Opinion
No. CV 06-4020001 S
August 13, 2007
MEMORANDUM OF DECISION ON PLAINTIFFS' APPEAL
(1)
The plaintiffs own 320 Kings Highway which is an undeveloped parcel of land of 15.88 acres in an R-40 zone of North Haven. Such a zone permits development of lots with a minimum of 30,000 square feet. The plaintiffs have appealed from the denial of a subdivision application regarding the property. The application was for a re-subdivision of two lots. The plaintiffs note that as a part of the application process the following were submitted: a bond estimate and maps and a survey.
A public hearing was held February 6, 2006 and the application was supplemented by further maps and a survey. The Planning and Zoning Commission commenced its deliberations on February 6, 2006 but the decision was tabled until the March 6, 2006 meeting. On that date the commission voted unanimously to deny the application and stated the reasons for the denial on the record. It said "the plan lacking showing (failed to show) sidewalks, the water main extension across the entire front of the property of that lot and failure to show any drainage whatsoever on the larger parcel for the whole thing."
The plaintiffs have appealed the decision, briefs have been filed and argument was held on the matter.
Both plaintiffs are aggrieved by the denial of the re-subdivision application, since they are the owners of record of the property as to which the subdivision was sought (see ex 1, return of record, and affidavit of Alice McMahon) and concerning which there was a denial.
(2)
The court will first discuss the standard of review in a subdivision application denial. In adopting subdivision regulations a zoning commission acts in a legislative capacity, Beach v. Planning Zoning Commission, 141 Conn. 79, 84 (1954).
However, when it applies the regulations to a subdivision application before it the commission acts in an administrative capacity. Reed v. Planning Zoning Commission, 208 Conn. 31, 435 (1988). This defines the ambit of judicial review when a subdivision or re-subdivision application has been denied. The appropriate standard of review is set forth in Vol. 9A of the Connecticut Practice Series, Land Use Law And Practice Fuller, § 33:3, pp. 240-41 where Fuller says:
the basic question is whether the application does or does not conform to the agency's existing regulations. Accordingly, the agency has limited discretion when acting in an administrative capacity. However, it does have discretion to resolve debatable questions of fact, and on appeal the issue is whether the agency's decision on factual questions is reasonably supported by the record, in which case the court should not substitute its judgment for that of the commission. However, the court can review the reasonableness of the finding, and can decide whether the agency reasonably decided that a use met the legal definition of a word in the regulations. Deference to agency action applies only to factual determinations made by it on the merits of the application. Legal questions are for the court to determine, and it is not bound by the opinion of the local agency. Within these basic parameters, the trial court can grant relief on appeal only where the agency has acted illegally, arbitrarily or has abused its discretion.
See also Westport v. Norwalk, 151, 161-62 (1974), where the court said: "Courts do not substitute their own judgment for that of the commission so long as an honest judgment has been reasonably and fairly exercised"; DeMaria v. P Z Commission, 159 Conn. 534, 540 (1970) (court must decide whether "reasons assigned (by commission) are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations."
One of the zoning authority's tasks is to of course interpret its regulations and apply that interpretation to the application before it. A court reviewing its action on appeal must, as a predicate to passing on the reasonableness of the application of any regulations, determine whether the interpretation given to the regulations is reasonable. Schwartz v. P Z Commission, 208 Conn. 146, 153 (1988) laid down the general standard to be applied by the courts. It said: "these regulations must be interpreted in accordance with the ordinary rule of statutory construction that, where the language of the statute is clear and unambiguous, courts cannot by construction read into the statutes provisions which are not clearly stated . . . In addition, words employed in zoning ordinances are to be interpreted in accord with their natural and usual meaning." The court has also said that: "It is a standard rule of construction that, 'whenever feasible, the language of an ordinance will be so construed so that no clause is held superfluous, void, or insignificant," Melody v. ZBA, 158 Conn. 516, 521 (1969); Essex Leasing, Inc. v. ZBA, 206 Conn. 595, 601 (1988); on construction of zoning ordinances generally see Fuller, Vol. 9A Connecticut Practice Series, § 34.6.
