Opinion
KNLCV166026962S
11-28-2017
Thomas A. RIFFLE et al. v. TOWN OF LEDYARD PLANNING AND ZONING COMMISSION et al.
UNPUBLISHED OPINION
OPINION
Handy, J.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts are not in dispute. By way of a complaint, dated May 3, 2016, the plaintiffs, Thomas Riffle, Cynthia Riffle, Cody Kemble, and Nicole Kemble, have appealed from the defendant’s, Town of Ledyard Planning and Zoning Commission’s (Commission), approval with certain conditions of the defendant’s, Green Falls Associates, LLC’s (Green Falls), open space subdivision.
Green Falls owns a parcel of land consisting of 54.5 acres located at 423 Colonel Ledyard Highway in the town of Ledyard. (ROR 4, 5.) On November 12, 2015, Green Falls filed an initial open space subdivision application with the Commission to subdivide the property into 39 building lots to be denoted as Quakertown Meadows Subdivision. (ROR 1, 2.) Public hearings were held on the application on January 14, 2016 (ROR 53a, 53b, 54a, 55a and 68a), continued to February 11, 2016 (ROR 53c, 54b, 55b, and 68b), and completed on March 10, 2016. (ROR 53d, 54c, 55c, and 68c.) During that period of time, Green Falls’ open space subdivision application was modified to consist of twenty-nine building lots. (ROR 58.) All abutting property owners had been notified of the Green Falls application pursuant to General Statutes § 8-7d(a) and § 3.6 of the Ledyard Zoning Regulations. (ROR 60, 61, and 69, p. 10).
At each of the three public hearings on the Green Falls open space subdivision application, both the applicant and the public had an opportunity to be heard. (ROR 68a, 68b, and 68c.) At the final public hearing on the application, the Commission continued the matter for deliberation and decision until the April 14, 2016 meeting. (ROR 68c, p. 397.) At the April 14, 2016 meeting, after extensive discussion, the Commission approved with conditions Green Falls’ revised open space subdivision application by a vote of 3-2. (ROR, 68d, pp. 474-75.) Notice of the Commission’s decision was published in The Day on April 19, 2016. (ROR, 73.) It is from this decision that the plaintiffs have appealed.
II. LAW AND DISCUSSION
A. AGGRIEVEMENT
" [P]leading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of an administrative appeal ... [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotations omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007). " Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." (Internal quotations omitted.) Id., 400. It is well established that a party may be aggrieved for purposes of an appeal by virtue of a person’s status as a property owner. Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 671, 889 A.2d 26 (2006); see also Bossert Corp. v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1968). A plaintiff may prove aggrievement by testimony at trial; Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308 n.4, 592 A.2d 953 (1991); or " by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
At the hearing held before this court on October 12, 2017, the plaintiff, Thomas Riffle, testified that he and his wife, the plaintiff, Cynthia Riffle, own property located at 105 Lambtown Road in Ledyard and that their property is within 100 feet of the Green Falls property. (ROR 60, 61.) He further testified that they have continuously owned that property since their purchase by warranty deed in March of 2000. (Plaintiff’s 2.) The plaintiff, Nicole Kemble, testified that she and her husband, the plaintiff, Cody Kemble, own property located at 12 Maple Terrace in Ledyard and that their property is also within 100 feet of the Green Falls property. (ROR 60, 61.) She testified that they have continuously owned that property since their purchase by warranty deed in January of 2015. (Plaintiff’s 1.)
Accordingly, the court finds that all of the plaintiffs are aggrieved.
B. TIMELINESS OF APPEAL
General Statutes § 8-28 provides that " [n]otice of all official actions or decisions of a planning commission, not limited to those relating to the approval or denial of subdivision plans, shall be published in a newspaper having a substantial circulation in the municipality within fifteen days after such action or decision. Any appeal from an action or decision of a planning commission shall be taken pursuant to the provisions of section 8-8."
