Opinion
LNDCV146055760S
02-08-2016
Christine Sammartino v. Planning and Zoning Commission of the Town of Andover
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Marshall K. Berger, J.
I
On or around April 17, 2014, the plaintiff, Christine Sammartino, filed an application with the defendant, the planning and zoning commission of Andover (commission), to subdivide a 7.77 acre parcel of land on Hutchinson Road and Times Farm Road in Andover into four lots. (Return of Record [ROR], Item 4.) A public hearing for June 16, 2014, commenced, but was continued to and held on July 21, 2014, August 18, 2014, and then concluded on September 15, 2014. (ROR, Items 40-43.) On September 15, 2014, the commission unanimously granted the application with conditions, including a condition for the provision of fire protection by a cistern or a sprinkler system under § 18.16 of Andover's subdivision regulations (regulations). (ROR, Item 33.) Notice of the decision was allegedly published in a newspaper with circulation in Andover on September 26, 2014.
As part of the parcel was in a business zone, the plaintiff also sought to change that zone designation so that the whole parcel would be in a residential zone and she sought a special permit for a restricted site application and a special permit for a rear lot. The commission granted the zone change and the special permit for the rear lot, but denied the special permit for the restricted site application. (Return of Record [ROR], Item 33; Item 43.) These other applications are not at issue in this case.
The plaintiff previously requested a waiver of this fire protection requirement, but it was denied. (ROR, Item 24; Item 26; Item 43.) During argument on appeal on October 13, 2015, both counsel acknowledged that neither submitted a copy of a regulation section providing for such waiver. See General Statutes § 8-26 (" [s]uch regulations may contain provisions whereby the commission may waive certain requirements under the regulations . . . provided that such regulations shall specify the conditions under which a waiver may be considered . . .").
The plaintiff commenced this appeal on October 8, 2014, alleging that § 18.16 exceeds the commission's statutory authority and that requiring a cistern constitutes an exaction. She filed her brief on April 10, 2015, the commission filed its brief on June 26, 2015, and the plaintiff filed a brief in reply on July 15, 2015. The commission filed a list of record items, but only the record items that the parties cited were attached to the parties' briefs.
On October 13, 2015, this court heard the appeal during which the plaintiff introduced into evidence a deed to her property; (Exhibit 1); and testified that she was the owner of the property at the time of the application and has continued to own the property to the present time. Therefore, this court found that she is aggrieved. See Handsome, Inc. v. Planning & Zoning Commission, 317 Conn. 515, 527, 119 A.3d 541 (2015) (" [i]t is well established that a party may be aggrieved for purposes of appeal by virtue of its status as a property owner").
II
" 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 . . . [A]ppellate review excludes the retrial of the facts." (Internal quotation marks omitted.) 200 Associates, LLC v. Planning & Zoning Commission, 83 Conn.App. 167, 171-72, 851 A.2d 1175, cert. denied, 271 Conn. 906, 859 A.2d 567 (2004).
" To the extent that we must interpret the regulations, we are presented with a question of law, and our review is plenary . . . At the same time, our review of the factual findings of the commission is guided by the substantial evidence standard of review . . .
" When examining the regulations, [w]e . . . are guided by the principle that the [commission] is always presumed to have created a harmonious and consistent body of law . . . [T]his tenet of statutory construction . . . requires us to read statutes together when they relate to the same subject matter . . . Accordingly, [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction . . . Moreover, we must presume that a reasonable and rational result was intended by the commission in enacting the regulations . . . As General Statutes § 1-2z directs, we first consider the text of the regulation and its relationship to other provisions . . . Only if the text of the regulation is ambiguous may we consider extra textual evidence . . .
" When a term is defined, we need not consider its common and ordinary meaning. See General Statutes § 1-1(a) ('[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly')." (Citations omitted; footnote omitted; internal quotation marks omitted.) Kraiza v. Planning & Zoning Commission, 121 Conn.App. 478, 492-93, 997 A.2d 583, rev'd on other grounds, 304 Conn. 447, 41 A.3d 258 (2012).
