Opinion
No. DBD CV 06 4005898
January 22, 2008
MEMORANDUM OF DECISION
I PROCEDURAL BACKGROUND
The plaintiffs, Stephan Grossnickle, Ann Price, and Carol A. Dineen, appeal the decision of the Planning and Zoning Commission of the town of Sherman (Commission), approving a fourteen-lot subdivision of the applicant, Chapel Hill Properties, LLC (applicant). The plaintiffs claim that the Commission failed to follow its own regulations, that the approval contained illegal conditions, that there was no substantial evidence in the record to support the decision and that the plaintiffs were denied due process. Accordingly, the plaintiffs claim that the decision of the Commission was illegal, arbitrary, unlawful and an abuse of its discretion.
II FACTS
On August 26, 2005, the applicant filed an application for a fourteen-lot re-subdivision with the Planning and Zoning Commission for the town of Sherman. The Commission received the application at its regular meeting on September 1, 2006. The public hearing commenced on November 16, 2005, continued on January 12, 2006, and concluded on February 9, 2006. (Return of Record (ROR), Exhibit 13; Exhibit 9; Exhibit 7.)
Pursuant to General Statutes § 8-26, Chapel Hill simultaneously filed an application for a regulated activities permit with the Sherman Inland Wetlands and Watercourses Commission seeking the approval of its 14-lot single-family home subdivision on the 89.63 acres and the associated road and drainage system. (ROR, Exhibit 25.) The Inland Wetlands Commission approved the permit and the plaintiffs in that matter, who are the plaintiffs herein, appealed the approval. The Superior Court dismissed the appeal. Grossnickle v. Sherman Inland Wetlands and Watercourses Commission, Superior Court, judicial district of Danbury, Docket No. CV 06 4005519 (August 27, 2007, Thim, J.).
At the November 16, 2005 hearing, the applicant's engineer, Paul Szymanski, explained the application, gave an overview of the road system and the drainage and erosion controls and indicated that there would be no further subdivision of the property except what was proposed in the application. The location of the road was controlled by the application previously approved by the Sherman Inland Wetlands Commission. (ROR, Exhibit 13; Exhibit 126, 11/16/2005 transcript). A wetland assessment from the applicant's ecologist, Jodie Chase, was also filed with the Commission at the public hearing. (ROR, Exhibit 91.) The initial storm water management report by Arthur Howland, P.C., dated November 10, 2005, which was an extensive document with engineering calculations for the drainage storm water management in the subdivision, was also filed with the Commission. (ROR, Exhibit 3.)
The public was given an opportunity to express its concerns to the Commission during the course of the public hearing. The plaintiffs, Stephan Grossnickle, Ann Price, and Carol A. Dineen, filed a verified petition to intervene in the proceedings before the Commission pursuant to General Statutes § 22a-19(a). The Commission granted their petition to intervene. The intervenors, who are also the plaintiffs in this appeal, were represented by Marjorie Shausky, Esq., and Marc Goodin, P.E., who appeared on their behalf. (ROR, Exhibit 148, 2/9/2006 transcript, p. 54; Exhibit 55; Exhibit 126, 11/16/2005 transcript, p. 44; Exhibit 127, 1/12/2006 transcript, pp. 58-59.) Goodin submitted a report on the date of the public hearing, November 16, 2005. (ROR, Exhibit 13, p. 2.) There was extensive discussion of the subdivision application and Szymanski responded to some of the comments made by Goodin and others. The applicant's attorney requested the Commission to continue the public hearing so that the applicant could respond to the information presented and so the Commission could receive reports from various other commissions. (ROR, Exhibit 13; Exhibit 126, 11/16/2005 transcript.)
The public hearing resumed on January 12, 2006. A revised storm management plan was filed on the same date. (ROR, Exhibit 2.) The Commission indicated at the public hearing that it wanted the town engineer to review the plans. (ROR, Exhibit 9.) Comments were received from the land use enforcement officer, and the commission chairman stated that there were eighteen letters in support of the application. Goodin gave an overview of his review of the revised plans. The Commission then decided, with the approval of the applicant, to continue the public hearing to February 9, 2006. (ROR, Exhibit 9.)
The February 9, 2006 meeting was the last session of the public hearing. The meeting started at 7:10 p.m. and concluded 12:25 a.m. (ROR, Exhibit 7; Exhibit 148, 2/9/2006 transcript.) Part of the discussion at the public hearing involved comments first by Szymanski, appearing on behalf of the applicant, then by Goodin, appearing on behalf the opponents, and the town engineer, Joseph Zarecki. Many of the revisions to the plan were directly responsive to the concerns articulated by Goodin, the commissioners, Zarecki, and members of the public. (ROR, Exhibit 61.) In response to the concerns raised at the prior hearings and the comments of the town's engineer, Zarecki, the map dated November 16, 2005 (ROR, Exhibit 146) was modified and a new map dated February 9, 2006 was presented at the public hearing. (ROR, Exhibit 132; Exhibit 147.)