In the instant case there are two defendants. As to the defendant Commission, General Statutes § 8-8(b) provides in relevant part: " [An] appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." General Statutes § 8-8(f) provides in relevant part: " Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows: ... (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57." General Statutes § 52-57(b) provides that " [p]rocess in civil actions against the following-described classes of defendants shall be served as follows: ... (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency ..."
Notice of the Commission’s decision was published in The Day, a newspaper of general circulation in the town of Ledyard, on April 19, 2016. (ROR, 73.) The plaintiffs commenced this appeal against the Commission on May 3, 2016, fourteen days from the date of publication and within the fifteen-day statutory mandate, by service of process on the Commission on that same date, by leaving two copies of the appeal with the Town Clerk of the town of Ledyard. (Marshal’s Return, Docket Entry 100.31.) Accordingly, the service of process on the defendant. Commission was proper and timely. The court, therefore, has subject matter jurisdiction as it relates to the Commission.
On that same date, the plaintiffs commenced their appeal against the defendant, Green Falls, by service of process in hand to Ed Nolan, an employee and draftsman, at the Green Falls place of business in Gales Ferry, Connecticut. (Marshal’s Return, Docket Entry 100.31.) Green Falls is a limited liability company. A business inquiry to the Connecticut Secretary of State’s Commercial Recording Division lists Peter C. Gardner as the agent for service of process for the limited liability company. General Statutes § 52-57(a) provides in relevant part: " Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it ... with the defendant, or at his usual place of abode, in this state." None of the exceptions in General Statutes § 52-57(b) through (f) apply to a limited liability company. It appears, therefore, that Green Falls should have been served pursuant to General Statutes § 52-57(a). Interestingly, the marshal’s return shows a second service on the defendant, Green Falls, made at the direction of plaintiffs’ attorney on May 9, 2016, in hand to Peter C. Gardner, registered agent of Green Falls. (Marshal’s Return, Docket Entry 100.31.) This service appears to have been made to the proper individual, albeit five days beyond the fifteen-day statutory time period set out in General Statutes § 8-8(b). As previously noted, publication of the defendant Commission’s decision was made on April 19, 2016, and fifteen days from that date would be an end date of May 4, 2016. Under most circumstances " [w]hen a particular method of serving process is set forth by statute, that method must be followed ... Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction." (Internal quotations marks omitted.) Pedro v. Miller, 281 Conn. 112, 117, 914 A.2d 524 (2007). This is however, a zoning appeal, and while General Statutes § 8-8(g) mandates that " [s]ervice of process shall ... be made on each person who petitioned the board in the proceeding ... failure to make service within fifteen days on parties other than the board shall not deprive the court of jurisdiction over the appeal."
General Statutes § 52-57(b) applies to service of process on towns, town boards and agencies and town employees, § 52-57(c) to corporations, § 52-57(d) to partnerships, § 52-57(e) to voluntary associations, and § 52-57(f) to child support orders.
Additionally, Practice Book § 10-32 provides: " Any claim of lack of jurisdiction over the person or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30." Practice Book § 10-30 provides that " [a] motion to dismiss shall be used to assert ... (2) lack of jurisdiction over the person ..." and must be filed " within thirty days of the filing of an appearance." In this case, the defendant, Green Falls, filed its appearance on May 31, 2016. No motion to dismiss was filed by Green Falls subsequent to the filing of its appearance. Accordingly, any claim of lack of jurisdiction over Green Falls has been waived, and the court finds it has jurisdiction over Green Falls.