" [Z]oning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended . . . The process of statutory interpretation involves the determination of the meaning of the statutory language [or in this case, the relevant zoning regulation] as applied to the facts of the case, including the question of whether the language does so apply . . .
" Because zoning regulations are in derogation of common-law property rights, they must be strictly construed and not extended by implication . . . Whenever possible, the language of zoning regulations will be construed so that no clause is deemed superfluous, void or insignificant . . . The regulations must be interpreted so as to reconcile their provisions and make them operative so far as possible . . . When more than one construction is possible, we 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.) Kraiza v. Planning & Zoning Commission, 304 Conn. 447, 453-54, 41 A.3d 258 (2012).
" It is well established that, as a creation of the state, a municipality [whether acting itself or through its planning and zoning commission] has no inherent powers of its own . . . and that [it] possesses only such rights and powers that have been granted expressly to it by the state . . . Thus, while the state may have inherent power to regulate in the interest of public health, safety, morality and welfare . . . [i]n connection with [municipal regulations], it is a cardinal principle of construction that provisions and amendments must be enacted pursuant to the . . . enabling statute . . . In determining whether a particular regulation [is] within the authority of the commission to enact, [therefore] we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authority for the enactment." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Buttermilk Farms, LLC v. Planning & Zoning Commission, 292 Conn. 317, 326-27, 973 A.2d 64 (2009); see also Sonn v. Planning Commission, 172 Conn. 156, 159, 374 A.2d 159 (1976) (" [t]he planning power of the defendant commission is derived from the general statutes and a subdivision regulation enacted by it to be valid must have been adopted with positive statutory authorization").
III
The commission voted to approve the four-lot subdivision on the condition that the plaintiff comply with § 18.16 of the regulations. Specifically, the commission moved, in relevant part, " to approve the application to subdivide the 7.77 acre lot into four (4) lots with the following CONDITIONS . . . [a]ll requirements of Andover Subdivision Regulations Section 18.16 shall be completed before the sale of any lot or the issuance of a certificate of occupancy or the issuance of a certificate of zoning compliance, and the location of any cistern easement shall be depicted on the final mylars prior to endorsement. If sprinklers are used, a declaration shall be filed on the land records at the time of endorsement and filing, which declaration shall be subject to the approval of the Commission's counsel." (ROR, Item 33.)
Section 18-16 provides: " Requirements for Fire Fighting Water Supply --All new developments will have constructed by the developer one of the following types of water supply:
" Water supply" is defined in § 18.16.1 as:
A. Natural or Dug Fire Pond with a minimum usable capacity of 15, 000 gallons year round; B. Cistern pre-cast concrete or fiberglass tank with a minimum capacity of 15, 000 gallons; C. Residential Sprinkler System in compliance with the latest version of NFPA 13D or NFPA 13R, as amended from time to time; and, D. A combination of the above that would provide the minimum protection as required by these regulations." (ROR, Item 1.)
A. Natural or dug water source (fire pond) capable of meeting the minimum requirements, as to be determined by a Professional Engineer and approved by the Fire Marshal and Zoning Enforcement Officer, of dry hydrant installation as described below.
B. Cistern--15, 000 gallon underground tank. The above (A& B) must be located within 2, 000 feet of the driveway entrance and no greater than 2, 500 feet to the residential home or commercial occupancy.
C. Residential homes with a sprinkler system in compliance with the latest version of NFPA 13D or NFPA 13R, as amended from time to time.
D. Commercial buildings with a sprinkler system in compliance with the latest version of NFPA 13, as amended from time to time.
E. A combination of the above that would provide the minimum protection as required by these regulations.
" The cistern and hydrant designs shall be approved by the Andover Fire Marshal prior to purchase by Applicant.
