Opinion
No. HHD CV-06-4024608-S
June 28, 2010
MEMORANDUM OF DECISION
Introduction
This matter is before the court upon remand from the Supreme Court, Newman v. Planning and Zoning Commission, 293 Conn. 209 (2009). There the Court set forth the undisputed facts and procedural history of the case: "The applicants [Mary Markow and Eric R. Secor, Jr.] applied to the commission [the planning and zoning commission of the town of Avon] for permission to subdivide their four acre parcel of property located along Talcott Notch Road in Avon (property) into two lots, each comprised of two acres. The property is zoned for residential use in zone RU-2A and originally was part of a larger thirty-four acre parcel, which previously had been subdivided. Section IV(A)(5) of the Avon zoning regulations establishes a maximum density for parcels in the RU-2A residential zone of 0.3 families per acre. Section IV(A)(6) of the regulations establishes two acres as the minimum lot area in the RU-2A zone. In approving the applicants' subdivision application, the commission relied on its historical practice of looking back to the `root' or `parent' parcel of land as it existed in 1957, when the Avon zoning and subdivision regulations were adopted. In the present case, in 1957, the property was part of a lot known as the `Alsop homestead,' thirty-four acres of which were located in Avon. The applicants' property was conveyed out of the Alsop home-stead as the first subdivided lot, and the balance of the Alsop homestead was later resubdivided into seven additional lots, known as the Stonefield subdivision. Applying the maximum density requirement of 0.3 families per acre to the parent parcel known as the Alsop homestead, the commission multiplied that density requirement by thirty-four and determined that the maximum number of lots that could be created was 10.2 lots. The commission determined that, because eight lots previously had been created from the parent parcel, two more lots could be created from the applicants' property, thus leading the commission to conclude that the applicants' subdivision application complied with the density requirement. After the commission approved the applicants' subdivision application, the plaintiffs appealed from that decision to the trial court pursuant to General Statutes § 8-8 . . . The plaintiffs contended in the trial court that the commission improperly had approved the applicants' subdivision application because the resulting lots violate the maximum density requirement of § IV(A)(5) of the Avon zoning regulations . . . The trial court agreed with the plaintiffs and sustained their appeal, concluding that the commission had violated the zoning regulations by calculating density for purposes of § IV(A)(5) by reference to the `parent parcel,' contrary to the language of the regulations, which do not refer to a `parent parcel.'" (Footnotes omitted.) Id., pp. 211-3.
The Supreme Court reversed the judgment of the Superior Court, concluding "that the trial court improperly determined that the commission incorrectly construed the term parcel in the density regulation as applying to the parent parcel of the property." Id., p. 217. The Court held that the application did not violate the maximum density requirements of the zoning regulations, as the plaintiffs had claimed. The Court remanded the matter to this court for consideration of the plaintiffs' remaining claims. The parties filed supplemental briefs regarding those claims and the court heard oral argument on April 6, 2010.
Scope of Review
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] 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 [board] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given . . . Because the plaintiff[s'] appeal to the trial court is based solely on the record, the scope of the trial court's review of the [board's] decision and the scope of our review of that decision are the same." (Internal quotation marks and citations omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60 (2007).
In addition, "General Statutes 8-6 entrusts the commission with the function of interpreting and applying its zoning regulations . . . The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts . . . The plaintiffs have the burden of showing that the commission acted improperly . . . The trial court can sustain the [plaintiffs'] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal . . . It must not substitute its judgment for that of the zoning commission and must not disturb decisions of local commissions as long as honest judgment has been reasonably and fairly exercised." (Internal citations omitted.) Dimopoulos v. Planning Zoning Commission, 31 Conn.App. 380, 383, cert. denied, 226 Conn. 917 (1993).
Discussion I.
The plaintiffs' first claim is that the application should have been referred back to the Avon Inland Wetlands and Watercourses Commission due to extensive changes in the application after the Commission's initial review. The defendants argue that not only was the Planning and Zoning Commission not required to refer this matter back to the Inland Wetlands and Watercourses Commission, but that the Commission had, at the plaintiffs' request, held a subsequent review of the application.