C. SCOPE OF REVIEW
In its review of a subdivision application, a zoning authority acts in an administrative capacity. The application must be granted if the plan conforms to all the pertinent regulations. Reed v. Planning & Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988); see also Buttermilk Farms, LLC v. Planning & Zoning Commission, 292 Conn. 317, 330-32, 973 A.2d 64 (2009). Most often, " [t]he Superior Court’s scope of review is limited to determining only whether the board’s actions were unreasonable, arbitrary or illegal.... It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Citations omitted; internal quotation marks omitted.) R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). The court is foreclosed from substituting its discretion for the liberal discretion which the legislature has conferred on land use agencies, but may, however, grant relief when it is shown that the agency has acted illegally or arbitrarily, and consequently, has abused its power. Gordon v. Zoning Board, 145 Conn. 597, 604, 145 A.2d 746 (1958). The plaintiff has the burden of proving that the land use agency acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988).
A commission’s factual and discretionary determinations which are normally afforded considerable weight by the court are deferred in cases which present pure questions of law. In these cases, a broader standard of review is necessary and a court’s review becomes plenary. Egan v. Planning Board, 136 Conn.App. 643, 649, 47 A.3d 402 (2012). " [D]eference ... to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute ... has not previously been subjected to judicial scrutiny [or to] ... a governmental agency’s time-tested interpretation ..." (Internal quotation marks omitted.) Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102, 108-09, 942 A.2d 396 (2008). " Resolution of [such an] issue requires [the court] to review the relevant town regulations. Because the interpretation of the regulations presents a question of law, [the] review is plenary." Heim v. Zoning Board of Appeals, 289 Conn. 709, 715, 960 A.2d 1018 (2008).
In the instant matter, both standards are applicable. The standard of plenary review will pertain to the plaintiffs’ first legal argument which is a question of law as to the interpretation of the applicable regulations regarding lot design and lot access in Green Falls’ proposed open space subdivision. The usual standard of review, illegal, unreasonable or arbitrary actions, will be applied to the plaintiffs’ second and third legal arguments concerning the drainage plan and the due process argument regarding the alleged ex parte communications.
At oral argument, all counsel agreed that two standards of review should be implemented by the court in reaching its decision in this matter. That agreement was that as to the issue of lot design and lot access, the court would utilize a standard of plenary review. As to the remaining two issues: the drainage plan and an ex parte communications, the court would apply the unreasonable, arbitrary, or illegal standard.
It should be noted that plaintiffs presented a number of other arguments in their complaint as possible grounds for this court’s reversal of the Commission’s approval of Green Falls’ subdivision application. Those additional issues were neither briefed nor argued by the plaintiffs. Such matters are deemed to have been abandoned, and therefore, will not be addressed by the court. Coppola Construction Co., Inc. v. Hoffman Enterprises Ltd. Partnership, 157 Conn.App. 139, 179, 117 A.3d 876, cert. denied, 318 Conn. 902, 123 A.3d 882 (2015); Raymond v. Freedom of Information Commission, 67 Conn.App. 15, 20, 787 A.2d 56 (2001), overruled on other grounds, 75 Conn.App. 142, 815 A.2d 226 (2003).
At oral argument, counsel for the plaintiffs conceded that any argument not briefed had been abandoned.
D. THE LEGAL ISSUES
1. LOT DESIGN AND LOT ACCESS
As previously stated, " [a]cting in [an] administrative capacity, the [commission’s] function is to determine whether the applicant’s proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied." A.P. & W. Holding Corp. v. Planning and Zoning Board, 167 Conn. 182, 185, 355 A.2d 91 (1974). " The evidence, however, to support any [reason stated by the commission for its action] must be substantial ... [E]vidence 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 ... The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts ... The trial court can sustain the [plaintiff’s] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal ..." (Citation omitted; internal quotation marks omitted.) Pelliccione v. Planning & Zoning Commission, 64 Conn.App. 320, 327-28, 780 A.2d 185, cert. denied, 258 Conn. 915, 782 A.2d 1245 (2001).