" Development for the purpose of Section 18.16 and other references to the Andover Fire Fighting Water Supply shall be defined as three (3) or more lots. A re-subdivision of property developed after the effective date of this Regulation shall count towards the total number of lots developed in any resubdivision." (ROR, Item 1.)
The court notes, based upon representation of counsel, that there is no comparable zoning regulation containing such requirements.
The plaintiff primarily argues that there is no statutory authority for § 18.16 in General Statutes § 8-25. Indeed, in her brief on page seven, she asserts that " [t]he question is not whether the Commission properly followed the provision in section 18.16 of the subdivision regulations; the question is whether that regulation is legally valid and authorized by the statutory authority by which a planning commission regulates subdivisions in [§ ]8-25 or another statute." The plaintiff also argues that the issue of fire safety falls within the state's purview under the fire prevention code--not the municipal land use agency. She maintains that Andover may not attempt to regulate the matter under the subdivision regulations because the fire safety code is administered by the state fire marshal under General Statutes § 29-291 a and exempts one-family and two-family residences. Finally, the plaintiff asserts that the requirements set forth in § 18.16 constitute an illegal exaction for a public improvement for which she should be compensated.
A litigant challenging the validity of a land use regulation as applied need not bring a declaratory judgment action pursuant to Practice Book § 17-54 et seq., but rather, may raise the claim in the context of the administrative appeal. Berlin Batting Cages, Inc. v. Planning & Zoning Commission, 76 Conn.App. 199, 214, 821 A.2d 269 (2003).
In the treatise, T. Tondro, Connecticut Land Use Regulation (2d.Ed. 1992) pp. 227-28, Professor Tondro notes, " For nearly a century, builders have been obligated, as a condition of subdivision approval, to provide some of the infrastructure required to ensure that an approved lot is buildable without endangering public safety. [General Statutes] § § 8-25 and 8-26 authorize Connecticut municipalities to adopt regulations requiring that building lots be approved prior to sale, that the approved lots have proper provision for water, drainage, parks and playgrounds, sewage disposal, flood protection, open space, that there is a harmonious relationship between the proposed streets within the subdivision and existing and proposed major streets, and so forth. While the statutes do not specifically allow towns to require that the applicant provide these facilities or pay for them, that is certainly the usual practice. A municipality is authorized to require that these facilities be available before the planning commission may give its approval to a subdivision application, even if the municipality does not provide them."
On the other hand, the commission maintains that General Statutes § 8-25 explicitly provides the authority for § 18.16 of the regulations. Specifically, § 8-25, in relevant part, provides that " [s]uch regulations shall provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety [and] that proper provision shall be made for water, sewerage and drainage . . ." Section 1.2 of the regulations mirrors § 8-25 and, in relevant part, provides: " Purpose- The purpose of these regulations is to promote and to insure the orderly development of land within the town so that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health and safety; so that proper provisions shall be made for water supply, surface drainage, and sewage disposal . . . and in general to protect the health, safety, and welfare of the inhabitants of the Town of Andover." (ROR, Item 1.)
The plaintiff cites Buttermilk Farms, LLC v. Planning & Zoning Commission, supra, 292 Conn. 317, in her brief as support for her arguments. In Buttermilk Farms, the court held that there was no specific grant of power concerning off-site roads or sidewalks and that the phrase " without danger to health or public safety" in § 8-25 only applied to " the land to be subdivided." Id., 330-31. The court continued, " the powers of the commission should not be extended by construction beyond the fair import of the language of the enabling statute or to include by implication that which is not clearly within the express terms of that statute." Id., 331. Thus, the court concluded that " the language of § 8-25 clearly and unambiguously does not grant the commission the authority to require off-site sidewalks on existing roads under the guise of a general power to regulate public health and safety." Id., 331-32.
