Opinion
No. CV 06-4006558 S
August 21, 2007
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiffs, Barry Roberts and Marlene Roberts, appeal from a decision of the defendant, the Planning and Zoning Commission of the town of Sherman, denying the plaintiffs' application to subdivide their property into two lots.
II BACKGROUND
The plaintiffs are the owners of an 8.9-acre parcel of property located at 1 Beaver Creek Lane in Sherman, Connecticut. (Complaint, ¶¶ 1, 2.) In February of 2006, the Sherman Zoning Board of Appeals granted the plaintiffs' application for a variance from the Sherman Zoning Regulations § 331.4(b) "to permit two adjacent interior lots each with a minimum front of 25 feet to be permitted without a lot having 200 feet of frontage on the southerly side of the subject parcel." (Return of Record [ROR], Exhibit [Exh] 30.) The plaintiffs' property includes an accessway of approximately 1000 feet, known as Beaver Creek Lane, which has 54.5 feet of frontage on Spring Lake Road, a public road. (ROR, Exh. 55.) Johannes Boeckmann and Anne Chiang own a lot to the rear on the easterly side of the plaintiffs' lot. (ROR, Exh. 55.) The Boeckmann-Chiang lot is an interior lot which does not have frontage on any town road but utilizes a right-of-way over Beaver Creek Lane and over the plaintiffs' lot for ingress and egress to their property. (ROR, Exh. 2, pp. 30-32; ROR, Exh. 55.)
The plaintiffs obtained a variance because, in order to create parallel accessways, each with a minimum of twenty-five feet in width, the neighboring lots on either side of the accessways must have minimum road frontage of 200 feet. (ROR, Exh. 57.)
On May 4, 2006, the plaintiffs submitted an application to the Sherman Planning and Zoning Commission to subdivide the subject property into two lots. (ROR, Exh. 14.) The proposed subdivision application requested that the 8.9-acre parcel be divided into a 5.535-acre parcel and a 3.4-acre parcel. (ROR, Exh. 55.) The plaintiffs also sought to divide Beaver Creek Lane into two parallel accessways that are each more than twenty-five feet in width, to serve both the subject lots as well as the Boeckmann-Chiang lot. (ROR, Exh. 55.)
The public hearing commenced on June 1, 2006 and continued through October 5, 2006. (ROR, Exh. 1-4.) On October 5, 2006, the commission denied the plaintiffs' subdivision application; (ROR, Exh. 4, p. 9); and a notice of denial was published on October 18, 2006. (Answer, ¶ 1.) The commission denied the plaintiffs' application on the basis that the property "does not comply with the subdivision regulation, section four, roads (unintelligible) in that it would create two abutting access ways to serve three lots" and that the property "does not comply with zoning regulation, section 331.4, minimum lot dimensions, paragraph (b), interior lot, in that it would create a third interior lot and the regulations specify a limit of two interior lots." (ROR Exh. 4, p. 9.)
The plaintiffs filed this appeal on the basis that they are aggrieved parties and that the commission acted illegally, arbitrarily and in abuse of the discretion vested in it by law as an administrative agency in denying their application. (Complaint, ¶ 10.) Specifically, the plaintiffs allege that the commission misapplied and misinterpreted both § 4(d) of the town of Sherman Subdivision Regulations and § 331.4(b) of the town of Sherman Zoning Regulations. (Complaint, ¶ 110(a)-10(d).)
III JURISDICTION
General Statutes § 8-8 governs an appeal taken from the action of a planning and zoning commission. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Mountinho v. Planning Zoning Commission, 278 Conn. 660, 664, CT Page 14645 899 A.2d 26 (2006). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 400, 920 A.2d 1000 (2007). In the present appeal, the plaintiffs allege aggrievement as owners of the subject property. (Complaint, ¶ 1.) Plaintiffs' status as owners of the property that is the subject of the commission's decision confers aggrievement. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). A plaintiff may prove aggrievement by testimony at the time of trial; Id.; or "by production of 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).
On June 13, 2007, the plaintiffs appeared in the Superior Court and testified that they were owners of 1 Beaver Creek Lane in Sherman which is the property that is the subject of this appeal. Based on this evidence, the court finds that the plaintiffs are aggrieved for purposes of bringing this appeal.
B Timeliness and Service of Process
General Statutes § 8-8(b) states in relevant part that an "appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published . . ." The plaintiffs allege that the commission's decision was published on October 18, 2006 and the commission admits publication of the decision on that date. (Complaint, ¶ 7; Answer, ¶ 1.) The marshal's return attests that he served notice of this appeal on the commission's secretary and the town clerk on October 31, 2006.
The record does not contain an affidavit of publication.
Accordingly, the court finds that this appeal comports with the statutory requirements governing timeliness and service of process.
IV SCOPE OF REVIEW
"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." (Internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record." (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).