General Statutes § 8-26 provides that: "If an application [for a subdivision or resubdivision] involves land regulated as an inland wetland or watercourse under the provisions of chapter 440, the applicant shall submit an application to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for the subdivision or resubdivision . . . The [planning and zoning] commission shall not render a decision until the inland wetlands agency has submitted a report with its final decision to the commission. In making its decision the commission shall give due consideration to the report of the inland wetlands agency and if the commission establishes terms and conditions for approval that are not consistent with the final decision of the inland wetlands agency, the commission shall state on the record the reason for such terms and conditions."
On February 13, 2006, the Inland Wetlands Commission issued a declaratory ruling that "no regulated wetland soils or watercourses exist at the property located at 70 Talcott Notch Road." Return of Record, F. In a May 19, 2006 letter from the plaintiffs' attorney to the Inland Wetlands Commission the plaintiffs raised the issue that a newly created drainage ditch on the property constituted a intermittent watercourse and requested that the Commission reconsider its earlier declaratory ruling. Return of Record, O. In response, the Inland Wetlands Commission heard a presentation from an attorney for the plaintiffs relating to their earlier ruling that the water feature on the property was a ditch and not an intermittent water course. On June 6, 2006, the Inland Wetlands Commission reconfirmed its earlier ruling but did direct the applicants to develop a plan to stabilize the brook. Return of Record, PP.
The statutory scheme "was intended to coordinate the roles of the zoning and wetlands commissions, it was not intended to make those decisions interdependent. When the zoning commission receives a copy of the `report' prepared by the wetlands commission, it is not required to review (or await judicial review of) the validity or invalidity of that commission's final decision as a precursor to rendering its own decision. This construction of the term final decision is consistent with the function that the wetlands report was intended to serve . . . The final decision contained in the wetlands report is merely one of the many factors the zoning commission must consider in rendering its own decision, within its own relevant time limits . . . If the wetlands decision is later challenged . . . this does not, retrospectively, deprive the zoning commission of jurisdiction to act on the application before it." (Footnote and internal citations omitted.) Arway v. Bloom, 29 Conn.App. 469, 479, appeal dismissed, 227 Conn. 799 (1913). Here the Commission received not one, but two, reports from the Inland Wetlands Commission regarding this property, ( Return of Record, F and PP), therefore it was not required to refer the matter back again to that Commission prior to making its decision on the subdivision application.
Therefore this claim is without merit.
II.
The plaintiffs' second claim is that the proposed accessory buildings exceed the size of the principal building on one of the proposed lots and violate the regulations.
In this regard, it is well established that a "planning commission, acting in its administrative capacity herein, has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance . . . If it does not conform as required, the plan may be disapproved." (Internal quotation marks and citations omitted.) Reed v. Planning Zoning Commission, 208 Conn. 431, 433 (1988).
The plaintiffs argue that buildings that are one and a half times the ground floor area of the proposed dwelling are not "incidental" or "subordinate" within the meaning of "accessory." One of the proposed lots contained three accessory buildings of 698 square feet; 1,906 square feet; and 952 square feet; and a main house of 2,046 square feet. Second Substituted Complaint, paragraph 15; admitted in answer of the Town, paragraph, 15. The Commission argues that there is nothing in the definition of accessory use which requires that such buildings be smaller than the main building.
