Opinion
LNDCV136057640
02-24-2016
John Sedensky et al. v. Planning Commission of the Town of Groton et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John W. Pickard, J.
This is an appeal from the approval by the defendant, Planning and Commission of the Town of Groton (" Commission"), of an application for two modifications of the Mystic Glenn subdivision located on 24 Greenbriar Court and 25 Whitehall Lane in the Town of Groton (" the Property"). This case was referred to the Land Use Litigation Docket in Hartford which referred the case to the undersigned for trial. Trial took place on November 6, 2015 in Litchfield.
I. Facts
The plaintiffs are John Sedensky, Susan Sedensky, Lori Filosa, Raymond Filosa, Russell Cumming, Joyce Cumming, and David Robinson (" the plaintiffs"). The plaintiffs, John Sedensky and Susan Sedensky, own land at 20 Greenbriar Court in Groton which abuts or is within a radius of one hundred feet of a portion of the Property. The plaintiffs, Raymond Filosa and Lori Filosa, own land at 23 Greenbriar Court in Groton which abuts or is within a radius of one hundred feet of a portion of the Property. The plaintiffs Russell Cumming and Joyce Cumming, own land at 37 Whitehall Lane in Groton which abuts or is within a radius of one hundred feet of a portion of the Property. The plaintiff, David Robinson, owns land at 17 Greenbriar Court in Groton which abuts or is within a radius of one hundred feet of a portion of the Property.
The applicant for the modification was shown on the application as " David Regan c/o Regan Homes, LLC" (" the Applicant") and both David Regan and Regan Homes, LLC are defendants in this case. The owners of the property are shown on the application as Stephen F. Simoncini and David S. Simoncini. They, together with Susan Simoncini (collectively known as the " Owners"), intervened in this case as party defendants claiming to be the record owners of the property which is the subject of the application.
On August 16, 2013 the Applicant filed an application to the Commission with the following Project Description: " The applicant requests approval of a Modification [of a] previously granted Waiver of Section 4.3(1)(k) of the TOG Subdivision Regulations for the Mystic Glen Open Space Re-Subdivision to allow for 19 Single-Family Lots to be served by the Cul-de-Sacs known as Payer Lane and Greenbriar Court. This applitation also requests approval of a Lot Line Modification of a previously approved Lot known as 25 Whitehall Lane (part of the original Mystic Glen Open Space Re-Subdivision) to enlarge the Lot Area." The application was accompanied by a report from a registered professional engineer, Edward Wenke. The Town's Director of Planning and Development, Michael Murphy reviewed the application and gave a brief report to the Commission at its meeting on September 10, 2013. Mr. Murphy reported that the application would not require a public hearing because the applicant was not adding any new lots. The staff gave a brief overview of the proposed modifications and reported that the application would be on the agenda for the next meeting.
At the next meeting of the Commission on September 24, 2013 Mr. Murphy provided the Commission with a summary sheet, and the Applicants' engineer, Edward Wenke, made a presentation. Mr. Wenke gave a history of the Mystic Glen Open Space Re-Subdivision (" Project"). The Project was approved in about 1993. At that time, and currently, § 4.3(k)(k) of the Town of Groton Subdivision Regulations (" Regulations") provided, in relevant part, that: " Dead-end Roads--Permanent dead-end roads in residential subdivisions shall be limited to serving 15 lots . . ." As part of the approval in 1993, a waiver of § 4.3(1)(k) was granted to allow for an additional two lots to be added to the 15 permitted lots served by a dead-end road which ends in two cul-de-sac roads known as Greenbrier Court and Payer Court. Although no records exist of the proceedings before the Commission in 1993, the terms of § 1.10 of the Regulations provides for a procedure for the Commission to waive compliance with the Regulations if the Commission finds that " extraordinary hardships or practical difficulties may result from compliance with the Regulations."
The intent of the application is difficult to describe in words. Therefore, the court will attach to this decision two maps which were part of the application submitted to the Commission. One of these maps is titled " Existing Conditions Plan" and the other map is titled " Proposed Subdivision Modifications." These maps are worth 1, 000 words.
