Opinion
No. CV03-0348096 S
January 22, 2004
MEMORANDUM OF DECISION
This is an appeal from the decision of the defendant, the planning and zoning commission of Newtown (the commission), granting an application of the defendant, Colgate University (hereinafter "Colgate"), for a five-lot subdivision on Jet Brook Road in Newtown, Connecticut. This appeal is brought by the plaintiff, Frances Gorham, who owns land abutting Jet Brook Road and Colgate's property. Gorham brings this appeal pursuant to General Statutes § 8-8.
On July 11, 2002, Colgate submitted an application to the commission for approval of a subdivision of approximately 21.4 acres ("the subject property") into five residential lots to be known as New England Woods. (Return of Record [ROR], Exhibits 1, 59, 62.) Two similar subdivision applications for the same property were denied in July 1996 and February 1998. (ROR, Exhibits 16, 42.) The subject property is located on the southeasterly side of the intersection of Castle Meadow Road and Jet Brook Road, Newtown, Connecticut. (ROR, Exhibits 14, 62.) At all times relevant hereto Gorham was, and is, the owner of property known as 237 Hattertown Road, Newtown, Connecticut. (ROR, Exhibits 15, 20, 21.) Gorham's property is located on the easterly side of Hattertown Road and the westerly side of Jet Brook Road and, consequently, her property abuts the subject property. (ROR, Exhibits 15, 20, 21, 62.)
The subject property is on the south side of Castle Meadow Road and the east side of Jet Brook Road.
Public hearing on the application was held on August 15, 2002 and on October 3, 2002. (ROR, Exhibits 60, 61.) Gorham's counsel attended both hearings to express Gorham's objections to Colgate's proposal. (ROR, Exhibits 60, 61.) Gorham's counsel argued that Colgate's application should be denied because: (1) Jet Brook Road is not a town road; (2) Colgate failed to comply with numerous subdivision regulations; and (3) the subdivision will have an adverse effect on Gorham's property. (ROR, Exhibits 60, 61, 63.) Other concerned parties, including other neighbors of the subject property, submitted letters and comments expressing concerns about drainage, traffic, blasting, water contamination and water flow. (ROR, Exhibits 60, 61, 63.)
On December 19, 2002, the commission voted to approve Colgate's subdivision proposal with certain stipulations as expressed in a letter from the commission to Colgate dated December 20, 2002. (ROR, Exhibit 1.) Gorham alleges that notice of the approval was published in the Newtown Bee on December 27, 2002. (Complaint ¶¶ 6, 9.) The commission stated its reason for approval as follows: "the application is consistent with the Subdivision Regulations and the FR-2 zone." (Revised Supplemental Return of Record, Exhibit 64, p. 9.)
On appeal to the court, Gorham alleges that the commission acted illegally, arbitrarily and in abuse of its discretion in: (1) failing to support its reasons for approval with relevant regulations, ordinances, general statutes and evidence in the record; (2) failing to deny an application that does not conform to the subdivision regulations or town ordinances; (3) failing to deny an application that does not conform to the subdivision regulations or town ordinances relating to drainage, and that results in drainage discharging onto Gorham's property; (4) approving an application that it previously denied for failure to comply with subdivision regulations when said application still does not comply with subdivision regulations; (5) disregarding professional evidence establishing that the road upon which the subdivision has frontage is a private highway; and (6) failing to state in its record sufficient findings to demonstrate that the subdivision plan conforms in all respects to the requirements of all of the regulations.
AGGRIEVEMENT
The court must first address the issue of aggrievement. "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 Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). General Statutes § 8-8(a) defines an "aggrieved person" as "any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." General Statutes § 8-8(a)(1). Gorham has submitted two quitclaim deeds that evidence her ownership of property abutting the subject property. (ROR, Exhibits 20, 21.) Gorham's evidence was uncontradicted. Obviously, Gorham is statutorily aggrieved.
TIMELINESS SERVICE OF PROCESS
No challenges have been raised by the appellee-board and the complaint, file and record indicate that the Gorham appeal has been timely taken in accord with Connecticut General Statutes § 8-8(f) and (g).
