Opinion
No. CV03 040 78 52
August 18, 2006
MEMORANDUM OF DECISION
The plaintiffs, Peter S. Bulkley, Joel S. Bulklcy, and Special Properties XII, LLC, appeal from a decision of the defendant, the town of Fairfield plan and zoning commission (PZC), in which it denied the plaintiffs' application for approval of a subdivision. The plaintiffs are bringing this appeal pursuant to General Statutes § 8-8 (b).
Several parties intervened at the administrative level and testified at the public hearing. These parties have also intervened and filed briefs in this appeal. The court has reviewed these briefs. All of the intervenors have adopted the brief of the PZC.
General Statutes § 8-8(b) provides in relevant part: "any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located."
The plaintiffs are the owners of real property located on Mill Hill Road, Mill Hill Terrace and Carriage Drive in the town of Fairfield, consisting of 25.443 acres of land (the premises). (Return of Record [ROR], Item 28, p. 2.) On or about August 5, 2003, the plaintiffs filed with the PZC an application for approval of a subdivision pursuant to General Statutes § 8-25 and § 1 et seq., of the town of Fairfield subdivision regulations for use of the premises as a twenty-one-lot single-family home development. (Appeal, ¶ 2.) The plaintiffs, in connection with their subdivision proposal, applied for an inland wetland permit. (ROR, Item 4.) The town of Fairfield's conservation commission, acting as the inland wetlands agency, voted to approve the plaintiffs' permit application on November 1, 2001, finding that "[n]o significant, adverse and unnecessary effects are anticipated on the regulated area as a consequence of this proposal nor is the regulated area expected to adversely affect the proposal." (ROR, Item 4.) The conservation commission's decision was appealed to the Superior Court by an abutting landowner and the court found that "because the record contain[ed] substantial evidence to support the commission's findings the decision [of the commission] must be sustained." Tallman v. Conservation Commission, Superior Court, judicial district of Fairfield, Docket No. CV 01 0387988 (July 21, 2003, Dewey, J.). (ROR, Item 11.) Pursuant to § 2.3 of the town of Fairfield subdivision regulations, the plaintiffs were required to dedicate a portion of the premises as an open space unless the PZC directed them to pay a fee to the town in lieu of the disposition of land equal to ten percent of the fair market value of the land. (ROR, Item 80.) The PZC considered the proposal for preliminary open space disposition and, on April 9, 2002, voted instead to accept the cash contribution. (ROR, Item 10.)
The PZC conducted a public hearing on the subdivision application on October 14, 2003, and October 21, 2003. (ROR, Items 28, 32.) The application was denied on October 28, 2003 for the following stated reasons: 1) "that the proposed subdivision is reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water and other natural resources of the state" and; 2) "that prudent and feasible alternatives exist, including but not limited to an open space subdivision design in accordance with section 26.0 of the zoning regulations." (ROR, Item 36.)
The plaintiffs appeal the PZC's decision on the grounds that the PZC did not have jurisdiction to decide environmental issues and, even if it did, there was insufficient evidence of environmental harm to support the PZC's stated reasons for denial of the application. The plaintiffs also argue that the PZC failed to give due consideration to the inland wetland agency's report and that it neither had the authority nor the required evidence necessary to deny the subdivision application based on its second stated reason. The appeal was tried to the court, Owens, J., on June 28, 2006.
General Statutes § 8-8 governs appeals taken from a decision of a combined planning and zoning commission. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003).
"Aggrievement is an issue of fact . . . and credibility is for the trier of the facts." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001). An owner of property that is the subject of an application is aggrieved for the purpose of bringing an appeal, and a plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 703.
