Opinion
No. CV-05-4001537S
January 11, 2006
MEMORANDUM OF DECISION
I STATEMENT OF THE CASE
The plaintiffs, David and Daisy Hay, appeal from a decision of the defendant, the town of New Milford zoning commission (commission), approving an application for a zone change submitted by the defendant, 109 North, LLC (109 North), after conducting public hearings held pursuant to General Statutes § 8-3(c). The commission acted pursuant to General Statutes § 8-2 et seq. The plaintiffs appeal pursuant to General Statutes § 8-8.
II PROCEDURAL HISTORY OF APPEAL
Notice of the approval of the application was published in the New Milford Times December 24, 2004. (Return of Record [ROR], Exh. 40.) The plaintiffs served process upon the commission, c/o both the New Milford town clerk and the chairman of the commission at his place of abode, on January 6, 2005, and on 109 North, c/o of its registered agent for service, on January 7, 2005. (Marshal's Return.) This appeal was filed with the court on January 18, 2005. The original complaint and citation indicate that the return date was February 1, 2005.
III FACTS
The commission unanimously approved an amendment to the New Milford zoning regulations on March 23, 2004, adding, Chapter 107, a chapter concerning cluster conservation subdivision districts. (ROR, Exh. 44.) The defendant, 109 North, applied to the commission on July 15, 2004, for a zone change with respect to the subject property, zoned R-60 and R-80, to a cluster conservation subdivision district (CCSD) pursuant to section 107-010 of the New Milford zoning regulations. (ROR, Exhs. 3, 4, 5, 6; Complaint, ¶ 3; Answer of Def. 109 North, ¶¶ 2, 3; Answer of Def. Commission, ¶ 2.)
The New Milford zoning enforcement officer, Kathy Castagnetta, scheduled a public hearing on September 28, 2004, for the application submitted by 109 North. (ROR, Exh. 1.) Notice of the public hearing was published in the New Milford Times on September 17, 2004 and September 24, 2004. (ROR, Exit 39.) A public hearing was held on September 28, 2004. (ROR, Exit 46.) The public hearing was continued to October 12, 2004, October 26, 2004 and closed on November 9, 2004. (ROR, Exhs. 47, 48, 49.)
On October 15, 2004, the commission held a special meeting where the members walked the subject property. (ROR, Exh. 77.) On November 23, 2004, the application was scheduled for discussion at a special meeting to be held on November 30, 2004. (ROR, Exhs. 50, 51, 80.)
On November 30, 2004, the commission met to discuss the application and moved to draft a motion for approval of the application with certain recommendations. (ROR, Exhs. 51, 81.) On December 14, 2004, one of the commissioners moved to adopt a draft approval of the application with recommendations; the motion was seconded and carried unanimously. (ROR, Exh. 52.) Notice of the approval of the application was published in the New Milford Times on December 24, 2004. (ROR, Exit 40.)
IV JURISDICTION A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). General Statutes § 8-8(a)(1) states, in relevant part, "[i]n the case of a decision by a zoning commission . . . `aggrieved person' includes any person owning land that abuts or is within a radius of 100 feet of any portion of the land involved in the decision of the board."
Here, the plaintiff's allege that they own property that is adjacent to, and bordering, the subject property and that they are aggrieved by the action of the commission. (Complaint, ¶¶ 5, 11.) At trial, the plaintiffs offered a certified copy of a warranty deed identifying them as the grantees of certain real property located in the town of New Milford. (Pl's. Exh. 1.) At trial, plaintiff David Hay testified that the property described in the deed abuts the property that is the subject of 109 North's application. The defendants did not offer any evidence in rebuttal. The court finds that the plaintiffs are aggrieved.
B Timeliness and Service of Process
General Statutes § 8-8(b) provides, "any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsection (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court."
General Statutes § 8-8(f)(2) further provides that, "[f]or any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57. Such service shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal."