The first part of the application submitted to the Commission in August 2013 seeks approval of a modification of the 1993 modification to allow for an additional two lots to be served by the Greenbriar Court cul-de-sac. This will be accomplished by extending a shared driveway across an existing subdivision lot owned by the Owners. The driveway will provide access to two new lots outside the subdivision. These lots will be created by a " free split" of undeveloped land outside of the subdivision also owned by the Owners known as " Lot 1." The Applicant does not seek to add these two lots to the subdivision.
The second part of the application seeks approval of a lot line modification of a previously approved subdivision lot still owned by the Owners. The lot line modification will add property outside the subdivision (also owned by the Owners) to create a larger lot within the subdivision which can be used as a home site. This larger lot will also provide land for a shared driveway which will provide access to two additional lots outside the subdivision. These lots will be created by another " free split" of more land owned by the Owner known as " Lot 2."
On September 24, 2013 the Commission unanimously voted to approve the application without giving any reasons for their decision.
II. Aggrievement
The plaintiffs, John Sedensky, Susan Sedensky, Lori Filosa, Raymond Filosa, Russell Cumming, Joyce Cumming and David Robinson all own property which abuts or is within a radius of one hundred feet of a portion of the land involved in the decision. Therefore, they are all statutorily aggrieved by the decision of the decision. General Statutes § 8-8(a) and (b).
The plaintiffs also claim to be classically aggrieved by the Commission's decision. Proof of classical aggrievement encompasses a two-fold test: " First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must establish that this specific, personal and legal interest has been specially and injuriously affected by the decision." Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980). " Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Quotation marks omitted.) Id., 445.
John Sedensky and Raymond Filosa both testified that they are very concerned about the water problems which they expect to result from the three new building lots being developed behind their properties in an area which is very wet and discharges water onto their land. The Applicant's engineer testified at the hearing about how wet and flooded this area can be in a storm. He has designed a drainage system to attempt to help deal with the water problem but stressed that no plan can eliminate the water. Because of the location of their properties, the plaintiffs demonstrated a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest. Water concerns have been found to have an injurious affect on land, even without an engineer's report. Id. For this reason, John Sedensky, Susan Sedensky, Lori Filosa, and Raymond Filosa are found to be classically aggrieved as well as statutorily aggrieved.
III. Standard of Judicial Review
" It is axiomatic that a planning commission, in passing on a resubdivision application, acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations . . . It is equally axiomatic that the trial court, in reviewing the action of a planning commission regarding a resubdivision application, may not substitute its judgment on the facts for that of the planning commission . . . The conclusions of the commission must stand if even one of the stated reasons is reasonably supported by the record . . . 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 . . . In reviewing that action of the trial court, we have to decide whether it could in logic and law reach the conclusion that the [commission] should be overruled." LePage Homes, Inc. v. Planning & Zoning Commission, 74 Conn.App. 340, 348, 812 A.2d 156 (2002).
" The evidence, however, to support any such reason must be substantial . . . This so-called substantial evidence rule is similar to the sufficiency of evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can reasonably be inferred . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." Pelliccione v. Planning & Zoning Commission, 64 Conn.App. 320, 327, 780 A.2d 185 (2001).
IV. Discussion
A. Mootness
The first argument raised by the Owners is that the plaintiff's appeal is moot because no Commission action was required in order to enable the two changes proposed by the Applicant. " Mootness implicates a court's subject matter jurisdiction and, therefore, presents a question of law over which we exercise plenary review . . . For a case to be justiciable, it is required, among other things, that there be an actual controversy between or among the parties to the dispute . . . [T]he requirement of an actual controversy . . . is premised upon the notion that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law." In re Priscilla A., 122 Conn.App. 832, 836, 2 A.3d 24 (2010). Because subject matter jurisdiction is implicated by the Owners's argument, it must be decided first. Once subject matter jurisdiction is raised, the court must consider and decide the issue before proceeding further. Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003). " Mootness implicates [the] court's subject matter jurisdiction and is thus a threshold matter for [the court] to resolve." The Episcopal Church v. Gauss, 302 Conn. 408, 461, 28 A.3d 302 (2011).
Turning to the mootness argument, the Owners contend that the Commission did not have regulatory authority to require the Owners to submit an application for either a lot line modification or a waiver of the requirements of § 4.3(1)(k) of the Regulations. The lot line modification will be considered first.