"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 . . . 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. 402, 420, 788 A.2d 1239 (2002).
"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." (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 560, 916 A.2d 5 (2007).
V DISCUSSION
The commission cited the following two reasons in denying the plaintiffs' application for subdivision approval. The commission determined that the plaintiffs' property "does not comply with the subdivision regulation, section four, roads . . . in that it would create two abutting accessways to serve three lots" and that the property "does not comply with zoning regulations § 331.4, minimum lot dimensions, paragraph (b), interior lot, in that it would create a third interior lot where the regulations specify a limit of two interior lots." (ROR, Exh. 4, p. 9.) The plaintiffs allege that the commission misinterpreted and misapplied both § 4(d) of the subdivision regulations and § 331.4(b) of the zoning regulations.
A
The commission's first reason for the denial of the subdivision application was that the proposed subdivision creates a third interior lot that would use the same accessway as the two preexisting lots in violation of § 4(d) of the subdivision regulations. The plaintiffs argue that the proposed subdivision is not a violation of § 4(d) of the subdivision regulations because the commission's decision was based on the preexisting interior lot known as the Boeckmann-Chiang property that was not a part of the subdivision. The plaintiffs further contend that § 4(d) should be construed only to apply to lots within a subdivision and, that this subdivision consists of two lots and meets the requirements of the exceptions to compliance with the Sherman Town Road Ordinance under § 4(d). The plaintiffs further claim they introduced evidence at the hearing of three other subdivisions, approved by the commission, where private accessways were approved which provided access to more than two lots and which were not required to be built to the town's road specifications. The defendant counters that the subdivision application was denied because the proposed division of the plaintiffs' property into two lots would create two abutting access ways serving three lots which is a violation of § 4(d).
An accessway is defined as "[a]ny area of a lot between twenty feet (20') and fifty feet (50') in width which serves to connect the building area of the lot with the open road upon which it has frontage and access." Revised Ordinance Establishing Procedures, Standards, Specifications and Regulations for the Construction of Roads in the Town of Sherman, § 5.1. Section 4(d) of the subdivision regulations provides that "[a] private accessway that serves no more than two lots may not be required to be constructed in accordance with Subsection (b) above, provided that such accessway shall have a minimum right-of-way width of 50 feet, of which each lot served shall own a width of at least 25 feet. No part of the area of such an accessway shall be considered as part of the required minimum acreage of a lot. A private accessway serving two lots, as described herein, may not abut any other accessway serving any other lot."
Section 4(b) provides that "[a]ny road that serves three or more lots within a subdivision shall be constructed according to the requirements of the Road Construction Ordinance of the Town of Sherman, except as provided elsewhere in this section."
The plaintiffs claim that the commission does not have the power to review offsite conditions when deciding on the approval of a subdivision application. Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 692, 628 A.2d 1277 (1993) (holding that a planning and zoning commission does not have the power to order offsite improvements as a condition for subdivision approval). See also Pansy Road, LLC v. Town Plan and Zoning Commission, 283 Conn. 369, 380 (2007). The plaintiff's reliance on Property Group, Inc., however, is misplaced. In the present case, the commission did not request offsite improvements, but reviewed the application in light of the impact of the proposed subdivision on the surrounding properties and accessways. Moreover, the commission focused its decision on the fact that the proposed subdivision would create two abutting accessways that would serve three lots and that it would create a third interior lot. (ROR, Exh. 4.)
The purpose of subdivision regulations, among others, is "(a) [t]o provide for the orderly growth of the Town in keeping with the comprehensive plan of said Town [and] (b) [t]o provide for the integration of subdivided land into the land surrounding it." Sherman Subdivision Regs., §§ 1(a) and 1(b).
The court will undertake a review of the language of § 4(d) of the subdivision regulations. "[Subdivision] regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes . . . Thus, in construing regulations, our function is to determine the expressed legislative intent . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended . . . and the words employed therein are to be given their commonly approved meaning." (Citations omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 699, 784 A.2d 354 (2001). "Where the language of the regulation is plain and unambiguous the intention of the commission is to be determined from its language." Weigel v. Planning Zoning Commission, 160 Conn. 239, 246, 278 A.2d 766 (1971). "The regulations must be construed as a whole and in such a way as to reconcile all their provisions as far as possible." Id., 246.
It is submitted that § 4(b) does not apply to the current subdivision plan because the plaintiffs did not propose to construct a subdivision road. Subsection (d) of § 4 allows a private accessway to serve no more than two lots provided the accessway has a minimum right-of-way of fifty feet and each lot is served by a minimum twenty-five-foot strip of land. The same subsection also provides that an accessway serving two lots may not abut any other accessway serving any additional lots. The plain meaning of § 4(d) is intended to have a minimum twenty-five-foot private accessway serving each individual lot. Therefore, even though the Boeckmann-Chiang lot is not a part of the proposed subdivision, its right of way over Beaver Creek Lane renders the proposed subdivision in violation of § 4(d) because three lots would be using the two abutting twenty-five-foot accessways.