When the meaning of the regulation is ascertained then a reviewing court turns to the issue of the reasonableness of the application of the regulation to the application before the zoning authority. In that regard the court has said that the decision of a zoning authority "must be sustained even if one of the stated reasons is sufficient to support (its decision) . . . (This) applies where the agency has rendered a formal, official, collective statement of reasons for its action," Protect Hamden/North Haven From Excessive Traffic Pollution, Inc. v. P Z Commission, 220 Conn. 527, 544 (1991); Krawski v. P Z Commission, 21 Conn.App. 667, 671 (1990) (denial of subdivision application). The import of the last mentioned observation is noted in Protect Hamden/North Haven where the court paraphrasing an earlier case said: "where zoning agency has 'formally stated' the reason for its decisions, court should not go behind such official collective statement to search record for other reasons supporting the decision," id., page 544.
The overarching guide to the appropriate standard of judicial review is the so-called "substantial evidence" rule which "the case law on land use appeals has gradually been adopting . . . for all review by the courts of administrative decision," Fuller, Vol. 9A Conn. Practice Series, § 33.12, p. 286. Huck v. Inland Wetlands, 203 Conn. 525, 539-41 (1987), says the following about the rule and its application: "The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence, however, to support any such reason must be substantial . . . (the rule) is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts.," id. pp. 539-41. Interestingly Fuller believes the rule is "somewhat differential" to the agency's decision making process and "it imposes an important limitation on the power of the courts to overturn a decision of an administrative agency, and provides a more restrictive standard than standards using review of the weight of the evidence or clearly erroneous action," § 33:12, page 287. But the word "substantial" carries its ordinary meaning and it certainly does not allow a court to rubber stamp an agency's decision," id.
(3)
The court will now apply these general observations to the issues raised by this case. As the record makes clear, and the defendant agrees, the Commission explicitly denied the application for three reasons: (1) it failed to show sidewalks; (2) it did not provide water main extension across the entire frontage of the property; (3) there was no drainage plan (or as the commission said the application failed "to show any drainage whatsoever on the larger parcel for the whole thing"). The court's inquiry is thus limited to the reasonableness of theses three positions and will not search the record for other reasons that might have served as a basis to deny the application, Protect Hamden/North Haven From Excessive Traffic Pollution, supra.
As to each of these three areas, as the defendant points out, the statutes give local communities the power to pass regulations which can be made requirements as a predicate to any subdivision application. For sidewalk and drainage requirements see § 7-148(c) of the General Statutes and § 8-25 of the General Statutes, also see § 8-26 C.G.S.A. On the issue of extension of the water main the defendant refers to the language of § 7-148(c)(4)(G) which states municipalities have the power to "provide for the furnishing of water by contract or otherwise."
Pursuant to the statutory grants of authority to act in these matters the town passed regulations which the court must examine to determine the reasonableness of the defendant's decision to deny the re-subdivision application in this case.
(1) As to sidewalks the town's subdivision regulations say the following in § 4.8:
Five foot wide, reinforced concrete sidewalks shall be installed on both sides of all streets, except where this requirement may be waived by the Commission, in its discretion, where it finds that the nature of the proposed development will result in little pedestrian traffic. Curbs shall be installed on both sides of all paved portions of streets and shall be either concrete or bituminous, at the discretion of the Commission, which discretion shall consider the existence and material of adjacent curbing and future development of the area. Five foot wide, reinforced concrete sidewalks and curbing shall be constructed on all new and existing roads within the subdivision and, with the exception of the type of material, same shall be constructed in accordance with specification adopted by the Board of Selectmen. Sidewalks constructed on new roads may be waived by the Commission under the same standards as set forth above.
(2) As to water, the town's subdivision regulations in § 3.8 say the following about supplying water:
In the case of subdivisions served by public water supply, all necessary mains, branch offsets, fire hydrants and other necessary appurtenances shall be installed as approved by the municipal department and the corporation having jurisdiction.
Section 3.3 states that "All subdivision plans shall make proper provisions for water supply, and lots which are not serviced by a public water supply system shall be large enough and so laid out to allow a distance of not less than 75 feet between any well used for such purpose and any portion of any sewage disposal."
