Opinion
No. CV 06-4024137
June 2, 2008
MEMORANDUM OF DECISION
Plaintiff, Jackson, Inc. appeals the decision of the defendant, Planning and Zoning Commission of the Town of Avon, denying its application for approval of a 97-home subdivision. The facts are as follows.
The plaintiff sought to subdivide for residential uses, a particularly difficult parcel of land in Avon which consisted of large areas of wetlands, steep slopes and rocky ledge. The plaintiff worked with the Town Engineer and Town Planner to develop several modifications of its plan, including reducing the number of lots from 110 to 97. Evidence revealed that the implementation of plaintiff's plans would require 400,000 cubic yards of material to be moved from one location to another within the property, and 65,000 cubic yards of material to be removed from the site. Many of plaintiff's proposed building lots were to rely on large amounts of fill placed on steep slopes. In the same general area where previous approvals for other subdivisions on steep slopes and requiring substantial regrading, the Town had received 29 drainage and erosion complaints
In evaluating the plaintiff's final submission, the Town Planner conceded that plaintiff had taken extraordinary measures that "would go a significant distance in a significant way toward some of these concerns if they were implemented correctly." He went on to say, "I guess the question for the Commission tonight is . . . whether or not you still have concerns . . . can be addressed and perhaps could be addressed to the Commission's . . . greater satisfaction if an alternate design were chosen."
In the end, the Commission voted 3 to 2 to deny approval of plaintiff's application without prejudice to the defendant submitting another plan. The reason for the denial was as follows.
1. Section 1.11 of the Subdivision Regulations, Character of the Land, has not been met:
CHARACTER OF THE LAND — Land which the Commission finds to be unsuitable for subdivision or development, due to flooding, improper drainage, steep slopes, rock formations, adverse earth formations or topography, utility easements, or other features will reasonably be harmful to the safety, health, and general welfare of the present or future inhabitants of the subdivision and/or its surrounding areas, shall not be subdivided or developed unless adequate methods are formulated by the developer and approved by the Commission, upon recommendation of the Town Engineer and Director of Health, to solve the problems created by the unsuitable land conditions. Such land shall be set aside for uses as shall not involved such a danger. The number of requested building parcels and road configurations result in too great of a disturbance to the site with approximately 800,000 c.y. of cuts and fills with a surplus of 65,000 c.y. of material. The resulting blasting, crushing, and transporting of material may be reasonably harmful to the present inhabitants of the surrounding areas. Additionally, the intense development of similar sites within the Huckleberry Hill area have demonstrated the ongoing erosion problems which impact future inhabitants of the developments and surrounding areas.
At the trial, the plaintiff produced the deed showing it is the owner of the subject property. Since the Commission denied plaintiff's application, plaintiff has demonstrated a significant, personal and legal interest in the subject matter of the Commission's decision, and has been aggrieved. It, thus, has standing (Conn. Gen. Stat. § 8-(a)(1)), and this court has jurisdiction to determine that issue.
The standard of review for determining an appeal from a decision of a town planning and zoning commission is to whether or not the commission's decision was unreasonable, arbitrary or illegal. McCrann v. Town Planning Zoning Commission, 161 Conn. 65, 70-71 (1971). The rule is "Courts do not substitute their own judgment for that of the commission so long as honest judgment has been reasonably and fairly exercised after a full hearing." Town of Westport v. City of Norwalk, 167 Conn. 151, 161 (1974); Schwartz v. Planning and Zoning Commission, 208 Conn. 146, 152 (1988). The plaintiff has the burden of proving that the Commission acted improperly. Baron v. Planning and Zoning Commission, 22 Conn.App. 255, 257 (1990).
Plaintiff's first argument is that because its modified application satisfied the applicable regulations, the Commission had no discretion to deny it. The plaintiff asserts the law as follows: In reviewing a subdivision, a planning commission acts in an administrative capacity. Pansy Road, LLC v. Town Planning and Zoning Commission of the Town of Fairfield, 283 Conn. 369, 376 (2007). The planning commission must approve a subdivision if it conforms to the regulations adopted for its guidance. Reed v. Planning and Zoning Commission of the Town of Chester, 208 Conn. 431, 433 (1988). Because the site upon which the plaintiff proposed to build the development was zoned for residential use, the Commission could not, as a matter of law, deny the modified application based upon topographical concerns.
The short but conclusive answer to this argument is that the record reveals that the plaintiff's application did not conform to all of the Town's zoning regulations. The Commission specifically found that it violated Section 1-11 of those regulations.