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 [has] 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 [plaintiff bears] 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." (Internal quotation marks omitted.) Reed v. Planning Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988). "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, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
"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 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).
DISCUSSION A. Whether the Record Contains Substantial Evidence That Jet Brook Road Is a Town/Public Road
Gorham argues that the application should have been denied because Jet Brook Road is a private road, not a town/public road. Section 4.02.110 of the subdivision regulations provides that " [s]ubdivision of land on private streets, roads or rights of way is prohibited." (Emphasis added.) (ROR, Exhibit 64; Newtown Subdivision Regs., pp. 14-15.)
Jet Brook Road provides frontage and access to the proposed subdivision. (ROR, Exhibit 62.) Gorham maintains that there is substantial evidence in the record to demonstrate that Jet Brook Road was abandoned and is now a private road. (Gorham's Brief, p. 15.) The commission counters that there is substantial evidence in the record establishing that Jet Brook Road was never abandoned and remains a town/public road. (Commission's Brief, pp. 12-18.)
"It is well settled that a commission cannot decide issues of title or ownership of real property." 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 been determined that a "commission does not have the authority to determine" whether a portion of land constitutes a public highway. Cybulski v. Planning Zoning Commission, supra, 43 Conn. 110; see also Florian v. Cheshire Planning and Zoning Commission, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0279661, 35 Conn. L. Rptr. 74 (May 30, 2003, Graham, J.); Excelsior v. Planning Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 00 0339800 (August 17, 2001, Holden, J.).
While a commission cannot decide title to property, "[i]t can, however, determine whether an applicant proves that it has met existing regulations, including as to the existence of a public highway." Florian v. Cheshire Planning and Zoning Commission, supra, Superior Court, Docket No. CV 02 0279661, citing Cybulski v. Planning Zoning Commission, supra, 43 Conn. App. 110-11. In Cybulski, our Appellate Court reviewed a trial court decision that sustained a plaintiff's 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 evidence in the record to support a finding that the road, indeed, was public. Cybulski v. Planning Zoning Commission, supra, 43 Conn. App. 110-12. The substantial evidence in Cybulski consisted of the testimony of a civil engineer; id., 108; as well as the submission of the applicant's site plans and the applicant's representations, all indicating that the road in question was a public road. Id., 112. Thus, where there is sufficient evidence to support such a finding, it is appropriate for a trial court to uphold a commission's determination with respect to a town/public road issue.
On review, the function of the trial court is to examine the commission's conclusions and determine whether there was substantial evidence in the record to sustain the commission's findings. See Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).
The record contains conflicting evidence as to whether Jet Brook Road is a town/public road. In support of the commission's position that there was substantial evidence demonstrating that Jet Brook Road is a town/public road, the record contains: (1) a memorandum, dated August 12, 2002, from Newtown's director of public works stating that Jet Brook Road "is a public or Town road"; (ROR, Exhibit 31); (2) a Newtown road list, dated August 15, 2002, showing Jet Brook Road as a town road; (ROR, Exhibit 35); (3) an opinion letter from Attorney Natalia S. Kerler, dated August 15, 2002, stating that Jet Brook Road is a town road; (ROR, Exhibit 33); and (4) a deed dated July 30, 1968 that conveys an easement to the town of Newtown along Jet Brook Road and refers to Jet Brook Road as a highway. (ROR, Exhibit 34.)
According to General Statutes §§ 13a-1 and 14-1(34), the term "highway" means a public road.
In support of her argument that Jet Brook Road is a private road, Gorham submitted: (1) documents certified by the Newtown town clerk's office that indicate that Newtown had plans to abandon Jet Brook Road; (ROR, Exhibit 18); (2) testimony from Gorham's counsel that the town only plows a short distance of Jet Brook Road, and, moreover, that the town does not put gravel down, does not clean the catch basin, and has never installed a drainage system; (ROR, Exhibit 63, pp. 10-11); and, (3) similar testimony from Jim Nichols, a friend of the Gorham family. (ROR, Exhibit 63, pp. 23-25.)