The defendant also quotes form § 3.7 of the regulations which state that: "In the case of subdivisions served by public water supply, all necessary mains, branch offsets, fire hydrants and other necessary appurtenances shall be installed as approved by the municipal department and the corporation having jurisdiction." As defense counsel notes in her typically thorough brief the municipal corporation referred to is the South Central Connecticut Regional Water Authority (RWA) which as she notes "was created by the General Assembly through Special Act 77-98 for the 'primary purpose of providing and assuming the provision of an adequate water supply of pure water at a reasonable cost within South Central Connecticut Regional Water District.'" The defense brief notes 17 towns including North Haven are within this district.
(3) As to drainage the town's regulations have the following to say in § 3.6. Adequate storm water drainage shall be provided, and natural watercourse shall be altered or obstructed in such a way as to reduce the natural run off capacity unless substitute means of run off are provided. The Commission may require sufficient easements for the sanitary or storm water drainage including easements required beyond the limits of the subdivision. All drainage pipes and ditches shall be designed for a capacity sufficient to carry safely all storm water which may reach them from the proposed development, or water which may naturally flow onto the subdivision from adjoining property. No street drainage line shall be less than 12 inches in diameter. All provisions for storm water drainage shall be subject to the approval of the Town Engineer.
(4)
The court will now try to apply the foregoing principles in light of state statutes and the town's regulations in deciding whether the plaintiffs' appeal should be sustained. Even if only one of the reasons given for the denial is found to be supported by the record, the plaintiffs cannot prevail.
Drainage Issue (i)
Although the record is somewhat confusing on this issue certain facts seem to be clear. What does the record contain? Scott Schatzlien is the town engineer and in a letter submitted to the commission before the February 6, 2006 meeting he said the property had been before the commission "several times in the past as a complete subdivision of nine lots." Interestingly he goes on to say that: "Although this current application only calls for a re-subdivision into two lots, the potential for further re-subdivision still remains likely. Considering that a progressive (piecemeal) type process toward full subdivision potential of the property would most likely result in the same subdivision outcome with the needed public and drainage improvements . . . all public improvements, as proposed for the aforementioned previous applications, should be included in this application."
At least for the court two matters alluded to in this document are apparent. Schatzlien makes no reference or finding let alone rendered any opinion that the two-lot subdivision proposal would present any runoff or drainage problem. He believes drainage "improvements" should only be included in this application because of the fact that they were a part of the previous nine-lot application and the danger of future piecemeal re-subdivision applications leading to a nine-lot subdivision required that the current application bear the same improvements — again without any consideration of damage problems presented by this application standing alone. The second assumption or predicate for Schatzlien's concern is a difficult to understand belief or notion that somehow future re-subdivision applications up for nine lots could come into being without the requirement of commission examination or even approval. That being the case his letter to the commission (ROR 7) cannot be said to offer any support for the position that the re-subdivision application before the commission on February 6th presented drainage problems.
If we assume the drainage issue presented by this re-subdivisions application required expert testimony, Schatzlien's letter and nothing he said at the public phase of the hearing provided a basis to deny the application based one expert opinion. Nothing in the record would allow the court to conclude the commission members themselves had sufficient expertise to form an opinion on this matter, cf. cases like Levinson v. Ed. of Chiropractic Examiners, 211 Conn. 508, 525 (1989), and especially its analysis of Feinson v. Conservation Commission, 180 Conn. 421 (1980), where Levinson said: "(In Feinson) the question before us was whether, on a subject as technically sophisticated and complex as pollution control, commissioners who have not been shown to have expertise in this area may rely on their own knowledge, without more, in deciding to deny a license to conduct regulated activity."
At the hearing itself the same irrelevant references to the drainage problems presented by the previous nine-lot subdivision application were made in discussing this two-lot application where on only one lot a house was proposed, and the second "lot" was just the remainder of the almost 16-acre property. It was said the nine-lot application was turned down because of drainage concerns and the spectre of piecemeal applications was raised.
The only direct discussion that concerned possible drainage issues raised by the re-subdivision application actually before the commission on this application is contained in a dialogue between the applicant's engineer, Mr. Lambert, and the commission chairman, Mr. Carlson:
MR. CARLSON: I can certainly see you going from one extreme to the other. However, I think I would feel more comfortable if you came back with a proposed road, how you would actually develop it, simply because you know, if you piece-meal this out, a lot here, a lot here, a lot here — you're entitled to do that. The drainage problem isn't going to go away. If you put a lot here and there is drainage ditching or the opening swale that we had talked about for this subdivision had to take place, which is going to have to take place if in fact they are going to go ahead and develop this, how are you going to gain access if that lot is sold? You sell that one and then you come back with another one, and then the one next to that one there —
MR. LAMBERT: Well, we have quite a bit of frontage along Kings Highway and sixty foot of frontage on Hartford Turnpike. There are at least a number of possibilities on how that could be done.