1. Revision of 25 Whitehall Lane
The Owners argue that because the boundary line modification does not create any new lots, does not add any new lots to the subdivision, and is not a subdivision of Lot 2, it does not require Commission approval. Therefore, they contend there was no need for the Owners to file an application to obtain approval for something they have the right to do on their own. In opposition to this argument, the plaintiffs contend that the lot line modification resulted in the division of Lot 2 into three pieces thereby creating a subdivision which should have resulted in a public hearing and personal notice to them.
A " subdivision" is defined by General Statutes § 8-18 as: " . . . the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the purpose, whether or immediate or future, of sale or building development expressly excluding development for municipal, conservation or agricultural purposes, and includes resubdivision." There is no question that Lot 2 has maintained its independent identity and has not been divided since the adoption of subdivision Regulations. The application provides for Lot 2 to be divided into two building lots and a third part of 19, 809 square feet which will be added to the rear portion of an existing subdivision lot known as 25 Whitehall Lane to create a larger building lot. The plaintiffs argue that the division of Lot 2 into two building lots and a third " part" meets the definition of " subdivision."
In opposition to the plaintiff's argument, the Owners focus on case law which holds that a lot line adjustment is not a subdivision. In Goodridge v. Zoning Board of Appeals, 58 Conn.App. 760, 755 A.2d 329 (2000) the Appellate Court was faced with a factual situation very similar to that presented in this case. There were two adjoining lots--" parcel one" and " parcel two" --whose separate existence predated the adoption of subdivision regulations. In 1969, after the adoption of subdivision regulations, a " slight adjustment" was made to the boundary line between the parcels to reduce the size of parcel two and to increase the size of parcel one. In 1987 the owner of parcel two divided it into two lots--" parcel A" and " parcel B" --without subdivision approval by the Planning Commission. Parcel B was sold, and in 1997 the owner applied for a zoning permit to construct a driveway. The permit was issued by the zoning enforcement officer. A neighbor appealed the granting of the permit to the zoning board of appeals which sustained the appeal on the ground that the 1969 boundary line revision was a " first cut" of the land, and that the 1987 division of " parcel two" into two separate lots was a " second cut" of the property which required subdivision approval. The owner of Parcel B appealed to the trial court which agreed with the zoning board of appeals and dismissed the appeal. The Appellate Court interpreted the definition of " subdivision" in § 8-18 so that the portion of land moved from " parcel two" in 1969 was not a " first cut" because: " . . . the land transferred from lot two to lot one was never divided from a whole parcel of land; rather it remained, at all times, as part of a larger parcel of land. Furthermore, the land never was sold separately or intended to be used for development, it simply was added to the adjacent parcel." Id., 765. The Appellate Court concluded as follows: " After analyzing the relevant terms of the statute and taking into the account the public policy reasons underlying the statute, we conclude that the court improperly held that the revision of the boundary line between lot one and two in 1969 constituted a 'subdivision' under § 8-18. Therefore, because the land transferred from lot two to lot one was not divided from the larger parcel that made up both lots, Taubert's subsequent division in 1987 of lot two into parcels A and B did not require subdivision approval from the planning and zoning commission." Id., 766. The Appellate Court reversed the trial court and remanded the case with direction to sustain the plaintiff's appeal.
Although the factual situation in Goodridge is slightly different than the situation here, the Owners have cited the court to a Superior Court case which interprets Goodridge to apply to a factual situation which is identical to that presented in this case. In Derham v. Brown, Superior Court, judicial district of Hartford, Docket No. 9900594305 (July 19, 2001) , the court determined that a boundary line adjustment between a subdivision lot and an adjoining lot did not constitute a division of a parcel into " parts or lots" as those words are used in § 8-18. The court quotes from Goodridge and seemingly rejects the notion that lot line adjustments are not subdivisions only if the adjustment can be described as " minor." The court emphasizes that two lots existed prior to the boundary line revision and only two lots existed after the revision.
