birch Drive was in poor condition and required improvements if it was to serve as an access road to the subdivision but that because of the uncertainty as to whether Birch Drive was a public highway, the commission was unsure if the town could legally undertake improvements thereto. Specifically, the commission determined that § 6.2 of the subdivision regulations imposed an affirmative obligation to make a finding of suitability of the conditions of Birch Drive in order to CT Page 6998-v approve the application. The commission found that "[t]he applicant's own study . . . showed that the condition of Birch Drive is currently quite poor, and that at one point at least, it is narrower than required by our standards" and that despite the applicants offering to partially underwrite improvements to the road, "a significant length will still be in very poor condition and the narrow point will remain." (ROR, Item #87, § 4.) The commission concluded that "[g]iven the questions of status described above, it is unclear whether this section of Birch Drive is indeed a public highway, and whether the Town could legally make the necessary improvements to bring it up to the required standards. Under these circumstances, the Commission cannot make the finding described above, which is necessary for approval of this application." (ROR, Item #87, § 4.)
Section 4 of the commission's reasons for denial states, in its entirety:
(4) Section 6.2 further requires, that "to protect the public health, safety and welfare, in approving any application for subdivision, the Commission shall find that existing public highways to which a proposed subdivision abuts or intersects with [sic] whether State or municipal, shall have such width, pavement condition, drainage facilities, sight lines and alignment . . ." to safely serve the anticipated traffic, pedestrians, fire emergency apparatus, snow plows, etc. [Emphasis added.] This places an affirmative obligation on the Commission to make such a finding of suitability in order to approve an application.
The applicant's own study entitled "Status of Birch Drive. As a Town Road" dated November 12, 2001, showed that the condition of Birch Drive is currently quite poor, and that at one point at least, it is narrower than required by our standards. The applicants have, commendably, offered funding to partially underwrite the Town's repaving of some of this neglected portion of Birch Drive, but a significant length will still be in very poor condition, and the narrow point will remain. Given the questions of status described above, it is unclear whether this section of Birch Drive is indeed a public highway, and whether the Town could legally make the necessary improvements to bring it up to the required standards. Under these circumstances, the Commission cannot make the finding described above, which is necessary for approval of this application.
Section 6.2 of the subdivision regulations states in relevant part: "[T]o protect the public health, safety and welfare, in approving any application for subdivision, the Commission shall find that existing public highways to which a proposed subdivision abuts or intersects with whether State or municipal, shall have such width, pavement condition, drainage facilities, sightlines and alignment as to be adequate to safely carry the prospective traffic volumes of the proposed subdivision or resubdivision in addition to the existing traffic volumes, without causing undue traffic congestion, and such highways shall be of such a character as to be adequate access to the proposed subdivision by pedestrians, fire apparatus, ambulances, police vehicles, snow plows, and other public service and emergency vehicles." The commission maintains that this provision requires them to make a finding of suitability of Birch Drive in order to approve the application.
The Florians appeal on the ground that the commission's denial was made in violation of the standards and procedures set forth in § 6.2 of the subdivision regulations because their application fully complied with all the requirements and standards set forth therein. (Appeal, ¶ 6b.)
As discussed previously (Part C III, supra), the record before the commission lacked sufficient evidence that Birch Drive had been determined to be a public highway by the appropriate authorities. The provision of § 6.2 of the subdivision regulations referenced by the commission in this ground for denial expressly limits its standards and requirements to " existing public highways to which a proposed subdivision abuts or intersects with." (Emphasis added.) (ROR, Item #192.) Therefore, although the commission is admittedly unconvinced that Birch Drive is an existing public highway (ROR, Item #87, Section 3); it nevertheless measured Birch Drive against criteria expressly applicable CT Page 6998-w to "existing public highways."
When reviewing a commission's denial of a subdivision application, "the trial court ha[s] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . 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 unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, supra, 258 Conn. 697. The commission applied subdivision regulation § 6.2 to a situation inconsistent with the express limitations of the regulation. In so doing, the commission acted unreasonably, arbitrarily and in an abuse of its discretion. This basis is an improper one on which to deny the application.
D. Modification of the Application
At the trial on the appeal before this court, the Florians advanced an additional argument that this court has the authority to modify the subdivision application submitted to the commission and enter an order directing the commission to approve such a modified application. This court then ordered both parties to submit briefs addressing this issue and the specifics of any proposed modifications to the application.
The Florians' supplemental brief fails to address the narrow issue upon which the court requested further briefing and offers the court no legal authority supporting the course of action requested at the trial nor specific proposed modifications. Moreover, a review of relevant Connecticut statutes and caselaw reveals no authority for the proposition that a reviewing trial court has the power to modify an administrative application and direct the commission to approve this modified application.
Appellate jurisdiction in administrative appeals is created exclusively by statute and may only be exercised in a manner prescribed by statute. See Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, supra, 195 Conn. 283. As a general rule, the trial court's function when reviewing an appeal from a municipal land use commission is limited to determining whether to sustain or deny the appeal. "When an opponent of an application which was granted takes an appeal, the court simply sustains or dismisses the appeal. Where the unsuccessful applicant to the agency brings the appeal and the court does not dismiss it and reverses the agency, it has to decide whether to merely sustain the appeal or whether to also order that specific relief be granted." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice; (2d Ed. 1999) CT Page 6998-x § 35.1, p. 214.
It is the function of the trial court to review the commission's denial of the plaintiffs' application, not to reconfigure aspects of the application in order to fashion an application that, hypothetically, complies with the requirements of the municipal regulations. If this court were to modify the Florians' application and then direct the commission to approve the modified application, it would undermine the very purpose of municipal planning commissions.
E. Conclusion
"It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 62 (2001). "The [commission's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." Heithaus v. Planning Zoning Commission, supra, 258 Conn. 221. Because the commission properly determined that the Florians did not submit sufficient evidence with respect to the status of Birch Drive as a public highway, the appeal is dismissed.
James T. Graham Superior Court Judge