Nevertheless, the present case is distinguishable from Buttermilk Farms because a cistern would be located on site, and both counsel agree that there is no Appellate or Supreme Court authority on this specific issue. There are, however, three Superior Court decisions. In Prisley v. Planning & Zoning Commission of the Town of Deep River, Superior Court, judicial district of Middlesex, Docket No. CV-11-6004866-S, (November 14, 2012, Domnarski, J.), the commission denied the subdivision plan, in part, because " [a] fire protection plan required for a subdivision which would include three or more lots was not presented." The appeal was dismissed because of the lack of a fire protection plan, and, while not specifically on point, the court concluded that " [i]t is clear that a fire protection plan must be provided with an application for a subdivision." Id.
In Gorman Construction Co. v. Planning & Zoning Commission, 35 Conn.App. 191, 192, 196-97, 644 A.2d 964 (1994), the court examined a subdivision regulation of the town of Avon requiring public water " capable of providing an adequate water supply, for both household use and fire protection, " but did not address the " fire protection" portion of the regulation.
The regulation at issue provided that " [t]he applicant shall provide a written report describing measures to be taken to provide fire protection to the subdivision, including fire access and water supply, in accordance with Section 5.9. The applicant shall supply written confirmation that the report has been reviewed by the Fire Commission, either in the form of a letter from the Fire Commission or an endorsement of the written report by a designated representative of the Fire Commission." Id.
One year earlier in Ilewicz v. Planning & Zoning Commission of the Town of Killingly, Superior Court, judicial district of Windham, Docket No. CV-10-6002662-S, (November 10, 2011, Vacchelli, J.), the court squarely addressed the issue here. The court held that an approval of a subdivision application without compliance with regulations requiring water supply for firefighting was unlawful. Id. Specifically, the court stated, " it is hard to imagine a matter more serious and substantial than a requirement that plans for new housing developments include an approved plan for fire suppression. Id. In rejecting the argument that fire protection was outside the commission's authority, the court stated, " The regulation is within the authority of the commission. Indeed, the enabling statute requires that subdivision regulations 'shall provide that the land to be subdivided shall be of such a character that it can be used for building purposes without danger to health or the public safety, that proper provision shall be made for water (etc.) . . .' General Statutes § 8-25(a). Accordingly, a water for fire suppression requirement may be enforced." Id.
Finally, in Petrides v. Town of Groton Planning Commission, Superior Court, judicial district of New London, Docket No. CV-93-0528734-S, (March 29, 1996, Austin, J.), the court reviewed a re-subdivision approval mandating sprinklers until improved water flow could be provided. The plaintiff argued, among other things, that the commission " failed to meet its statutory duty to assure proper respect for the public health, safety and welfare with specific reference to the traffic, fire protection, including fire hydrants and water supply." Id. In sustaining the appeal for reasons not relevant in the present case, the court held that " the water supply and proposed interconnection is an integral part of the re-subdivision's plan for fire protection and potable drinking water, and cannot be separated out of the approval or modified by the court." Id.
This court agrees with the holding in Ilewicz v. Planning & Zoning Commission of the Town of Killingly, supra, Superior Court, Docket No. CV-10-6002662-S, that a requirement for water for fire protection is provided for in § 8-25. " It is a fundamental principle of statutory construction that courts must interpret statutes using common sense and assume that the legislature intended a reasonable and rational result." Longley v. State Employees Retirement Commission, 284 Conn. 149, 171-72, 931 A.2d 890 (2007). Section 8-25 authorizes regulations concerning water and considerations for fire suppression fall within the commission's regulatory authority for public health and safety. See Buttermilk Farms, LLC v. Planning & Zoning Commission, supra, 292 Conn. 331 (" the commission clearly has the authority under the health and safety provision of § 8-25 to require the installation of sidewalks and other reasonable health and safety measures within the boundaries of the proposed subdivision"); Smith v. Zoning Board of Appeals, 227 Conn. 71, 86, 629 A.2d 1089 (1993) (holding that commission had authority to promulgate subdivision regulations taking into account historical factors " because the phrase 'public health and safety' includes environmental factors, it includes historical factors"), cert. denied, 510 U.S. 1164, 114 S.Ct. 1190, 127 L.Ed.2d 540 (1994); see also Curtis v. Town of South Thomaston, 1998 ME 63, 708 A.2d 657, 659 (Me. 1998) (" [T]he land that the [plaintiffs] wanted to develop lacked an adequately proximate supply of water for firefighting purposes; there is no public water system in the Town. The Town therefore may impose a requirement that would cure this deficiency; an essential nexus exists between the Town's interest in public safety and the permit condition").