With regard to the runoff, the runoff from a one-lot subdivision certainly is almost insignificant, particularly in view of the fact that originally this entire area at the northwest part of the parcel, when the owner purchased it, was covered with the existing house there, which is proposed to be removed at this point, plus some rather large barn facilities that certainly had a lot more impervious surface than a one-lot subdivision does, with a house footprint that's somewhere in the range of 1800 to 2000 square feet, versus coverage on the northwest corner, that between paving that was there and the large barn structure total six or seven thousand square feet easily.
MR. CARLSON: With the computations on that little corner over there that you said was around 18,000 square feet, what would the runoff be on that? Do you have those computations?
MR. LAMBERT: It's far in excess of one single house that's going to be provided for on Lot #1.
MR. CARLSON: I know what you're saying, but do you have a number?
MR. LAMBERT: In terms of quantity? Since it represents sheet flow, I would say that it represents a significant quantity difference between what was there before and with the reduction by virtue of — I would say it's probably a ten-flow difference, in my professional opinion.
MR. CARLSON: Well, I can understand it's your professional opinion, but you don't have that for us to look at?
MR. LAMBERT: No, I don't.
MR. CARLSON: Okay. That was what I was trying to get at, do you really have it, so we can say for sure if it's going to be five gallons an hour versus one, or whatever the case may be. Those are the questions I had.
To the court at least the significant portion of this exchange is the fact, uncontroverted by anything in the record that the re-subdivision application contemplated that a house would be built on lot 1, and that the existing house and barn facility in the northwest corner of the property would be torn down. When pressed on the fact that he had presented no runoff figures from the proposed lot 1 or this northwest corner area Mr. Lambert made a common sense observation that the "footprint" on the proposed house was 1,800 to 2,000 square feet while the buildings to be taken down according to Carlson" was around 18,000 square feet." Obviously, as Lambert said, the impervious area on this northwest corner is much larger than the impervious area represented by the portion of lot 1 to be occupied by a house. In his professional opinion Lambert said there would be a ten-flow difference between runoff resulting from the structures proposed to be removed and this one-lot house. Common sense would seem to dictate the same result without the need of expert testimony.
Mr. Lambert was an expert witness, but it is quite true as the defendant says that . . ."an administrative agency is not required to believe any witness even an expert witness," Kaeser v. Conservation Commission, 20 Conn.App. 309, 311-16 (1989), but as Fuller notes: "While the credibility of witnesses is a matter for the agency to determine, it cannot disregard the only expert evidence on an issue or knowledge on the subject. The agency cannot disbelieve experts unless there is evidence in the record which undermines either the experts' credibility or their final conclusions." Vol. 9A Conn. Practice Series, Land Use Law and Practice, § 33:12, page 287, citing, Tanner v. Conserv. Comm., 15 Conn.App. 336, 341 (1988); Milardo v. Inland Wetlands Comm., 27 Conn.App. 214, 222-23 (1992); Kaufman v. Zoning Comm., 122, 156-57 (1999). In Kaufman the court said the commission could deny an application it if did not believe the expert but it "had the burden of showing evidence in the record to support its decision not to believe the experts — i.e. evidence which undermined either the expert's credibility or their ultimate conclusion," id. This "evidence" certainly could not come from Schatzlien's letter and there is no evidence that the absence of runoff figures undermined the expert's conclusion about the runoff situation, if the re-subdivision were to be approved as opposed to the situation presented by disapproval with the structures in the northwest corner to remain.
During the deliberative phase Mr. Schatzlien made, what to the court were confusing observations. Rather than focusing on the limited application at issue he seems to instead address problems that would be presented by a nine-lot application and then suggests a negative response to the application because the nine-lot drainage problems were not dealt in the pending application. Even if his fears of piecemeal development were a valid concern in the pending application he does not address what is the whole point — would failure to include lot 1 of the present application in a hypothetical drainage plan make it impossible or even difficult to address any drainage problems presented by a future 5, 6, 7, 8, 9 application.
