Opinion
No. CV 02 0820552 S
May 17, 2004
MEMORANDUM OF DECISION
In this administrative appeal, the plaintiff, Margaret Pappas, seeks the reversal of the Town of Enfield Planning and Zoning Commission's (Commission) decisions, which denied Pappas' four related applications for approval of an open space single-family subdivision. For the reasons stated below, the court dismisses the appeal.
I PROCEDURAL BACKGROUND
By appeal, Pappas challenges the Commission's decisions, rendered at its meeting held on October 3, 2002, to deny the applications. In her Appeal, dated October 21, 2002, Pappas claims that the Commission's denial of her four applications was illegal, void, and/or in violation of the Commission's Subdivision Regulations and State statutes, and that the Commission acted arbitrarily and abused its discretion. In her prayer for relict the plaintiff asks the court to reverse and set aside the Commission's decisions, to declare her applications to be approved, and to order their approval.
Pappas also named as a defendant her co-applicant, Hampden Beech, Inc., which was defaulted for failure to appear. See # 105.10. In addition, in her summons, she named the Town of Enfield as a defendant.
The defendants' objection to the plaintiff's amended Appeal (# 121) was sustained by the court (Beach, J.).
In response to the appeal, the Commission filed an answer (# 122). The parties briefed the issues. Oral argument was heard on April 6 and April 15, 2004.
In her Appeal, Pappas contended that the Commission's action unfairly deprived her of the use of her property and violated her due process rights under the United States and Connecticut Constitutions, and constituted an unlawful taking of her property. See Appeal, counts one and two, ¶ 11.j. Pappas has not briefed these constitutional issues and the court, therefore, deems them to be abandoned. See Bridgeport Hospital v. Commission on Human Rights Opportunities, 232 Conn. 91, 115, 653 A.2d 782 (1995).
II AGGRIEVEMENT
Pappas owns real property, approximately 30 acres of undeveloped land, located north of Bridge Lane, west of Riverview Street, and west of Meetinghouse Lane, in Enfield. To the west of Pappas' parcel are railroad tracks and the Connecticut River; to the north are the Enfield High School athletic fields.
The court finds that Pappas, as an applicant and property owner, is aggrieved by the Commission's decisions to reject her applications and that she has standing to appeal. See General Statutes § 8-8(a)(1); Water Pollution Control Authority v. Keeney, 234 Conn. 488, 494, 662 A.2d 124 (1995); Walls v. Planning Zoning Commission, 176 Conn. 475, 477-78, 408 A.2d 252 (1979).
General Statutes § 8-8(a) provides in pertinent part, "As used in this section: (1) `Aggrieved person' means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
III FACTS
The record reveals the following facts. Pappas submitted four related applications concerning her proposed subdivision: No. 2318, for a 24-lot residential subdivision; No. 2319, for a 24-lot single-family open space subdivision; No. 2320, for a rear lot within a single-family open space subdivision (Lot 11); and No. 2321, for a second rear lot within a single-family open space subdivision (Lot 24). See Return of Record (ROR), Exhibits 1-4.
References to the record will cite exhibits as "ROR ___."
Pappas' property is located in an R-33 zone, which is defined as a Single-Family Residence District. See ROR 40, Town of Enfield Zoning Regulations, § 4.20, p. 24. The Zoning Regulations, ROR 40, Section 4.40, set forth procedures, submission requirements, special residential development criteria, special requirements for open space subdivisions, and special requirements for rear lots. See ROR 40, pp. 32-37. In addition, the Town of Enfield's Subdivision Regulations, ROR 42, also contain requirements which must be met for subdivision approval. Applications such as Pappas' are treated as applications for special permits and for subdivision approval. See Zoning Regulations, ROR 40, Section 9.20.2, pp. 75-76; plaintiff's revised brief (#131), p. 3.
A portion of Pappas' property was previously approved by the Commission for a four-lot subdivision in 1999, located on approximately four acres on the northerly and southerly sides of Meetinghouse Lane. On or about May 21, 2002, the Enfield Inland Wetlands and Watercourses Commission granted a permit for the proposed 24 lot open space resubdivision of the premises.
In 1989, an appeal of the Commission's previous approval of a proposed subdivision was sustained since the Commission acted without an approval from the wetlands agency. See Tyler v. Enfield Planning Zoning Commission, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 325426 (March 28, 1989, Schaller, J.). See ROR 29.