In opposition to the Owners' argument, the plaintiffs cite as authority the case of Lombardo v. Planning and Zoning Commission, 43 Conn.Supp. 508, 663 A.2d 1128, aff'd 38 Conn.App. 812, 663 A.2d 431 (1995). The plaintiffs are correct that Lombardo stands for the proposition that a planning commission has no authority to approve the division of a tract of land into three building lots without subdivision approval even if the division is bifurcated into two simultaneous steps. Id., 517. However, this case does not apply to a factual situation such as that presented here: the division of a parcel into two building lots and a third part which is added to an adjoining building lot.
A closer factual situation is contained in the plaintiff's citation of Balf v. Zoning Board of Appeals of Manchester, Superior Court, judicial district of Hartford, Docket No. 030827804 (March 13, 2006) . There, the plaintiff originally owned a parcel of 7.55 acres. In 1989 it sold .83 acres to an adjoining property owner, Gay, who had built a building which encroached on this piece. This purchase fixed the encroachment problem and also gave Gay land to expand the building and still comply with zoning regulations. In 2003 the plaintiff agreed to sell 3.95 acres to another neighbor, Tilcon. The plaintiff was planning to lease this land back to build a concrete plant. The plaintiff applied for a building permit which caused the zoning enforcement officer to decide that the two conveyances in 1989 and in 2003 constituted a division of the plaintiff's land into three pieces which required subdivision approval. The plaintiff appealed this decision to the zoning board of appeals which denied the plaintiff's appeal. The plaintiff appealed to the Superior Court which agreed that a subdivision had been created and dismissed the plaintiff's appeal. The court distinguished Goodridge by finding that the 1989 sale of .83 acres to Gay was not a " minor conveyance of a tiny strip of land to achieve a boundary line adjustment. But in this case plaintiff conveyed .83 acres to Gay for $35,000. This not only solved the encroachment problem, but enabled Gay to enlarge his premises by constructing a 30 x 110 addition to his building." The court distinguished Derham by noting that, unlike the factual situation in Derham, the plaintiff's 1989 conveyance to Gay was " not adjusting the boundary line of two lots owned by a single landowner."
In attempting to apply the teaching of Goodridge, Derham and Balf, the court must begin by noting that the facts here are very similar to Derham in that the proposed boundary adjustment is between lots which are both owned by the Owners. Also, no new lot is created by the adjustment. These factors weigh in favor of a finding that the boundary line revision with 25 Whitehall Lane is not a first division of Lot 2 within the meaning of § 8-18.
On the other hand, the plaintiffs argue that the addition of 19, 809 square feet (.4547 acres) to the approved lot at 25 Whitehall Lane is difficult to describe as a minor lot line adjustment. It more than doubles the size of 25 Whitehall Lane to 37, 920 square feet. It provides room for the construction of a shared driveway which permits access to Lot 2 and its division into two building lots. This shared driveway will service three homes and will run between two existing homes. It completely changes the location of the house to be built on 25 Whitehall Lane so that it will now be built directly to the rear of the house on subdivision lot 15. These factors weigh in favor of a finding that the boundary line revision is a first division of Lot 2.
In attempting to resolve this issue, the courts reads Goodridge to create an exception from the definition of " subdivision" for " minor lot line adjustments." Whether an adjustment is " minor" must be decided on a case-by-case basis. There are no bright lines that have been established and the decision is factual in nature. The Commission decided that no resubdivision application was required; this would have required a finding that the removal of 19, 809 square feet from Lot 2 and the addition of this land to 25 Whitehall Lane is a " minor lot line adjustment" and is not the first division of Lot 2 for purposes of § 18-8. Although this point is hotly contested, there is substantial evidence from which the Commission could have drawn this conclusion.
It must be remembered that the Commission has the authority to determine whether the division of any land constitutes a subdivision or resubdivision. § 8-26. Although the court might think otherwise, the court may not substitute its judgment on the facts for that of the commission. The court can sustain the appeal only if it determines that the commission's decision was unreasonable, arbitrary or illegal. In this case, the court will defer to the determination of the Commission that the removal of 19, 809 square feet from Lot 2 to be added to 25 Whitehall Lane is a " minor lot line adjustment" even though the commission would have been justified in finding otherwise. This determination lies within the Commission's reasonable exercise of its discretion.
General Statutes sec. 8-26 provides, in relevant part: " The commission shall have the authority to determine whether the existing division of any land constitutes a subdivision of or resubdivision under the provisions of this chapter . . ."
