Opinion
No. FBT CV 08 4024474 S
June 11, 2009
MEMORANDUM OF DECISION
The plaintiff, Nicole Paul, appeals to this court, pursuant to General Statutes § 8-8, challenging a decision by the defendant Town Plan and Zoning Commission of the Town of Fairfield (the "Commission"). In that decision, the Commission rejected a subdivision application filed by the plaintiff with respect to property located at 291 Mill Hill Road in Fairfield. (The "Property")
The plaintiff's complaint, dated April 8, 2008, alleges that on November 26, 2007, the plaintiff filed an application for a four-lot subdivision with the Commission pursuant to General Statutes § 8-25. A public hearing on the application was held on March 11, 2008. Thereafter, on March 25, 2008 the Commission voted to deny the application. The plaintiff claims that her subdivision plan fully complies with the zoning and subdivision regulations of the Town of Fairfield and that in denying her application the Commission abused its power and acted illegally, arbitrarily and capriciously.
The record shows that the Property was situated in the Residence "R-3" District or R-3 zone. (ROR #25.) Under Section 5.1.1 of the Fairfield Zoning Regulations, lots in the R-3 zone require a minimum area of 20,000 square feet. (ROR Ex. 26.) The total area of the plaintiff's Property is 2.63 acres or 114,958 square feet. (ROR Ex. 27.) The Property is bounded on the north by property owned by the Town of Fairfield and used by the Mill Hill School, a public school. On the east the property is bounded by property owned by Timothy Burke. On the south the Property has frontage on Mill Hill Road. On the west the Property is bounded by property owned by Elizabeth Manente Power and by a large parcel of land owned by the estate of the plaintiff's deceased grandfather, Albert Garofalo. (ROR, Exs. 14 27.) The plaintiff's subdivision proposal envisioned the creation of four lots ranging in size from 21,333 square feet to 29,799 square feet. One of the lots would have street access only to Mill Hill Road; two of the lots would have street access only through a proposed subdivision road; the final lot would be located on the corner of the subdivision road and Mill Hill Road and could have Street access from either. (ROR, Ex. 27.) The lots in the proposed subdivision meet all zoning requirements including those relating to lot shape and street frontage.
A public hearing was held by the Commission on the plaintiff's application on March 11, 2008. The plaintiff was represented at the hearing by attorney John Fallon. Two principal issues arose at the hearing. The first concerned the safety of roads in the vicinity of the proposed sub-division. The second issue involved the application of the provisions of section 2.1.6 of the Subdivision Regulations of the Town of Fairfield governing "cul-de-sacs."
Under section 2.1.6 of the Subdivision Regulations, the term "Cul-de-sacs" is defined as "streets closed at one end and which will not be extended in the future." The section further provides: "No such street shall provide sole access to more than ten (10) building lots nor shall any such street provide sole access to less than three (3) building lots." (ROR, Ex. 24.)
Attorney Fallon acknowledged that the plaintiff's proposed subdivision provided for sole access to only two building lots. However, he pointed out that the proposed subdivision road was immediately adjacent to property still held by the executor of the estate of plaintiff's late grandfather, Albert Garofalo. The property held by the estate comprised twenty-six acres of largely undeveloped land. The presence of wetlands and watercourses on that property limit both its potential for development and the access to parts of the property from its principal street frontage on Mill Hill Terrace. (ROR, Ex. 14; Ex. 28.) Attorney Fallon pointed out that once the Garofalo estate was settled, it would be highly likely that the plaintiff's proposed subdivision road would provide sole access to as many as additional four lots. Attorney Fallon asked the Commission to either grant the plaintiff a waiver from the application of the lot limitations of section 2.1.6 or to determine that the proposed subdivision road should not be considered a "cul-de-sac" because the evidence did not demonstrate that the road would not be extended in the future.
The Commission considered the plaintiff's application in an executive session held on March 25, 2008. (ROR, Ex. 16.) The minutes of that meeting reflect that the Commission voted unanimously to deny the plaintiff's subdivision application for the following reasons:
1. The applicant has not demonstrated that the proposal will provide a safe and convenient system for present and prospective traffic in the surrounding area pursuant to Section 2.1.5 of the Subdivision Regulations. Of particular concern is the limited sight line to the east for vehicles entering the new street from the south.
2. The Commission finds that the proposed street is a cul-de-sac pursuant to Section 2.1.6 of the Subdivision Regulations. The proposed turnaround has been designed in accordance with the provisions for public cul-de-sacs in Section 2.1.7. As the proposed Street provides sole access to less than three building lots. It does not comply with Section 2.1.6 of the Subdivision Regulations.