General Statutes § 52-57(b)(5) provides, in relevant part, that, "[p]rocess in civil actions against the following-described classes of defendants shall be served as follows . . . against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
The agency published a notice of its decision to approve the application submitted by 109 North in the New Milford Times on December 24, 2004. (ROR, Exh. 40.) The plaintiffs caused process to be served upon the commission, c/o both the New Milford town clerk and the chairman of the commission at his place of abode, on January 6, 2005, and on the defendant, 109 North, c/o of its registered agent for service, on January 7, 2005. (Marshal's Return.) The appeal was filed with the court on January 18, 2005. The original complaint and citation indicate that the return date was February 1, 2005.
Although the service and filing of the present appeal was timely, there is no indication that two copies of process were served upon the town clerk. Instead, it appears that only one copy was served upon the town clerk and one copy was served upon the chairman of the commission. This does not comport with the requirement set forth in § 52-57(b)(5). There is no appellate authority on the effect of a failure to serve two copies upon the town clerk. This error, however, is not fatal to the plaintiff's appeal. See, e.g., Gaida v. Shelton, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 0085423 (July 13, 2005, Stevens, J.) (service was proper where one copy of process was served separately on both town clerk and clerk of commission); Mucci Construction, LLC v. Oxford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4002344 (May 5, 2005, Shluger, J.) ( 39 Conn. L. Rptr. 296) (motion to dismiss denied where town clerk and chairperson of commission were each served with one copy of process).
Since service was otherwise in conformance with §§ 52-57(b)(5) and 8-8(b), and because both the town clerk and the chairman of the commission were each actually served, the court's jurisdiction over the subject matter of this appeal is not implicated by the failure to serve two copies of process upon the town clerk.
V STANDARD OF REVIEW
"Ordinarily, zoning authorities act in either a legislative or an administrative capacity." Burke v. Board of Representatives, 148 Conn. 33, 38, 166 A.2d 849 (1961). The determination of whether a zoning authority is acting in a legislative or administrative capacity is important "as it implicates the scope of judicial review." Blakeman v. Planning and Zoning Commission, 82 Conn.App. 632, 643, 846 A.2d 950, cert. denied, 270 Conn. 905, 853 A.2d 521 (2004).
"[T]he function of creating zones and adopting zoning regulations is essentially the function of a zoning or planning commission. This function is essentially legislative." Burke v. Board of Representatives, supra, 148 Conn. 38. "When the [commission] . . . approves a district, a new zone is created and a change to the zoning map is needed to accommodate the approval." Blakeman v. Planning and Zoning Commission, supra, 82 Conn.App. 643. "[Thus,] in acting on an application for the creation of a district, a planning and zoning commission acts in its legislative capacity." Id.; see also Burnham v. Planning Zoning Commission, 189 Conn. 261, 265, 455 A.2d 339 (1983) ("[t]he present appeal, involving a decision upon an application for a change of zone, [requires the] . . . court to review a decision made by the commission in its legislative capacity").
"We have often articulated the proper, limited scope of judicial review of a decision of a local zoning commission . . . [T]he commission, acting in a legislative capacity, [has] broad authority . . . In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached . . . Acting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function . . . This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally . . . Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment . . . The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission. Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion." (Citations omitted; internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 542-44, 600 A.2d 757 (1991). "In contrast, when acting in an administrative capacity, a zoning commission's more limited function is to determine whether the applicant's proposed use is one which satisfies the standards set forth in the regulations and the statutes." (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 505-06 n. 10, 636 A.2d 1342 (1994).
The commission exercised a legislative function when it considered 109 North's application for a zone change in the present case and, thus, was permitted to exercise broad discretion in acting upon the application. See Blakeman v. Planning and Zoning Commission, supra, 82 Conn.App. 643. This court need only find that the commission's decision was reasonably supported by the record. See Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, supra, 220 Conn. 542-44. The commission's decision may not be disturbed unless the plaintiffs can establish that the commission acted illegally, arbitrarily or in abuse of its discretion. See id.