The regulations define "accessory" as "(e.g., accessory building, structure or use. Customarily incidental and subordinate to a principal building, structure, or use located on the same lot." Return of Record, CCC, p. 11-1. The Supreme Court discussed the meaning of similar language in Graff v. Zoning Board, 277 Conn. 645, 658-9 (2006). There the Court stated: "The town's definition of accessory use in § 20A of the regulations as `any use, which is attendant, subordinate and customarily incidental to the principal use on the same lot,' mimics the definition of accessory use found in Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 511, 264 A.2d 552 (1969). In Lawrence, we specifically interpreted the meaning of the regulatory language `attendant,' `subordinate,' and `customarily incidental' when defining an accessory use. Id., 511-12. In particular, we held that `[t]he word `incidental' as employed in a definition of `accessory use' incorporates two concepts. It means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance . . . But `incidental,' when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant.' Id., 512. Additionally, with respect to the word `customarily,' we concluded that `[a]lthough it is used in this and many other ordinances as a modifier of `incidental,' it should be applied as a separate and distinct test.' Id. Moreover, in Lawrence, we noted that `[i]n examining the use in question, it is not enough to determine that it is incidental in the two meanings of that word as discussed [previously]. The use must be further scrutinized to determine whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use . . . As for the actual incidence of similar uses on other properties . . . the use should be more than unique or rare,' although it need not necessarily be found on a majority of similarly situated properties to be considered customary. (Citation omitted; emphasis added.) Id., 512-13 . . . We concluded, based on this interpretation of the regulatory language at issue, that the North Branford zoning board of appeals had correctly determined that twenty-six chickens and two goats were not permitted accessory uses to residential property in that town." (Footnote omitted.) Thus there is nothing in the interpretation of the meaning of accessory that requires that an accessory building be smaller than the principal building and there is no claim here that the use of the buildings is other than incidental to the use of the main house.
The defendants also argue that the accessory buildings have been on the property for years, prior to the adoption of the town's zoning regulations, and are therefore a grand fathered nonconforming use. The house on the lot dated back to the early 1800s and the outbuildings were constructed prior to the 1960s. Return of Record, BB. General Statutes § 8-2 requires that any zoning regulations "not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations." Therefore even assuming that the regulations are interpreted to limit, in some way, the size of accessory buildings, they would not apply to the buildings here since the zoning regulations were adopted in 1957. Return of Record, QQ, p. 3. Consequently, the plaintiffs' second claim is without merit.
III.
The third issue raised by the plaintiffs is that the subdivision application was incomplete and/or in violation of various sections of the subdivision regulations. The plaintiffs cite the Appellate Court's decision in Fedus v. Zoning Planning Commission of Colchester, 112 Conn.App. 844, 850-1, cert. denied, 292 Conn. 905 (2009). There the court stated: "[W]hen 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 statutes . . . An administrative agency must act strictly within its statutory authority, within constitutional limitations and in a lawful manner . . . Agency actions occasionally exceed these limitations, and are set aside by the courts when the action taken is within one of the following areas . . . (4) the agency's decision did not conform with the standards in its own regulations . . . If zoning regulations have specific requirements for site plan approval and there is no regulation giving the zoning authority the ability to waive or substitute the requirements for given reasons, then the commission must enforce the regulations and disapprove any site plan application that does not follow the regulation." (Internal quotation marks and citations omitted.)
First the plaintiffs claim that Section 5.10.01 of the subdivision regulations required drainage calculations be submitted for the 50-year storm and the applicants' engineer only submitted calculations for the 10-year storm. The town argues that this section of the subdivision regulations is inapplicable here and, in any event, the applicants had complied with the applicable regulations. Section 5.10.01 states that: "On watersheds one square mile or over, the design of culverts, bridges and through watercourses shall be based upon not less than a 100-year storm. On watersheds of less than one square mile, the design for the through drainage shall be for not less than a 50-year storm." Return of Record, FFF, p. 29. The town argues that this regulation does not apply and the applicable regulation is Section 5.10.02 which provides that: "The drainage system for roads, including catch basins, inlets, pipe, underdrains and gutters, within or abutting the subdivision shall be designed for not less than a 10-year storm." Return of Record, FFF, p. 30.
"Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal . . . [U]pon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . We, in turn, review the action of the trial court . . . The burden of proof is on the plaintiff to demonstrate that the board acted improperly." (Internal quotation marks and citations omitted.) Spero v. Zoning Board of Appeals, 217 Conn. 435, 440-1 (1991).
In support of their claim, the plaintiffs cite the report of their engineer which states that: "The applicant's drainage calculations for the existing 12 inch culvert under Talcott Notch Road were done for a 10-year storm. Section 5.10.01 of the Subdivision Regulations require that the culvert be designed for a 50-year storm." Return of Record, CC, p. 31. Pursuant to Section 5.10.02 drainage systems for a road must be designed for not less than a ten-year storm, which was done here. Thus the plaintiffs have not met their burden to establish that the Commission applied the wrong section of the regulations.