The Commission held public hearings concerning the applications on July 25, 2002 and September 5, 2002. See ROR 13 and 28. On October 3, 2002, the Commission voted unanimously to deny the applications. See ROR 35.
This appeal ensued. Additional references to the facts are set forth below.
IV STANDARD OF REVIEW
"As a general matter, a zoning commission is empowered to determine whether: (1) the proposed use of the property is permitted under the zoning regulations; (2) the standards contained in the regulations are satisfied; and (3) conditions of approval or modifications to the proposal are necessary to protect public health, safety, convenience and property values, as provided for in General Statutes § 8-2 . . . Recent decisions of this court, however, have evidenced a trend toward investing zoning commissions with greater discretion in determining `whether [a] proposal meets the standards contained in the regulations. The agency [may now] [decide] within prescribed limits whether a particular section of the zoning regulations applies to a given situation and the manner in which it applies.' R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 33.4, p. 160; see also Irwin v. Planning Zoning Commission, 244 Conn. 619, 627-31, 711 A.2d 675 (1998). In making such determinations, moreover, a zoning commission may rely heavily `upon general considerations such as public health, safety and welfare.' R. Fuller, supra, p. 164." (Citation omitted.) Torrington v. Zoning Commission, 261 Conn. 759, 769-70, 806 A.2d 1020 (2002).
General Statutes § 8-2 provides in relevant part: "(a) The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes . . . Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, whichever commission or board the regulations may, notwithstanding any special act to the contrary, designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values. Such regulations shall be made in accordance with a comprehensive plan and in adopting such regulations the commission shall consider the plan of conservation and development prepared under section 8-23. Such regulations shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality . . ."
"A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values . . . see also General Statutes § 8-2 . . . When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity . . . [Its] function . . . [is] 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." (Internal quotation marks omitted; citations omitted; footnote omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 215-17, 779 A.2d 750 (2001).
"[T]he special permit process is, in fact, discretionary . . . [G]eneral considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit." (Citation omitted.) Irwin v. Planning Zoning Commission, supra 244 Conn. 626. "The . . . trial court ha[s] 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 action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." (Citations omitted.) Id., 627-28. "[O]n factual questions . . . a reviewing court cannot substitute its judgment for that of the agency." (Internal quotation marks omitted.) Id., 629.
"Although it is true that the zoning commission does not have discretion to deny a special permit when the proposal meets the standards, it does have discretion to determine whether the proposal meets the standards set forth in the regulations. If, during the exercise of its discretion, the zoning commission decides that all of the standards enumerated in the special permit regulations are met, then it can no longer deny the application. The converse is, however, equally true. Thus, the zoning commission can exercise its discretion during the review of the proposed special exception, as it applies the regulations to the specific application before it." (Emphasis in original.) Id., 628.
Similarly, with regard to the approval of a subdivision, "[i]t is well established . . . that [i]n exercising its function of approving or disapproving a subdivision plan, the planning board acts in an administrative capacity. In passing upon a plan, its action is controlled by the regulations adopted for its guidance." (Internal quotation marks omitted.) Timber Trails Corp. v. Planning Zoning Commission, 222 Conn. 380, 387, 610 A.2d 620 (1992). "It has no discretion or choice but to approve a subdivision which conforms to the regulations." Langbein v. Planning Board, 145 Conn. 674, 679, 146 A.2d 412 (1958).
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision." Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). Cases in which an agency has "rendered such a formal, official, collective statement involve circumstances wherein the agency couples its communication of its ultimate decision with express reasons behind that decision." Id., 420-21. In such circumstances, "the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations . . ." (Internal quotation marks omitted.) Protect Hamden/North Haven From Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991).
"The principle that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action . . . It does not apply to mere utterances of individual members of the agency." (Internal quotation marks omitted and citation omitted.) Harris v. Zoning Commission, supra, 259 Conn. 420.
"Thus, in the absence of consistent statements of purpose by the zoning commission members, we note that [t]he principle that a court should confine its review to the reasons given by a zoning agency does not apply to any utterances, however incomplete, by the members of the agency subsequent to their vote . . . Nor is it appropriate for a reviewing court to attempt to glean such a formal, collective statement from the minutes of the discussion by [the agency] members prior to the [agency's] vote." (Internal quotation marks and citation omitted.) Id., 422-23.