VI DISCUSSION
The plaintiffs claim that the commission: (1) violated General Statutes § 8-3(c) by failing to state the reasons for the zone change upon the record; (2) violated § 8-3(c) by failing to ensure that the five criteria set forth in § 107-010 of the New Milford zoning regulations were met; (3) violated § 107-010 of the New Milford zoning regulations which requires that the number of lots in a CCSD shall not be greater than that allowed under a conventional subdivision; (4) unlawfully deferred certain issues to the planning commission; (5) ignored substantial evidence in the record regarding health, safety and general welfare concerns; and (6) failed to obtain a proper referral from the planning commission as required under General Statutes § 8-3a(b). Additionally, the plaintiffs claim that the CCSD scheme is unlawful because it allows a developer to make its own particular zoning standards.
As indicated above, the plaintiffs contend that the commission violated General Statutes § 8-3(c) by failing to set forth on the record the reasons for the zone change. Section 8-3(c) states, in relevant part, "[w]henever [a zoning] commission makes any change in a regulation or boundary it shall state upon its records the reason why such change is made . . ." "Section 8-3 of the General Statutes requires a board, whenever making changes in zoning regulations, to state upon its records the reason why such change is made . . . Only reasons which motivated the board as a collective body should be stated . . . While, however, a failure to comply with § 8-3 hinders appellate review of the board's action . . . the provision is directory only, so that failure to comply with it does not render the board's action void . . . Failure to state reasons merely places a burden on the court to search the record to see whether the board was justified in granting the petition." (Citations omitted; internal quotation marks omitted.) Morningside Ass'n. v. Planning Zoning Board, 162 Conn. 154, 156, 292 A.2d 893 (1972).
Section 107-010 of the New Milford Zoning Regulations states that, "[t]he purpose of this Chapter is to provide for the establishment of Cluster Conservation Subdivision Districts (CCSD). This Chapter is intended to provide an opportunity for greater flexibility in the design of subdivisions to allow greater tracts of undeveloped, dedicated conservation open space and to achieve the following objectives: a. The preservation of areas with unique or environmentally sensitive features, b. The protection of the quality and quantity of underground surface water, c. To preserve land for passive recreation purposes, d. to conserve and preserve land to assure that its development will best maintain or enhance the appearance, character, and natural beauty of an area, e. To create an interconnected network of conservation open space." (ROR, Exh. 56, p. 87.)
General Statutes § 8-3(c) states: "All petitions requesting a change in the regulations or the boundaries of zoning districts shall be submitted in writing and in a form prescribed by the commission and shall be considered at a public hearing within the period of time permitted under section 8-7d. The commission shall act upon the changes requested in such petition. Whenever such commission makes any change in a regulation or boundary it shall state upon its records the reason why such change is made. No such commission shall be required to hear any petition or petitions relating to the same changes, or substantially the same changes, more than once in a period of twelve months."
In setting forth the purpose of the chapter on cluster conservation subdivision districts, the regulatory language does not require the commission to make specific findings with respect to each of the five objectives. Similarly, the language contained in § 8-3(c) does not require specific findings. To impose such a rigid requirement would require the commission to assume an administrative role where it is required to act in its legislative capacity. See West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 505-06 n. 10.