Second, the plaintiffs claim that the applicants' plans were not in compliance with Section 5.10.04 of the subdivision regulations. That section states: "Drainage ditches will, in general, not be permitted where it is feasible to install underground pipe. Lead-off culverts shall be extended to grade." Return of Record, FFF, p. 30. The court agrees with the Town that by the use of the words "in general" the town reserved to itself discretion whether to allow a drainage ditch. However here there was already a drainage ditch on the property and it was stabilized. The town engineer also indicated that a system of catch basins and pipes were not required. Therefore the Town had discretion to approve the plan under these circumstances.
Third, the plaintiffs claim that the proposed subdivision did not comply with Section 5.04 of the regulations. That section requires that "[w]here substantial regrading of the lots is required in order to provide a buildable site, grading plan shall be submitted for Commission approval . . . The plan shall employ standards and methods equal to, or exceeding, those set forth in Erosion and Sediment Control Handbook, USDA, SCS, Storrs, Conn. 1976." Return of Record, FFF, p. 24. The Town argues that this regulation did not apply since the application here was for the division of an existing lot into two lots. In any event, the plans contained "Erosion and Sediment Control Notes" which indicated that the all erosion and sediment control measures would be constructed in accordance with the "standards and specifications of erosion and sedimentation control handbook." Return of Record, UU, p. 5. Therefore this claim is without merit.
Fourth, the plaintiffs claim that the proposed subdivision did not comply with Section 5.05.05 of the regulations. That regulation provides that: "The applicant shall be required to install one lighting pole at each intersection, together with any additional lighting poles as the Commission may require, to prevent hazard." Return of Record, FFF, p. 26. The court agrees with the Town that this provision was inapplicable here and, in the context of the subdivision regulations, only applies where the subdivision involves the construction of new streets.
Lastly, the plaintiffs claim that the proposed subdivision did not comply with Section 5.10.05 of the regulations. That section provides that: "Culverts under streets shall be extended at least to the edge of the right-of-way of the street. Headwalls, paving, flared-ends, and/or riprap, adequate to prevent erosion, shall be provided to the ends of all culverts." Return of Record, FFF, p. 30. There is no dispute that the headwall proposed here was to extend four feet from the edge of the pavement. The Town argues that this section does not apply because the headwall was being added to an existing culvert and the regulation applies only to a new drainage system. The court agrees. A plain reading of the regulation indicates that it applies to the new construction of culverts under streets.
IV.
The fourth issue raised by plaintiffs is that the Commission received inaccurate information from the town planner after the close of the public hearing and there were ex parte communications to the Commission during its deliberations from the applicants. The plaintiffs cite Pizzola v. Planning Zoning Commission, 167 Conn. 202, 208 (1974). There the Court stated: "It is true, as the defendants argue, that zoning boards and commissions are entitled to technical and professional assistance in matters which are beyond their expertise . . . and that such assistance may be rendered in executive session . . . The use of such assistance, however, cannot be extended to the receipt, ex parte, of information supplied by a party to the controversy without affording his opposition an opportunity to know of the information and to offer evidence in explanation or rebuttal." There the Commission requested, after the close of the public hearing, and received, from the applicant for a zone change, a traffic report which it considered in executive session.
The plaintiffs claim that the Town Planner, after the close of the public hearing, incorrectly advised the Commission that the owners of two double lots in the Stonefield subdivision had not lost their subdivision rights as a result of the Commission's approval of the application. In addition, the plaintiffs claim that the Commission conducted a dialogue with the applicants during its deliberations without the benefit of anyone else being able to speak. The defendants counter that any such alleged comments were immaterial and inconsequential and not prejudicial to the plaintiffs because the only relevant issue was whether the application for the subdivision conformed to the regulations. In addition, as the Supreme Court has stated: "At the outset, we note that [a] municipal planning commission, in exercising its function of approving or disapproving any particular subdivision plan, is acting in an administrative capacity and does not function as a legislative, judicial or quasi-judicial agency, which would require it to observe the safeguards, ordinarily guaranteed to the applicants and the public, of a fair opportunity to cross-examine witnesses, to inspect documents presented, and to offer evidence in explanation or rebuttal and of the right to be fully apprised of the facts upon which action is to be taken . . . The planning commission, acting in its administrative capacity herein, has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance . . . If it does not conform as required, the plan may be disapproved." (Internal quotation marks and citations omitted.) Reed v. Planning Zoning Commission, 208 Conn. 431, 433 (1988).
