Opinion
No. CV03-0349197S
August 20, 2004
MEMORANDUM OF DECISION
This proceeding was generated by the application of Brookheights, LLC for approval of a seven-lot subdivision on property owned by it and located on Obtuse Road and Pond Brook Road in the town of Newtown, Connecticut. Prior to the application to the Planning Zoning Commission, another application was filed with the Newtown Conservation Commission necessitated by the existence of wetlands on the subject property and regulated activities were proposed for the development of the subdivision. The first or prior application was filed on June 14, 2000 and a public hearing thereon was duly scheduled for August 9, 2000. That hearing, however, was canceled because the Commission did not have a quorum with which to proceed. It re-advertised the hearing for August 24, 2000 and approval for the extension of time from the applicant was ASSUMED gratuitously by the Commission.
The subject property is shown and designated on a certain map entitled "Subdivision Map of Brook Heights Total Area = 29.7239 Ac. — Land's End District Obtuse Road Pond Brook Road, Newtown, Connecticut Prepared for Brookheights, LLC," Scale 1" = 100,' dated February 2, 2000, revised to January 16, 2003, and prepared by Land Engineering Associates, Inc., Monroe, CT.
Section 22a-42a(c)(2) provides that in the absence of a public hearing within sixty-five (65) days from the date of the receipt of the application or any extension thereof applicant MAY file such an application with the Commissioner of Environmental Protection, who SHALL review and act on such application in accordance with this section. On August 24, 2000, the date scheduled for the public hearing, Brookheights informed the members of the Conservation Commission that it had decided to file its application with the Commissioner of Environmental Protection but agreed to present the application for informational purposes only. This was confirmed by correspondence dated September 14, 2000, and, despite the plaintiff's announced decision, the local Conservation Commission attempted to deny the plaintiff's application without prejudice on September 28, 2000, even though the application was no longer before that board. This action is repugnant to the statute. "[T]he commission shall not render a decision until the inland wetlands agency has submitted a report with its final decision to such commission." Section 8-26 of the General Statutes. The denial by the Conservation Commission set forth several specific reasons for its action.
Interestingly enough, on October 4, 2002, the Department of Environmental Protection made a tentative decision to approve the Inland Wetlands application for a bridge over Pond Brook to serve the seven-lot subdivision and concluded that the regulated activity was not likely to have a significant impact on the wetlands or watercourses. The word " TENTATIVE" is used by both parties in their respective briefs. Consequently, the decision of the DEP had not then been submitted with "a report with its final decision to such commission." This, coupled with the fact that there was no longer an application pending before the Conservation Commission at this time, renders the Commission's action seriously flawed to say the least. The defendant, Planning Zoning Commission (hereafter "PZC"), solicited information from the various town officials and offices which customarily are involved in the review of subdivision applications. On December 2, 2002, PZC received a letter that the subdivision road did not extend to the boundary of the property as required by § 4.01.410 of the regulations. On December 19th of the same year at a public hearing that was held on the seven-lot subdivision, the applicant's engineer admitted that the application was for the same seven-lot subdivision with the same amount of road and the same bridge as the prior application to the Conservation Commission. The hearing was continued to January 16, 2003 and at that continued hearing the applicant's engineer, one Keillor, recited that the DEP had issued a notice of intent to approve the prior Inland Wetlands application. Later in the same evening, he addressed the letter which raised several questions and concerns about the subdivision application, specifically the road extension. In addressing the comment that the proposed street did not extend to the boundary of the property, he indicated that the applicant would provide a twenty-five-foot access strip, but both he and the applicant's attorney claimed that it was unnecessary because the adjacent property was not large enough to be subdivided.
Continuing on, he recited that since the adjacent property was not capable of being subdivided, it was not necessary to extend the road to the property line. Therefore a twenty-five-foot-wide easement was sufficient even though the said applicant was willing to give up a fifty-foot wide easement. The subdivision map presented no revision for the extended road to the adjacent property or to provide an easement that was discussed previously. The concept of easement in a situation such as this as a substitute for the extension of the subdivision road is not contained within the regulations themselves or within any unofficial practice which has grown up with respect to the application of those regulations.
The Commission denied the application on April 17, 2003. The reasons for the denial were set forth in the minutes of the Commission meeting of April 17, 2003 and in a letter of denial to the applicant dated April 21, 2003. This appeal was brought within the purview of the time constraints. In that appeal, Brookheights, LLC claims to be aggrieved by the actions of the PZC. "Aggrievement is established if `there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.'" State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 300 (1987). Being an owner of property establishes that a person has a specific personal and legal interest in the subject matter of the decision, and therefore has the standing to pursue this appeal. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530 (1987); Bossert Corporation v. City of Norwalk, 157 Conn. 279, 285 (1968).
