Opinion
No. CV07 402 01 11 S
November 7, 2008
MEMORANDUM OF DECISION
This matter is an appeal from the Fairfield Town Plan and Zoning Commission's denial of the plaintiff's application for a subdivision of property located on Fairfield Beach Road, Fairfield, and designated as parcels 43 and 138 (hereinafter "the Property"), on the Town Assessor's map 234. The plaintiff sought to subdivide the Property into three lots and filed a Coastal Site Plan Review Application with regard to said subdivision as required by C.G.S. § 8-25 and 22a-105(b)(2).
The plaintiff, the Willis Merritt Holding Limited Partnership, is the owner of the Property as evidenced by Quit Claim deed from Justine C. Tarlton (P. Exh. 1), to the plaintiff, dated December 20, 2002 and recorded on January 7, 2003 in Vol. 2733 at page 340 of the Fairfield Town Clerk's office. The plaintiff is a family owned limited partnership. As owner, the plaintiff is aggrieved by the action of the Commission and has standing to maintain this appeal.
The Property is situated within the Beach District Zone and comprises 46,995 square feet in area. The property has been used and occupied by family members of the plaintiff for some forty (40) years and there currently stands thereon a two-story house, a two-car garage, a driveway, a parking area and lawn, and a concrete block and stone bulkhead. The existing house is centrally located within the southerly portion of the site.
The plans call for the replacement of the existing house and the erection of two additional houses, generally located in the vicinity of the existing house site. The subdivision and site plan revealed that the three proposed lots were oversized as relates to the minimum lot area (9,375 sq. ft.), required in the Beach District Zone. Lot A as proposed is 12,347 sq. ft; Lot B is 13,437 sq. if; and Lot C is 14,448 sq. ft.
There appears to be no serious challenge by the Commission that, other than Coastal Site Plan requirements, the proposal complies with all applicable requirements of the zoning and subdivision regulations as promulgated by the Town of Fairfield. Consequently, no variances were sought or needed by the plaintiff with respect to the proposal.
Two public hearings were held on the plaintiff's applications. The first on December 12, 2006 and the second on January 23, 2007 to accommodate the plaintiff's engineer, Mr. David Huntington who was earlier unavailable. Mr. Huntington is a licensed professional engineer with the Huntington Company. The public hearings were closed on January 23, 2007 and the Commission voted to deny both the subdivision and the Coastal Site Plan Review applications on March 13, 2007, which denial was duly published in the Fairfield Citizen News on March 16, 2007. This appeal was timely taken on March 23, 2007 with a May 1, 2007 return date to the Superior Court at Bridgeport.
C.G.S. § 22a-105(b)(2) provides in relevant part that any application for subdivision filed pursuant to C.G.S. § 8-25, requires a simultaneous Coastal Site Plan review. It delegates this state-wide policy to the local zoning and planning agencies. As regards the review of a Coastal Site Plan, the proceeding before planning and zoning commissions are administrative as opposed to legislative. DeBeradinis v. Zoning Commission, 228 Conn. 187, 198 (1994).
In the instant matter, as earlier stated, the plaintiff was apparently in compliance with all zoning requirements regarding its subdivision application. Consequently, the Commission's denial of both applications was based on its determination that the proposal was in conflict with Coastal use policies and Coastal resource goals. Said policies are set forth in C.G.S. § 22a-92 et seq.
The defendant Commission has set forth its reasons for its denial and in such case, the court's function is to determine 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. Harris v. Zoning Commission, 259 Conn. 402 (2002). The question is not whether the trial court would have reached the same conclusion, but whether the record before the commission supports the decision reached. DeBeradinis v. Zoning Commission, 228 Conn. 187, 198.
Our Supreme Court in the DeBeradinis case at page 200, held that the substantial evidence rule applies to the court's review of coastal site plans. So, as here, where the Commission disapproves a coastal site plan and states its reasons therefor, the court must review the evidence of record to determine whether the reasons are properly supported by substantial evidence in the record. The substantial evidence rule "is similar to the sufficiency of the 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 be reasonably inferred." Property Group, Inc. v. Planning and Zoning Commission, 226 Conn. 684, 697, 698 (1993). Samperi v. Inlands Wetlands Agency, 226 Conn. 579, 588 (1993).