The plaintiffs also maintain that the commission failed to ensure that the five criteria set forth in § 107-010 of the New Milford zoning regulations were met. Notwithstanding what appears to be a possible confusion of the role of the commission in acting upon an application for a change of zone, there is evidence in the record addressing the objectives set forth in the regulations. The record contains a site assessment analysis as required by § 107-030(3)(B) of the New Milford zoning regulations. (ROR, Exh. 5.) The site analysis indicates that the area to be affected by the proposed zone change contains environmentally sensitive features, including wetlands containing headwaters to two watersheds. (ROR, Exh. 5, p. 4.) The proposed plan shows that 116 acres of the 210-acre parcel will be dedicated to open space. (ROR, Exh. 5, p. 3.) The proposed plan also indicates that the majority of the wetlands are slated for inclusion in the areas to be dedicated to open space. (ROR, Exh. 5, p. 4.) A report supplied by the Housatonic Valley Council of Elected Officials on conservation subdivisions generally states, in relevant part, that, "[open space conservation subdivisions, also known as cluster conservation subdivisions,] can result in a reduction in the amount of impervious surface due to shorter roads and driveways . . . storm water runoff from impervious surfaces can flow more slowly and be directed to flow over pervious surfaces . . . By enabling natural infiltration, water, soaking into and moving through the underlying soil is filtered of some pollutants and ground water resources are recharged." (ROR, Exh. 25, p. 49.) The proposed plan provides for pedestrian pathways and for the future construction of a trail system. (ROR, Exh. 75, p. 29.) The open space in the proposed plan would connect to an adjoining parcel of open space. (ROR, Exh. 5, p. 6.) Edwards addressed the preservation of hedge rows and stone walls at the public hearing on September 28, 2004. (ROR, Exh. 75, p. 26.) The planning commission, by memorandum dated August 20, 2004, supported the proposed amendment to the zoning map, stating, "[t]he Commission feels it is a suitable use of the land and preserves a greater amount of open space as opposed to the traditional subdivision layout." (ROR, Exh. 11.)
Based on the record, there is reasonable support for the commission to have found that the proposed plan presented by 109 North preserves an area with environmentally sensitive features, protects the quality of surface water, preserves land for passive recreation, conserves and preserves land and assures that its development maintains or enhances the appearance, character and natural beauty of the area and creates an interconnected network of open space. As such, the court finds that the plaintiffs failed to establish that the commission acted unlawfully by failing to make specific findings on the five objectives set forth in the regulations.
The plaintiffs further contend that the commission violated § 107-010 of the New Milford zoning regulations which requires that the number of lots in a CCSD shall not be greater than that allowed under a conventional subdivision. Specifically, the plaintiffs maintain that the commission failed to require a comparison plan that complied with the conventional subdivision regulations of New Milford.
While § 107-030 of the regulations indicates that a comparison plan of a conventional subdivision layout is required to determine the maximum number of lots that may be developed in a CCSD, § 107-040 specifically sets forth the standard to be applied in determining the number of lots. It states that, "[t]he maximum number of building lots that may be approved in a Cluster Conservation Subdivision shall not be greater than would be allowed under the conventional subdivision regulations as outlined in the Subdivision Regulations of the Planning Commission of the town of New Milford, dated June 2, 2001, and as amended. A preliminary conventional subdivision plan must be submitted for comparison purposes." (ROR, Exh. 56, p. 89.)
Hackett stated in a memorandum dated September 27, 2004, that sixty-one of the eighty lots in the conventional subdivision would be feasible "if additional information consistent with what was submitted was available." (ROR, Exh. 20.) There are various notations next to the remaining lots listed indicating that additional testing, information or permits were needed. (ROR, Exh. 20.) Hackett subsequently indicated on November 9, 2004, in commenting on the proposed conventional layout, "that with some massaging the majority of the 81 lots shown would ultimately be shown as feasible lots." (ROR, 38.) Also, a soil test report for septic systems was prepared by Edwards indicating that eighty-five lots are feasible in a comparison or conventional plan, but maintaining, nevertheless, that eighty lots are appropriate in a cluster layout. (ROR, Exh. 27.) At the public hearing on October 12, 2004, Edwards testified on the number of feasible lots in a comparison conventional subdivision and stated that the number was eighty-five. (ROR, Exh. 76, pp. 11, 13.) At the public hearing on October 26, 2004, Sienkiewicz stated that 109 North had demonstrated that the number of feasible lots under a conventional plan was eighty-five lots. (ROR, Exh. 78, pp. 2-3.) At the public hearing on November 9, 2004, Doring read a memorandum into the record from Hackett which stated that the majority of the eighty-one lots shown were feasible. (ROR, 79, pp. 1-2.) The commission held a special meeting on November 30, 2004. (ROR, Exh. 51; ROR, Exh. 81.) There, it was noted that eighty lots were feasible. (ROR, Exh. 51, p. 10; ROR, Exh. 81, p. 5.) It was also noted that the applicants dug test holes on the property and that the results of the tests were reviewed by Hackett. (ROR, Exh. 51; ROR, Exh. 81, pp. 4-5.)