Plaintiff's second argument is that Section 1.11 cannot be applied because it is too general in nature and does not contain known and fixed standards. Sonn v. Planning Commission of the City of Bristol, 172 Conn. 156, 160 (1976). The standards, the plaintiff asserts, must be delineated in regulations "to avoid decisions, affecting the rights of property owners, which would otherwise be a purely arbitrary choice of the Commission; such a delegation of arbitrary power is invalid." Ghent v. Planning Commission of the City of Waterbury, 219 Conn. 511, 517 (1991).
The courts have applied this principle in a number of cases: In Sonn v. Planning Commission, supra, the subject subdivision regulation provided: "Except in cases of unusual topography or property lines, through lots bounded on two . . . generally parallel streets will not be permitted." The court held that the criterion "unusual topography or property lines" is too broad and gave the Commission almost "unfettered authority."
In Ghent v. Planning Commission, 219 Conn. 511, 517 (1991), the subject regulation provided "Dead end streets will be approved by the Commission only when the Commission feels that the extension of the street is impractical." (Emphasis added). The court held that the word "impractical" was "so vague and imprecise that neither the Commission nor the public is fairly apprised of the circumstances under which a dead end street would be permitted."
In Helbig v. Zoning Commission, 185 Conn. 294 (310) (1981), the regulation that a nonconforming use had to be proven by "sufficient proof as the Zoning Commission may require" was too vague and unnecessarily resulted in unequal and arbitrary application of the section to affected property owners. In DeMaria v. Planning and Zoning Commission, 159 Conn. 534, 540 (1970), the Commission's reasons for denying an application were "the esthetic effect of the complex in relation to the existing neighborhood and the town in general" and that the proposed complex of apartments "does not present a satisfactory image . . ." The court held that vague and undefined esthetic considerations alone are insufficient reasons for taking such action.
In Beach v. Planning and Zoning Commission, 141 Conn. 79, 84 (1954), the denial of a subdivision application on the grounds of a financial burden to the town was held to be unjustified on the ground that the reason was not based upon a fixed standard.
In Berlin Batting Cages, Inc. v. Planning and Zoning Commission, 76 Conn.App. 199, 222 (2003), the denial of an application because of the "health, safety and welfare concerns for the immediate neighborhood" was found not to be a proper basis for the Commission's actions.
But other cases recognize that because of the many variables to be taken into account in a planning and zoning commission's deciding to approve or disapprove a subdivision application, one standard cannot cover all situations, and the criteria contained in the zoning regulations need to be only as reasonably precise as the subject matter requires.
In Forest Construction Co. v. Planning and Zoning Commission, 155 Conn. 669 (1967), the regulations provided that road specifications shall be approved by the Selectman, roads shall conform with existing roads on adjacent properties, and road intersections, gradients and curves shall be so designed as to permit adequate visibility for both pedestrian and vehicle traffic.
The court approved those regulations to be a valid basis for denying a subdivision application. The court said:
It is unrealistic to demand detailed standards which are impracticable or impossible. Bowles v. Willingham, 321 U.S. 503, 515, 64 S.Ct. 641, 88 Ed. 892. As the complexity of economic and governmental conditions increases, the modern tendency is liberal in approving broad regulatory standards so as to facilitate the operational functions of administrative boards or commission. It is apparent that the regulations are within the purview of the enabling act, and the criteria contained in the commission's regulations are as reasonably precise as the subject matter requires and are reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations. (Citations omitted). Although some of the standards may be general in their terms, they are reasonably sufficient to identify the criteria to be evaluated in their enforcement in order to meet the many variables involved since it would be impossible to establish one standard which would adequately cover all future cases. (Italics added).
In Nicoli v. Planning and Zoning Commission, 171 Conn. 89, 93 (1976), a zoning regulation that proposed streets in a subdivision be "in harmony with the existing proposed principal thoroughfares within the town of Easton," "provide an adequate and convenient system for present and prospective traffic needs," and that "roads within the subdivision `must be provided to conform and connect the existing or proposed streets or highways within the town of Easton,'" were held to be sufficiently precise. The court held, "The regulations are to be construed as a whole . . . It is clear they are intended to ensure safe and convenient access to newly developed acreage by the regulations of the planning and building of roads." It then quoted the portion of the opinion of Forest Construction Co. recited above.