Section 8-25 does not define " water." The legislature has used numerous definitions of " water" and phrases applicable to " water" in statutes. For example, in General Statutes § 22a-423, " potable drinking water" means " drinking water from an existing water supply for which treatment is provided or an alternative supply, which the Commissioner of Public Health determines does not create an unacceptable risk of injury to the health or safety of those persons using such water as a public or private source of water for drinking or other personal or domestic uses ." (Emphasis added.) Thus, within a broad public health and safety context, " water" could reasonably mean that which must be available for firefighting purposes.
Our municipalities have uniformly imposed regulations to insure that fire equipment can access subdivision and other residential complexes. Municipalities in addition to Andover have promulgated regulations concerning water supply and fire protection. See, e.g., Willington subdivision regulation § 5.07.2 (" [f]or subdivisions of ten lots or more in areas not served by a public water supply system, the Commission may require the construction of fire ponds, dry hydrants and/or cisterns . . .") available at http://www.willingtonct.org/Public_Documents/WillingtonCT_PlanZone/Subdivision (last visited February 4, 2016). Indeed, municipalities and governmental entities throughout country have adopted requirements concerning water supply and fire suppression. See, e.g., N.H.Rev.Stat.Ann. § 674:36. IV (2015) (" The planning board shall not require, or adopt any regulation requiring, the installation of a fire suppression sprinkler system in proposed one- or 2-family residences as a condition of approval for a local permit. Nothing in this paragraph shall prohibit a duly adopted regulation mandating a cistern, dry hydrant, fire pond, or other credible water source other than a fire suppression sprinkler system. Nothing in this paragraph shall prevent an applicant from offering to install fire suppression sprinkler systems in proposed one- or 2-family residences and, if the planning board accepts such offer, the installation of such systems shall be required and shall be enforceable as a condition of the approval . . ."). Such enactments appear to derive from the health and welfare police power in land use regulation.
In the present case, a commissioner explained the reason for the regulation: " The regulations only went into effect about three years ago. It was put into effect at the request of the fire Marshal who basically said, the Town of Andover does not own a tanker truck nor do we have the wherewithal to have one and based on that, he did not feel that they currently you know any new house that was going in farther than a certain distance from a water supply was a danger because the town does not have the capability to deal with it and his point was for that for life safety purposes, you should have a cistern capability with the specifications we have in there." (ROR, Item 46, p. 7.) Additionally, the fire chief stated that there was " no viable source of water for fire protection" for the lots. (ROR, Item 31.) Thus, the record reflects that the regulation is sufficiently connected to and a reasonable measure for public safety within the subdivision and that it was applied properly to the plaintiff's subdivision application.
The plaintiff also argues that Andover may not attempt to regulate the fire protection under the subdivision regulations because the fire safety code is administered by the state fire marshal under General Statutes § 29-291a et seq. and exempts one-family and two-family residences. Nevertheless, General Statutes § 29-293(a) provides that the " Fire Safety Code and State Fire Prevention Code shall specify reasonable minimum requirements for fire safety in new and existing buildings and facilities." (Emphasis added.) Further, " [w]here the state legislature has delegated to local government the right to deal with a particular field of regulation, the fact that a statute also regulates the same subject in less than full fashion does not, ipso facto, deprive the local government of the power to act in a more comprehensive, but not inconsistent, manner . . . A test frequently used to determine whether a conflict exists is whether the ordinance permits or licenses that which the statute forbids, or prohibits that which the statute authorizes; if so, there is a conflict. If, however, both the statute and the ordinance are prohibitory and the only difference is that the ordinance goes further in its prohibition than the statute, but not counter to the prohibition in the statute, and the ordinance does not attempt to authorize that which the legislature has forbidden, or forbid that which the legislature has expressly authorized, there is no conflict." (Citations omitted.) Aaron v. Conservation Commission, 183 Conn. 532, 543-44, 441 A.2d 30 (1981). In the present case, the commission's requirement for a water source for fire protection does not conflict with the fire marshal's statutory authority.