As proof of ownership, the plaintiffs have submitted a certificate of devise, descent or distribution from the court of probate. The certificate demonstrates that Mary Louise Bulkley, once the owner of the premises, distributed the premises as follows: to her sons, Joel and Peter Bulkley giving each a 5/12ths portion of the premises. The other 2/12ths portion was distributed to Franklyn Sherwood Bulkley. The plaintiffs have also submitted a warranty deed establishing that Franklyn Sherwood Bulkley, for the consideration of $1,400,000, transferred title of his 2/12ths portion to the plaintiff, Special Properties XII, LLC. The court finds that the plaintiffs are aggrieved, as they have proven through certified copies of land records that they are the owners of the premises which are the subject of the application.
Timeliness and Service of Process
General Statues § 8-8(b) provides, in part, that an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." General Statutes § 8-8(f)(1) further provides that "[for any appeal taken before October 1, 2004, process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."
The PZC's decision was published in The Fairfield Citizen News on October 31, 2003. (ROR, Item 35.) The plaintiffs commenced their appeal on November 14, 2003 by service of process upon the Fairfield town clerk and Kevin Gumpper, the chairman of the PZC. (Marshal's Return.) This court finds that the plaintiffs commenced a timely appeal and served the proper parties.
A municipal planning commission, or combined planning and zoning commission, in determining whether to approve or disapprove a subdivision application, acts in an administrative capacity rather than in a quasi-judicial or legislative capacity. Reid v. Planning Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988). A commission has "no discretion or choice but to approve a subdivision which conforms to the regulations." Langbein v. Planning Board, 145 Conn. 674, 679, 146 A.2d 412 (1958). In passing on a proposed subdivision plan, a commission is bound by its regulations. R.K. Development Corporation v. Norwalk, 156 Conn. 369, 375, 242 A.2d 781 (1968).
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, the court should determine only 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 under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
The plaintiffs allege, inter alia, that the PZC acted illegally, arbitrarily and in abuse of its discretion when it denied their subdivision application in that: 1) the PZC exceeded its legal jurisdiction in considering environmental issues not within the purview of the town's subdivision regulations, and; 2) the PZC's stated reasons for denying the application were not based on substantial evidence and not within the purview of its regulations, respectively.
The plaintiffs cite to Nizzardo v. State Traffic Commission, 259 Conn. 131, 788 A.2d 1158 (2002), in support of their argument that the PZC did not have jurisdiction to consider environmental issues when deciding whether to approve a subdivision application. In Nizzardo, our Supreme Court "conclude[d] that § 22a-19 grants standing to intervenors to raise only those environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding into which the party seeks to intervene." Id., 148. In that case, the court determined that the state traffic commission did not have jurisdictional authority over an intervenor's environmental issues. Id., 168.
The PZC argues that § 2.3 of the town of Fairfield's subdivision regulations (open space provision), and the section's various subparts, specifically provide the PZC with the power and authority to consider environmental issues. The open space provision calls for a subdivision applicant to dedicate a specified portion of the subject land to open space or, if directed by the PZC, to make a payment in lieu of dedication of land. Section 2.3.1 states that in determining what part of the land should be dedicated to open space, suitable characteristics of the land that accomplish one or more of the stated purposes of the section should be considered. One of the stated purposes contained in § 2.3.1.5 of the towns regulations, is to preserve land for the purpose of conserving natural resources.
The plaintiffs counter that this provision does not give the PZC specific authority over environmental issues, and even if it did, it would be for the limited purpose of deciding whether to direct an applicant to dedicate open space, or payment in lieu of an open space, not in deciding whether to approve or disapprove a subdivision application.
While the court has serious doubts as to whether the open space doctrine provides the PZC with the authority to consider environmental issues, as required by Nizzardo, it need not decide the specific issue as it finds the plaintiffs' second argument, that the PZC's stated reasons for denial were not based on substantial evidence, persuasive.