The foregoing assumes expert testimony would be required to address drainage issues presented by this application. But even if that were judged not to be the case the record is devoid of any evidence, let alone substantial evidence, that tearing down a house and barn area and permitting a house to be built on one lot would present a drainage issue. Apart from the "this is all going to end up in a nine lot plan" mantra the only direct comment regarding the effect of allowing this one house to be built was made by a commissioner who said the necessary digging and scrapping "begins to run down the first rainstorm." With all due respect the court cannot fathom the import of this suggestion either standing alone or when juxtaposed with Lambert's observations on the net reduction in impervious area contemplated by the plan before the commission.
(ii)
There is another aspect of this issue that should be discussed. The property owners who spoke in opposition to the application have an understandable concern with the runoff from this parcel. Apparently there had been flooding in the past and there is a slope from the subject property to the area of their homes. These people have a justifiable interest in trying to ensure that any development of the subject property does not exacerbate these conditions. It certainly is the general law that: "In reaching a decision on an application for approval of a subdivision, a planning commission may be empowered to consider the impact of the subdivision on adjacent territory," 83 Am.Jur.2d, "Zoning Planning" § 477, page 413, cf. Peason Kent Corp. v. Bear, 271 N.E.2d 218, 219 (NY, 1971); Castaneda v. Brighton Corp., 950 P.2d 1262, 1267 (Old., 1998). The problem here is that nothing in the record supports the notion that permitting this re-subdivision application for the construction of one house on the subject property would present a runoff problem for adjacent property owners. Understandably when the proposal was for a nine-lot development, drainage problems presented themselves and they were even addressed in the applicant's plan for development. But such is not the case here and it would, in the court's opinion, be improper for the commission to take into account drainage problems presented by the subject property whether developed or not when the one house lot proposed would have no added ascertainable effect on drainage problems, cf. the comment in the same Am.Jur. section referred to at § 477 pp. 413-14: "While a planning commission may appropriately take into consideration the feelings of neighboring property owners in opposition to the subdivision, such property owners do not possess the right to impose, for their own special benefit, restrictions upon the lawful use of a tract of land, and a denial of approval may not be based solely upon such feelings," also see Noojin v. Mobile City Planning Comm., 480 So.2d 587, 590 (Ala, ct of Civil App., 1985). From this it follows a fortiori, that the concerns of adjacent property owners cannot dictate to a commission the approval or disapproval of a subdivision application based on the provision or lack of provision of a benefit upon them having nothing to do with the immediate effect of the particular application before the commission, cf. Property Group, Inc. v. P Z Comm., 226 Conn. 684, 701-09 (1993); see also Noojin, supra where the court said in case where the re-subdivision application for construction of townhouses was denied, ". . . the testimony of the neighbors (and the evidence of the commission) did not show that the townhouses would have a tendency to actually lower the value of their property or otherwise downgrade the neighborhood. The neighbors, in effect testified only that they feared that the townhouses would do so," id., at p. 590.
For the foregoing reasons the court cannot find that the action of the commission was reasonable in denying this re-subdivision application on the basis of drainage issues.
Sidewalks
The court has previously referred to the subdivision regulations concerning sidewalks. Section 4.8 requires "five foot side, reinforced concrete sidewalks . . . on both sides of all streets." However, this requirement may be waived by the commission. The defendant's brief in one respect posits the plaintiff's position as seeking a waiver before the commission; but the commission can only grant a waiver if the application submissions include the sidewalk as to which the waiver is sought. This may appear technical but, in most cases, is not an unreasonable requirement since the commission in order to evaluate the propriety of the waiver should be presented with the condition sought to be waived.
But this, at least to the court, misses the point. The thrust of the plaintiff's argument is that § 4.8 has been misinterpreted by the commission and should not be read to require sidewalks on both sides of a highway bordering the subdivision. Here the commission interpreted the regulations as requiring some 950 feet of sidewalks on the subject property where only one lot was proposed and no other building lots were contemplated by the present application as well as requiring 950 feet of sidewalk on the opposite side of the highway bordering the 16-acre subject property on which the plaintiff claims there are no developed lots. If the regulation is read literally this would be one way of interpreting it. However, § 4.8 is after all a "subdivision" regulation. The section could also be read as requiring sidewalks only within the subdivision, the "streets" referred to being the internal "streets" within the subdivision.