3. The Commission finds that the existing school property with athletic fields adjacent to the subject property to be an existing open space, park or recreational land as defined by Section 2.3 of the Subdivision Regulations.
4. The Commission further finds that an open space dedication required pursuant to Section 2.3 of the Subdivision Regulations would accomplish several of the open space objectives outlined in Section 2.3.1 of the Subdivision Regulations. Therefore this application fails to meet the lack of provision of open space." (ROR, Ex. 17.)
The Commission's decision as well as the supporting reasons were included in a letter sent to Attorney Fallon on March 27, 2008. (ROR, Ex. 19.) Notice of the decision was published on March 28, 2008. (ROR, Ex. 20.) Thereafter, the plaintiff filed a timely appeal to this court.
On September 27, 2008, during the pendency of this appeal, the Commission filed a motion to allow evidence outside the record with respect to the location of a little league baseball field on the grounds of Mill Hill School which abuts the plaintiff's property.
AGGRIEVEMENT
At a hearing held on May 15, the plaintiff submitted evidence of her ownership of the Property in the form of a certificate of devise showing that she was given the property under the terms of the will of her grandfather, Albert A. Garofalo, deceased. (Ex. 2.) The court found that, as the owner of the Property, the plaintiff was aggrieved. CT Page 9936 Bossert Corp. v. Norwalk, 157 Conn. 279, 285 (1968).
At the same hearing the parties addressed the Commission's motion of September 27, 2008 by stipulating that the little league baseball field was under the control of the Fairfield Park and Recreation Department, that the department has developed, maintained and improved the field and that the department schedules public usage of the field after school hours and on weekends.
DISCUSSION
When enacting subdivision regulations, a planning authority is acting in its legislative capacity. JM Realty Co. v. Norwalk, 156 Conn. 185, 189-90 (1968). When reviewing a subdivision application, a planning authority is acting in its administrative capacity. Reed v. Planning Zoning Commission, 208 Conn. 431, 433 (1988).
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, conclusions reached by [a zoning] 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 [commission] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] 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." (Citation omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, (2004).
"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 reason supporting the [board's] decision . . . Rather 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." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 420 (2002).
CT Page 9937
TRAFFIC
The first ground assigned by the Commission for its denial of the plaintiff's application was the lack of "a safe and convenient system for present and prospective traffic in the surrounding area . . ." In stating that ground, the Commission noted "Of particular concern is the limited site line to the east for vehicles entering the new street from the south." The plaintiff claims that off site traffic concerns do not afford a tenable basis for rejecting a subdivision application. The plaintiff relies on the recent case of Pansy Road, LLC. v. Town Plan Zoning Commission, 283 Conn. 369 (2007). In that case, also an appeal from the denial of subdivision approval by the Town Plan and Zoning Commission of Fairfield, the Supreme Court held that issues of existing off site traffic conditions could be considered for the "limited, site-specific purpose of addressing traffic flow within the site and entering and exiting the site." The court reversed the decision of the trial court upholding the decision of the Commission to deny a subdivision application when the record did not show that the Commission has conducted such a limited review.In his brief, counsel for the Commission argues that the Commission mistakenly cited Section 2.1.5 of the subdivision regulations as supporting its denial of the application on traffic grounds. The brief asserts that the Commission could and should have appropriately cited Section 1.1.14 of the regulations to justify its action. That section entitled "Other Evidence" enumerates general criteria involving public health and safety. The record returned by the Commission showed uncontradicted evidence that the sight line for vehicles at the intersection of the proposed subdivision road and Mill Hill Road would be approximately 600 feet for all turns. (ROR, Ex. 31, table 3) Section 2.1.4.4 of the Fairfield Subdivision Regulations (which in contrast to Section 1.1.14 specifically addresses sight lines at intersections) requires a minimum sight line of only 225 feet. Ultimately, counsel for the Commission concedes that the Commissions first reason for denial cannot be sustained by the court. The court agrees.
CUL-DE-SAC
The second ground assigned by the Commission for its denial of the plaintiff's application was its determination that the proposed subdivision road was a cul-de-sac which would provide sole access to two building lots rather than a minimum of three as required by the subdivision regulations. In deciding that the proposed road would be a cul-de-sac, the Commission relied solely on the fact that the subdivision road met the engineering requirements for turnarounds set forth in section 2.1.7 of the subdivision regulations. In making this finding the Commission ignored the definition of the term "cul-de-sacs" set forth in section 2.1.6. Under that definition, in order for any road to be considered a cul-de-sac it must meet two criteria. The first criteria, which is not in dispute, is that the road must be "closed at one end." The second criteria is that the road "will not be extended in the future." In determining that the plaintiff's proposed road is a cul-de-sac the Commission completely ignored the second criteria set forth in its regulations.