Whether Sufficient Evidence Exists in the Record to Substantiate the PZC's Finding of a Likelihood of Unreasonable Pollution, Impairment or Destruction of the Public Trust in the Air, Water and Other Natural Resources of the State"In the context of review of subdivision applications, [p]roceedings before planning and zoning commissions are classified as administrative . . . Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached . . . The action of the commission should be sustained if even one of the stated reasons is sufficient to support it . . . The evidence, however, to support any such reason must be substantial . . ." Property Group, Inc. v. Planning and Zoning Commission, 226 Conn. 684, 695-96, 628 A.2d 1277 (1993). "Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence." River Bend Associates, Inc., v. Conservation and Inland Wetlands Commission, 269 Conn. 57, 71, 848 A.2d 395 (2004).
At the public hearing, the PZC heard and reviewed evidence from experts on both sides. The topics included the effect that the application would have on traffic, soil quality, drainage and wildlife.
Traffic
The PZC heard the testimony of Henry Ditman, a professional engineer and vice-president of Barkin and Mess Associates, Inc. (Barkin), traffic engineers and transportation planners. (ROR, Item 28, p. 13.) Barkin prepared a traffic study assessing the impact that the subdivision would have on the surrounding area. (ROR, Item 75.) The study analyzed existing conditions, projected the amount of traffic that the subdivision would generate, and analyzed what, if any, impact the newly generated traffic would have on the existing conditions. (ROR, Item 28, p. 13.) The study concluded that the subdivision "would not affect the quality of the traffic flow on nearby streets" and that the "generated traffic could readily be accommodated safely and efficiently." (ROR, Item 75.)
While several neighboring citizens testified as to their concerns regarding the increased traffic; (ROR, Item 28, pp. 25, 33, 49, 49.); there was no contrary expert testimony. Additionally, the court notes that there was no testimony at all that the newly generated traffic from the subdivision would adversely affect the surrounding area, environmentally or in any other manner. Thus, the evidence regarding increased traffic cannot provide support for the PZC's first stated reason for denial.
Soil/Drainage
The PZC heard testimony from Walter Jobst, a professional engineer and registered land surveyor regarding the proposed drainage system. (ROR, Item 28, pp. 5-13.) Jobst testified as a member of the Huntington Company, LLC, the company that prepared the engineering report for the application. (ROR, Item 76.) Jobst informed the PZC of the following. The property would be serviced by sanitary sewers and would be connected to existing sanitary sewers. (ROR, Item 28, p. 6.) Storm drains would be placed throughout the site to collect runoff and that runoff would be directed to and through three consecutive detention basins. (ROR, Item 28, p. 6.) Each basin would cleanse the runoff, trapping silt and sediment and filtering out oils and floatables. (ROR, Item 28, p. 7.) Thus, the runoff would go through a three-step cleansing process before being discharged onto the site. (ROR, Item 28, p. 10.) Jobst also testified that existing storm drains would be replaced and upgraded using fifteen-inch piping, rather than the existing twelve-inch piping. (ROR, Item 28, p. 9.) Additionally, the catch basins would be seeded with various types of vegetation to provide biofiltration of the runoff. (ROR, Item 32, p. 62.) Jobst concluded that the proposed drainage system would significantly reduce peak flows and discharges released onto the site. (ROR, Item 28, p. 8.) Depending on the location, pre-development flows would be reduced anywhere from twenty-six to sixty-six percent. (ROR, Item 28, p. 8.) Jobst also testified that the town of Fairfield's engineering department stated that the "drainage design beats their department's criteria for storm water attenuation, and that all flows proposed are below their pre-existing flow rates." (ROR, Item 28, p. 12.)
The PZC also had before it Judge Dewey's decision upholding the conservation commission's approval of an inland wetland permit for the site. (ROR, Item 11.) Therein, the court found that "the drainage design has addressed storm water detention for the 2-year through 100-year storm events. There were no apparent adverse affects." Tallman v. Conservation Commission, supra, Superior Court, Docket No. CV 01 0387988.