In this matter, the plaintiffs argue that open space subdivisions are subject to all of the Ledyard Subdivision Regulations and Zoning Regulations. The defendants claim that open space subdivision applications are governed only by those regulations contained in § 4.9 of the subdivision regulations and § 5.2 of the Zoning Regulations. Section 4.9.2 of the subdivision regulations provides: " Open space subdivision standards are an option that shall apply only to single family residential subdivisions in those instances which are approved by the Commission and shall be subject to all of these and all other applicable regulations, but not limited to the Connecticut Public Health Code." (ROR, 69, p. 28.)
The plaintiffs argue that Green Falls did not follow " all other applicable regulations" referenced in § 4.9.2 of the Ledyard Subdivision Regulations. The plaintiffs contend that the " applicable" zoning and subdivision regulations that did not specifically exclude open space subdivisions are mandatory and were not followed by Green Falls in its approved application. The defendants argue that the inclusion of the words " be subject to all of these" in § 4.9.2 refers to the regulations governing open space subdivisions contained in § 4.9 of the Ledyard Subdivision Regulations. The defendants further argue that the reference to " all other applicable regulations" refers to other ordinances applicable to the development of real property in Ledyard and to the zoning regulations applicable to open space subdivisions, specifically § 5.2 of the Ledyard Zoning Regulations.
Here, the court must determine whether the commission has correctly interpreted its own subdivision regulations, which the commission is legally bound to apply. See Y Downtown, Inc. v. Westport Planning & Zoning Commission, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-08-4008081-S (January 19, 2011, Mottolese, J.). Zoning and subdivision regulations are local legislative enactments. Reardon v. Zoning Board of Appeals, 311 Conn. 356, 364, 87 A.3d 1070 (2014). " [T]herefore, their interpretation is governed by the same principles that apply to the construction of statutes." Id.
Because a question of proper statutory interpretation is involved, here the court must go beyond the conventional scope of administrative review and conduct a plenary review of the Commission’s actions. Alvord Investment, LLC v. Zoning Board of Appeals, supra, 282 Conn. 416. Whether the Commission properly interpreted and applied the relevant regulations depends upon whether it read the particular regulations " in the context of all of the regulations, their evident purpose and policy, and recognized principles of zoning in general." Field Point Park Assn., Inc. v. Planning & Zoning Commission, 103 Conn.App. 437, 441, 930 A.2d 45 (2007). Additionally, " [t]he process of statutory interpretation involves the determination of the meaning of the statutory language [or in this case, the relevant subdivision regulation] as applied to the facts of the case, including the question of whether the language does so apply." (Internal quotation marks omitted.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 652, 894 A.2d 285 (2006).
" When more than one construction [of regulations] is possible, [courts] adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results." (Internal quotation marks omitted.) Heim v. Zoning Board of Appeals, supra, 289 Conn. 716. Additionally, courts always must construe a zoning regulation in light of its purpose. Id., 718. If there are two equally plausible interpretations of a regulation, the court may give deference to the construction of the language by the agency which is charged with the enforcement of the regulation. Wood v. Zoning Board of Appeals, 258 Conn. 691, 699, 784 A.2d 354 (2001). In this case, it appears that the Commission has interpreted the open space subdivision regulations for the first time as Green Falls appears to be the first applicant to submit an open space subdivision plan since the regulations were enacted in 2012. (ROR, 68d, p. 470.)
The court turns now to the regulations. Section 4.1 of the Ledyard Subdivision Regulations sets forth the general requirements for all subdivision applications. Section 4 also includes separate subsections specifically for conservation subdivisions and open space subdivisions. (ROR, 69, § § 4.8, 4.9, pp. 21-33.) The purpose of conservation subdivisions is found in § 4.8.1, which provides in relevant part: " The purpose of this section is to provide flexibility in clustering of residential units on areas of a project site best suited for development and to protect the remaining land as open space." The purpose of open space subdivisions is delineated in § 4.9.1, which provides in relevant part: " The purpose of this section is to provide additional flexibility in clustering of residential units ... than is contemplated by conservation subdivisions authorized pursuant to Section 4.8 of these Regulations."