The plaintiff is concerned that the defendant will assert its presentation before the Commission as a waiver of the time-limit rule. He correctly cites to Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 629 (1992). The definition of a waiver is an intentional relinquishment of a known right. To that definition this court would add the words "knowing and voluntary" before "intentional." The defense on the other hand has indicated in its reply brief that it is not pursuing any claim of such a waiver. That "issue" now becomes a "nonissue." The defendant also concedes that the DEP was the proper agency to process the Inland Wetlands application which was made but did not cover all of the necessary information on the impacts of the river, intermittent watercourse and the wetlands if this activity is to be permitted.
See Return of Record Item 12, Memorandum of Stephen Driver AICP, a conservation official of the town of Newtown.
The PZC relied on two reasons for the denial of the subdivision application which were predicated upon several sections of the subdivision regulations. It goes without saying that if any reason is valid then the appeal cannot prevail. Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 697 (1993). The Commission claims that even if the reason based upon the wetland impact development of the property did not justify a denial of the subdivision application, another reason, failure to extend the subdivision road to the boundary of adjacent property, was indeed a proper reason assigned by the Commission.
The plaintiff in its reply brief relies upon three different subjects: (1) the authority of the plaintiff to challenge in this appeal the validity of two sections of the subdivision regulations on the grounds of vagueness and the PZC discretion in applying the regulations; (2) whether the Commission could require extension of the subdivision road to adjacent property when the applicant's engineer submitted evidence the property was not capable of subdivision; and (3) whether the fact that the adjacent property could only be divided into two lots prevented the PZC from requiring extension of the road.
Once the requisite aggrievement has been established in an administrative appeal the validity of the regulations now can be challenged in such action rather than the appellant being required to submit a declaratory judgment petition to accomplish that purpose. Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 582 (1998); Lewis v. Planning Zoning Commission, 62 Conn.App. 284, 287-96 (2001). So that there be no misunderstanding, such a challenge is permitted when the basis of the challenge is not on the constitutionality of the regulations per se, but, for example, that such regulations exceed the Commission's statutory authority. Queach Corporation v. Inland Wetlands Commission, 258 Conn. 178, 191 (2001). The challenge to the regulations on constitutional grounds, however, still requires declaratory judgment litigation. Bombero v. Planning Zoning Commission, 218 Conn. 737, 742 (1991). Not unlike most general propositions, this proposition, too, is subject to at least one exception. As with claims of an unconstitutional taking of property, a property owner can challenge the validity of the regulations applied specifically to the plaintiff's property. This is so, although said owner cannot make a general challenge to the regulations on vagueness grounds. Bombero v. Planning Zoning Commission, supra, 743. With these rubrics in mind, the issue of vagueness of the two regulations can be considered. Neither is persuasive to this court. The two regulations are easily specific and the application of the regulations to the subject property is clear and unambiguous. It cannot be seriously disputed if they were applied with reasonable discretion by PZC.
The subdivision regulation must only be as reasonably precise as the subject matter requires. It must only be reasonably adequate and sufficient to guide the Commission and applicants so that they know their rights and obligations. Although some of those standards may be general in their terms, they are reasonably sufficient to identify the criteria to be evaluated and their enforcement in order to meet the many variables involved since it would be impossible to establish one standard which would adequately cover all future cases. Nicoli v. Planning Zoning Commission, 171 Conn. 89, 93 (1976).
The regulations contain language such as this: "Roads shall be laid out to conform with existing roads on adjacent properties and, if the Commission requires it, with the proposed roads." "Road intersections, gradients and curves shall be so designated as to permit adequate visibility for both pedestrians and vehicular traffic." Forest Construction Co. v. Planning Zoning Commission, 155 Conn. 669, 678 (1967). In Nicoli v. Planning Zoning Commission, supra, 94, the regulations contained provisions such as proposed streets and subdivision shall be in harmony with existing and proposed principal thoroughfares within the town and provide an adequate and convenient system for present and prospective traffic needs. The regulations continued on to require that roads within the subdivision must be provided to conform in connection with the existing proposed streets or highways within the town. This court is satisfied that the regulations in question are reasonably specific and the application thereof of the subject property is clear and unambiguous.