The only contrary expert testimony on this issue came from John Trautman, an ecological consultant. Trautman essentially made three points regarding soil quality and drainage: 1) the proposal will increase the threat that fertilizers, pesticides, household and automotive chemicals will dissolve into the runoff and seep into the ground and surface water eventually affecting the environmental quality of the Mill Hill River; 2) the drainage system in some cases may help to alleviate past drainage issues, and in some cases it may not, but the PZC should take into account the past drainage issues of the public; and 3) the site cannot sustain a septic system because of the soil's qualities and that is why the developers decided to install sanitary sewers. (ROR, Item 32, pp. 33, 34, 40.)
It should be noted that Trautman qualified his testimony regarding soil quality and drainage by making this statement "I'm not [an] engineer, I'm not a licensed surveyor." (ROR, Item 32, p. 39.)
Notwithstanding Trautman's testimony regarding this issue, the court finds that Trautman's points are speculative, inconclusive, and irrelevant, respectively. The increased threat that various pollutants will dissolve into the runoff and deposit into the surrounding areas without more is insufficient to satisfy the substantial evidence standard. See River Bend Associates v. Conservation and Inland Wetlands, supra, 269 Conn. 76 (finding that substantial evidence did not exist as to whether a soil remediation plan would have an adverse affect on a wetland where there was expert evidence that the plan might "increase pesticide mobility and result in . . . greater pesticide transport . . . into wetlands and watercourses"). While concluding that subdividing the property could lead to an increase in pesticide usage may be apparent, it does not necessarily follow that the increase would adversely affect the property. See id., 81. (Finding that "an increase in chemical concentration from one part per billion to one part per million is a 1000-fold increase, but that concentration may or may not impact adversely the [site].") There was no evidence that the proposal would increase chemical concentrations of runoff nor was there any evidence, other than Trautman's general statement that the environmental quality of the river would be affected, that the increased concentrations would affect the environment adversely. Trautman's conclusion is simply too speculative and too general in nature.
The court, in River Bend, did not take this as definitive evidence that an adverse impact would occur. The court made this finding despite the fact that there was evidence that a large portion of the site contained "varying amounts of residual chlordane, a [harmful] pesticide . . ." River Bend Associates v. Conservation and Inland Wetlands, supra, 269 Conn. 75. Here, no such evidence exists. There was no evidence presented regarding the existing presence of pollutants in the soil nor was there any evidence regarding any potential increased chemical concentrations in the runoff.
Trautman's second point is clearly inconclusive as he does not make an expert finding on whether or not the drainage system will alleviate past drainage issues and simply urges the commission to give due consideration to those citizens who testified at the hearing as to their past experiences.
Lastly, Trautman's third point is irrelevant. The site is being serviced by sanitary sewers. Whether the soil would be able to support a septic system is a moot point and why the developer chose to use sanitary sewers versus septic is irrelevant as to the question of whether the proposed plan, as opposed to some other plan which might have included septic, would adversely affect the environment.
Incidentally, the plaintiffs' experts Michael Klein and Jobst stated that the soil was perfectly suitable to support septic systems, however, the plaintiffs believed that sanitary sewers would better serve the public. (ROR, Item 32, pp. 56, 63.)
Thus, the evidence presented regarding soil quality and drainage cannot support the PZC's first stated reason for denial.
Wildlife/Vegetation
Finally, the effect of the proposal on wildlife and vegetation was discussed at the hearing. The intervenors submitted an avian inventory prepared by James C. Hunter, an expert birder. (ROR, Item 43.) Hunter visited the site a number of times from August 2003 to October 2003. (ROR, Item 43.) While on the property, he observed 82 species of birds. (ROR, Item 43.) Hunter submitted the list for the PZC's review and attached a letter which stated "[t]his list should not be construed as all inclusive, nor should it be construed that listed species are found year round or are breeding on the property." (ROR, Item 43.) Hunter made no findings as to the proposal's affect on any of the birds that were seen on the property.
Six of the species are on the Connecticut department of environmental protection's list of birds that are either endangered, threatened or of special concern. (ROR, Item 44.)
Hunter identified the breeding season as June. (ROR, Item 43.)
