Opinion
No. FST CV 07 4012840 S
March 27, 2009
MEMORANDUM OF DECISION
This is an appeal from a decision of the Planning and Zoning Commission of the Town of Darien (Commission) in which the Commission granted its own application to change a small piece of land in Darien from the R-1 (1-acre, single-family) zone to an R-1/2 (1/2-acre single-family) zone, by extending the R-1/2 zone boundary of a split-zoned lot to coincide with the rear property line of that lot. The appeal was filed by the plaintiff Barbara Gardner, and asks that the decision of the Commission be declared null and void and that the court order the Commission to deny its application. The majority of the lot in question lies in the R-1/2 zone and abuts the R-1 zone on the west and which, after the change, became entirely R-1/2 except for a small portion in its southeasterly corner, which remains R-1. The subject properties and all the land in the vicinity are used for single-family residential dwelling houses. The lot on which the change was made is known as 51 Old Farm Road (Hooper). The plaintiff is the owner of a house and lot at 45R Old Farm Road, which lies in the R-1 district.
A split-zoned lot is one wherein the zone line is so placed that one portion of the lot is in one zoning district and one in another.
The Commission has a long history in dealing with these properties and others in the vicinity regarding the issue of split lot zoning, beginning in 2003. At that time the Commission, also on its own application, considered changing the zone line so that the R-1/2 zone on the Hooper lot, and several others to the north thereof, would extend to their western property lines. The Commission withdrew this neighborhood-wide application, finding possible adverse impacts on several neighboring residences.
In 2006 and thereafter, confusion reigned. The GIS system had set a new zoning boundary line improperly, being too far to the east. The Commission then set the R-1/2 boundary at 300 feet back from Old Farm Road upon remand from a prior Superior Court appeal, and at the same time, denied an application by Hooper to extend the R-1/2 zone to the lot's western boundary. At some point it was found that the Town of Darien had historically treated Hooper's lot as entirely in the R-1/2 zone, using the setback regulations for that zone in granting approval of the main structure on the Hooper site. Finally, in 2007, the Commission, again on its own, filed the application which is the subject of this appeal. As stated above, in granting it the Commission extended the zone boundary line of the R-1/2 zone westerly to the western property line of the Hooper lot, save for a small piece of land in the southeasterly corner of the property which remains zoned R-1. The change also encompassed a very small part of the lot abutting Hooper on the north, known as 47 Old Farm Road.
The court finds that the plaintiff is statutorily aggrieved. She is the owner of a driveway and user of a right of way, both of which partially abut the Hooper's backyard. The plaintiff contends that the Commission's decision was "patently arbitrary" and also constitutes illegal spot zoning. The Commission argues that its decision was a proper and valid exercise of its legislative powers, and is in accordance with the town's comprehensive plan.
The court first addresses the standard of review applicable to this case. "Legislative decisions reached by [a planning and zoning] commission must be upheld by a trial court if they are reasonably supported by the record . . ." Dutko v. Planning Zoning Board of Milford, 110 Conn.App. 228, 231, 954 A.2d 866 (2008).
Pursuant to Connecticut General Statutes § 8-23, the Commission has adopted a Plan of Conservation and Development (Town Plan or Plan). The Town Plan does not constitute zoning regulations, but represents a guide to the Commission for future direction of the town's development. The Plan recommends that the Commission continue to study and continue to consider amending the zoning map. "This may be appropriate in areas where existing zone boundary lines split properties . . ." 2006 Town Plan of Conservation Development, Chapter 9, Residential-Related No. 8. "Some residential district boundaries . . . split lots between different districts . . . it is recommended that these residential zoning district boundaries be studied and carefully reviewed for possible adjustment." Id., No. 9.
There is no doubt left in the record that the Commission, over the past several years, studied and reviewed the split lot issue in the entire neighborhood of the subject properties. In 2003, the Commission sought to review the split zones on the Hooper property and more than twenty other lots to the north, by filing its own application to change the R-1/2 zone line to coincide with the western property lines of those lots. Abutters in the R-1 district were concerned about further development on the R-1/2 properties and opposed the application. The Commission withdrew the application, finding no compelling need for the change.
In 2006, Hooper brought her own application to extend the R-1/2 zone line to her westerly property line, adjacent to the plaintiff's driveway. The Commission heard this application, together with a remand by the Superior Court of a prior appeal involving the determination of the zone boundary line just prior to the incorrect GIS zone line. The Commission determined that zone boundary line to be 300 feet back from the street line of Old Farm Road. At the same time, it denied the Hooper application, citing adverse impact on nearby properties.
In her initial post-trial brief, (dated October 23, 2008) the plaintiff argued that the Commission's decision was illegally based upon the avoidance of litigation. The evidence in the record does not support that theory. The Commission's reasons for granting its application are set forth in its decision of October 9, 2007 (ROR 19) wherein no reference is made to avoidance of litigation. To impute a reason for the Commission's decision which is not stated, is to speculate on, and then assign, a motive for its decision without reasonable evidence thereof.
The plaintiff complains that with the R-1/2 zone extended to Hooper's westerly property line, Hooper may build structures in her backyard or subdivide her large lot into two. It is to be noted that the part of the plaintiff's property which abuts Hooper is a driveway to the plaintiff's house, which is some distance from the Hooper lot. The right of way itself is several hundred feet long. The lot proper does not adjoin the Hooper lot in any way (See ROR 14 and ROR 15) and the plaintiff's house is barely visible from the common lot line. The plaintiff and her family and guests have traveled this lane behind the Hooper's yard to and from Old Farm Road since the plaintiff purchased the property 36 years ago, it being the only access to their residence. In granting the zone change here, the Commission was acting in its legislative capacity, and needed no change of circumstances to take a different position on the issues than it did in the past. Morningside Ass'n. v. Planning and Zoning Board, 162 Conn. 154, 158, 292 A.2d 893 (1972). Only in the case of a reversal which is "patently arbitrary" will it be found to be improper. Id., 158.