Where there is no "formal, collective, official statement of reasons," the court is obligated to "search the record for a basis upon which to uphold the commission's decision." Protect Hamden/North Haven From Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, supra, 220 Conn. 545. As the Appellate Court stated in Stankiewicz v. Zoning Board of Appeals, 15 Conn. App. 729, 732, 546 A.2d 919 (1988), aff'd, 211 Conn. 76, 556 A.2d 1024 (1989), "[i]f the board fails to give the reasons for its actions, or its reasons are inadequate, the trial court must search the record to determine whether a basis exists for the action taken." In so doing, the court "may rely on any reason culled from the record which demonstrates a real or reasonable relationship with the general welfare of the community in concluding that the board's decision should be upheld." Id., 733.
Our Supreme Court has cautioned that, "[i]n reviewing the actions of a land use commission, we must recognize that the commission is composed of laymen whose procedural expertise may not always comply with the multitudinous statutory mandates under which they operate." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 730, 780 A.2d 1 (2001). "The case law requiring the trial court on appeal to search the record for the agency's reason for its decision is a practical and fair reaction to this scenario." Gagnon v. Inland Wetlands Watercourses Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990). Even where a reason given is, "merely a conclusory statement," the reviewing court must search the record for reasons to support the decision. Id., 609.
"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 . . ." (Internal quotation marks omitted.) Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 696, 628 A.2d 1277 (1993).
"[I]n appeals from administrative zoning decisions . . . the decisions will be invalidated even if they were reasonably supported by the record, if they were not supported by `substantial' evidence in that record . . . In an appeal from the decision of a zoning [commission], we therefore review the record to determine whether there is factual support for the [commission's] decision . . . Should substantial evidence exist in the record to support any basis or stated reason for the zoning commission's decision, the court must sustain that decision." (Internal quotation marks omitted and citations omitted.) Heithaus v. Planning Zoning Commission, supra, 258 Conn. 223-24.
"Substantial . . . evidence is that which carries conviction. It is such evidence as a reasonable mind might accept as adequate to support a conclusion. It means something more than a mere scintilla and must do more than create a suspicion of the existence of the fact to be established . . . Such evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Internal quotation marks omitted and citations omitted.) Raczkowski v. Zoning Commission, 53 Conn. App. 636, 641-42, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999).
"[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . ." (Internal quotation marks omitted.) Newtown v. Keeney, 234 Conn. 312, 320, 661 A.2d 589 (1995).
"The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995).
V DISCUSSION A INGRESS AND EGRESS
In rejecting Pappas' applications, the Commission did not formally and collectively express its reasons. Instead, individual members discussed their reasons, which were not formally adopted by the Commission as a whole. See ROR 35, Excerpt from Minutes of Commission meeting of October 3, 2002, pp. 7-12; ROR 36, Notice of Action; and ROR 39, Legal Notice. Accordingly, the court is obligated to search the record to determine whether substantial evidence of a basis exists for the actions taken. The court has done so and concludes that there is such substantial evidence to support the Commission's decisions to reject the applications.
Section 3 of the Enfield Subdivision Regulations is entitled "General Requirements For Subdivision Of Land" ROR 42, p. 5. Section 3b states, "All subdivision plans must conform to the Enfield Zoning Ordinance and to the Enfield Subdivision Regulations herewith prescribed . . ." ROR 42, p. 5. Section 3m, entitled "Ingress And Egress," states, "No plan of subdivision containing a road whose length is more than one thousand two hundred feet (1,200') shall be approved which does not [have] two (2) means of vehicular ingress and egress from an accepted Town street. As used in here, vehicular ingress and egress will be by streets in accordance with these regulations." ROR 42, p. 10. Section 1k provides that "[a]n accepted street is any street which has become public by virtue of official acceptance by the Town Council." ROR 42, p. 2.
Pappas describes her proposed extension of Meetinghouse Lane as a "loop street," which "was designated in the form of a curving of a line so as to form a partly open curve within itself." See plaintiff's revised brief p. 14 (#131). According to her plan, 23 of the 24 proposed lots would be situated on this loop street. ROR 12, p. 2 (proposed subdivision plan). Pappas' engineer's letter to the Town planner, dated May 29, 2002, states that "[t]he project proposes an approximate 2,000-foot extension of the existing Meetinghouse Lane into a loop street and a single rear lot off of Riverview Street." See ROR 5, p. 1. In her submissions to the court, Pappas does not dispute the fact that her proposed extension of Meetinghouse Lane is greater than 1,200 feet in length.
The "single rear lot off of Riverview Street" refers to Lot 24. See ROR 12, p. 2 (proposed subdivision plan). See also discussion below in Part VB of this memorandum of decision.