The PZC also heard the testimony of Michael Klein, a registered soil scientist and a certified wetland scientist. (ROR, Item 32, p. 56.) He testified that because the survey was conducted during the fall migration period the survey was of little value in determining the significance of the suit for avian conservation. (ROR, Item 32, p. 57.) Klein reported that "during the fall migration, the Connecticut shoreline receives high concentrations of bird species which are moving south along the coast." (ROR, Item 61.) Presence during this migration period does not indicate breeding presence on the site. (ROR, Item 32, p. 58.) Klein also informed the PZC that 49 of the species that Hunter noted were likely to be present at the site only during the spring and fall migration and that the proposal would not have an adverse impact on the conservation status of these birds. (ROR, Item 61.) As for the remaining species Klein stated that it is possible that they could breed on the property, however, because the property has been used pre-development as hayfields and has been mowed on a regular basis during the summer (the breeding season) the habitat/breeding potential of the land is limited due to mechanical injury to ground nests and increased predation. (ROR, Item 32, p. 58-59.) Mowed areas such as the pre-development premises act like "sinks" on the bird population in that such areas are actually a drain on the population. (ROR, Item 32, p. 58.)
Klein also testified that none of the six species that were listed as either endangered, threatened or of special concern find breeding habitats in Connecticut. (ROR, Item 32, p. 58.) These birds are force breeders that require much bigger blocks of land to breed successfully, bigger than the site itself. (ROR, Item 32, p. 58.)
As Hunter did not make any findings on the effect that the proposal would have on the property and acknowledged that the survey did not conclude that any of the 82 species used the property year round or for breeding purposes, Klein's testimony was the only expert testimony heard by the PZC regarding the effect the proposal would have on the migratory birds.
The only other expert testimony that can be construed to contradict Klein's evidence was Trautman's general testimony regarding wildlife and vegetation. Trautman testified that changing the natural landscape of the land would result in an adverse environmental impact in terms of an alteration of the existing character and components of the site. (ROR, Item 32, p. 30.) He also stated that vegetation would be reduced, and various unspecified wildlife used the vegetation for food and cover. (ROR, Item 32, p. 31.)
"The reviewing court must take into account [that there is] contradictory evidence in the record . . ." (Internal quotation marks omitted.) River Bend Associates v. Conservation and Inland Wetlands, supra, 269 Conn. 70. While it is true that the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence; id.; the finding, nevertheless, must still be supported by substantial evidence. Trautman's general testimony cannot constitute the necessary substantial evidence. Id., 71.
Whether the PZC's finding "that prudent and feasible alternatives exist, including but not limited to an open space subdivision design in accordance with section 26.0 of the zoning regulations" was improper.A commission has no discretion or choice but to approve a subdivision if it conforms to the regulations. Langbein v. Planning Board, supra, 145 Conn. 679. In passing on a proposed subdivision plan, a commission is bound by its regulations. R.K. Development Corporation v. Norwalk, supra, 156 Conn. 375.
The Fairfield subdivision regulations do not afford the PZC with the power or authority to deny a subdivision application on the basis that "prudent and feasible alternatives exist." Thus, the PZC's second stated reason for denial of the subdivision application was based on considerations that are not pertinent to its regulations. Consequently, the reason is invalid.
Section 26.1 of the Fairfield zoning regulations provides in relevant part: "Simultaneously with the approval of a subdivision plan under the Subdivision Regulations of the Town, the Commission may grant a Special Exception for an open space subdivision plan, hereinafter called "Open Space Plan," involving reduction of lot area and shape in Residence Districts AAA and AA. Section 26.3 of the Fairfield zoning regulations provides in relevant part: "An application for a Special Exception pertaining to a proposed Open Space Plan shall be submitted to the Commission . . ." The record does not contain an application for a special exception in accordance with § 26.0 nor is there any indication in any of the briefs that such an application was filed by the plaintiffs.
For the foregoing reasons the actions of the PZC were "unreasonable, arbitrary or illegal." RR Pool Patio v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). Therefore, the appeal is sustained.