The plaintiffs argue that Green Falls is violating the " applicable" regulations for interior lots. Specifically, the plaintiffs argue that both § 4.3 of the Ledyard Subdivision Regulations and § 14.7 of the Ledyard Zoning Regulations have been violated.
The plaintiffs also argue that § § 4.9.7 and 4.9.8.1 of the Ledyard Subdivision Regulations refer to § 3.13 of the Ledyard Zoning Regulations that must be complied with; however, the committee has stated § 3.13 of the Ledyard Zoning Regulations was changed to § 5.2, but it was never updated in the Ledyard Subdivision Regulations. (ROR, 68d, p. 432).
Section 4.3 of the regulations deals with interior lots. The plaintiffs argue that there are interior lots in Green Falls’ open space subdivision application that are stacked behind one another and that the application violated § 4.3 of the Ledyard Subdivision Regulations because the only exemption from interior lot requirements is found in the conservation subdivisions and there is no such exemption for open space subdivisions. This argument is ingenuous at best, since it would mean that open space subdivisions are more restrictive than conservation subdivisions which belies the very language regarding the purpose of open space subdivisions: " [T]o provide additional flexibility in clustering of residential units ... than is contemplated by conservation subdivisions ..." As articulated during deliberations on the application, Chairman Cherry stated that when they created the open space regulations, which they refer to as cluster subdivisions, they did not consider them to have interior lots because they called them part of the cluster. (ROR, 68d, p. 418.)
The plaintiffs also argue that the application violated § 14.7(e) of the Ledyard Zoning Regulations, which specifically provides that interior lots must have a setback of fifty feet. They again note that this section does not provide an exemption for open space subdivisions, but does for conservation subdivisions. Green Falls’ approved application has a setback of fifty feet and even assuming arguendo that it did not, § 2.19 of the Ledyard Subdivision Regulations defines an open space subdivision as " [a] subdivision or resubdivision of land ... which setbacks and density shall be based upon the applicable provisions of the Ledyard Subdivision and Zoning Regulations for open space subdivisions ..." (Emphasis added.) Section 4.9 and Section 5.2 set forth the required setbacks that must be applied for lots of open space subdivision applications. Furthermore, Chairman Cherry stated during deliberations that " if you try and apply [general] subdivision rules, such as 14.7 for interior lots, to an open space subdivision, you can’t get a clustered, open space subdivision, " which was the intent of the regulations. (ROR, 68d, p. 434.)
Sections 14.7 and 5.2 of the Ledyard Zoning Regulations set forth two different sets of requirements. Section 14.7 applies to general and conservation subdivisions because the bulk requirements stated in the regulation refers to an attachment titled " Area and Bulk Requirements, " which includes requirements of interior lots for general and conservation subdivisions, but does not include requirements for open space subdivisions. Section 5.2 applies to open space subdivisions and the bulk requirements are included in the text of the regulation itself, not in a separate attachment, which sets forth requirements for the number of lots. (ROR, 70, § 5.2(E), pp. 38-39.) Chairman Cherry confirmed this interpretation during deliberations by stating that when the open space subdivision regulations were drafted, they did not include exemptions for open space subdivisions in Section 5.2 of the regulations as they did for conservation subdivisions in Section 5.1 because Section 5.2 of the regulations was meant to stand alone, rendering such exemptions unnecessary. (ROR, 68d, 418-19.)
Finally, the general definition of the subdivision regulations define an open space subdivison as " [a] subdivision or resubdivision of land ... which setbacks and density shall be based on the applicable provisions of the Ledyard Subdivision and Zoning Regulations for open space subdivisions ..." (Emphasis added.) (ROR 69, § 2.19, p. 6.) Based on this language then, the subdivision and zoning regulations that must apply are the regulations specifically for open space subdivisions found in § 4.9 of the Ledyard Subdivision Regulations and § 5.2 in the Ledyard Zoning Regulations, which are titled " Open Space Subdivisions" and " Open Space Subdivision Developments" respectively.