If the lot line adjustment is not a subdivision of Lot 2, there is no reason why the Owners needed to obtain the approval of the Commission. The increase in the area of 25 Whitehall Lane is not a resubdivision of the Property. General Statutes § 8-18 defines a resubdivision as: " A change in a map of an approved or recorded subdivision or resubdivision if such change (a) affects any street layout shown on such map; (b) affects any area reserved thereon for public use; or (c) diminishes the size of any lot shown thereon and creates an additional building lot." The proposed increase in area of 25 Whitehall Lane does not affect any street layout, does not affect any area reserved for public use, and does not diminish the size of any subdivision lot. Therefore, it is not a resubdivision.
Because the planned division of Lot 2 is not a subdivision, and the addition of land to 25 Whitehall Lane is not a resubdivision, the Owners did not need the Commission's approval to take these actions. Therefore, the appeal regarding the division of Lot 2 and the modification of 25 Whitehall Lane is moot. For this reason, the appeal is dismissed as to the revision of 25 Whitehall Lane.
2. Waiver of § 4.3(1)(k)
The plaintiffs' primary argument regarding the § 4.3(1)(K) waiver is that a petition for a waiver may only be submitted " at the time when the subdivision is filed." The Regulations § 1.10(3) provides: " Procedures--A petition for any such waiver shall be submitted in writing by the subdivider at the time when the subdivsion plan is filed for the consideration of the Planning Commission." The court will first address the Owners's argument that no waiver was necessary and, thus, the appeal is moot.
In support of their mootness argument the Owners contend that, as owners of Lot 1 which adjoins their property at 24 Greenbriar Court, they have an absolute right to gain access to the Greenbriar Court cul-de-sac. To support this argument the Owners cite a well-known article in the Connecticut Bar Journal and the case of Luf v. Southbury, 188 Conn. 336, 341, 449 A.2d 1001 (1982) for the proposition that as part of their bundle of private ownership rights they have the right to gain access to adjoining public roads. They also cite Buttermilk Farms, LLC v. Planning and Zoning Commission, 292 Conn. 317, 973 A.2d 64 (2009) for the proposition that municipal planning commissions do not have regulatory authority over land exterior to the land to be subdivided. Thus, they argue that they do not need permission to gain access to Greenbriar Court cul-de-sac for the " free split" of Lot 2 into two lots because these lots will not become part of the Mystic Glenn subdivision.
E. Sostman and J. Anderson, " The Highway and the Right of Way, " 61 Connecticut Bar Journal Volume 299, 316 (1987).
" Instead of creating a fee, the taking of the highway creates two easements: the public easement of travel, that permits the general traveling public to pass over the highway at will, and the private easement of access, that permits landowners who abut the highway to have access to the highway and to the connecting system of public roads." Luf v. Southbury, 188 Conn. 336, 341, 449 A.2d 1001 (1982).
The plaintiffs argue that Luf and Buttermilk Farms is irrelevant to the issue of whether the town may limit the number of homes built on a dead-end road. The court agrees with the plaintiffs. Luf merely reaffirms prior law that an abutter to a public highway has the right to gain access to the highway. But, the holding in Luf does not help the Owners' case because the lot which abuts the Greenbriar Court cul-de-sac is 24 Greenbriar Court, not Lot 1. 24 Greenbriar Court has access to the cul-de-sac and then to the connecting system of the public roads. It was included as one of the seventeen lots which have been approved as building lots within the Mystic Glenn subdivision. It is true that 24 Greenbriar Court and Lot 1 are adjoining lots which are owned by the same people. But these lots have separate identities which the Owners have been careful to maintain. Lot 1 would not merge with 24 Greenbriar Court absent an intent on the part of the Owners to merge them. " Contiguous land all owned by the same proprietor does not necessarily constitute a single lot. The plaintiff concedes that whether a merger of contiguous parcels of land has occurred depends on the intention of the owner and that such an issue is factual." (Citations omitted. Internal quotation marks omitted.) Carbone v. Vigliotti, 222 Conn. 216, 227, 610 A.2d 565 (1992). The Owners have emphasized that Lot 1 is a separate lot which pre-dates the adoption of the Regulations and that they have no intent of merging it with 24 Greenbriar Court. Since Lot 1 does not abut the cul-de-sac the Owners have no right to access to the cul-de-sac.