In Smith v. Zoning Board of Appeals, 227 Conn. 71, 73 (1993), the Supreme Court allowed the Greenwich Zoning Board of Appeals to consider "historical factors" and "historic streetscapes" in granting or denying an application to subdivide property located in a historic district. The court held, "The standard for determining the adequacy of subdivision regulations is whether (quoting Forest Construction Co.) they `are as reasonably precise as the subject matter requires and are reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations.'" Further on in the opinion, the court states "It is unrealistic to demand detailed standards which are impractical or impossible."
In Blakemen v. Planning and Zoning Commission of City of Shelton, 152 Conn. 303, 307 (1965), the court recognized that what makes an intersection unsafe are many and varied. It said, "No one standard could ever be adopted to cover adequately all future cases. Judgment and experience must be applied in each instance . . ."
In the instant case, the Commission was dealing with a proposed subdivision on land that was unsuitable for subdivision development. The criteria for determining unsuitable land are set forth in Section 1.11 of the zoning regulations as land that is wet, rocky, steep, and of adverse topography. Those criteria are objective and detailed. It is impossible or impractical to draft more precise standards to apply to such land. The many variables involved clearly preclude it. Section 1.11 recognizes that when a subdivision application is proposed on such difficult land, the only practical way to deal with it is for the developer to present a plan that the Commission in its best judgment can approve. Concededly some discretion is left to the Commission, but under the circumstances it is necessary. There is the possibility of arbitrariness. But the situation of such topography prevents no fixed or more detailed criteria to apply.
The rule that "regulations be as reasonably precise as the subject matter requires." Forest construction Co. v. Planning and Zoning Commission, supra, 680, echoes the wisdom of Aristotle, "For it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits."
The quote continues, "It is evidently equally foolish to accept probable reasoning from a mathematician and to demand from a rhetorician scientific proofs." Aristotle, Nicomachean Ethics, translated by W.D. Ross, Book I, stanza 3.
Thus, this court concludes that Section 1.11 of the Avon Subdivision Regulations are reasonably precise and sufficient to guide both plaintiff and the Commission, and can be validly applied in this case. Smith v. Zoning Board of Appeals, supra, 95; Nicoli v. Planning and Zoning Commission, supra, 93; Forest Construction Co. v. Planning and Zoning Commission, supra, 680.
The plaintiff further argues that the Commission's decision is not supported by the evidence. In that regard plaintiff asserts that the Commission's conclusion concerning the alleged disruption to the site was premised upon its erroneous calculation of the amount of earth required to be moved about the site and removed from the site. The Commission referred to 800,000 cubic yards of cuts and fill while the plaintiff claims that the evidence established that there was only 400,000 cubic yards of material to be moved about the site. But the Commission was referring to 410,013 cubic yards of cuts and 416,291 cubic yards of fill, totaling the approximate 800,000 cubic yards it stated.
Finally, plaintiff asserts that the Commission cannot lawfully disregard expert evidence when the Commission members lack their own expertise or knowledge. Plaintiff's expert, Earth Work Services, opined that the amount of earth disturbance was not "atypical — if not less intrusive — then any other project located on similarly situated property." But the fact is that even 400,000 cubic yards of material moved from one location to another within the property and even 65,000 cubic yards of material removed from the site would require an average dump truck, holding about 15 cubic yards of material, more than 26,600 truckloads just to move the material around the site and would take another 8,600 dump truck trips to and from the site to remove the volume of earth predicted by the plaintiff. The Commission's attorney points out that if one considers that a football field has dimensions of 300 ft. x 160 ft., then the volume of material that would be moved around the site would be equivalent to a football field filled to a height of 225 ft., more than 22 stories.
The Commission has both the expertise and the right to make a judgment that such a movement of earth would result in too great a disturbance of the site. The Commission further pointed out that the resulting blasting, crushing and transporting of material "may be reasonably harmful to the present inhabitants of the surrounding areas. Additionally, the intense development of similar sites within the Huckleberry Hill area have demonstrated the ongoing erosion problems which impact future inhabitants of the developments and surrounding areas." The Commission clearly had learned from its approval of other subdivisions on similar land and did not want to create the same problems with plaintiff's proposed subdivision.
These are justifiable reasons for denying the application and they are supported by the evidence. This court will not substitute its own judgment for that of the Commission, when an honest judgment has been reasonably and fairly exercised. Westport v. City of Norwalk, supra, at 161. This court finds that the Commission's decision was not unreasonable, arbitrary or illegal. Accordingly, this court dismisses the appeal.