Opinion
No. FST CV 08 4015012 S
July 2, 2010
MEMORANDUM OF DECISION
This is an administrative appeal from the approval of a five-lot subdivision located at 487 North Street, Greenwich, Connecticut.
The court finds that the plaintiffs, Gerard Pasciucco and Kelly S. O'Conner, are aggrieved. They timely filed a procedurally correct appeal from the Greenwich Planning and Zoning Commission to the Greenwich Planning and Zoning Board of Appeals and then to the Superior Court.
The court conducted a number of days of trial and reviewed the Return of Record as well as all briefs and supplemental briefs filed.
"It is axiomatic that a planning commission, in passing on a [subdivision] application, acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations . . . The commission is entrusted with the function of interpreting and applying its [subdivision] 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 [plaintiff's] 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 . . . commission and must not disturb decisions of local commissions as long as honest judgment has been reasonably and fairly exercised. (Internal quotation marks omitted.) 200 Associates, LLC v. Planning Zoning Commission, 83 Conn.App. 167, 171-72, cert. denied, 271 Conn. 906, 859 A.2d 567 (2004)." Kraiza v. Planning and Zoning Commission, 121 Conn.App. 478, 491 (2010).
The Greenwich Planning and Zoning Commission and the Greenwich Planning and Zoning Board of Appeals acts in an administrative capacity in reviewing a subdivision plan. "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." Reed v. Planning and Zoning Commission, 208 Conn. 431, 433 (1988).
The court must determine if the approval of the subdivision plan is reasonably supported by the record. Friedman v. Planning and Zoning Commission, 222 Conn. 262, 268 (1992); Zieky v. Bloomfield Town Plan and Zoning Commission, 151 Conn. 265, 267-68 (1963). The review by the court of the factual findings of the commission are guided by the substantial evidence rule. Quality Sand Gravel, Inc. v. Planning Zoning Commission, 55 Conn.App. 583, 540 (1999).
The sole issue is whether this subdivision is illegal because certain accessory structures and outbuildings on Lot 2 exist without a primary residence on Lot 2. See plaintiff's September 15, 2008 complaint paragraph 32(a) and plaintiff's April 9, 2009 Brief #105.00. The 14.256-acre property is in the RA-2 zone and the subdivision plan divides this property into five residential lots. The entire property was formerly a farm and situated on the proposed Lot 2 is a barn, a milking barn, corn crib, chicken coop and a second barn. There is no residential structure on Lot 2. The Planning and Zoning Commission staff notes dated May 9, 2008 state: "We remind the applicant that if the existing accessory structures are to remain on proposed lot 2, an application to the PZBA for a variance will be required, prior to the filing of the mylar, to continue the accessory structures on a lot without a primary structure. If the applicant is not intending to keep these accessory structures then they must be removed prior to the mylar being filed." As of May 9, 2008 the Planning and Zoning Commission had a preliminary subdivision map with only three of the farm outbuildings designated "to be removed." Ex. 2 at trial in the Return of Record.
Three days later on May 12, 2008 the owners amended the subdivision plan to remove all five buildings. Ex. 1 at trial (Subdivision Map Depicting #487 North Street Date: 3/12/2008) and in the Return of Record. Section 6-147(b) of the Greenwich Municipal Code Chapter 6 Land Use prohibits an accessory building to exist on a lot without a principal structure. "No accessory structure shall be allowed without a principal structure except as authorized in 6-95(a)(2)(B)." Section 6-147(b). The 6-95(a)(2)(B) exemption is not applicable to Lot 2. Since Lot 2 was in the RA-2 zone that principal structure had to be a residential building. The five farm outbuildings on Lot 2 are all accessory structures and Lot 2 does not contain a residence.