"Rudimentary administrative law clearly prohibits the use of information by a municipal agency that has been supplied by a party to a contested hearing on an ex parte basis." (Internal quotation marks omitted.) Daniel v. Zoning Commission, 35 Conn.App. 594, 597 (1994). There are, however, "a number of cases from our Supreme Court that, in contrast to that general rule, have approved the consideration of information by a local administrative agency supplied to it by its own technical or professional experts outside the confines of the administrative hearing . . . The court emphasized that [i]n each of these cases, the extrarecord information received by the agency from its technical consultant was not sufficient reason to invalidate the administrative decision . . . Turning to the controversy before it, the Norooz [v. Inland Wetlands Agency, 26 Conn.App. 564 (1992)] court concluded that the broad exception to the general prohibition on communications received by administrative agencies outside the confines of the hearing . . . needs further analysis before it should be applied . . . The court discussed the proper use of extrarecord analysis of evidence already in the record, stressing a focus on the nature and content of the extrarecord information relied on by an administrative agency . . . It then concluded: The proper inquiry for a reviewing court, when confronted with an administrative agency's reliance on non-record information provided by its technical or professional experts, is a determination of whether the challenged material includes or is based on any fact or evidence that was not previously presented at the public hearing in the matter . . . Finally, the Norooz court applied that inquiry to the facts at hand. First, the court noted that [n]either the trial court nor the plaintiffs have identified any fact or evidence relied on in those [communications] which was not already evidence of record in the administrative proceedings . . . Second, the court's review of the record of the administrative proceedings indicated that the communications by the agency's technical or professional experts outside the confines of the administrative hearing were limited to a review of, a comment on and an opinion concerning evidence of record . . . In addition, the court stressed that there was no indication or suggestion in either [communication] that facts not already of record in the lengthy administrative proceeding were considered by [the town engineers] in forming [their] conclusions and recommendations to the agency . . . As a result, the court concluded that the agency properly relied on those ex parte communications." (Internal quotation marks and citations omitted.) Megin v. Zoning Board of Appeals, 106 Conn.App. 602, 609-11 (2008).
Here the plaintiffs claim that the town planner gave the Commission incorrect information about a subject that was a part of the hearing in this matter. In fact, they agree that it was on a point "extensively discussed" during the hearing. Brief of Plaintiffs in Support of Administrative Appeal, p. 28. At the meeting of June 13, 2006, a member of the Commission inquired of the town planner regarding the claim of two neighboring property owners who said that they had purchased two lots and were utilizing them as one, and whether they would lose their ability to sell one of the lots at a later time. The town planner responded: "It would depend on, yeah, if they were still 2 individual lots by deed and that individual was paying taxes on 2 separate lots and the second undeveloped lot was, they were, paying taxes on the value of the full building lot, I think I would agree with what you are saying, yes." The Commissioner then stated: "So they lose nothing." And the town planner responded; "Right." Return of Record, NN, p. 2. After the meeting, the plaintiffs' attorney advised the town planner that he took exception to his statements based on the information in the record. Return of Record, DD. From a review of the record it appears that the essence of the plaintiffs' argument is that they disagree with the town planner's opinion as to the effect of the granting of the application on the rights of neighboring property owners to subdivide their land. Their attorney noted in a subsequent letter to the town planner that the town planner was wrong in his statement to the Commission because "[t]hose owners were and are at risk of losing something, which is their right to subdivide under the density formula . . ." Return of Record, GG. Clearly this was an issue of some dispute and different opinions, all of which were before the Commission. In considering whether the plaintiffs "were prejudiced by an ex parte communication, the court must consider the following: whether additional evidence pertinent to the application was requested after the close of the public hearing . . . whether the information requested by the commission was within the scope of the [matters] presented at the public hearing . . . and whether the ex parte communication was from a party to the controversy or from a public official who has no personal or financial interest in the controversy . . . Even when improper post-hearing evidence is received by a commission, it will constitute harmless error as long as the commission's action is adequately supported by assigned reasons not based on the allegedly tainted evidence." (Internal quotation marks and citations omitted.) Stevens v. Planning Zoning Commission, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV91 28 89 18S (Maiocco, J., May 11, 1993). The town planner's comments did not involve additional evidence not in the record, but only his opinion concerning evidence already in the record and how it should be considered. As such, it was not an improper ex parte communication. In any event, this discussion related to the density issue, which the Supreme Court has already determined was properly decided by the Commission, and therefore any error in the town planner's statements did not prejudice the plaintiffs.
As to the communications by the applicants to the Commission during its deliberations, they involved a brief discussion regarding the location of the proposed driveway. A member of the Commission had gone by the property and had observed an area that might be a driveway. The applicant clarified that it was a construction entrance because "[t]hat was the only way they could get the truck in specifically to drop the riprap off, riprap off to get the ditch stabilized. The actual entrance to the driveway proposed, which was approved is approximately 10 feet." He also indicated it was north, "[t]he actual entrance to the north, towards the flag, was, we didn't disrupt where the flag was because there was large pines there, so the person who stabilized the ditch, we couldn't get permission to use the common driveway." The question then was whether this condition was temporary and the applicants responded that it was. "That's temporary. It will probably be, you know, widened because of sight issues and bush issues; that area will probably be cleared anyway for the driveway because of sight issues but that was primarily the." Return of Record, SS, pp 2-3.
Regarding ex parte communications by the applicants to the Commission, as opposed to communications from its staff, a different standard applies. Such "[a]n ex parte communication raises a rebuttable presumption of prejudice. Once the plaintiff shows that an improper ex parte communication has occurred, the burden of showing that the communication was harmless shifts to the party seeking to uphold the validity of the zoning commission's decision . . . The presumption of prejudice may be rebutted by evidence that the ex parte evidence or testimony was not received by the commission or was not considered by it and, therefore, did not affect the commission's final decision." (Citations omitted.) Daniel v. Zoning Commission, 35 Conn.App. 594, 597 (1994). Yet the Appellate Court has stated: "[w]e know of no rule of law that requires a judgment or administrative decision automatically to be set aside because of the receipt or preclusion of a single piece of evidence in violation of the requirements of due process. Even in criminal cases, the law inquires into whether the taint resulting from the improper admission was harmful in light of the record as a whole . . . The same rule applies to administrative hearings . . . and to zoning cases." (Citations omitted.) Megin v. Zoning Board of Appeals, 106 Conn.App. 602, 614 (2008). Here there was already information before the Commission regarding the location of the driveway and the issue of whether certain bushes would need to be cleared to improve the line of sight. Return of Record, RR, pp. 5-6. In addition, there is no claim that the information supplied led the Commission to an erroneous decision or an improper application of the subdivision regulations to the application here, the only issue before the Commission. Therefore the applicants' remarks at the deliberations were harmless.
V.
The plaintiffs also argue that the applicants lacked standing to pursue their application because they were attempting, in their application for subdivision approval, to use density allocated to the abutting subdivision, Stonefield, even though they did not hold an interest in that land.
This court will not consider this claim since this matter was remanded to this court by the Supreme Court for consideration of the plaintiffs' remaining claims on appeal and the Supreme Court determined that this issue was not raised in the plaintiffs' appeal. The Court stated: "The plaintiffs also assert that the judgment of the trial court should be affirmed because the applicants lack standing to file a subdivision application that `counts' or includes land toward the minimum density requirements that they do not own. Because our examination of the record reveals that the plaintiffs failed to raise this claim in the trial court, we decline to review the claim. See Cohen v. Yale-New Haven Hospital, 260 Conn. 747, 761 n. 4, 800 A.2d 499 (2002)." Newman Planning and Zoning Commission, 293 Conn. 209, 213 fn.7 (2009).
Conclusion
For the reasons stated above, the appeal is dismissed.