Based on the evidence contained in the record, the commission could have reasonably concluded that eighty lots were feasible if the property was approved as a conventional subdivision, and thus did not violate § 107-030 of the New Milford Zoning Regulations.
The plaintiffs also contend that the commission unlawfully deferred certain issues to the planning commission and that when 109 North submits its application to the planning commission, a mere administrative review is required.
The standards set forth in § 107-040 of the zoning regulations state, "[a]ll Cluster Conservation Subdivisions shall be considered as subdivisions and subject to all other applicable land-use regulations of the Town of New Milford in addition to the requirements of these regulations." (ROR, Exh. 56, p. 89.) Once this part of the process is complete, the applicant must also apply to the planning commission for final subdivision approval. (ROR, Exh. 56, p. 91.)
The New Milford planning regulations set forth standards and regulations pertaining to subdivisions. The purposes of the planning regulations are set forth in the first chapter of the regulations. It states in pertinent part that the regulations are to "protect and provide for the public health, safety and general welfare of the town, . . . guide public and private policy and action to make proper provision for . . . water supply . . . and preserve the natural beauty and topography of the town and to ensure development with regard to these natural features." New Milford Planning Regulations, pp. 2-3.
General Statutes § 8-25(a) states, in relevant part, "[b]efore exercising the powers granted in this section, the [planning] commission shall adopt regulations covering the subdivision of land . . . Such regulations shall provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety, that proper provision shall be made for water, sewerage and drainage, including the upgrading of any downstream ditch, culvert or other drainage structure which, though the introduction of additional drainage due to such subdivision, becomes undersized and creates the potential for flooding on a state highway, and, in areas contiguous to brooks, rivers or other bodies of water subject to flooding, including tidal flooding, that proper provision shall be made for protective flood control measures and that the proposed streets are in harmony with existing or proposed principal thoroughfares shown in the plan of conservation and development as described in section 8-23, especially in regard to safe intersections with such thoroughfares, and so arranged and of such width, as to provide an adequate and convenient system for present and prospective traffic needs."
At the commission's special meeting on November 30, 2004, there was considerable discussion among the commissioners, as well as Byrne and Castagnetta, on how the maximum number of lots should be determined. (ROR, Exh. 81, pp. 1-10.) Byrne advised the commission that the planning commission determines the number of lots that can be approved in a subdivision. (ROR, Exh. 81, p. 10.) Here, the zoning commission determined the maximum number of feasible lots on the property owned by 109 North as required by the regulations. At that point, 109 North was required to apply to the planning commission for subdivision approval in the same manner as it would if the application were for a conventional subdivision. The planning commission will act in an administrative capacity by applying the subdivision regulations to the application. See Reed v. Planning and Zoning Commission, 208 Conn. 431, 435, 544 A.2d 1213 (1988).
There is clearly some overlap in the types of issues that are considered by the zoning commission and those addressed by the planning commission. The difference is in the roles of the two commissions and the capacities in which they act, i.e., administrative versus legislative. The planning commission is statutorily required to consider all issues regarding, health, safety and the general welfare with regard to all subdivision applications. Furthermore, the planning commission will ultimately decide whether eighty or fewer lots can be developed on the property owned by 109 North. Castagnetta stated in her memorandum addressed to the zoning commissioners, dated September 20, 2004, "[d]etailed plans regarding septic systems, wells, and stormwater management, etc. will also be addressed at the Planning Commission." (ROR, Exh. 21, p. 2.)