In approving the Final Subdivision #1937, the Planning and Zoning Commission noted in its June 3, 2008 decision condition 6): "The applicant shall make an application to the PZBA for a variance to continue the accessory structures on Lot 2 without a primary structure. Approval from the PZBA shall be granted prior to the Mylar being filed." Section 6-19(a)(5) of the Greenwich Municipal Code Chapter 6 Land Use states that the PZBA has the power "To hear variance requests involving proposed lots in subdivisions that have received preliminary approval by the Planning and Zoning Commission." The record before this court establishes that this subdivision had received preliminary approval by the Planning and Zoning Commission. The Greenwich Subdivision Regulations do not use the word "mylar." A mylar is an original polyester tracing cloth of the approved subdivision map that is prepared for signing and recording in the land records. The Greenwich Subdivision Regulations, although not using the word "mylar," refer to that same document as "the approved Record Sheet and Construction Sheet." Greenwich Municipal Code Chapter 6, Land Use Article 4 Subdivision Section 6-278. For a subdivision to be deemed final the "approved Record Sheet and Construction Sheet" shall be signed by the Chairman of the Planning and Zoning Commission or when the Chairman is absent or otherwise unable to act, the Secretary Commission shall sign. Section 6-278. Thereafter the "original of the Subdivision Plan shall be filed with the Town Clerk." Section 6-279. There was no evidence before the two Greenwich zoning agencies in this court that the mylar tracing cloth original of the subdivision map or the Record Sheet and Construction Sheet had either been signed by The Planning and Zoning Commission or filed on the land records at the office of the Greenwich Town Clerk. The plaintiffs conceded that fact in a wetlands appeal involving this same subdivision FST CV 08-4014298 S in their Supplemental Brief in Support of Appeal from Decision of Greenwich Inland Wetlands and Watercourse Agency dated February 8, 2010 (11117.00): "the record sheet has not yet been signed by the Planning and Zoning Commission Chairman and recorded on the land records." #117.00, page 9.
The June 3, 2008 decision letter from the Planning and Zoning Commission also contains the following two "Whereas" paragraphs:
"Whereas the existing improvements on the site include: a single family residence that would remain on proposed Lot 1: an existing barn, and milking barn to become accessory structures on proposed Lot 2: an existing corncrib, chicken coop and second barn would be removed. Proposed Lot 3, 4 and 5 would be created on undeveloped portions of the lot."
"Whereas the Commission notes the applicant will require a variance to maintain the existing barn and milking barn on proposed Lot 2 without a primary structure. Said variance will need to be acquired prior to filing a Mylar."
The plaintiffs timely filed a procedurally correct appeal from the Planning and Zoning Commission's June 3, 2008 decision on Final Subdivision #1937 to the Greenwich Planning and Zoning Board of Appeals. The Board conducted a public hearing. The Board issued its September 1, 2008 written decision finding that there was no error by the Planning and Zoning Commission in approving the subdivision. "This approval is made upon the condition that all of the terms and conditions enumerated in the subdivision approval letter of June 3, 2008 by the Planning and Zoning Commission and signed by Patrick LaRow, Senior Planner shall apply and be made part of this approval."
The final subdivision plan submitted by the owners on May 12, 2008 clearly indicated that all accessory buildings on Lot 2 are to be removed. Ex. 1 at trial and in the Return of Record. The final subdivision plan approved by the Commission contained a reference "to be removed," on each of the five farm outbuildings on Lot 2. The language of condition 6) contains some surplusage. Parish of St. Andrew's v. Zoning Board of Appeals of the City of Stamford, 155 Conn. 350, 354 (1967). The Greenwich Regulations do not contain the authority for such a condition. The owners claim that condition 6) as to the accessory building removal provision is void as a matter of law. "So much of the decision as imposed the condition and reserved the right to revoke the permission is void and of no force." Id., 354. The court finds that the removal of the five farm outbuildings on Lot 2 before the filing of the mylar would correct any claimed illegality. The court finds that the Greenwich Zoning Enforcement Officer can remedy any claimed illegality as to Lot 2 independent of the Final Subdivision Plan. Gen. Stat. § 8-12. The removal of all five accessory structures was the owner's intention and that intention was clearly conveyed to the Commission in the May 12, 2008 Final Subdivision Plan approved by the Commission. The Defendant's Reply Brief in Opposition of Appeal dated May 26, 2009 (#107.00) judicially concedes on behalf of the owners all five outbuilding removals. "As is clearly designated on the Final Subdivision Plan, all of these accessory structures were to be removed." #107.00, page 3. A copy of the May 12, 2008 Final Subdivision Plan with the five "to be removed" notes on the plan is found on page 3 of #107.00. "In fact, all of the structures on Lot 2 are to be removed, and the final subdivision plan states this very clearly." #107.00, page 7. See also #107.00 pages 8 and 10.