The plaintiffs further argue that the commission has approved three other subdivisions where private accessways provided access to more than two lots and which were not required to be built to the town's road specifications. The plaintiffs refer to three particular subdivision plans, the Kimberly Lake subdivision, the Cloverleaf Farms subdivision and the Osborn Road subdivision, to argue that the commission has authorized subdivision plans that allow for more than two properties to use the same abutting accessways. The commission contends that these subdivision plans are distinguishable from the plan that is the subject of this appeal. Moreover, the commission asserts that even if the approval of these subdivision plans were in error, a mistake made on a prior unrelated subdivision does not justify a violation of either the subdivision or zoning regulation referred to in the denial of the plaintiffs' subdivision.
First, the Kimberly Lake subdivision consisted of three lots, two of which were interior lots, each served by a 25-foot-wide accessway, and a third lot that had 200 feet of frontage on a town road. (ROR, Exh. 39, 44, 47.) Although the accessway to the frontage lot intersected the dual accessway which served the two interior lots, the plan did not violate § 4(d) of the subdivision regulations or § 331.4(b) of the zoning regulations, because the accessway was only serving two interior lots.
Next, the Cloverleaf Farms subdivision was a twelve-lot subdivision containing four sets of abutting accessways. (ROR, Exhs. 43, 46.) Each of the accessways were separated by parcels which contained at least 200 feet of frontage on a town road. Specifically, the first set of abutting accessways served lots 1 and 2, in which lots 1 and 2 were interior lots. Lots 3 and 4 had direct frontage on Anderson Road. (ROR, Exh. 43.) Another set of abutting accessways served two interior lots, lots 6 and 7, and lots 5 and 8 had direct frontage on Anderson Road. (ROR, Exh. 43.) Also, lots 9 and 10 shared an abutting accessway to Anderson Road. (ROR, Exh. 43.) The remaining two lots, lots 11 and 12, were served by an abutting accessway to Anderson Road. (ROR, Exh. 43.) Therefore, each of the four sets of abutting accessways served no more than two lots.
Finally, the Osbom Road subdivision contained a majority of lots which had direct road frontage with not more than two interior lots using any set of abutting accessways. (ROR, Exhs. 40, 41.) Accordingly, the three subdivision plans offered by the plaintiffs did not allow more than two lots to use two abutting accessways. In the present case, the plaintiffs' proposed subdivision application attempts to create three lots that would use two abutting twenty-five-foot accessways to the properties in violation of § 4(d). (ROR, Exh. 55.) Thus, the previously mentioned subdivision plans are distinguishable from the proposed plan that is the subject of this appeal.
B
The commission's second reason for denying the plaintiffs' subdivision application was that the proposed subdivision would violate § 331.4(b) of the Sherman zoning regulations for minimum lot requirements. The plaintiffs contend that the commission improperly reviewed the subdivision application as including the previously existing Boeckmann-Chiang lot because the commission may only review the lots within the proposed subdivision in order to determine compliance with § 331.4(b) of the zoning regulations. The defendant responds that the proposed subdivision will create a third adjacent, interior lot in violation of § 331.4(b) which permits no more than two interior lots to use any single accessway.
Section 331.4 provides in relevant part that "[t]he shape of each lot shall be such that a rectangle 250 feet by 275 feet can be contained within its horizontal boundaries . . . Each lot shall have frontage on a road or highway, as defined herein, of at least 200 feet, except as follows: . . . b. Interior Lot. [a]n interior lot is any lot that does not meet the above requirement for frontage on a road or highway. One interior lot with a minimum frontage of 35 feet, or two adjacent interior lots each with a minimum frontage of 25 feet, shall be permitted between any two other lots each with a minimum 200 feet of road frontage." The proposed subdivision application requested that the commission approve a plan for two interior lots with a total of fifty feet of frontage on Spring Lake Road. (ROR, Exh. 55.) The subdivision plan, however, proposed to create two interior lots coupled with a preexisting third interior lot that shared the subject property's right-of-way as its sole means of egress and ingress to the property. This does not meet the criteria for the exceptions to the minimum lot requirements for interior lots specifically addressed in § 331.4(b) of the zoning regulations. Accordingly, the commission's second reason for denying the subdivision application was correct because the record reflects that the plan does not meet the minimum lot requirements of § 331.4(b).
Although the plaintiffs received a variance based on the frontage requirements of the surrounding lots, the proposed subdivision remains in violation of the limitation of two interior lots each with a minimum frontage of twenty-five feet.
CONCLUSION
For the foregoing reasons, the court dismisses the plaintiffs' appeal from the commission's denial of their application for subdivision approval.