Following the submission of the new map, Goodin, Zarecki and Szymanski extensively discussed various features of the drainage and storm water management plan and other subjects. Szymanski responded point by point to the comments of Zarecki. (ROR, Exhibit 7; Exhibit 148, 2/9/2006 transcript.) The plaintiffs' attorney asked the Commission for a recess or continuation of the public hearing in order to view the revised plans by claiming that there was a substantial amount of new information being presented. (ROR, Exhibit 148, 2/9/2006 transcript, p. 106.) The commission chairman indicated that because of time constraints the public hearing had to be ended that night, and stated "we are essentially done with collecting information." (ROR, Exhibit 148, 2/9/2006 transcript, p. 106.) Following the request of the plaintiffs' counsel, he urged all participants to move forward as quickly as possible so that all parties could have an opportunity to speak. He noted the deadline for closing the public hearing applied to everyone, however, "and unfortunately not everyone's complete input might be received before the absolute deadline." (ROR, Exhibit 148, 2/9/2006 transcript, p. 107.) The court notes that following the comments of the commission chairman, the public hearing transcript continues for another 150 pages, including comments by and between Goodin and Szymanski.
The public hearing closed that evening shortly after midnight. The application was discussed briefly by the Commission at its meetings on March 22 and March 30, 2006. (ROR, Exhibit 5; Exhibit 6.) A special meeting was held on the application on April 4, 2006. At that point, the Commission discussed two resolutions, one for approval and one for disapproval of the application. There was extensive discussion on the subdivision between the commissioners, as evidenced by a 125-page transcript of the meeting. (ROR, Exhibit 150, 4/4/2006 transcript.) Some modifications were made relative to the resolution of approval, as to the terms of the conditions, and all of the commissioners commented on the application. Some comments were written, including a statement from chairman David Hopkins, concluding, among other things, that the plan had to be approved because it met the regulations. (ROR, Exhibit 114.) During the deliberation session commissioners Paul Voorhees and Robert Ostrosky also stated that the application had to be approved because it complied with the regulations. (ROR, Exhibit 148, 2/9/2006 transcript, pp. 107, 115.) After the discussion on the resolution, the Commission voted 5 to 1 that the intervenors had not proven their claim that the proposed activities were likely to have the affect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state. (ROR, Exhibit 4; Exhibit 150, 4/4/2006 transcript, pp. 123-24.) The Commission then voted 4 to 2 to approve the application with conditions as modified during the discussions at the April 4, 2006 meeting. (ROR, Exhibit 4; Exhibit 150, 4/4/2006 transcript, pp. 124-25.)
On April 17, 2006, notice of the Commission's decision was published in the Danbury News-Times. This appeal was timely initiated thereafter.
III AGGRIEVEMENT
"[A]ny person aggrieved by any decision of a [planning and zoning] board . . . may take an appeal to the superior court . . ." General Statutes § 8-8(b). "It is fundamental that appellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute . . ." Pleading and proof that the plaintiffs are aggrieved within the meaning of the statute is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal . . . The claims of aggrievement by these plaintiffs [present] an issue of fact for the determination of the trial court . . . The burden of proving that they [are] aggrieved [is] on the plaintiffs." (Citations omitted; internal quotation marks omitted.) Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992).
General Statutes § 8-9 states: "Appeals from zoning commissions and planning and zoning commissions may be taken to the Superior Court . . . in the manner provided in section 8-9."
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 803, 925 A.2d 292 (2007).
The plaintiffs allege aggrievement in paragraph seventeen of the complaint. Plaintiffs Grossnickle and Price claim aggrievement under General Statutes § 8-8(a)(1), which provides, in pertinent part: "In the case of a decision by a . . . combined planning and zoning commission . . . `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." At the trial before the court, Price submitted into evidence a quit claim deed establishing her interest in tile matter. (Plaintiffs' Exhibit 1.) Grossnickle submitted into evidence a deed showing his ownership interest in property designated as "LOT 3 14.178 AC" within the Chapel Hill Road subdivision located in Sherman, Connecticut. (Plaintiff's Exhibit 2.) On the basis of these deeds, Grossnickle and Price have proven aggrievement.
Further, all three plaintiffs claim aggrievement under General Statutes § 22-19(a), which provides, in pertinent part: "In any administrative . . . proceeding, and in any judicial review thereof made available by law . . . any person . . . may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state." Due to the use of the language "any person," all three plaintiffs may intervene under this statute. Intervention under this provision, however, "is strictly limited to the raising of environmental issues." Rocque v. Northeast Utilities Service Co., 254 Conn. 78, 85, 755 A.2d 196 (2000). Dineen did not appear at the hearing before the court, however, and she was defaulted for failure to appear at trial.