The language of condition 6) approved by the Commission is inconsistent with the language contained on Lot 2 of the Final Subdivision Plan. The Final Subdivision Plan notes "to be removed" control this subdivision. Southwick at Milford Condominium Association, Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 317-18, 321 (2009).
"Although the imposition of an unlawful condition does not necessarily render a zoning authority's entire decision illegal and inefficacious . . . where the void condition was an essential or integral component of the zoning authority's decision it cannot be upheld." DiBeradinis v. Zoning Commission, 228 Conn. 187, 202-03 (1994); Martland v. Zoning Commission, 114 Conn.App. 655, 669 (2009). The court finds that condition 6) is not a valid condition since it conflicts with the "to be removed" conditions of the May 12, 2008 Final Subdivision Plan. The court finds that condition 6) is not an integral part of the June 3, 2008 subdivision approval decision. The court finds that the voiding of condition 6) will not render the whole June 3, 2008 decision illegal and inefficacious. Floch v. Planning and Zoning Commission, 38 Conn.App. 171, 173 (1995). These findings made by this court conform to the duty of the Commission to render a reasonable and rational result. Spero v. Zoning Board of Appeals, 217 Conn. 435, 441 (1991). The commission "is presumed to have intended a just and rational result." Kraize v. Planning and Zoning Commission, supra, 121 Conn.App. 494.
The staff of the Planning and Zoning Commission inadvertently placed the language of condition 6) when that language was inconsistent with the May 12, 2008 Final Subdivision Plan. This scrivener's error cannot make this subdivision illegal. The court finds that the subdivision must be modified by the removal of condition 6). Gen. Stat. § 8-8(1); Beckish v. Planning and Zoning Commission, 162 Conn. 11, 18 (1971). The court orders the removal of condition 6) in the Final Subdivision Plan #1937.
The plaintiff's brief cites two Appellate Court decisions in support of their appeal: Federico v. Planning and Zoning Commission, 5 Conn.App. 509 (1985) and Krawski v. Planning and Zoning Commission, 21 Conn.App. 667 (1990). Those two cases were the subject of a later Appellate Court decision involving a subdivision approval in which one of the lots contained a use that was in violation of the zoning regulations. The Appellate Court distinguished the Federico and Krawski cases stating that a zoning violation sufficient to defeat a subdivision application must be "inherent in the plan itself as submitted and not . . . use violations." Garrison v. Planning Board, 66 Conn.App. 317, 322-23, cert. denied, 258 Conn. 944 (2001). In Garrison the zoning violation was an existing house on one subdivision residential lot being used as a real estate office, in which the number of employees at the real estate office exceeded the number of employees permitted in a 1982 variance. This court finds that the existence of the five farm outbuildings on Lot 2 is a use issue and not an issue inherent in the subdivision regulations. An example of a zoning violation inherent in the subdivision regulation would be a lot of less than two acres in the RA-2 zone, a two-acre zone. "The existing use violation is not a violation of zoning regulations that is contemplated by § 8-26 to defeat the subdivision application. The application itself does not contain an existing zoning violation on its face, as is contemplated by § 8-26." Id., 324.
The court finds that the Final Subdivision Plan #1937 complies with the applicable regulations. Therefore the matter is not remanded to either the Greenwich Planning and Zoning Commission and/or the Greenwich Planning and Zoning Board of Appeals.
The plaintiffs' appeal is dismissed.