Nor is Buttermilk Farms helpful to the Owners' claim that the issue is moot. Buttermilk Farms involved whether the planning commission could require a subdivider to make off-site improvements as a condition of approval of the subdivision. The Supreme Court decided that the commission's authority under the health and safety provision of General Statutes § 8-25 did not include the right to adopt regulations requiring off-site improvements to existing roads. Id., 74, note 11. That is not the issue in this case. The issue here is whether the Commission has any right to prevent the addition of lots to a dead-end street in violation of the express terms of the Regulations. This is not a moot issue.
B. § 1.10(3) of the Regulations
The next issue to be considered is whether the Commission has the right to grant waivers of the Regulations without a subdivision or resubdivision application. The plaintiff points to the language of § 1.10(3) which provides that a petition for any waiver of the Regulations shall be submitted in writing by the subdivider at the time when the subdivsion plan is filed with the Commission. It is clear that this happened at the time of the previous resubdivision in 1993 when the Commission waived the requirements of § 4.3(1)(k) of the Regulation to permit seventeen lots to be served by Payer Lane and Greenbriar Court rather than the fifteen provided for in that section. Now, the Owners seek to add two more lots without applying for a resubdivision.
This language also applies to a resubdivision application because General Statutes Sec. 8-18 defines " subdivision" to include " resubdivision."
The Owners seek to overcome the clear language of § 1.10(3) by arguing that there are strong public policy reasons to permit the modification of the terms of the previous subdivision approval and to permit a waiver as a modification. The Owners claim that modifications are necessary to address unforseen changes in circumstances occurring subsequent to the initial approval. But, this argument has little or no application to the facts in this case because the Owners have a clear path to address any changes in circumstance. Here, the Owners propose to add two new lots to the dead-end road system serving this subdivision. But the Owners have made the conscious choice not to add these two lots to the subdivision. The reason for this seems obvious: if the two new lots were added to the Subdivsion it would constitute a resubdivison which would require a public hearing. The plaintiffs want a public hearing so that they can express their concerns about overburdening this dead-end road.
" Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. [In turn] [t]he . . . court ha[s] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly . . . Ordinarily, the 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 . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law . . . These principles apply equally to regulations as well as to statutes." (Citations omitted. Internal quotation marks omitted.) Kraiza v. Planning & Zoning Commission, 304 Conn. 447, 452-53, 41 A.3d 258 (2012).
The terms of § 1.10 provide, in relevant part: " (1) General--Where the Planning Commission finds that extraordinary hardships or practical difficulties may result from compliance with these regulations, it may approve waivers to these Subdivision Regulations so that substantial justice may be done and the public interest secured, provided that such waiver shall not have the effect of nullifying the intent and purpose of these regulation . . . (3) Procedures--A petition for any such waiver shall be submitted in writing by the subdivider at the time when the subdivision plan is filed for the consideration of the Planning Commission."
The interpretation of § 1.10 is a pure question of law. There is no evidence that § 1.10 has been previously subject to judicial scrutiny. Therefore, the Commission's interpretation of § 1.10 is not entitled to special deference. The interpretation of a regulation is governed by the same principles that apply to the construction of statutes. General Statutes sec. 1-2z provides: " The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra textual evidence of the meaning of the statute shall not be considered."
The text of § 1.10 is plain and unambiguous: " A petition for any such waiver shall be submitted in writing by the subdivider at the time when the subdivision plan is filed for the consideration of the Planning Commission." (Emphasis added.) Requiring that the Owners submit a resubdivision application together with the waiver petition would not yield absurd or unworkable results. Just the opposite is true. It would permit the owners of neighboring property to have notice and an opportunity to be heard on an important change to a subdivision to which they belong. There is no provision in the Regulations to submit a waiver petition as part of a modification application alone. For this reason, the Commission exceeded its authority by granting the waiver petition without requiring the Owners to file a resubdivision application to include the two new lots within the Mystic Glenn subdivision. The plaintiff's appeal is sustained as to the waiver of § 4.3(1)(k).