Rather, Pappas argues that the length of Meetinghouse Lane from its intersection with Bridge Lane to the stem and loop on Meetinghouse Lane is approximately 706.44 feet. See plaintiff's reply brief, p. 9. This distance is separate from the length of road which comprises the loop, on which 23 proposed houses would be located, and which ambulance, police and fire vehicles would have to be able to reach in an emergency.
In support of her argument, Pappas repeatedly contends that her proposed extension of Meetinghouse Lane "has two outlets to the existing street." See plaintiff's revised brief, p. 14. In her reply brief (#133), p. 8, Pappas states that Meetinghouse Lane (as proposed) is "a street with two points of [ingress] and egress on the same street," and that "[t]he loop on Meetinghouse Lane provides two means of egress and ingress at its stem." See plaintiff's reply brief, p. 9.
At page 15 of her revised brief Pappas terms Commissioner Egan's remarks on this subject, "troubling," since "[a]t the [October 3, 2002] hearing he kept insisting that it only has one egress and ingress." Pappas contends that "there is no evidence supporting these statements anywhere in the record. As stated above, the proposed layout has two outlets . . ." See plaintiff's revised brief pp. 15-16.
In the remarks to which Pappas refers, Commissioner Egan stated, in part, "I would just like to indicate that through the public hearing, as I indicated, I had a problem with the number of lots and the one egress and ingress for public safety reasons as far as fire equipment and police and emergency equipment. I still have that concern and I don't believe it's been answered by the fire department. They were requested to provide some contingency plans as to what would happen if that road or one ingress into the subdivision was blocked or they couldn't get in there. That's a real issue and a lot of planning and zoning commissions have recognized that fact." ROR 35, p. 10. Regarding access to the homes, he stated, "There's only one way to get to them." ROR 35, p. 10. He also cited the above-quoted portion of the Subdivision Regulations, Section 3m, adding, "I feel strongly that this regulation applies to this subdivision and that's another reason, on this basis, I would deny this application because it doesn't meet that provision. Their application indicates they have one road and it's 2094' [feet] in length." ROR 35, p. 11.
"The question of whether a particular statute or regulation applies to a given state of facts is a question of statutory interpretation . . . Statutory interpretation presents a question of law for the court." (Internal quotation marks omitted.) Biller Associates v. Rte. 156 Realty Co., 52 Conn. App. 18, 26, 725 A.2d 398 (1999), affirmed, 252 Conn. 400, 746 A.2d 785 (2000).
In ascertaining the meaning of' the regulation, the court is guided by the principles governing statutory interpretation. See Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 61, 818 A.2d 14 (2003). "[A] zoning regulation is legislative in nature, and its interpretation involves the principles of statutory interpretation . . . We seek to determine the meaning of the regulations by looking to the words of the regulation, to the history of its enactment, including the circumstances surrounding its enactment, to the public policy it was designed to implement and to its relationship to other regulations governing the same general subject matter." Barbieri v. Planning Zoning Commission, 80 Conn. App. 169, 174, 833 A.2d 939 (2003).
Recently, in State v. Courchesne, 262 Conn. 537, 577-78, 816 A.2d 562 (2003), our Supreme Court outlined the methods to be employed in ascertaining the meaning of a statute or regulation. Subsequently, our Supreme Court noted that our Legislature, in Public Act 03-154, § 1, which was effective on October 1, 2003, "overruled that part of Courchesne in which we stated that we would not require a threshold showing of linguistic ambiguity as a precondition to consideration of sources of the meaning of legislative language in addition to its text." Paul Dinto Electrical Contractors, Inc. v. Waterbury, 266 Conn. 706, 716 n. 10, 835 A.2d 33 (2003). There, our Supreme Court did not consider Public Act 03-154 since the statute at issue was not plain and unambiguous and since the parties' briefs were filed long before Public Act 03-154's enactment and did not address it. See id. Here, although the parties' briefs were filed after the enactment of Public Act 03-154, none of them mention it.
Public Act 03-154, § 1 provides, "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." This provision was enacted on June 26, 2003.