The only structure of concern to the plaintiff referred to in the record seems to be a possible swimming pool in Hooper's backyard, which was previously denied by the Greenwich Zoning Board of Appeals.
The 2007 decision of the Commission in this case (ROR 19) gives valid reasons for the change. First it found that it is consistent with the Town Plan, which directs the Commission toward the elimination of split zoned lots. It further found that all nearby properties were developed with single-family houses and that the rezoning will have no adverse impact on those properties, and that 51 Old Farm Road had been designated by the Town of Darien in the past as being entirely in the R-1/2 district. The Commission recognized the improper setting of the zone line by the GIS mapping and the ultimate finding that the prior zone line split the properties.
As stated before, the Commission began an initiative in this area in 2003 and found that the wholesale change of many lots was not feasible, and withdrew the concept.
The 2007 decision of the Commission reflects a rethinking of the issues before it. The court notes that the decision leaves a small portion of 51 Old Farm Road (Hooper) in an R-1 zone, thus prohibiting the subdivision of the land into two parcels. It is adjacent on its westerly border to a right of way, being the plaintiff's driveway, and not the lot which contains her residence. The court finds the reasons given by the Commission, acting in its legislative capacity, to be pertinent to the issues before it and legally valid, and the decision to be reasonably supported by the record.
The plaintiff claims that the Commission's actions constitute spot zoning and is illegal. Spot zoning is a provision in a zoning plan or modification which affects only the use of a particular piece of property or a small group of adjoining properties and is not related to the general plan for the community as a whole. It is an attempt to wrench a single small lot from its environment and give it a new rating that disturbs the tenor of the neighborhood. Furtney v. Zoning Commission, 159 Conn. 585, 600, 601, 271 A.2d 319 (1970). "Two elements must coexist in order to constitute spot zoning. First there must be a change in zone applicable only to a small area. Second, this change must be out of harmony with the comprehensive plan for the good of the community as a whole." Id., 601. "Although the [Hooper lot] may receive an incidental benefit, so long as the change is in accordance with the comprehensive plan and the central purpose for the change is in benefiting the community as a whole as opposed to the owner of the property, the [Commission] cannot be said to have acted unreasonably or arbitrarily and the claim of spot zoning fails." Morningside Ass'n. v. Planning Zoning Board, supra, 162 Conn. 162.
"It is established that the comprehensive plan is to be found in the zoning regulations themselves and the zoning map, which are primarily concerned with the use of property." (Citations omitted; internal quotations marks omitted.) Konisgsberg v. Board of Alderman of City of New Haven, 283 Conn. 553, 585, 930 A.2d 1 (2007).
The zoning map of Darien shows that the change of zone here is a minor adjustment conforming the Hooper and Ross lots to much of the property lying to the north, east and southeast. To the west is the R-1 zone which, like the R-1/2 zone, limits development to one single-family dwelling per lot. The change does not "wrench a single small lot from its environment and give it a new rating that disturbs the tenor of the neighborhood." Furtney v. Zoning Commission, supra, 159 Conn. 600. The Commission found that the change will not have an adverse impact on the nearby properties. (ROR 19, October 9, 2007 No. 8(b).) The zone change application of the Commission, and its decision, leaves in R-1 a portion of the Hooper lot which renders problematic any future subdivision of the property. The zoning regulations of the Town of Darien contemplate the zoning changes will be made gradually to conform the use of land and buildings to the comprehensive plan set forth in the regulations. The 2006 Town Plan of Conservation and Development advises and recommends to the Planning and Zoning Commission, over the next 10 years, to continue to study and carefully review zone boundaries in residential districts and consider amending the zoning map where split zoned properties exist. 2006 Town Plan of Conservation and Development, Residential-Related Nos. 8 and 9 (ROR 29). This Plan was adopted to benefit the community as a whole, and clearly was the incentive for the careful study and review by the Commission of split lot zones in the subject neighborhood. After determining in 2003 that changing all the lots in question was not warranted and would negatively impact adjacent properties, the commission found in 2007 that changing of these small portions of the Hooper and Ross lots to R-1/2, extending it to their westerly lot boundary lines, would serve to answer the advisory directive of the Town Plan without offending the comprehensive plan contained in the zoning map and zoning regulations. Because the change is not out of harmony with the comprehensive plan for the good of the community as a whole, but rather conforms to it, the plaintiff's claim of spot zoning must fail. Morningside Ass'n. v. Planning Zoning Board, supra, 162 Conn. 162.
Conclusion
The court concludes that there is reasonable support in the record for the decision of the Commission to make the adjustment of the zone lines on lots 51 and 47 Old Farm Road. Dutko v. Planning Zoning Board of the City of Milford, supra, 110 Conn.App. 231. The Commission had studied and carefully reviewed the split zoned lots issue in the area for several years, and addressed it at multiple hearings. After disposing of distractions along the way, the Commission concluded unanimously that it could best serve the Town Plan, the comprehensive plan of zoning and the community, by ending the split zone nature of the lots in question. Based on the evidence in the record, the change from its prior determination was not patently arbitrary and did not constitute spot zoning. The plaintiff has failed to carry her burden of proving that the decision of the Commission had no reasonable support in the record, and therefore the appeal is dismissed.