In Smith v. Zoning Board of Appeals, 227 Conn. 71, 91, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S.Ct. 1190, 127 L.Ed.2d 540 (1994), the plaintiffs argued that the commission did not consider a full environmental assessment as required by the language of the regulation which stated " [t]he assessment shall include an evaluation of the following ..." (Emphasis in original.) The plaintiffs in Smith contended that this regulation made it mandatory that each of the twelve factors listed in the regulation had to be included in the assessment. Id. The Supreme Court disagreed because it did not make sense to require the commission to evaluate factors that were not relevant to a particular subdivision. Id. " Whether the word ‘shall’ is mandatory or precatory depends upon its context ... In construction of the words of a regulation, like those of a statute, common sense must be used." (Citation omitted.) Id., 91-92. " Not every subdivision application will require the consideration of each of these factors. It would be a waste of time, money and energy for the participants involved to be required to gather information that is not relevant to the subdivision application." Id., 92. Similarly, in the present case the commission should not be required to apply irrelevant provisions to the open space subdivision application at issue.
Finally, a legislative body, in this case, the planning and zoning commission, when legislating a new " law" formulates that law with the full knowledge of existing law. Kinney v. State, 213 Conn. 54, 65, 566 A.2d 670 (1989), cert. denied, 498 U.S. 898, 111 S.Ct. 251, 112 L.Ed.2d 209 (1990). At the time that the open space subdivision regulations were created, the regulations for both subdivisions in general and conservation subdivisions were already in existence. If it had been the intent of the Commission to make those existing regulations also subject to the new regulations for open space subdivisions, the Commission could have done so. It did not, and therefore, the court must conclude any of those regulations governing both subdivisions generally and conservation subdivisions do not apply to open space subdivisions. As previously articulated by this court, requiring open space subdivisions to follow all the requirements applicable to standard subdivisions would place greater restrictions on open space subdivisions than is required for conservation subdivisions. This would be entirely contrary to the purpose of the open space subdivision regulations set out in § 4.9.1.
2. THE DRAINAGE PLAN
The plaintiffs argue that the drainage plans submitted by Green Falls failed to meet the town standards and zoning requirements, § 5.3 of the Ledyard Subdivision Regulations, requiring an applicant to include a mapped and written description of all drainage measures as well as all information required by the town’s drainage ordinance. (ROR, 69, p. 34.) The plaintiffs contend that Green Falls failed to comply with these requirements by providing drainage calculations for a completely different subdivision plan filed with the town in 2010. (ROR, 20.) The plaintiffs further contend that these omissions were validated by Joe Wren, an engineer hired by the property abutters, in his report dated February 11, 2016 and revised March 10, 2016. (ROR, 46.) The plaintiffs conclude that the Commission’s failure to require new drainage calculations for the revised twenty-nine-lot plan was an abuse of its discretion.
The defendants maintain that the Commission received several conflicting reports regarding the compliance or noncompliance with the town’s drainage ordinance. Initially, the Commission received the drainage calculations prepared by the applicant’s expert, LBM Engineering, LLC, dated September 2015, which were based on the original thirty-nine-lot open space subdivision application. (ROR, 9.) The Commission also received two letters from its consulting engineers, CLA Engineers, Inc. (ROR 20, 34.) Those documents concluded that " [t]he drainage calculations include a letter report signed by a professional engineer that is dated September 2010. Although the site plan has changed since 2010, the report has not been updated. A revised report needs to be provided and stamped with a current signature of a professional engineer." (ROR, 34.) Finally, the Commission received comments from Joe Wren, the abutters’ expert, who claimed that the applicant’s drainage report was deficient in that it failed to use Connecticut Department of Transportation rainfall amounts for design storm events and additionally failed to use correct run-off coefficients for the open space subdivision design.