This court "need not also consider the validity of the Public Act 03-154, as both the method of statutory interpretation mandated therein and by the Supreme Court in State v. Courchesne . . . yield the same result." Goodkind v. Sharma, Superior Court, judicial district of New Haven, G.A. 7 at Meriden, Docket No. CV 02-0222415 (November 25, 2003, Frazzini, J.). Here, neither party has cited any applicable legislative history. Accordingly, the court has focused on the language of the regulation. See Azzarito v. New Canaan, 79 Conn. App. 614, 622-23, 830 A.2d 227, cert. denied, 266 Conn. 924, 835 A.2d 471 (2003).
"We construe a statute as a whole and read its subsections concurrently in order to reach a reasonable overall interpretation . . . Moreover, a court must construe a statute as it finds it, without reference to whether it thinks the statute would have been or could be improved by the inclusion of other provisions." (Internal quotation marks omitted.) In re Steven M., 264 Conn. 747, 757, 826 A.2d 156 (2003). "In determining the legislative intent of a particular statute, we also look to other relevant statutes governing the same or similar subject matter, for it is well established that we consider the statutory scheme as a whole and presume that the legislature intended to create a harmonious body of law." (Internal quotation marks omitted.) Interlude, Inc. v. Skurat, 266 Conn. 130, 143, 831 A.2d 235 (2003).
"We presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions . . . It is a basic tenet of statutory construction that the legislature did not intend to enact meaningless provisions . . . Accordingly, care must be taken to effectuate all provisions of the statute . . . [S]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant . . ." (Internal quotation marks omitted and citations omitted.) Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 196, 708 A.2d 1371 (1998).
With those principles in mind, the court has considered the meaning of Section 3m of the Subdivision Regulations as it applies here. The parties do not contend that the regulation's language is ambiguous.
While the Subdivision Regulations provide definitions for various terms, see Section 1: Definitions, ROR 42, pp. 1-2, "ingress" and "egress" are not among them. When a statute or regulation does not expressly define a term, construction of it is to "comport with the plain and ordinary meaning of the word as it is used in common parlance." Peabody N.E., Inc. v. Department of Transportation, 250 Conn. 105, 122-23, 735 A.2d 782 (1999). In the absence of a definition for a term, our Supreme Court has looked to the dictionary definition, as set forth in Webster's Third New International Dictionary ( Webster's), to ascertain its meaning. See id. Webster's, p. 1162, in the most closely related context, defines "ingress" as meaning "the act of entering: Entrance." It defines "egress" as "a place or means of going out: Exit, Outlet." See Webster's, p. 727. The regulation requires a proposed road which is over 1,200 feet in length to have two means of vehicular ingress and egress from an accepted Town street. Also, such vehicular ingress and egress "will be by streets . . ." See ROR 42, Subdivision Regulations, Section 3m, p. 10.
The court is not presented here with a situation in which "the precise meaning of other words or terms is in doubt." See ROR 40, Zoning Regulations, Section 2.20, p. 5. Reference to the sources set forth in that section is not required. Also, here the court is interpreting the Subdivision Regulations, not the Zoning Regulations.
Pappas' proposed extension of Meetinghouse Lane comprises a loop (or circle), which in itself is over 1,200 feet in length, from the "stem" of existing Meetinghouse Lane itself. See ROR 12, p. 2 (proposed subdivision plan). Contrary to Pappas' contention that her plan included two means of vehicular ingress and egress to the proposed loop, the Commission reasonably could have concluded that the fact that a vehicle approaching the loop from the stem could turn right or left on the loop does not mean that there are two means of vehicular ingress to the loop itself from an accepted Town street. If the single point of entry from the stem to the loop were blocked, there would be no other means of vehicular ingress to the loop from a street, which obviously is a central purpose of having two such means, rather than one.
In reaching this conclusion, the court is also guided, as discussed below, by other language in the subdivision regulations and by similar language in the zoning regulations.
Thus, there is substantial evidence to support the conclusion that Section 3m's requirement was not met. The Commission reasonably could have found that there is only one means of vehicular ingress and egress from previously approved Meetinghouse Lane to the proposed houses on the proposed extension loop. There is no other means of vehicular ingress and egress from another street to the proposed extension of Meetinghouse Lane.
The Commission reasonably could have concluded that the proposed design would thwart the regulation's central purpose, emergency access. The court notes that protection of public health and safety is repeatedly mentioned in the Subdivision Regulations and in the Zoning Regulations as a purpose of the regulations and as a factor to be considered by the Commission as it performs its administrative duties. See ROR 42, Subdivision Regulations, Declaration of Policy, p. 1 (citing the need for "adequate provisions" "for access of fire fighting apparatus to property"), and see ROR 40, Zoning Regulations, Purpose and Authority, Section 1.10, p. 1 ("These Regulations are adopted for the purpose of promoting the health, safety, . . . and general welfare of the community, . . . for the purpose of securing safety from fire, panic and other dangers . . ."); Section 4.40.3 A. vii., Special Residential Development Criteria, p. 33 (during its review, the Commission shall determine that the proposed development meets specific criteria, including "[b]uildings and site layout permit easy access by public safety and emergency personnel and equipment").