IV SUBDIVISION REGULATIONS
"In situations in which the zoning commission does state the reasons for its action, the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations." (Internal quotation marks omitted.) Irwin v. Planning Zoning Commission, 244 Conn. 619, 629, 711 A.2d 675 (1998). "Where the [commission] states its reasons on the record we look no further." DePietro v. Zoning Board of Appeals, 93 Conn.App. 314, 325, 889 A.2d 269 (2006).
The Resolution of Approval stated: "The Commission finds that the application does comply with all applicable zoning and subdivision regulations . . ." (ROR, Exhibit 116.) The plaintiffs argue that the commission interpreted the subdivision regulations in an unreasonable manner. They also argue there was no substantial evidence in the record to support the finding that the application conformed with the subdivision regulations.
A
CT Page 1101
INTERPRETING THE SUBDIVISION REGULATIONS
The plaintiffs argue that the Commission did not reasonably interpret sections 6 and 7 of the Sherman subdivision regulations and that the application was incomplete. "When a commission is functioning in . . . an administrative capacity, a reviewing court's standard of review of the commission's action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion . . . In determining whether a zoning commission's action was illegal, arbitrary or in abuse of its discretion, a reviewing court's principal inquiry is whether the commission's action was in violation of the powers granted to it or the duties imposed upon it." (Citations omitted; internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 440, 908 A.2d 1049 (2006). "The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts." (Emphasis added.) Baron v. Planning Zoning Commission, 22 Conn.App. 255, 257, 576 A.2d 589 (1990). "[C]ourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their action." Frito-Lay, Inc. v. Planning Zoning Commission, 206 Conn. 554, 573, 538 A.2d 1039 (1988).Section 7 of the Sherman subdivision regulations, entitled "Procedure," provides, in pertinent part: "A formal application shall consist of the documents listed in Section 6 of these regulations. Except as provided below, a subdivision application shall not be scheduled for a public hearing until all the said documents have been received by the Commission and found by the Commission to be complete. An application found to be incomplete shall be denied, but without prejudice to a subsequent complete submission . . . (2) A subdivision application may be accepted, and a public hearing scheduled, even though the Commission finds that minor clerical revisions are required in certain of the application documents, provided that such revisions shall be completed and made part of the file available for public scrutiny at least one week prior to the date of the public hearing." Sherman Subdivision Regs., § 7(b).
The plaintiffs argue that the Commission did not comply with its own regulations by processing of a supposedly incomplete application. "All plans for subdivisions and resubdivisions . . . shall be submitted to the commission with an application in the form to be prescribed by it . . . The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application or maps and plans submitted therewith . . . within the period of time permitted under section 8-26d The failure of the commission to act thereon shall be considered as an approval, and a certificate to that effect shall be issued by the commission on demand . . ." General Statutes 8-26. See also, Finn v. Planning Zoning Commission, 156 Conn. 540, 544, 244 A.2d 391, 393 (1968) ("The obvious intent of the legislature in using this language was to ensure prompt and expeditions action on subdivision applications for the protection of the subdivider. The language of the statute is mandatory"). The time period permitted for a decision is sixty-five days after the close of a public hearing or, where no public hearing occurs, sixty-five days after receipt of the application for subdivision. General Statutes 8-26d; General Statutes 8-7d. Our Supreme Court is clear that, while a planning and zoning commission may process and deny a subdivision application because of incompleteness; Treat v. Planning Zoning Commission, 145 Conn. 406, 408-09, 143 A.2d 448 (1958); failure to process the application will lead to an automatic approval by the operation of law if the sixty-five-day limit is breached. General Statutes § 8-26. "With subdivision and site plans, the [commission] will be faced with an inferred approval if it does not act within the statutory time limits after receipt of an application, and to avoid that result it cannot refuse to process the application because it does not consider it to be complete." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 19.3, pp. 548-49. See also, Viking Construction Co. v. Planning Commission, 181 Conn. 243, 247, 435 A.2d 29 (1980) ("The receipt of an application form by an administrative body involves the performance of a ministerial act . . . It does not require the exercise of discretion").
General Statutes 8-26d mandates that "all public hearings shall be held and all decisions made in accordance with the provisions of section 8-7d . . ." "In all matters wherein a formal . . . application . . . must be submitted to a . . . planning and zoning commission . . . and a hearing is required or otherwise held . . . such hearing shall commence within sixty-five days after receipt of such . . . application . . . and shall be completed within thirty-five days after such hearing commences . . . All decisions on such matters shall be rendered within sixty-five days after completion of such hearing . . ." General Statutes 8-7d(a). "Whenever a decision is to be made on an application for a subdivision approval on which no hearing is held, such decision shall be rendered within sixty-five days after receipt of such application." General Statutes 8-7d(b).