The plaintiffs have not cited any law that directly supports their claim that the commission acted unlawfully. In view of the legislative role of the commission, as well as the administrative role of the planning commission, the plaintiffs have failed to show that the commission acted illegally in deferring certain issues to the planning commission.
The plaintiffs also contend that the commission ignored substantial evidence in the record regarding health, safety and general welfare concerns. As to health concerns, the New Milford director of health, by memorandum dated September 28, 2004, indicated that, "the soils on the property are fairly consistent, with a layer of suitable soil ranging from approximately 24 to 32 inches in depth for the septic system function. Below this depth there exists a more restrictive hardpan layer, which would be considered a limiting condition for the septic systems. Some sections of the property also have a further limitation due to shallow ledge rock ranging from approximately 48 to 60 inches." (ROR, Exh. 19.) The director further states that "[s]uch conditions are fairly typical in the Town of New Milford and require careful review and monitoring to ensure proper design and construction of the septic systems . . ." Id. Finally, after brief discussion of other matters regarding the construction of private wells and septic systems, the director finally indicated that he "[did] not recommend approval of the proposal." (ROR, Exh. 19.) Afterward, a soil test report was compiled where 240 deep tests pits were excavated and 150 percolation tests were conducted. (ROR, Exhs. 27, 50.) The report indicated that the preliminary plan for the proposed CCSD was feasible with regard to septic systems. (ROR, Exh. 27, 50.) Commission meeting minutes dated October 12, 2004 state that, "Larry Edwards, PE, also representing the applicants, reviewed the comments from the Health Director and the Director of Public Works regarding the preliminary design and stated that over 240 test holes have been drilled and 150 perk tests [performed] and all are shown on the revised plans including house, well and septic locations." (ROR, Exh. 47.) At the same meeting, "Attorney [Sienkiewicz] asked Mr. Edwards if the proposed locations for the well and septic meet the requirements of the health [department] to which Mr. Edwards responded that they did." Id.
As to the safety issues involved in accessing Route 109, Edwards testified at the public hearing on September 28, 2004, that, "we positioned our driveway right at that point to maximize our site line and . . . we have represented that we have a site line in excess of, I believe its 700 feet . . ." (ROR, Exh. 75, p. 21.) Castagnetta stated, "[t]he property is already zoned for residential development therefore I do not believe it is proper for the Commission to require a traffic study." (ROR, Exh. 21, p. 2.) The commission meeting minutes dated September 28, 2004 indicate that Sienkiewicz stated that, "upon his cursory review of the trip generator tables in the [z]oning office, peak hour a.m. would generate .71 trips per day per house and peak hour p.m. would generate 1.01 trips per day per house. He did not believe the level of service for Route 109 would change at all in that area." (ROR, Exh. 46, p. 9.)
Edwards also addressed storm water detention; (ROR, Exh. 75, p. 19) and the preservation of hedge rows and stone walls. (ROR, Exh. 75, p. 26.)
The foregoing citations to the record reveal that there was evidence before the commission concerning issues of health, safety and general welfare to support the commission's decision. Accordingly, the plaintiffs have not shown that the commission acted illegally, arbitrarily or in abuse of its discretion in deciding as it did. Furthermore, the commission properly acted within its discretion when it did not choose to require further studies on these matters before it rendered its decision.