If one examines § 4 of the subdivision regulations, entitled "Highway Standards," it is interesting to note that when "streets" are discussed along with the various requirements for their layout etc. internal subdivision streets are being referred to by the regulations, see § 4.1, § 4.2, § 4.3, § 4.6. § 4.7.
Faced with these two possible interpretations, ordinary rules of statutory construction must be applied. The court has previously discussed some general rules but will now try to discuss cases dealing with the "two possible interpretations" problem.
It has been said that "a court that is faced with two equally plausible interpretations may give deference to the construction of that language adopted by the agency charged with the enforcement of the regulation," Wood v. Zoning Bd. of Appeals, 258 Conn. 691, 698-99 (2001); Enfield v. Enfield Shade Tobacco, LLC, 265 Conn. 376, 385 (2003). But at § 34.6 pp. 300-01, Fuller notes a qualification to this principle, citing Smith Bros. Woodland Management, LLC v. P Z Comm., 88 Conn.App. 79, 86 (2005), where the court, quoting from an earlier opinion, said that: "Where more than one interpretation of language is permissible, restrictions upon the use of lands are not to be extended by implication . . . (and) doubtful language will be constructed against rather than in favor of a (restriction)." This is a necessary corollary to the general rule that "zoning regulations and ordinances, being in derogation of common law, must be strictly construed and not extended by implication," Schwartz v. P Z Comm., at 208 Conn. p. 146, 153 (1988). Also in State v. Parmalee, 197 Conn. 158, 165 (1985), the court said "we note that if there are two possible interpretations of a statute and one alternative proves unreasonable or produces the possibility of bizarre results, the more reasonable alternative should be adopted," see also State v. Campbell, 180 Conn. 557, 563 (1980), State v. Poirer, 19 Conn.App. 1, 3 (1989).
Another principle of statutory interpretation has also been mentioned by the courts. In interpreting a statute or a zoning regulation, the intention of the zoning authority must be ascertained and as the court in Hutchinson v. Bd. of Zoning Appeals, 140 Conn. 381, 385 (1953), said in this regard: "In ascertaining that intention, we must consider the ordinance in the light of its language and, among other things, of the purpose it was designed to serve." Commenting on Hutchinson the court in P Z Comm. v. Syvanon Foundation, 153 Conn. 305, 310 (1966), said: "If the word to be interpreted is found in a legislative prescription, the overall purpose of the legislation is of particular relevance in arriving at the appropriate meaning."
The court will now try to apply these general principles. The commission's interpretation would seem to lead to unreasonable and somewhat bizarre results. A subdivision developer would be required to install sidewalks on all streets bordering the subdivision even where, as here, on the other side of the street there are no occupied buildings, residential or commercial. If the latter is not the case is the applicant to construct sidewalks on developed property? It could be argued that there really is no problem, an applicant can always apply for a waiver. Leaving aside the rationality of even permitting the commission to have such discretion there is a problem with the waiver provision being used by the defendant to extricate itself from the difficulties presented by its interpretation of § 4.8. A waiver can be given under § 4.8 "when the nature of the proposed development will result in little pedestrian traffic." But what does that have to do with waiving any requirement that sidewalks be built on both sides of a street bordering the subdivision and not within it? Does it make sense to have a regulatory scheme which would have the commission weigh the unlikely possibility of whether more pedestrian traffic will be generated by a subdivision across the street from the subdivision?
Perhaps more to the point when the language of § 4.8 is examined closely, it seems the regulation is addressing streets only within the subdivision. The first sentence talks about "five foot wide, reinforced concrete sidewalks (being) installed on both sides of all streets," the second sentence says that "curbs shall be installed on both sides of all streets." Interestingly enough the third and last sentence appears to be a catchall referring to the previous two sentences and including their terms. It says: "Five foot wide reinforced concrete sidewalks and curbing shall be constructed on all new existing roads within the subdivision . . . and same shall be constructed in accordance with specifications adopted by the Board of Selectman" (emphasis by court). Does the first sentence really refer to a type of street not within the subdivision? It if does shall the curbs and sidewalks for this set of bordering streets not be required to be "constructed in accordance with specifications adopted by the Board of Selectmen?" That does not appear to make sense, so the "within the subdivision" language would appear to qualify" the first sentence also.