The Commission did not make any determination as to whether the plaintiff's subdivision road would or would not be extended in the future. The record before the Commission was devoid of any evidence which could support a finding that the road would not be expanded in the future. Indeed, the evidence in the record strongly suggests that there is a realistic possibility, if not a probability, that the plaintiff's proposed road would be extended to serve the upland portion of her late grandfather's property. The upland portion of that adjacent property is separated from that property's frontage on Mill Hill Terrace by inland wetlands and watercourses. However, that upland portion is immediately adjacent to the plaintiff's proposed subdivision road which could allow for convenient access to Mill Hill Road. (ROR, Ex. 14; Ex. 28.)
"Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes. [A]n agency's factual and discretionary determinations are to be accorded considerable weight . . . A court that is faced with two equally plausible interpretations of regulatory language properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation." (Citations omitted; internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 698-99 (2001).
In his brief filed in support of the Commission action, counsel for the Commission suggests that the Commission could have determined from the record that the plaintiff's subdivision road would not be extended. The court finds that argument to be without merit. The record shows that the Commission made no such finding. Instead, the Commission chose to ignore the second criteria set forth in its regulations and to substitute an inapplicable engineering standard to reach its conclusion that the plaintiff's proposed road constituted a cul-de-sac. In order to determine that the plaintiff's proposed road was, under the regulations, a cul-de-sac, the Commission was required to determine that the road "would not be extended in the future." In ignoring this requirement, the Commission acted in an arbitrary and capricious manner and abused its discretion. The Commission's decision cannot be sustained on the second ground relied on its minutes and notice of decision.
OPEN SPACE — RECREATIONAL LAND
The final ground relied on by the Commission to deny the plaintiff's application is set forth in the Commission's decision as its third and fourth reasons. In the third reason, the Commission found that Mill Hill School, with its athletic fields which abut the plaintiff's property were "existing open space, park or recreational land as defined by Section 2.3 of the Subdivision Regulations." That section exempts small subdivisions (those of less than 4 acres and 4 or fewer lots) from the requirement of open space dedication unless the Commission finds that the proposed subdivision is adjacent to "existing open space, park or recreational land" and further finds that a dedication can accomplish one or more of the objectives set forth in Section 2.3.1.
In the fourth reason, the Commission found that exercising its discretion to require an open space dedication pursuant to Section 2.3 of the Subdivision Regulations would accomplish several of the open space objectives outlined in Section 2.3.1 of the Subdivision Regulations. Section 2.3.1 includes six objectives. The Commission's decision does not specify which of those objectives would be accomplished by requiring the plaintiff to dedicate a portion of her land as open space. The regulations include the following objectives:
2.3.1.1 To promote the Town's Master Plan and other adopted open space and recreational plans for the Town.
2.3.1.2 To provide greenbelts, hiking and bridle trails connecting existing parks, trails and open spaces.
2.3.1.3 To preserve land as undeveloped open space which preserves the appearance, character, and natural beauty of an area.
2.3.1.4 To preserve land for park and recreation purposes.
2.3.1.5 To preserve land for the purpose of conserving natural resources.
2.3.1.6 To preserve and protect particular areas and terrain having qualities of natural beauty or historic interest.
The Town Plan of Conservation and Development was entered in the record as Exhibit #23. Although not labeled as such, this is apparently the "Town's Master Plan" referred to in Section 2.3.1.1 of the Subdivision Regulations. The plan addresses open space needs on a neighborhood by neighborhood basis. The plaintiff's proposed subdivision is in the "Southport" neighborhood. The plan includes two policies for that neighborhood related to open space. The first states: "Open space and public lands should be connected by pedestrian and bicycle paths." This policy essentially duplicates the objective set forth in Section 2.3.1.2 of the Subdivision Regulations. There was no evidence in the record showing that any portion of the plaintiff's property could be used to connect open space or public lands.
The second policy for the Southport neighborhood is: "Undeveloped parcels should be considered for acquisition by the Town for open space." That policy is manifestly not applicable when there is no evidence in the record of a plan to acquire the plaintiff's property as an "undeveloped parcel." The record shows that the plaintiff's property, rather than being undeveloped, was improved with a residence, a barn, an asphalt driveway and an in-ground pool. (ROR, Ex. 1; Ex. 14, p. 13.)
The record is devoid of evidence that the plaintiff's property is "undeveloped open space which preserves the appearance, character, and natural beauty of an area" the objective stated in Section 2.3.1.3 of the Subdivision Regulations.
The record also has no evidence that the plaintiff's property contained any natural resources or areas of particular beauty or historic interest, the objectives set forth in Sections 2.3.1.5 and 2.3.1.6 of the subdivision regulations.