Determinations as to whether a road is a town/public road is a question of fact. Drabik v. East Lyme, 234 Conn. 390, 394, 662 A.2d 118 (1995). "On appeal [from an administrative agency's decision], the trial court may not retry the facts. The court [shall] review the record before the board to determine whether the board's decision was a reasonably exercised honest judgment supported by the record." (Internal quotation marks omitted.) DiBlasi v. Zoning Board of Appeals, 224 Conn. 823, 829-30, 624 A.2d 372 (1993). "[O]n factual questions . . . a reviewing court cannot substitute its judgment for that of the agency . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citations omitted; internal quotation marks omitted.) Irwin v. Planning Zoning Commission, 244 Conn. 619, 629, 711 A.2d 675 (1998).
Here, as indicated above, the commission's stated reason for approval of Colgate's subdivision application was that "the application is consistent with the Subdivision Regulations and the FR-2 zone." (Revised Supplemental Return of Record, Exhibit 64, p. 9.) Implicit in this reason is that Colgate's subdivision application is in compliance with Section 4.02.110 of the subdivision regulations and that the commission found that Jet Brook Road is a town/public highway.
While Gorham has submitted some evidence that Jet Brook Road may not be a public/town road, it was within the commission's discretion to determine how much weight to accord such evidence and, more importantly, whether it amounted to substantial evidence. Since the record supports a determination that Colgate presented sufficient evidence with respect to the road issue, Gorham's appeal cannot be sustained on this ground.
B Whether the Record Contains Substantial Evidence That the Improvements to Jet Brook Road Will Not Adversely Affect the Surrounding Land with Respect to Drainage and the Flow of WaterGorham contends that Colgate's subdivision plan will adversely affect her property. Specifically, Gorham "believes that the subdivision plan as previously designed and presently modified will result in drainage water and driveway surface water and consequent erosion polluting her pond and well." (Gorham's Brief, p. 3.) The commission counters that the subdivision plan, in its present form, adequately addresses all previous problems with drainage water, driveway surface water, and resulting erosion and pollution. (Commission's Brief, p. 18.)
"The function of the court on review is not to reach its own conclusions upon subordinate facts but only to determine whether the conclusion of the commission on those facts was unreasonable or illogical." Hoffman v. Kelly, 138 Conn. 614, 617, 88 A.2d 382 (1952). The court must decide, therefore, whether the commission's determination that the subdivision plan would not adversely affect Gorham's property was unreasonable or illogical.
Gorham supports her contention by referring to a letter that sets forth the reasons for the commission's rejection of a prior subdivision plan previously submitted by Colgate. (ROR, Exhibits 16, 42.) The commission, however, references several documents and other record evidence to support its position that the subdivision will not adversely affect Gorham's property. The record contains: (1) an engineering report prepared by a professional engineer, Larry Edwards, containing a drainage analysis and a hydrograph report and stating that, as to drainage, the current status quo will be maintained; (ROR, Exhibit 57.); (2) similar live testimony by Edwards; (ROR, Exhibit 63 pp. 5-8.); (3) subdivision maps that contain an erosion and sediment control plan; (ROR, Exhibit 62.); (4) a letter from Ronald Bolmer, the town engineer, to William O'Neil, the chairman of the commission, confirming that Bolmer's initial concerns with the subdivision's drainage were adequately addressed; (ROR, Exhibit 7.); and (5) another letter from Bolmer to O'Neil confirming that the road and drainage work agreement regarding the subject property was approved by the town engineer and the board of selectmen. (ROR, Exhibit 6.)
"[P]laintiffs bear the burden of establishing that the board acted improperly." Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001). Gorham has not met this burden and the record contains sufficient evidence that the subdivision will not adversely affect Gorham's property. Accordingly, Gorham's appeal cannot be sustained on this ground.