The PZC is quick to point to § 4.01.100 which it claims gives it some discretion in requiring extension of subdivision roads to adjacent land This, in turn, indicates that it does not have to require that it be done in all cases. Factors to be considered on whether a road should be extended depends upon the topography, the location of adjacent land and certain other factors. The extension of roads to the boundary of a subdivision can be done to avoid having the adjacent land remain landlocked, and to provide for orderly development of the road system. It cites to Raybestos-Manhattan v. Planning Zoning Commission, 186 Conn. 466, 475 (1982). In that case the denial of the subdivision application was upheld where the developer did not extend the subdivision road to the adjacent property line. In Manhattan, the PZC did not require the developer to build the extension but merely to provide for it so that the adjacent owner could develop his property by building the road from the end of the turnaround to the property line. It concludes by saying that section 4.01.200 is specific and clearly understandable under the facts of this case.
Section 4.01.200: "When a proposed subdivision adjoins undeveloped land capable of being subdivided, street rights-of-way (outlet streets) shall be provided from the streets of the proposed subdivision to the boundary with an adjoining property at locations acceptable to the Commission."
As shown on the subdivision maps, the turnaround was reasonably close to the boundary of the DeGraff property, and the PZC informed the applicant that it wanted the right-of-way extended in the same direction to that land The location was specific, the road extension would be basically a continuation of the road, and the right-of-way would intersect the boundary at the closest point to the turnaround on the plaintiff's land but the plaintiff did not have to build it beyond the temporary turnaround. There was no guesswork. The PZC clearly stated what it wanted the plaintiff to do. This was not done.
The defendant, PZC, asserts that it did not require expert testimony to extend the subdivision road. It continues on that it did not have to accept the opinion of J. Keillor that the adjacent DeGraff was not capable of subdivision. It relies on the fact that there was no actual proposal to subdivide the adjacent land and Keillor as a civil engineer may be an expert in engineering subjects but this approach, however, was made upon a mathematical calculation. The plaintiff recites that it offered substantial technical input from an eminently qualified engineer which demonstrated that the abutting parcel in question could not reasonably be subdivided. Interestingly enough, the Town Engineer seemed to agree with the analysis as he offered no evidence to the contrary. No other competent evidence regarding the issue was offered at or before the public hearing.
There can be no cogent doubt that an agency is not required to give credence to any witness including an expert. Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 540. It is also true that an agency or a commission is entitled to reject any application on the basis of its own member's testimony or the testimony of other witnesses without additional expert testimony. Although such an agency or commission would have been entitled to deny the application because it did not believe the expert's testimony, however, the Commission had the burden of showing evidence in the record to support its decision not to believe the experts — i.e., evidence which undermined either the expert's credibility or its ultimate conclusions. Our courts have also stated that due process requires that the parties involved have an opportunity to know the facts on which a commission or agency is asked to act and to offer rebuttal evidence. The purpose is to allow parties to prepare intelligently for a hearing. Grimes v. Conservation Commission, 243 Conn. 266, 274 (1997). If the agency or commission has been entitled to rely on its own knowledge and experience, it is required to reveal publicly its special knowledge and experience to give notice to the material facts that are critical to its decision so that the person adversely affected thereby has an opportunity for rebuttal at the administrative proceedings. Feinson v. Conservation Commission, 180 Conn. 421, 428-29 (1980). See also Bradley v. Inland Wetlands Agency, 28 Conn.App. 48, 53 (1992); Palmisano v. Conservation Commission, 27 Conn.App. 543, 547-48 (1992); Milardo v. Inland Wetlands Commission, 27 Conn.App. 214, 222-23 (1992); United Jewish Center v. Town of Brookfield, 78 Conn.App. 49, 57-58 (2003). There is simply nothing in the record to sustain the PZC on this issue.
Once again, the PZC reverts to the issue of the Conservation Commission's decision not to require a report from the DEP. It is difficult for this court to accept the PZC counsel's argument in this regard. The difficulty with the arguments offered to defend the action is that in the first instance the Commission no longer had the application before it and it was firmly ensconced within the crooks and crannies of the DEP. The second is the plain language of the statute itself. The Commission shall not render a decision until the Inland Wetlands Agency has submitted a report WITH ITS FINAL DECISION to such Commission. The word "final" that is mentioned in the statute has been somewhat ignored by the parties. They both characterize any communication with the DEP at this particular point as tentative and there will be no discussion or argument about that. For the court to ignore the plain language of ". . . a report with its FINAL decision . . ." is ludicrous. Certain it is that there is one controversial decision published in 2003 which this court will not recognize or embrace with respect to its rationale in this case.
State v. Courchesne, 262 Conn. 537 (2003).
In accordance with the foregoing, the appeal is sustained.
Moraghan, J.T.R.