In addition, the court is unpersuaded by Pappas' references to the town planner's remarks about his recollections of a preliminary meeting held by the Commission and to lack of opposition to the applications by Town of Enfield employees. See plaintiff's revised brief pp. 14-15 and see ROR 20, Special Meeting (Excerpt), July 31, 2002, p. 5; and ROR 28, Public Hearing Transcript, September 5, 2002, p. 11. Section 4.40.1 of the Zoning Regulations, ROR 40, p. 32, states that an applicant must submit proposals for special residential developments to the Commission for an informal review, "prior to the official submission of an application." The evidence in the record of a preliminary discussion held by the Commission on December 6, 2001, with representatives of Pappas, includes the following summary: "Mr. Coon [Pappas' engineer] stated the road being discussed is the extension off Meetinghouse Lane. Commission members stated this is not a cul de sac. Mr. Giner [the Town planner] stated there is only one way in and this road is not a through road. Mr. Giner stated the Town Engineer felt the intent of the regulation was not to have only one spot of egress and ingress." ROR 44m, Minutes of Regular Meeting, December 6, 2001, p. 16. While an informal, pre-application, preliminary discussion is not evidence of final Commission action, it is apparent that Pappas' representatives were apprised, early on in the process, of a problem with ingress and egress to the proposed extension of Meetinghouse Lane.
In performing its duties, the Commission is not bound by the comments of, or lack of opposition from, Town employees, including those in the planning, engineering, fire or police departments. The Commission, "composed of laymen, is entitled to technical and professional assistance regarding matters beyond its expertise." Spero v. Zoning Board of Appeals, 217 Conn. 435, 444, 586 A.2d 590 (1991). However, such advice from others cannot be treated as binding on the Commission; if that were so, then the Commission would be illegally delegating its decision-making authority. See id., 445. The Commission is not required to rely on the opinions of others, including experts. See Manor Development Corp. v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980); Manatuck Associates v. Conservation Commission, 28 Conn. App. 780, 792, 614 A.2d 449 (1992) (commission not obligated to adopt staff report). Rather, it is the Commission's members, not other officials, who must make final determinations concerning compliance by applicants with applicable subdivision and zoning regulations.
The court is also unpersuaded by Pappas' argument that even if Meetinghouse Lane were to be considered a non-conforming cul-de-sac, a waiver should have been granted because the Commission should have found that the layout "would not have a significant adverse effect on public health and safety." ROR 42, Subdivision Regulations, Section 3c, p. 5. See plaintiff's revised brief, pp. 17-18. First, as discussed above, Pappas contends that the proposed extension of Meetinghouse Lane was a loop road, not a cul-de-sac. Second, as discussed, it was within the Commission's purview to determine that public health and safety would be effected by the proposed extension. As noted, that is a central purpose of Section 3m of the Subdivision Regulations. Section 3c also requires the Commission, in granting a waiver, to find that "conditions exist which affect the subject land and are not generally applicable to other land in the area." ROR 42, Subdivision Regulations, p. 5. Pappas' engineer's references, such as in his pre-application letter of October 30, 2001, to other "dead-end streets, cul-de-sacs, and loops in Enfield that exceed 600' in length, including several that have been recently approved," see ROR 44a, is besides the point. It was within the Commission's fact-finding discretion to determine that the specific circumstances at issue here required rejection of the applications. See Irwin v. Planning Zoning Commission, supra, 244 Conn. 627. If a subdivision does not conform to the regulations adopted for its guidance, the Commission may disapprove it. See Reed v. Planning Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988).
Pappas also submitted, with her original brief (#127), an affidavit from the engineer, dated September 12, 2003, making similar assertions. This affidavit was not part of the record before the Commission and need not be considered by the court.