In two subsequent letters, dated February 11, 2016 and March 4, 2016 (ROR 49, 50), the applicant’s engineering firm, LBM Engineering, LLC, responded to the concerns of both Joe Wren and CLA Engineers, Inc. As to the updated drainage calculations, LBM engineer John Martucci responded: " The 2010 report was used as a basis for the 2015 report. When editing the Summary, a few items were missed and have since been corrected. The design of the drainage system was completely re-done in 2015. Gutter Flow Analysis, Storm Drain Design and detention/water quality basin designs were done based on the 2015 plans with 39 building lots. In 2010 the individual houses were much larger with long, paved and sometimes shared driveways. We stand by the drainage areas and runoff coefficients in the 2015 report." (ROR, 50.) This was reiterated by Mr. Martucci in his second letter: " The drainage design was conducted per the Ledyard Drainage Ordinance in September 2015. The Drainage Ordinance directed us to use rainfall values from Figure 1, which was done in the submitted Report ... The Drainage Ordinance has been met as noted in the review by CLA Engineers." (ROR, 49.)
John Martucci: " The 2010 report was used as a basis for me (sic) 2015 report. When editing. When editing- when editing the summary, a few items were missed that have since been- been corrected. The design of the drainage system was completely redone in 2015. Gutter-flow analysis, storm drain design, detention/water-quality basin designs were done based on the 2015 plans with 39 building lots ... We stand by the drainage areas and run-off coefficients in the 2015 report ... I redid everything in the 2015- I just- the 2015 report was done in September of 2015, so when I went through and cut and pasted by (sic) things, I missed the date, so it looked like I didn’t do anything." (ROR, 69c, pp. 353-54.)
As the defendants correctly argue, the Commission was presented with conflicting information as to the applicant’s compliance or noncompliance with the drainage requirements. When such a conflict arises, a commission is required to review and weigh the evidence presented, determine the credibility of the witnesses, and render a decision as to that conflict. Where expert testimony conflicts, it becomes the function of the trier of fact to determine the credibility of either expert and in doing so, it can believe all, some or none of the testimony. Procaccini v. Lawrence & Memorial Hospital, Inc., 175 Conn.App. 692, 721, 168 A.3d 538 (2017); DelBuono v. Brown Boat Works, Inc., 45 Conn.App. 524, 541, 696 A.2d 1271, cert. denied, 243 Conn. 906, 701 A.2d 328 (1997); Mobil Oil Corp. v. Zoning Board of Appeals, 35 Conn.App. 204, 212, 644 A.2d 401 (1994).
Such a conflict presents an issue of fact determined within the discretion of a commission; such discretion is to be afforded considerable weight by the reviewing court. " In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] ... The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached ... If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board." Loring v. Planning & Zoning Commission, 287 Conn. 746, 756, 950 A.2d 494 (2008); see Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540-41, 525 A.2d 940 (1987).
The plaintiffs sustain the burden of proving that substantial evidence does not exist in the record to support the agency’s decision on any such conflict. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587, 628 A.2d 1286 (1993). " The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given ... The ‘substantial evidence’ rule ... imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ..." (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetlands & Watercourses Agency, supra, 539-41.
The Commission heard conflicting expert testimony on this drainage issue. After multiple hearings and its review of the evidence, the Commission determined that there was substantial evidence in the record to conclude that the drainage design submitted by Green Falls and presented by its expert engineer, John Martucci from LBM Engineering, LLC, complied with the requirements of the town’s drainage ordinance. This court agrees with the Commission’s determination on this issue.
3. EX PARTE COMMUNICATIONS
The plaintiffs claim that Green Falls violated due process by its representative commenting to Commission members during the deliberations and after the close of the public hearing. Consequently, plaintiffs contend that those comments prevented the plaintiffs the opportunity to rebut any information provided to the Commission by the applicant and should result in this court’s reversal of the Commission’s decision. The defendants’ counter argument claims that no information was ever provided by any staff member or the applicant during the course of the Commission’s deliberations.