"In any municipality which has a separate zoning commission operating under the provisions of this chapter or any special act and which also has a planning commission operating under the general statutes or any special act, proposed zoning regulations or boundaries or changes thereof shall be referred to such planning commission for a report at least thirty-five days prior to the date assigned for a public hearing to be held thereon. The report shall contain the findings of the planning commission on consistency of a proposed regulation or boundaries or changes thereof with the plan of development of the municipality and any other recommendations the planning commission deems relevant. The failure of the planning commission to report prior to or at the hearing shall be taken as approval of such proposals. The report concerning consistency with the plan of development and a statement of the vote of the planning commission approving, disapproving or proposing a modification of such proposal shall be publicly read at any public hearing held thereon. The full report of the planning commission regarding such proposal shall include the reasons for the commission's vote thereon and shall be incorporated into the records of any public hearing held thereon by the zoning commission. A proposal disapproved by the planning commission may be adopted by the zoning commission by a vote of not less than two-thirds of all the members of the zoning commission." General Statutes § 8-3a(b).
The plaintiffs claim that the commission failed to obtain a proper referral from the planning commission pursuant to § 8-3a(b). Specifically, the plaintiffs maintain that the planning commission failed to make any findings regarding consistency or to provide any recommendations, reasons, or analysis. Castagnetta referred 109 North's zone change application to the planning commission on July 29, 2004. (ROR, Exh. 6.) The chair of the planning commission notified the zoning commission, by memorandum dated August 20, 2004, that it had voted to support the application on August 19, 2004. (ROR, Exh. 11.) The chair stated in the memorandum that, "[t]he Commission feels it is a suitable use of the land and preserves a greater amount of open space as opposed to the traditional subdivision layout." (ROR, Exh. 11.) The memorandum was read into the record by Doring at the public hearing on September 28, 2004. (ROR, Exh. 75, p. 5.)
The planning commission commented on the consistency of the proposed zone change with the New Milford plan of conservation and development by indicating that the plan contained in the application was a suitable use of the subject property and that it would preserve more open space than a traditional layout. (ROR, Exh. 11; see also ROR, Exh. 55, pp. 54-65.) (Setting forth open space plan.) While this may seem a bit thin for a "report" on the findings of the planning commission, it was provided prior to the public hearing and was appropriately read to the public in accordance with § 8-3a(b). See Pompea v. Danbury Zoning Commission, Superior Court, judicial district of Danbury, Docket No. 320392 (May 10, 1996, Moraghan, J.) (sustaining appeal where zoning commission was only informally aware of planning commission's affirmative vote at public hearing and did not have planning commission report before it).
Since the commissions substantially complied with the requirements set forth in § 8-3a(b) with regard to time, production of a report and a public reading of the report at the public hearing on the application, the plaintiffs have failed to prove that the commission violated § 8-3a.
Finally, the plaintiffs contend that the CCSD scheme is unlawful because it allows a developer to make its own particular zoning standards and that the commission failed to establish standards for the creation of the CCSD. The plaintiffs rely on the Supreme Court cases of Powers v. Common Council, 154 Conn. 156, 222 A.2d 337 (1966), Fox v. Zoning Board of Appeals, 146 Conn. 665, 154 A.2d 520 (1959) and Ghent v. Planning Commission, 219 Conn. 511, 594 A.2d 5 (1991) in support of their claim.
In Powers, the plaintiff applied to the defendant zoning authority to have certain property designated as a multiple housing project area. Powers v. Common Council, supra, 154 Conn. 158. The defendant denied the application on the ground that the requested designation would increase traffic. The trial court dismissed the subsequent appeal of the denial, determining that it was improper to substitute its discretion for that of the defendant. Id. The Supreme Court determined that the provisions of the zoning regulations pertaining to the designation did not contain standards to guide the council in passing upon the plaintiff's application. Id., 160. The court stated that, "[i]n the absence of such standards, the council may apply one or more of a great variety of matters which it may deem proper, or it may grant or refuse to make a designation solely on capricious grounds." Id., 160-61.
The relevant zoning ordinance in Powers provided: "The site plan of such project shall be subject to the approval of the Planning Commission especially as to traffic access, safety and the adequacy of parking facilities." Powers v. Common Council, supra, 154 Conn. 160 n. 2.