Similarly unavailing is Pappas reference to her engineer's testimony at the public hearing of September 5, 2002 concerning waivers. There, Mr. Coon discussed Pappas' request for a sidewalk waiver. See ROR 28, Public Hearing Transcript, September 5, 2002, p. 3. Also, Pappas has not shown that the record contains evidence to support Mr. Coon's contention there that a cul de sac on Grandview Drive presented similar circumstances. According to him, the cul de sac there was approximately 1,100 feet long, see ROR 28, Public Hearing Transcript, September 5, 2002, p. 3, significantly shorter in length than the over 2,000 feet long loop proposed here.
"The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency." Protect Hamden/North Haven From Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, supra, 220 Conn. 543. Recently, our Supreme Court reiterated that issues such as street safety are readily within the competence of lay members of commissions. See Kaufman v. Zoning Commission, 232 Conn. 122, 156 n. 22, 653 A.2d 798 (1995), citing Feinson v. Conservation Commission, 180 Conn. 421, 427, 429 A.2d 910 (1980). As our Supreme Court observed almost forty years ago, "The conditions which might make an intersection unsafe are many and varied." Blakeman v. Planning Commission, 152 Conn. 303, 307, 206 A.2d 425 (1965).
The Commission's rejections of the applications is supported by substantial evidence in the record. The Commission reasonably could have concluded that Pappas' own plans reflect lack of compliance with the Subdivision Regulations' requirement that, for reasons having to do with public health and safety, there must be two means of vehicular ingress and egress to the proposed extension of Meetinghouse Lane. Thus, the Commission did not abuse its discretion or act in a manner which was unreasonable, arbitrary or illegal.
Having determined that there is substantial evidence to support a reason for the denials of the applications, other reasons about which the parties have presented argument need not be addressed, "as one is sufficient." Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 543, 525 A.2d 940 (1987); see Barberino Realty Development Corp., 222 Conn. 607, 618, 610 A.2d 1205 (1992); Smith-Groh, Inc. v. Greenwich, 78 Conn. App. 216, 231, 826 A.2d 249 (2003).
Although the court need not consider the other reasons, the court notes that Pappas includes, in her argument about water runoff, that Commissioner Egan "allowed his general prejudice to influence his judgment in these Applications. That judgment was based upon an emotional perspective rather than any objective engineering data presented by Mr. Coon on behalf of the Plaintiff." See plaintiff's revised brief, p. 25. Previously, on January 21, 2004, in response to the Commission's motion to strike (# 128) portions of the plaintiff's original brief, the court (Berger, J.) struck Section VI of that brief, concerning alleged preconceived opinions and prejudice on the part of the Commission. Accordingly, for the additional reason that these issues were not raised in the Appeal, the court need not consider them. See Fasig v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket Nos. 322616 and 321845 (August 21, 1996, Riefberg, J.).
B Claimed Procedural Defects
Pappas contends also that the Commission's action is invalid "because it failed to give reasons on the record when denying the Plaintiff's Applications." See plaintiff's revised brief, p. 28, citing General Statute § 8-3(g), which states, in pertinent part, "[a] decision to deny or modify a site plan shall set forth the reasons for such denial or modification." The court is unpersuaded.
As discussed above, none of the applications submitted by Pappas were for site plan approval. Even if one or more of them were construed to be for site plan approval, the lack of a formal statement of the Commission's collective reasoning would not make the Commission's action per se invalid. In recently construing § 8-3(g)'s requirement of a statement of reasons where it found that a commission did not make a collective statement of the commission's reasoning, our Appellate Court did not hold that the lack of stated reasons made the decision fatally deficient. Rather, it stated that "we must consider this case under the well settled principle of judicial review of zoning decisions that where the commission has failed to state its reasons, the court is obligated to search the record for a basis for its action." (Internal quotation marks omitted.) Smith-Groh, Inc. v. Greenwich, supra, 78 Conn. App. 227, quoting Protect Hamden/North Haven From Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, supra, 220 Conn. 546 n. 15. As noted above, in this case, the court likewise has so searched the record.
Pappas also argues that the Commission improperly incorporated by reference all reasons previously stated by individual members in rejecting the applications. See plaintiff's revised brief, p. 29. As noted above, our Supreme Court has stated that such lay commissions may not always comply with each of the "multitudinous statutory mandates" which may be applicable, Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 730, and that the court's obligation to search the record is a practical and fair reaction to this scenario. See Gagnon v. Inland Wetlands Watercourses Commission, supra, 213 Conn. 611.