The deliberations regarding the Green Falls open space subdivision application took place at the Commission’s April 14, 2016 regular meeting. That transcript reads in pertinent part:
Commissioner Ed Lynch: I have a question to Peter, is there any
Chairman Mike Cherry: Staff.
Commissioner Ed Lynch: What about sewer leach fields?
Chairman Mike Cherry: No.
Commissioner Ed Lynch: Is there any requirement on how close it can get to a house?
Chairman Mike Cherry: Yes.
Commissioner Ed Lynch: What is the requirement?
Chairman Mike Cherry: Twenty-five
Commissioner Ed Lynch: Does anybody know?
Chairman Mike Cherry: I’ve got in the
Commissioner Nate Woody: We can’t have the Applicant talking to staff while staff is talking during discussions.
Commissioner Tom Baudro: He’s asking me a couple of questions.
Commissioner Ed Lynch: Sure. Sure. So the question I have
Vice Chairman Naomi Rodriguez: Several times.
Commissioner Ed Lynch: If you can move the house closer to a septic tank, then- then- then it’s
Commissioner Nate Woody: You know, for me, it’s not for me, it’s- its not for me to make that analysis, right, I’m not designing the plans. (ROR, 68d, pp. 442-43.)
This portion of the transcripts is the section which the plaintiffs argue constitutes ex parte communication between Peter Green, the applicant, and Commission and staff members. It is clear that when a public hearing is closed, comments from any party are not permitted after the close of the public hearing. " While proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence ... nevertheless, they cannot be so conducted as to violate the fundamental rules of natural justice ... The commission [can] not properly consider additional evidence submitted by an applicant after the public hearing without providing the necessary safeguards guaranteed to the opponents of the application and the public." (Citations omitted.) Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974); see also Blaker v. Planning & Zoning Commission, 212 Conn. 471, 477-78, 562 A.2d 1093 (1989).
As to this matter, there is nothing in the transcript noted by the plaintiffs that shows that any additional information was provided to the Commission by either Mr. Gardner or staff through Mr. Gardner. In fact, the transcript illustrates that once Commissioner Ed Lynch said he had a question for Peter Gardner, the only discussion that followed was by other Commission members. One Commission member, Nate Woody, specifically stated that the applicant could not be talking to staff during deliberations. Even assuming arguendo that Mr. Gardner did speak to staff during deliberations, there is nothing in the transcript that indicates that staff then provided that information to the Commission nor that the Commission relied on such alleged ex parte information nor have the plaintiffs pointed to any such language in the transcript. The plaintiffs would have had to first prove that a violation had occurred, and once proven, the burden would have shifted to the Commission to prove that no prejudice had resulted from the prohibited ex parte communication. Martone v. Lensink, 207 Conn. 296, 301, 541 A.2d 488 (1988). The plaintiffs have not proven the first prong of this analysis, that an ex parte communication actually occurred. At best, the plaintiffs have argued mere speculation. Consequently, the court finds no due process violation as no ex parte communication took place.
III. CONCLUSION
For the foregoing reasons, the plaintiffs’ appeal is dismissed. The Commission’s decision granting Green Falls’ open space subdivision with conditions is affirmed.
The Commission’s approval of the Green Falls open space subdivision application was granted with a number of conditions. (ROR, 68d, pp. 474-75, and 73.) A zoning authority acts on a subdivision application in an administrative capacity. As with site plans, the application must be granted if the application complies with all the regulations. Reed v. Planning & Zoning Commission, supra, 208 Conn. 433. In the present case, the Commission added a number of conditions to its approval of the application. Query whether it had the authority to do so. Only the applicant, Green Falls, would have had standing to bring an appeal contesting such conditions and clearly chose not to do so.