Opinion
No. CV07-4008418S
July 16, 2008
AMENED MEMORANDUM OF DECISION TO CORRECT CASE CAPTION
On April 5, 2007 the plaintiff filed an application with the defendant Planning and Zoning Board of the City of Milford (P Z) to subdivide property located at 25 Lajoie Lane, Milford, Connecticut into three residential building lots. (R of R, r.) On May 15, 2007 the Board held a public hearing on the application (R of R, u) and on June 19, 2003 the Board voted to approve the application but limited the approval to two lots instead of three lots as applied for. (R of R, dd.) The plaintiff filed this appeal. The court heard the appeal on March 18, 2008 at which time the question was raised by the defendant whether the plaintiffs were aggrieved parties with standing to prosecute the appeal. "Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . in order to have standing to bring an administrative appeal, a person must be aggrieved." Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 664. "Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words, statutorily aggrieved, or is classically aggrieved." Cambodian Buddhist Society of Connecticut, Inc. v. Planning and Zoning Commission, 285 Conn. 381, 393.
"The fundamental test for determining classical aggrievement encompasses a well-settled twofold determination: First, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in [the challenged action] 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 successfully establish that this specific personal and legal interest has been specially and injuriously affected by the challenged action. Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest has been adversely affected." Cambodian Buddhist Society of Connecticut, Inc. v. Planning and Zoning Commission, supra, 285 Conn. 394.
The issue of aggrievement being raised requires the court to make a determination on the issue before proceeding to decide the issues raised in the appeal.
The plaintiffs herein are Bartley Block, the original applicant for the proposed re-subdivision, his three children, Steven and Kenneth Block and Deborah D'Aurio, and Lily Pond, L.L.C. In June or July 2007 the three children as noted above entered into an agreement with Bartley Block to purchase the property and about the same time the three children formed a limited liability company called Lily Pond and conveyed the subject property to Lily Pond. The three children are the sole members of Lily Pond. At the closing between Bartley Block and the children, Bartley retained a purchase money mortgage in the amount of $520,000. (Plaintiff's Exhibit 3.)
In Connecticut Post Ltd. Partnership v. South Central Connecticut Regional Council of Governments, 60 Conn.App. 21, 26-27 the court noted that "the underlying requirements of justiciability held to be met when a claimant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity."
It is reasonable to conclude that the reduction of the P Z from the three-lot request in the application to two lots represents a reduction in value of the subject property.
It is also reasonable to conclude that the plaintiff Bartley Block has a specific personal interest in the subject property by virtue of holding a mortgage in the amount of $520,000 and may be held to be classically aggrieved. See Goldridge v. Zoning Board of Appeals of Newtown, 58 Conn.App. 760, 766-67.
The court finds Lily Pond to be classically aggrieved as the present owner of the property and the three children as the sole owners of Lily Pond, L.L.C. to likewise be aggrieved. The "concept of standing is a practical and functional one designed to ensure that only those parties with a substantial and legitimate interest can appeal an order." Primerica v. Planning and Zoning Commission of Greenwich, 211 Conn. 85.
Steven Block testified that the reduction by the P Z from three lots to two represents a dimunition in value of the subject property of approximately $150,000. Thus, the financial interests of all parties have been significantly reduced by the action of the P Z.
The defendants claim that the plaintiffs have not adequately pled the facts necessary to support their claim of aggrievement. Paragraph 11 of the complaint sets forth the names of the parties aggrieved and who the court finds have standing to prosecute the appeal and paragraph 12 sets forth the circumstances giving rise to their claims of aggrievement. On the issue of aggrievement the court must consider the allegations of the complaint in their most favorable light. Savage v. Aronson, 214 Conn., 256. The court finds the plaintiffs have adequately established their standing as aggrieved parties to prosecute the appeal and accordingly turns to the merits of the case.