C. Whether the Commission Illegally Reversed Its Prior Decision
Gorham also appeals on the ground that the commission, by approving the present subdivision application, illegally reversed a prior decision. (Gorham's Brief, pp. 18-19.) Specifically, Gorham argues that "[t]here is no documentation or testimony in this Record to address the specific reasons for denial of the previous COLGATE subdivision application for the same property . . . The COMMISSION did not even discuss the reasons for denial of the previous COLGATE subdivision application . . . The COMMISSION in no way articulated its reasons for reversal of its prior denial of the COLGATE subdivision." (Gorham's Brief, pp. 18-19.)
The commission counters that there was sufficient evidence that the objections to the prior application were resolved by the current application. (Commission's Brief, p. 12.) The February 1998 denial cited five reasons for the disapproval, all of which were related to the proposed road and drainage work. (ROR, Exhibits 16, 42.) The commission, however, maintains that "the [current] application proposed significant drainage and road improvements . . . [that] were reviewed and approved by Ronald Bolmer, the Town Engineer." (Commission's Brief, p. 11-12.) The commission further contends that, "within its discretion, [it] could reasonably find from the evidence that the road and drainage improvements resolved the [previous objections, and] [a]ccordingly, the denial of the prior [subdivision is] irrelevant as to whether the current subdivision application complied with the subdivision regulations." (Commission's Brief, p. 12.)
"Administrative agencies are impotent to reverse [themselves] unless (1) a change of condition has occurred since its prior decision or (2) other considerations materially affecting the merits of the subject matter have intervened and no vested rights have arisen . . . The principle applies, however, only when the subsequent application seeks substantially the same relief as that sought in the former." (Citations omitted; internal quotation marks omitted.) Bradley v. Inland Wetlands Agency, 28 Conn. App. 48, 50-51, 609 A.2d 1043 (1992). "It is unnecessary for this court to determine whether the . . . applications sought the same relief. The determination as to whether the application under review is substantially the same as the prior application and that circumstances and conditions have not changed so as to affect materially the merits of the application is for the defendant to determine in the first instance . . . The plaintiff bears the burden of proof to show that there was no change of conditions or circumstances since the prior application." (Citation omitted.) Id., 51. "The function of the court on review is not to reach its own conclusions upon subordinate facts but only to determine whether the conclusion of the commission on those facts was unreasonable or illogical." Hoffman v. Kelly, supra, 138 Conn. 617.
The court must decide, therefore, whether the commission's determination that a change in proposal has occurred since its prior decision is unreasonable or illogical. Both parties refer to a letter, dated March 6, 1998, from the commission to Colgate. (ROR, Exhibit 16.) The letter lists the following reasons for the commission's February 1998 denial of Colgate's previous subdivision application: "1. That the submitted plans do not reflect all the proposed road and drainage work as required by the Board of Selectmen. 2. That this plan will cause sand and silt to wash onto the Gorham property from the subject property creating health and safety problems. 3. That there is no easement for the depositing of sand and silt on the Gorham property, yet this plan relies upon a presumed right to do so. 4. The proposed road and drainage work will have an adverse health and safety effect on adjoining property, especially affecting the pond and well on the Gorham property. 5. The drainage plan is inadequate." (ROR, Exhibit 16.) While Gorham merely asserts that the current application is exactly the same as the prior application and that none of the objections have been satisfied, (ROR, Exhibit 63, pp. 41-42); as discussed above in subsection B, supra, Colgate specifically addressed the objections and has explained how the new application has resolved such objections. (ROR, Exhibits 62, 63, pp. 5-6.) For example, engineer Larry Edwards explained in testimony how the subject application routes drainage water onto applicant's own land, away from appellant's.
Gorham has not met her burden of proving that there were no changes contained in the present application and, moreover, since there is sufficient record evidence of new, altered proposals, the commission's determination on this matter was not unreasonable or illogical. As a result, it cannot be said the current approval is a prohibited reversal of a prior decision and thus Gorham's appeal cannot be sustained on this ground.
CONCLUSION
For the foregoing reasons, the Gorham appeal must be dismissed.
NADEAU, JUDGE.