The court concludes that in accordance with the cases previously cited the defendant's interpretation of § 4.8 would lead to unreasonable results and would unfairly restrict the use of this land so that the plaintiff's interpretation of the regulation should prevail.
Water Main Extension
The defendant Commission also denied the application because the submitted plans failed to show a water main extension across the entire frontage of King's Highway. The frontage measures 960 feet, the lot on which development was planned had approximately 160 feet of frontage. Considering King's Highway as a base approximately 365 feet lay to the left and 430 feet to the right of this baseline. The water main extension would have to lie along the entire frontage.
The controlling state statutes and regulations provide as follows (1) Section 7-148(c)(4)(G) of the general statutes gives to towns the power to "Provide for the furnishing of water by contract, or otherwise." (2) Section 3.3 of the town's regulations states that "All subdivision plans shall make proper provisions for water supply, and lots which are not served by a public water supply system shall be large enough and so laid out to allow a distance of not less than 75 feet between any well used for such purpose and any portion of any sewage disposal." (3) Section 3.8 of the subdivision regulations provides that in the case of subdivisions served by a public water supply, all necessary mains, branch offices, fire hydrants and other necessary appurtenances shall be installed as approved by the municipal department and the corporation having jurisdiction."
As the defendant writes in its brief: "The South Central Connecticut Regional Water Authority (RWA) is the municipal corporation referred to in § 3.7. (§ 3.8 is meant). The RWA was created by the General Assembly through Special Act 77-98 for the ". . . primary purpose of providing and assuring the provision of an adequate water supply of pure water at a reasonable cost within the South Central Connecticut Regional Water District. The town of North Haven is included in said District, along with sixteen (16) other towns and cities."
The issue presented is whether the Commission had the power to deny this application because the submitted plans failed to show a water main extension across the entire frontage of King's Highway. The defendant concedes "that there is no provision on the Subdivision Regulations that explicitly requires the extension of the water main at issue herein across the entire frontage of the subdivision tract." There is an excellent reason for that because the only language in the regulations that appears to have anything to do with water main extensions is contained in section 3.8 of the regulations installation of which shall be "as approved by the municipal department and corporation having jurisdiction." That as noted is the RWA. The regulations of the RWA were moved to be introduced into evidence and the defendant withdrew its objection to that motion. The rules and regulations of the RWA define an "extension" as "the linear footage of main required in order to service property(ies) according to the terms and conditions set forth by these rules." (Section I.) Section II(2) provides "an extension is under the sole control and jurisdiction of the Authority (RWA)." Section II(10) states the "Authority will determine the required length size, material routing and location of an extension. Subsection (b) thereof states extensions in streets in a subdivision will include all mains required to cover buildings to be served by the subdivision to intersecting streets and the Authority may allow phased construction within a subdivision.
All of the foregoing indicates, at least to the court, that the RWA is the agency which is designated to address issues concerning water supply and water main extension. The defendant Town is included within the very RWA district. The foregoing means that this local zoning agency has no authority to deny a re-subdivision application if at the very least the application indicates the existing water supply reaches the lot sought to be developed. To require the extension of the water main beyond that basic requirement is beyond the authority that the towns own regulations provide for and which are specifically designated in those regulations to be an issue that must be addressed by the RWA. It may be true as Monroe v. Middlebury Conservation Comm., 187 Conn. 476, 483-84 (1982), says that these water authorities being creatures of the state have "no inherent powers" of their own and can "exercise only such powers as are expressly granted or necessarily implied to enable (them) to carry into effect the objects and purposes of their creation." But it can certainly exercise the powers it has been granted, one of which is to address the issue of water main extension. If a local zoning agency can deny a subdivision application on the latter issue it would create an administrative hodgepodge, negate the reason for the creation of these water authorities, and deny the obvious technical and practical expertise developed by such agencies which local zoning agencies cannot be presumed to have — see the town's regulations here which do not even address the water extension issue. On the other hand any interest a particular town might have in a situation such as the one now before the court can be protected by the RWA which can require the water main extension it deems necessary upon reviewing the application the subdivision applicant makes to it after the zoning authority addresses the subdivision application. Fuller sums it up nicely in § 21.5 pp. 608-09, Vol. 9. Conn. Practice Rules, Land Use Law and Practice:
A land use agency acting upon an administrative application should review it based upon its own regulations and whether the application meets them. Compliance or non-compliance with the regulations of another agency is not a proper consideration and that should be left for the other agency to decide if and when an application is made to it for the same property.