In Fox, the defendant zoning board of appeals granted an application for variances that would allow the extension of a nonconforming use in a residential zone. Fox v. Zoning Board of Appeals, supra, 146 Conn. 667. The trial court agreed that the applicants had not established legal reasons for the granting of the variances, but determined that the variances were actually a special exception. Id. The trial court sustained the board's action on appeal, but the Supreme Court subsequently reversed that judgment, finding that the zoning regulations did not provide any conditions under which the board could grant special exceptions. Id., 668.
In Ghent, the planning commission conditionally approved an application for a proposed subdivision, including a dead-end street that exceeded the permitted length. Ghent v. Planning Commission, supra, 219 Conn. 513. The trial court sustained an appeal of the application approval, concluding that a waiver of the commission's regulations was required in order to approve the subject application, that the regulations did not provide the conditions under which such a waiver could be granted and that the waiver provisions in the commission's regulations lacked the specificity required by General Statutes § 8-26. Id. The Supreme Court affirmed the ruling of the trial court, similarly finding that "the commission's regulations are totally void of standards to measure the conditions under which a waiver of the dead-end road length limitation would be appropriate." Id., 519.
The Supreme Court, in considering the matter, noted that the commission's regulations stated, "[d]ead-end streets will be approved by the Commission only when the Commission feels that the extension of the street is impractical." Id., 516.
One chapter of the New Milford zoning regulations pertains to CCSDs. The chapter contains seven sections labeled as purpose, definitions, establishment, standards, open space and preservation, modifications and final subdivision approval. (ROR, Exh. 56, pp. 87-91.) Under "establishment," the regulations provide detailed application requirements for a CCSD, including a provision by which an applicant is permitted to draft regulations containing certain standards. 109 North provided the required draft of proposed regulations when it submitted its CCSD application. (ROR, Exh. 2.) The regulations set forth certain standards that must be met in addition to the requirements for establishing a CCSD. (ROR, Exh. 56, p. 89.) The regulations also set forth the requirements for areas designated as conservation open space in CCSDs. (ROR, Exh. 56, p. 90.) The commission has the power to adopt a CCSD with modifications "deemed necessary by the Commission to maintain the purposes of these regulations." (ROR, Exh. 56, p. 91.) Finally, the applicant must submit an application for final subdivision approval to the planning commission. (ROR, Exh. 56, p. 91.)
Section 107 of the zoning regulations states, in relevant part, that, "[a]ny application seeking to establish a Cluster Conservation Subdivision District (CCSD) shall be accompanied by . . . Regulations to be applicable within the proposed district, in form suitable for adoption as an amendment to these regulations, containing standards for no less than the following: 1. Location and size of the proposed detached single-family dwellings and other accessory structures. 2. The area, shape and frontage of lots. 3. Proposed buffer areas. 4. Front yard, rear and side yard requirements. 5. Maximum building height. 6. Maximum site coverage. 7. Proposed utilities." (ROR, Exh. 56, pp. 88-89.)
The chair of the commission remarked at the public hearing on the amendment to the New Milford zoning regulations adding Chapter 107 on CCSDs that "the developer can set his own standards for the [s]ubdivision." (ROR, Exh. 42, p. 2.) The regulations on CCSDs adopted and followed by the commission, however, set forth the standards and requirements in applying for a zone change to a CCSD in New Milford. (ROR., Ext. 56, pp. 87-91.) The regulations do not improperly create a scheme by which the commission may "grant or refuse to make a designation solely on capricious grounds." Powers v. Common Council, supra, 154 Conn. 160-61. The commission also has the power to make modify an application to ensure that it conforms to the purposes of the regulations.
The present case is inapposite to those cited by the plaintiffs. The plaintiffs have failed to substantiate their claim that the commission violated § 8-2 or acted otherwise illegally or arbitrarily in requiring 109 North to present a draft set of subdivision regulations.
VII CONCLUSION
For the foregoing reasons, the plaintiffs' appeal is dismissed.