In support of this aspect of her argument, Pappas cites Christian Activities Council v. Town Council of the Town of Glastonbury, Superior Court, judicial district of Hartford, Docket No. 541990 (September 12, 1996, Koletsky, J.) ( 17 Conn. L. Rptr. 619), affirmed on other grounds, 249 Conn. 566, 735 A.2d 231 (1999). The trial court's comment on this subject should be seen as dictum. The court stated, "[b]ecause the court finds that the defendant Town Council's decision is supported by sufficient evidence in the record, and otherwise complies with the requirements of § 8-30g(c), it is not necessary to discuss more than one reason given by the Town Council which meets the requisite standard. Nonetheless the court would be remiss if it did not comment with disfavor on the innovative Reason #6, `in addition to the specifically stated reasons, the members voting in favor of this motion to deny the application also incorporate their individual stated reasons as already set out in the record.' While it is not inappropriate for a zoning authority to adopt a particular individual reason by reference, the court holds that this `blanket bootstrap' technique does not adequately identify which individual reasons are being incorporated." In its decision affirming the trial court, our Supreme Court stated that it did not consider the sixth reason for the Town Council's decision. See Christian Activities Council v. Town Council of the Town of Glastonbury, supra, 249 Conn. 574 n. 6.
Pappas also asserts that one commissioner stated his reasons for not approving application No. 2318 after the vote was taken and this reason may not be considered. See plaintiff's revised brief p. 30. While such a stated reason may not be considered to be the collective reasoning of the commission as a whole, a court is not barred from considering such a reason when it searches the record for substantial evidence in support of a reason for the commission's decision. See Harris v. Zoning Commission, supra, 259 Conn. 417-27 (while individual member's statement did not amount to a formal, collective statement by the commission, court properly considered reasons cited in searching the record and concluding that record supported decision).
The court notes also that, in her Appeal, Pappas does not contend that her rear lot applications should have been considered separately from those for subdivision approval and that separate reasons were required for the decisions on those applications. As noted above, applications Nos. 2320 (for proposed lot 11) and 2321 (for proposed lot 24), for approval of rear lots, were presented as: "Rear lot within a single-family open space subdivision," see ROR 3 and ROR 4, the same 24 lot subdivision as was proposed in applications Nos. 2318 and 2319, for subdivision and open space subdivision approval, respectively. Section 4.40.5 of the Zoning Regulations permits rear lots only in Single-family Open Space Subdivisions. See ROR 40, p. 36.
Notwithstanding how she worded her own applications, and notwithstanding that her Appeal does not contend that lot 24 should have been separately approved, in oral argument to the court, her counsel argued that "lot 24, which is a rear lot, this doesn't even access off of Meetinghouse Lane. And if we're looking at use of discretion, this lot is really almost a stand-alone lot. It could have been viewed independently because its access has nothing to do with Meetinghouse Lane. And as I read the regulations, Your Honor, this meets all the criteria of the special permit for a rear lot even if this subdivision didn't exist. I raise that because I think that's another example of the active abuse of discretion and arbitrariness that the commission engaged in because they didn't even discuss that lot." See Transcript of oral argument, April 15, 2004, p. 1. No citation to the portion of the regulations upon which counsel relied was cited to the court.
This argument ignores the text of the application concerning lot 24, which, as noted above, provides that the application was for a rear lot as part of a single-family open space subdivision, not as a "stand-alone lot." It also ignores the fact that the application stated that the length of property frontage for proposed lot 24 was 50.14 feet. See ROR 3 and ROR 12. p. 2 (proposed subdivision plan) (which states that the frontage was 50.04 feet). Table 4.10 in Section 4.10 of the Zoning Regulations, ROR 40, p. 21, specifies that a rear lot in a Single-family Open Space Subdivision in an R-33 zone need only have a minimum of 25 feet of frontage. In contrast, Table 4.10 provides that a non-rear lot in an R-33 zone shall have a minimum of 150 feet of frontage. Thus, proposed lot 24 could not have been approved as a "stand-alone" lot.
Finally, Pappas also contends that when the Commission acted on Application No. 2320, it did so on a motion to approve the public hearing, not the application, making its action defective. See plaintiff's revised brief. p. 29. It is evident that the Commission voted unanimously to deny the applications. Pappas does not contend otherwise. Our Supreme Court has cautioned that "[w]e must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions . . ." (Emphasis in original; internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 730-31. Pappas' quarrel with the wording of the motion amounts to a complaint about such a claimed technical infirmity, which the court finds does not make the Commission's actions deficient. See id.
CONCLUSION
For the foregoing reasons, the appeal is dismissed. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT