Opinion
No. CV 05-4008571S
February 17, 2006
MEMORANDUM OF DECISION
The plaintiff, Pansy Road, LLC, (plaintiff) appeals from the decision of the Town Plan and Zoning Commission of the Town of Fairfield (commission) in which the Commission denied the plaintiff's application for approval of a proposed subdivision. The plaintiff filed an application for the approval of a residential subdivision consisting of five lots. The property is located within the Town of Fairfield and designated as parcels 120, 121, 122, and 123 and known as 85, 89, 107, and 121 Pansy Road (property). The application was filed on February 14, 2005, and a public hearing was held by the commission on March 29, 2005. On April 26, 2005, the commission voted to deny plaintiff's application for the following reasons:
1. Pursuant to Sections 1.1.12 and 1.1.14 of the Subdivision Regulations, it has not been demonstrated that the proposed lots can be used for building purposes without danger to the public safety.
2. Pursuant to Section 1.1.14 of the Subdivision regulations, it has not been demonstrated that the proposed street shown on the subdivision plans is in harmony with existing or proposed thoroughfares, especially in regard to safe intersections with such thoroughfares.
3. Pursuant to Section 2.1.5 of the Subdivision Regulations, it has not been demonstrated that the proposed street will provide a safe and convenient system for present and prospective traffic in the area surrounding the proposed subdivision. (ROR 21.)
The plaintiff has appealed from the decision of the commission, claming that in denying plaintiff's subdivision application, the commission acted illegally, unlawfully, capriciously and in abuse of the powers vested in the commission. The plaintiff claims that it complied with all of the substantive requirements of the Zoning and Subdivision Regulations, and that, despite this compliance, the application was denied on the basis of offsite traffic considerations which were beyond the scope of the administrative review allowed by the commission.
Aggrievement is a jurisdictional matter and a prerequisite for maintaining an appeal. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991). "The question of aggrievement is essentially one of standing." (Citation omitted.) DiBonaventura v. Zoning Board of Appeals, 24 Conn.App. 369, 373, 573 A.2d 1222 (1991). Unless the plaintiff alleges and proves aggrievement, the court must dismiss the appeal. Id. General Statutes § 8-8(a) defines an "aggrieved person" as "a person aggrieved by a decision of a board." The plaintiff has presented sufficient evidence (plaintiff's exhibits 1-5) to establish that is has a legal interest in the property sufficient to establish aggrievement. Accordingly, the court finds that the plaintiff is statutorily aggrieved.
In reviewing a subdivision application, the commission acts in an administrative capacity and not as a legislative, judicial or quasi-judicial agency. Reed v. Planning Zoning Commission; 208 Conn. 431, 433, 544 A.2d 1213 (1988). The commission, therefore, "has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance." Id. "If [the subdivision plan] does not conform as required, the plan may be disapproved." Forest Construction Co. v. Planning Zoning Commission, 155 Conn. 669, 675, 236 A.2d 917 (1967). The commission's action is to be sustained if any one of the reasons stated is sufficient to support its decision. See Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 697, 628 A.2d 1277 (1993).
"Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached." Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979). "The evidence, however, to support any such reason must be substantial . . ." Huck v. Inland Wetlands Watercourses Agency, supra, 540. "This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury . . . [It] is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Citations omitted; internal quotation marks omitted.) Id., 541; Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 697 (1993) 628 A.2d 1277.
The issue to be resolved is twofold. In the first instance, the court must decide if the commission was authorized to take into account offsite conditions in the consideration of plaintiff's application, and, if they were so authorized, if there is substantial evidence in the record to uphold the denial of plaintiff's application.
In Sowin Associates v. Planning Zoning Commission, 23 Conn.App. 370, 580 A.2d 1, cert. denied, 216 Conn. 832, 583 A.2d 131 (1990), the appellate court addressed the consideration of offsite traffic concerns when reviewing a subdivision application. The court held: "[B]ecause the plaintiff's land is located in a residential zone and its plan was to use the property for residential purposes, the commission could not weigh offsite traffic concerns, municipal services required by the development, property values, or the general harmony of the district when deciding whether to approve the plaintiff's subdivision application. Id., 375, citing TLC Development, Inc. v. Planning Zoning Commission, 215 Conn. 527, 532-33, 577 A.2d 288 (1990).
During the court hearing on the case at bar, the issue of whether Sowin was still good law was raised. The court acknowledges the research and analysis of Judge Rittenband in Belcher v. Planning and Zoning Commission of the Town of Stratford, 19 Conn. L. Rptr. 505, 1997 WL 321588 (Conn.Super. June 3, 1997 No CV 95-58158S).
Judge Rittenband wrote:
Two years after Sowin Associates v. Planning Zoning Commission, supra, 23 Conn.App. 370, the Supreme Court transferred a case from the appellate court, pursuant to Practice Book § 4023, for which the appellate court had granted certification on the following issue: "Did the trial court err in holding that the Commission could legally require the submission of an offsite traffic study as part of the plaintiff's application for site plan approval of an office building, even though the Commission is precluded from considering offsite traffic impacts under TLC Development, Inc. v. Planning Zoning Commission, supra, 215 Conn. 527, and Sowin Associates v. Planning Zoning Commission, supra, 23 Conn.App. 370." Friedman v. Planning Zoning Commission, supra, 222 Conn.
The Supreme Court in Friedman v. Planning Zoning Commission, supra, 222 Conn. at 266, explained: "First, the language of a given zoning regulation may, by its textual content, limit the scope of the use of traffic considerations. Second, once a zoning authority establishes that a particular use within a zone is permitted . . . a conclusive presumption arises that such a use in general, does not adversely affect the traffic within the zone. Neither of these tenets, however, precludes an examination into the special traffic consequences of a given site plan when the applicable zoning regulations permit it." (Emphasis added.) The Court proceeded to hold: "The Rocky Hill zoning regulations required that a traffic study accompany any application for site plan approval. Since the site plan submission did not comply with the requirements set forth in the zoning regulations, the court correctly concluded that the failure to supply the required traffic study furnished an adequate legal basis for the commission's decision to deny the application." Id., 267-68.
The court is aware that Friedman is in regard to a site plan, and this case, like Sowin, is a subdivision approval issue, but Sowin relied on TLC which was a site plan issue. In any event, that is a distinction without a material difference. Also, the fact that Friedman concerns a traffic study and the case at bar concerns a drainage map and analysis is also a distinction without a material difference. Friedman clearly overrules Sowin and holds that a Planning and Zoning Commission is not precluded from considering offsite issues even though the application is for a permitted use. This court concludes that Friedman does not limit consideration of offsite issues to traffic but, rather, permits consideration of all offsite issues including drainage. Friedman rejects the basic principle of the Sowin and TLC decisions.
This court is persuaded by the logic, reasoning and analysis of Judge Rittenband and concludes that the commission could utilize offsite traffic considerations in reviewing the plaintiff's subdivision application.
The remaining issue to be resolved is whether there was substantial evidence in the record to support the conclusions of the commission. The commission received a traffic study from the plaintiff. In addition, several individuals spoke at the public hearing. The traffic study concludes that Pansy Road (the road that the proposed subdivision would be connected with), regardless of the outcome of plaintiff's proposal, requires modifications to traffic control signing, parking restrictions and pavement markings. (ROR 30, p. 9.) Speakers at the public hearing spoke of the traffic problems existing on Pansy Road. The proximity of the proposed subdivision to Osborne Hill School and the safety of the children who travel to and from the school were of paramount concern to many of the speakers. The court believes that the record contains substantial evidence to support the commission's determination that "Pursuant to Section 2.1.5 of the Subdivision Regulations, it has not been demonstrated that the proposed street will provide a safe and convenient system for present and prospective traffic in the area surrounding the proposed subdivision."
Accordingly, the plaintiff's appeal is hereby dismissed.