The regulatory requirement of sprinklers is perhaps a different issue. The plaintiff argues that such a requirement concerns the use of the building and is thus really a zoning matter; see Verrillo v. Zoning Board of Appeals, 155 Conn.App. 657, 680, 111 A.3d 473 (2015) (" zoning is concerned with the use of property" [internal quotations marks omitted]); and not a proper subdivision regulation. The sprinkler provision was not mandated, however, as the only way to meet the requirement.
Finally, the plaintiff asserts that the requirement for the water source for fire protection is an exaction. " A land use regulation does not affect a taking if it 'substantially advances legitimate state interests' and 'does not deny an owner economically viable use of his land.'" Dolan v. Tigard, 512 U.S. 374, 385, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). The test for whether a subdivision regulation effects a taking has been articulated as " whether the exaction must be 'reasonably related' or 'uniquely and solely attributable' to the proposed subdivision. Compare, e.g., Raybestos-Manhattan, Inc. v. Planning & Zoning Commission, 186 Conn. 466, 471, 442 A.2d 65 (1982), with Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109, 119, 273 A.2d 880 (1970)." Buttermilk Farms, LLC v. Planning & Zoning Commission, supra, 292 Conn. 326 n.8. In Raybestos-Manhattan, Inc. v. Planning & Zoning Commission, supra, 186 Conn. 471, the court held, " The imposition of subdivision controls is an exercise of the police power, and it seeks to accomplish the orthodox ends of the police power by serving the health, safety, morals, and general welfare of the community . . . The public benefit which flows from subdivision control does not require that such control be exercised through the power of eminent domain rather than the police power . . . Where reasonable and impartial, a commission's power to regulate the use of land does not constitute a taking without due process of law or just compensation. One who chooses to engage in subdividing land by that decision thus chooses also to be subject to the reasonable regulation of the local planning commission" (Citation omitted; internal quotation marks omitted.). In Aunt Hack Ridge Estates, Inc. v. Planning Commission, supra, 160 Conn. 117-18, the court held, " The test which has been generally applied in determining whether a requirement that a developer set aside land for parks and playgrounds as a prerequisite to the approval of a subdivision plan is whether the burden cast upon the subdivider is specifically and uniquely attributable to his own activity. Where the requirement is uniquely attributable to the subdivider's activity, it has been held to be a permissible exercise of the police power."
Applying both tests to the present case, the regulation was a reasonable exercise of the commission's police power to protect public safety. Additionally, the commission's requirement of the cistern by the regulation is solely attributable to the plaintiff's " activity in undertaking to establish a subdivision. Engaging in the activity is left to its own choice." See id., 119. The appeal is accordingly dismissed.
In Dolan v. Tigard, supra, 512 U.S. at 386, the Supreme Court held, " we must first determine whether the 'essential nexus' exists between the 'legitimate state interest' and the permit condition exacted by the city . . . If we find that a nexus exists, we must then decide the required degree of connection between the exactions and the projected impact of the proposed development." (Citation omitted.) In the present case, an essential nexus exists between the legitimate state interest in provision of a water source for fire protection and the condition for provision of the water supply imposed by the commission and is indeed roughly proportional--if not directly connected--to the development of the residential homes. It must also be noted that the requirement does not deprive the plaintiff of the economically viable use of her land. See id., at 385.
While the plaintiff argues that the cistern could be utilized by the town or its fire department for other properties, other subdivision requirements, including streets, sidewalks, open space, and playgrounds, can and are used by those not living within the specific subdivision.