Finally, the court will note an alternative argument made by the plaintiff as to the validity of the denial for failure to include the water main extension in its plans. The argument is to the effect that "even if the commission had the authority to establish the length of the extension of a water main, the requirement to extend the water main across the entire frontage of the subdivision tract was not necessary for any rational purpose of the subdivision regulations." In other words there is no dispute that the existing water supply "reaches the southerly land of the purposed one lot that is intended to be developed." That is the only valid concern the regulations (§ 3.3) allow the commission to address and there is no evidence, let alone substantial evidence, in the record to support a denial of the application based on some failure of the application to address that concern. Under these circumstances, as the plaintiff argues, to require the applicant to extend the water main the entire length of this tract" would force the application to construct hundreds of feet of a water main to the very northerly end of its property with no water service necessary for land that has not even been subdivided for building lots."
Upon this record such a requirement would place an unjustified burden on the right of the plaintiffs to make use of their property. Insofar as it gratuitously seeks to benefit neighboring property owners and is not required by the proposed use of the property such a requirement is also inappropriate, see earlier discussion and cases cited by the court.
Running throughout this and all the denials, however, is the commission's fear of some piecemeal development plan and especially as to drainage and the water main extension, the corollary belief that requirements necessitated by earlier nine-lot applications can apply to this two-lot application where only one lot presently envisaged home construction. On a very basic level then the commission did not address the merit or lack of merit of the re-subdivision application before it.
In any event the appeal is granted.
(a)
These regulations are poorly drafted. The town would certainly have an interest and the right to require a sidewalk all along subdivision property which borders a street. A waiver provision could then be drawn up allowing the commission to not enforce that requirement in a situation such as this where one building lot is proposed on the edge of the subdivision bordering a street, if the subdivision frontage extends hundreds of feet beyond the one lot.
(b)
Interestingly in this case the defendant's brief assumes and the plaintiff's reply brief seems to suggest that a waiver request under § 4.8 is still an issue in this case. Waiver of course only is relevant if the defendant's interpretation of the regulations is correct and sidewalks on both sides of a street bordering but not within a subdivision is required. Under the facts of this case any failure to grant a waiver, if it was before the commission, is not supportable; the court believes there is no substantial evidence, in fact no evidence at all to justify the denial of such a waiver. Without the waiver the applicant would be required to install almost 2000 feet of sidewalk for a proposed one-lot home across from land on which there are apparently no other buildings.It is true that the plans submitted here did not include the sidewalk layout as a predicate for requesting a waiver. As discussed this is not, in most circumstance an unreasonable requirement where a waiver under § 4.8 is sought. Here, however, enforcing such a requirement or using it as a basis to deny consideration of a waiver makes little sense, at least to the court. Should an applicant, finding itself in the plaintiff's position, be burdened with going through the time, trouble, and expense of having plans developed for almost 2000 feet of sidewalk when one lot is proposed for development with only about 160 feet of frontage according to the map submitted with the application? How could the commission have reasonably denied the waiver when the criteria to grant it depends on whether there will be an excess of pedestrian traffic? — this is a one-lot, one house application.
(c)
Finally as the plaintiff notes the appellate courts have not decided whether offsite improvements can be required when these subdivision applications are before a zoning commission, Property Group, Inc. v. P Z Comm., 226 Conn. 684, 686 (1983). Concomitant with the principle that zoning ordinances must be considered to be a derogation of common-law rights, Schwartz, 208 Conn. page 153, and with what would appear to be basic prerequisites of due process, how can a zoning commission interpret or apply its regulations in such a way as to require an applicant such as this plaintiff to construct almost 1000 feet of sidewalk opposite a subdivision on which one house on one lot is proposed especially where there are apparently no residential or commercial buildings on such property? The court will not repeat its discussion in the section on drainage where it cited cases to the effect that the effect of an application on other properties can be considered but a gratuitous benefit may not be conferred on them. Beyond even that, from these principles it must necessarily follow that requirements cannot be imposed on landowners which will not even benefit anymore and only have a deleterious effect on the right of the landowner to develop its property — nothing in the record suggest otherwise.