The defendant Commission set forth four reasons for its denial of the plaintiff's applications, basing its determinations on what it found to be inconsistencies in the plaintiff's proposal with the policies of the Coastal Management Act. The Commission found:
1. The proposal will result in an encroachment into the dune resource;
2. The property is subject to periodic flooding and the degradation of the dune resource will exacerbate the flooding condition;
3. The proposal presents an increase in density at the shore which is inconsistent with the Plan of Conservation and Development; and
4. The proposal would add to the number of dwellings which may be subject to evacuation or emergency access along this single access road.
The court will look to the evidence of record as to each assigned reason for denial, as a finding of sufficiency of such evidence to support even one of the stated reasons would sustain the Commission's action. DeBeradinis v. Zoning Commission, 228 Conn. at 199.
REASON 1. THE PROPOSAL WILL RESULT IN AN ENCROACHMENT INTO THE DUNE RESOURCE
The plaintiff argues that the only evidence of record involving dune resource was provided by the plaintiff's expert witness, Matthew J. Popp of Environmental Land Solutions, LLC, and a report submitted to the Commission by the town's Assistant Planning Director, Mr. James Wendt.
Mr. Popp's Coastal Site Plan Review report generally reviews the existing conditions on the property as well as the description of coastal resources at or adjacent to the site. As regards the beaches and dunes, he indicated that there would be no encroachment within the beach area south of the existing concrete retaining wall and the already disturbed portion of the site.
The defendant Commission attempts to utilize Mr. Popp's report to justify its finding of evidence of disturbance or encroachment by emphasizing that the report relates only to the area south of the concrete wall and does not, thereby, eliminate possible encroachment of the dune resource to the north of the retaining wall. It argues that the Commission could reasonably make the inference that the construction of the houses could cause a disturbance or encroachment of the dune area north of the retaining wall.
Further, again seizing upon Mr. Popp's words to justify its denial, the Commission points to Mr. Popp's finding with respect to the coastal resources of "beaches and dunes," that "(t)he proposed house sites will be set at elevations which will minimize disturbance to the existing dune areas." The Commission argues that the word "minimize" suggests that there will in fact be at least some degree of disturbance, however small, and that constitutes evidence in the record upon which the Commission could rely to reasonably base its denial.
The plaintiff argues, in essence, that these inferences are not reasonable and that the substantive evidence standard requires more than a trace of evidence that creates only a suspicion or speculative conclusion with regard to the matter at issue.
The plaintiff also points to the report of the Town Planner, Mr. Wendt, as being favorable to the plaintiff's application for subdivision. Mr. Wendt's report references the plaintiff's plan as proposing "a setback farther from Long Island Sound than any of the nearby adjacent properties." In addressing any potential encroachment in the dune area, Mr. Wendt suggested an approval by the Commission "conditioned" on the creation of a "no encroachment area" for a distance of twenty-five (25) feet to the landward of the existing concrete retaining wall.
The court does not interpret Mr. Wendt's suggestion of imposing a condition of any approval of the subdivision as amounting to any opinion on his part that the building activity would result in an encroachment or disturbance of the dune area. Rather, he appeared to be concerned with future use of the property after development and was attempting to address it, as he stated, by striking a balance between preserving the dune area and allowing reasonable use of the site.
The court finds that the inferences the Commission wishes to draw are not based on the substantial evidence in the record. As such, the court concludes and so finds that there is no substantial evidence in the record to support the Commission's stated reason of denial, that the proposal of subdivision would result in an encroachment of the dune resource.
Reason 2. THE PROPERTY IS SUBJECT TO PERIODIC FLOODING AND THE DEGRADATION OF THE DUNE RESOURCE WILL EXACERBATE THE FLOODING CONDITION
The court has already found that there was no substantial evidence in the record to support the Commission's finding that the dune resource would be degraded. Hence, the basis upon which this second reason for denial is premised cannot be sustained. However, the court will consider the evidence of record as to this issue in the event of any subsequent review.
As regards the question of flooding, the plaintiff again suggests that the only evidence of record consisted of the plaintiff's expert witness, David Huntington and an inter-office memo to James Wendt from the Town Engineer, Laurie Pulie. Ms. Pulie's memo makes a suggestion to construct a swale/bern along adjacent property to prevent runoff onto the property. It does not address the issue of exacerbation of a flooding condition.
Mr. Huntington, in brief, took into consideration the existing drainage at or proximate to the site and opined that the plaintiff's plans to provide storm water detention would insure that there would be no increase in runoff associated with the planned development and there would not be any flooding or drainage problems.