As previously noted, on April 5, 2007 the plaintiff Bartley Block applied to the defendant for approval of a three-lot subdivision on Lajoie Lane, Milford. The premises consist of approximately 166,709 square feet in a R-30 residential zoning district which allows single-family residential development with a minimum lot size of 30,000 square feet. The conformation of the premises appears on page 3 of the Return of Record, item j. According to the applicant, the proposed subdivision consists of 3 fully conforming rear lots, each with its own access to Lajoie Lane. The plan as submitted met the approval of the several town board and commissions including the Police Department, the Fire Department, the Director of Public Works, the Tree Commission and the Inland Wetlands Agency as well as the Milford Sewer Commission. At the public hearing, (R of R, item v) counsel for the applicant explained the proposal together with several additional witnesses appearing for the applicant. No one from the public appeared to object but one of the board members raised the question whether the frontage of the proposed third lot met the subdivision regulations as being a rear lot. At the regular meeting of the P Z on June 5, 2007 the minutes reflect considerable discussion by the members concerning multiple rear lots off a single driveway and what constitutes a rear lot. The plan as submitted showed Lot 1 as having direct access to Lajoie Lane and Lots 2 and 3 sharing a common driveway. The plaintiff considers Lot 3 as a "rear lot" to Lot 2 which fronts on Lajoie Lane. Sec. 5.2.22 of the Milford Zoning Regulations defines a rear lot as: A lot, the major portion of which lies to the rear of another lot that separates it from a public street, which is connected to a public street via a private access-way of required width.
Section 2.5.5. allows rear lots to access a street by way of 25 feet wide access. Rear lots shall be generally rectangular in shape. The verbatim minutes of the P Z meeting of June 5, 2007 reflect considerable discussion of the proposed 3-lot subdivision and the question of a single driveway for the tract. One of the members, J. Janson, concluded that the proposal violated the rear lot requirements and that under the regulations only 2 lots would be allowed. Other members raised the question of the three lots and their driveway access. The application was continued to June 19, 2007 (R of R, dd) at which time discussion was continued on the application. The members observed that the plan showed the three lots off the single driveway and with the lots not being rectangular in shape the plan was not in compliance with the regulations and moved to approve the application but limited the application to two lots with one front lot and one rear lot. The verbatim transcript of the regular meeting of June 19, 2007 (R of R, item ee) also reflects considerable discussion of the applicant's proposal for three lots and their opinion that such conflicted with the regulations as regards rear lots as well as their configuration. The motion to restrict the applicant to two lots in accord with the regulations was carried unanimously. Notice of the P Z action was given to the applicant by letter of June 21, 2007 (R of R, item hh) and this appeal followed. Obviously the P Z did not agree with the plaintiff's conception of a "rear lot."
It is appropriate here to discuss the role of the courts in determining administrative appeals. Initially the court observes that the court's review of such appeals as presented in this manner is limited. An appropriate exposition of the court's authority was set out in Cybulski v. Planning and Zoning Commission, 43 Conn.App. 105, 110. "Review of zoning commission decisions by the Superior Court is limited to a determination of whether the commission acted arbitrarily, illegal or unreasonably." Wnuk v. Zoning Board of Appeals, 225 Conn. 691, 695-96 A.2d 698 (1993). 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. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525-40, 41 525 A.2d 940 (1987) The substantial evidence rule is similar to "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. It 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. Id., 541-42. "The settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised." Torsiello v. Zoning Board of Appeals, 3 Conn.App. 47, 49, 484 A.2d 483 (1984). The court's review is based on the record, which includes the knowledge of the board members gained through personal observation of the site; id., 49-50; or through their personal knowledge of the area involved. Burnham v. Planning and Zoning Commission, 189 Conn. 261, 267, 455 A.2d 339 (1983). "Courts allow zoning authorities a wide and liberal discretion in determining what the public need is and how it can be met. This is so because local zoning authorities live close to the circumstances and conditions which create local zoning problems and shape the method of their solution." Levinsky v. Zoning Commission, 144 Conn. 117, 125. See Homart Development Co. v. Planning and Zoning Commission, 26 Conn.App. 212, 216; Malafronte v. Planning and Zoning Board, 155 Conn. 205, 208.
These determinations may not be disturbed by the courts unless it is established that the commission acted illegally or arbitrarily.
Here, the P Z's action in concluding that the plaintiff's application showing three lots each with access to Lajoie Lane did not fall within the regulations defining a rear lot nor did two of the proposed lots comply with the shape requirements. Additionally the proposed plan did not comply with the regulation requiring that "all lots shall be served by a single driveway located on the subject lot." See Sec. 2.5.5 and 3.2.10 of the subdivision regulations.
"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." Whittaker v. Zoning Board of Appeals, 179 Conn. 650.
It does not appear from the record that the P Z abused its discretion in applying the zoning regulations to the plaintiff's request for a re-subdivision and in denying the application.
The appeal is dismissed.