At the public hearing, there was little or no discussion of any need for open space arising out of the proximity of the plaintiff's property to the Mill Hill School. The issue of open space arose in connection with a discussion concerning the likelihood that the plaintiff's subdivision road would be extended when the adjacent Garafolo property was developed. The transcript reflects that a commissioner expressed concern that the evidence that supported the probability of extension of the road required the Commission to deem it likely that the subdivision would exceed four lots and thus not be exempt from the requirement of making an open space dedication. (ROR, Ex. #14, p. 10-11.)
The plaintiff claims that the phrase "open space, park or recreational land" must be narrowly construed and cannot be enlarged to include any land owned by the town or used by a public school. The evidence in the record does not establish that any portion of the Mill Hill School property is a park or open space. However, the record establishes that a baseball field located on the grounds of the Mill Hill School is used by the Town of Fairfield as a recreational facility. The court finds that Commission's apparent conclusion that the baseball field constituted "recreational land" is supported by substantial evidence in the record.
The neighbors who spoke in opposition to the plaintiff's subdivision plan expressed concern over the intensity of the development, the traffic which might be generated and the adequacy and safety of the roads and sidewalks in the area. None of the neighbor's spoke of the recreational use of the Mill Hill School or identified the need for a dedication of part of the plaintiff's land to accomplish any of the objectives set forth in section 2.3.1 of the subdivision regulations. Likewise, the written submissions filed by neighbors (ROR, Ex. 29, Ex. 30) did not address open space/recreational issues.
The question of whether the Commission could reject the plaintiff's application because of the adjacent recreational facility at the Mill Hill School appears to have arisen for the first time when the members of the Commission met in executive session on March 25, 2008. (ROR, Ex. 16.) The transcript of that session is not nearly as comprehensible as might be wished. Only the chairman of the Commission is identified individually. Other members are identified as "A Voice" or as "Commissioner." The subject of open space arose in the context of a discussion of an "infamous subdivision on Pansy Road." James Wendt, Fairfield's assistant director of development, who was present at the executive session, told the members of the Commission that Pansy Road was "a similarly situated subdivision." He reported that, in that case, the Commission had found that an adjacent school property had athletic fields which justified the Commission in requiring an open space dedication under Section 2.3 of the subdivision regulations. He further reported that the Commission had initially denied the Pansy Road application, without prejudice, because of the applicant's failure to meet open space requirements. Wendt acknowledged that open space had not been discussed at the public hearing on the plaintiff's application. "Now we didn't get into that in real detail but it did come up at the hearing and was asked and I believe the response was, if they had to provide for ten percent open space they would prob — most likely lose a lot, I believe was the testimony. So the open space issue — but the real meat and potatoes of this is the cul-de-sac issue."
The report of the Supreme court's decision reversing the commission's rejection of a subdivision application reflects that Attorney Fallon represented the applicant in its successful appeal. Pansy Road, LLC. v. Town Plan Zoning Commission, 283 Conn. 369 (2007).
The facts set forth in Pansy Road, LLC. v. Town Plan Zoning Commission, supra, show that an initial subdivision application in that case was rejected because of open space requirements. The subdivision application considered by the Supreme court included five lots and was subject to a mandatory open space dedication. The only reasons for the rejection stated by the Commission in that case related to traffic concerns. See 283 Conn. at 371.
The record supports Wendt's recollection. (ROR 14, pp. 20-21.)
In oral argument to the court counsel for the Commission confirmed that the Commission was relying on the objective stated in Section 2.3.1.4 — preserving land for "park and recreational purposes." With regard to this objective, the record does not indicate any manner in which any portion of the plaintiff's property could be used independently as a park. The record shows that the adjacent town-owned land is used as a school and as a baseball field, and not as a public park open to the general public.
The Commission's decision to require a dedication of a portion of the plaintiff's property might be justified if there were evidence in the record to show that such a dedication could be used as or enhance recreational purposes or as open space. The court finds that the evidence in record does not support a finding that such a dedication could advance either recreational or open space purposes. The record shows that a baseball field and appurtenant batting cages is the only recreational facility on the Mill Hill School property. There is no evidence that the field is not fully functional as a baseball field, or that the dedication of a portion of the plaintiff's property would, in some way, enhance the utility of the field or allow its expansion in some undetermined fashion. Indeed, the record shows that the plaintiff's property is significantly higher than the Mill Hill School property (ROR, Ex. 14, pp. 22-23), making it highly unlikely that any portion of the plaintiff's property could be used to enhance the existing recreational facilities on that property.
In the absence of substantial evidence in the records supporting at least one of the reasons stated by the Commission for its rejection of the plaintiff's application, the plaintiff's appeal must be and it hereby is sustained.