The Commission relies on the fact that the property already experiences periodic flooding and coupled with its finding that there will be encroachment into the existing dunes (which determination the court found was not supported by substantial evidence), thereby accelerating erosion and resulting in an exacerbation of the flooding condition.
The court finds that, as stated earlier, there is no substantial evidence of record that there will be a degradation of the dune resource nor is there any substantial evidence of record that the periodic flooding condition will be exacerbated.
Reason 3 THE PROPOSAL PRESENTS AN INCREASE IN DENSITY AT THE SHORE AND IS INCONSISTENT WITH THE PLAN OF CONSERVATION AND DEVELOPMENT
The plaintiff suggest that in its efforts to deny the plaintiff's applications it chose to ignore its own promulgated rules and regulations and attempted to justify its actions as governed by the requirements of The Coastal Management Act and its stated goals and policies. C.G.S. § 22a-92 et seq.
The Commission cites the policy of the State Plan of Conservation and Development which is incorporated into the Coastal Management Act relating to areas within the coastal boundary. C.G.S. 22a-92(d):
To protect significant resource, heritage, recreation, and hazard-prone areas by avoiding structural development, except as directly consistent with the preservation value.
The Commission points to the findings of Mr. Joseph Bienkowski, the town's Planner II, a subordinate of Mr. Wendt, that the addition of two large dwellings, a two-story accessory building with attendant lawn and driveways, will destroy much of the habitat and negatively impact the site.
The plaintiff argues that Mr. Bienkowski's statements were contradicted by his superior Mr. Wendt, who confirmed that the proposal was in compliance with the Beach District Zone requirements. In any event, his statements do not rise to the level of substantial evidence in the face of the Commission's own rules and regulations which permit this type of undertaking. The plaintiff correctly stated that the density proposed in its plan of subdivisions is explicitly permitted in the Beach District Zone by the Commission's own regulations. There is nothing in the record to indicate that the Commission's regulations are in any way inconsistent with The Coastal Management Act or the State Plan of Conservation and Development.
Further, a claim of an increase in density flies in the face of the Commission's own regulations, as the three proposed lots are substantially oversized, as mentioned earlier, in comparison with the lot areas minimum requirements established for the Beach District Zone.
The court accordingly, finds that there is no substantial evidence in the record to satisfy the Commission's finding that the proposal presents an increase in density which is inconsistent with the Plan of Conservation and Development.
Reason 4. THE PROPOSAL WOULD ADD TO THE NUMBER OF DWELLINGS WHICH MAY BE SUBJECT TO EVACUATION OR EMERGENCY ACCESS ALONG THIS SINGLE ACCESS ROAD
The defendant Commission cites to the Coastal Area Management Act to substantiate its stated fourth reason of denial.
C.G.S. § 22a-92(b)(2)(F), sets forth the following as a policy: "(t)o manage coastal hazard areas so as to insure that development proceeds in such a manner that hazards to life and property are minimized . . ."
The Commission also relies on the presentation of the Town Planner II, Mr. Bienkowksi, who pointed out in his report that motor vehicles attempting to leave the Coastal Flood Hazard Zone in the event of a storm are restricted to a single means of egress on Fairfield Beach Road.
The Commission concluded that the addition of two dwellings coupled with the potential problems of evacuation associated with a single access road is inconsistent with the policies of The Coastal Management Act seeking to minimize hazards to life and property in coastal hazard areas.
However, none of these observations were of recent origin and there is nothing in the record to suggest that the Commission was unaware of the single access road or the possibilities of development when it promulgated its rules and set out the minimum lot area requirements in the Beach Zone.
As noted earlier, each of the lots are oversized and are in conformance with the density limitations of lot size in a Beach Zone. It must be assumed that when the Rules were promulgated that safety measures such as evacuation in relation to density were considered. To use these reasons to substantiate a denial is arbitrary on the part of the Commission.
Again, there is noting presented to suggest that the Commission's Rules and Regulations are inconsistent with the policies and goals of the Coastal Management Act.
Accordingly, the court finds that there is a lack of substantial evidence in the record to sustain the Commission's denial of the plaintiff's proposal on the ground that it would add to the number of dwellings which may be subject to evacuation or emergency access along a single access road.
For all of the above reasons, the court sustains plaintiff's appeal and remands the matter to the defendant Fairfield Town Plan and Zoning Commission with the direction to grant the plaintiff's application for subdivision, with further consideration of the conditions proposed by the Assistant Planning Director, Mr. James Wendt.