The plaintiffs cite Ventres v. Inland Wetlands and Watercourses Commission, 25 Conn.App. 572, 574, 595 A.2d 914 (1992), where the appellate court affirmed the Commission's denial of a subdivision for "[i]nadequate soil erosion and sediment control plan presented for the proposed subdivision, as noted by J. Eric Sherer, district conservationist USDA — soil conservation service, in a report dated November 16, 1988." Id. That case, like Treat v. Planning Zoning Commission, supra, 145 Conn. 408, is not controlling here because the application was complete, as the forgoing analysis will demonstrate.
Several superior courts have applied the "mandatory" nature of § 8-26 under Finn v. Planning Zoning Commission, supra, 156 Conn. 543, to situations where the completeness of a subdivision application was at issue. In Leech v. Gaetz, 31 Conn.Sup. 81, 322 A.2d 599 (1973), the applicant appealed after a subdivision was disapproved by the planning and zoning commission "one hundred and twenty-five days after the submission and thirty days after the sixty-five-day period and the thirty-day extension thereof had expired." Id., 83. "[The] commission . . . claim[s] that the plaintiffs did not comply with the requirements of the application form with respect to an insert map, the contour map, profiles and cross section, and drainage . . . [T]he commission here would have had good grounds to reject the map and application if they did not meet its requirements. The commission, however, did not reject [for one hundred and twenty five days] . . . [T]he commission was required to take the action provided in the statute, which was mandatory, in accordance with Finn v. Planning Zoning Commission, supra, [ 156 Conn. 543], within sixty-five days plus the agreed thirty-day extension." Leech v. Gaetz, supra, 31 Conn.Sup. 84.
Similarly, in Grimes v. Planning Zoning, Superior Court, judicial district of Litchfield, Docket No. CV 00 0081920 (January 17, 2001, Matasavage, J.), "[t]he plaintiff [intervenor] also claim[ed] that the commission [erred] by accepting, processing and scheduling [the applicant's] alleged incomplete application for a public hearing. The commission's actions in accepting an application and scheduling a public hearing are ministerial duties. The commission's remedy, if it finds that an applicant did not file a complete application, would be to deny the application." Id. Essentially, these courts have held that processing is mandatory. At the opening of the first public hearing in this matter, chairman David Hopkins began by stating, "[t]his hearing is to consider for approval Chapel Hill Estates, LLC's application for a [fourteen] lot resubdivision . . ." (Emphasis added.) (ROR, Exhibit 126, 11/16/2007 transcript, p. 3.) "No plan of resubdivision shall be acted upon by the commission without a public hearing." (Emphasis added.) General Statutes 8-26. Hence, the Commission's decision to process the application through a public hearing was valid.
The plaintiffs further argue that the Commission unreasonably interpreted section 6(g) of the subdivision regulations. Section 6, entitled, "Requirements for Subdivision Plan," states, in pertinent part: "A subdivision plan submitted for the approval of the Commission shall comprise the following materials . . . (g) A report from the Sherman Conservation Commission stating: (1) that the proposed subdivision would have no significant environmental impact, or an environmental impact statement has been prepared by the applicant under the direction of the Sherman Conservation Commission . . . and (2) that the proposed subdivision contains no endangered species, as defined by the Connecticut Department of Environmental Protection . . . or that appropriate measures have been taken to protect such species or sites." Sherman Subdivision Regs., § 6(g)(1)-(2).
The Sherman Conservation Commission (conservation commission) submitted a letter to the Commission dated January 12, 2006, which read, in relevant part, "[T]he Sherman subdivision regulations — Section 6,(g), (1 2) — require a letter from this Commission [the inland wetlands commission] stating that the proposed subdivision will have no significant environmental impact and that the proposed site contains no endangered species . . . We have serious concerns on both accounts. From our knowledge and observations we think this proposed subdivision will have a significant environmental impact . . ." (ROR, Exhibit 57, 1/12/2006.)
The Commission interpreted the conservation commission's adverse environmental impact analysis under section 6(g) as a recommendation, rather than a necessary prerequisite for approval. The Commission stated, in the Resolution of Approval: "The Commission has received the following notifications regarding this application . . . Letter from the Sherman Conservation Commission dated January 12, 2006, stating their opinions and recommendations on this application." (Emphasis added.) (ROR, Exhibit 116.)
Despite the language of section 6(g), the conservation commission's report is advisory and the Commission is not bound to deny a subdivision application because the conservation commission finds it will have an adverse environmental impact. The statutory authority for creating a conservation commission does not grant municipalities the authority to enact regulations making the conservation commission's approval mandatory. "[B]efore subdivision regulations may be made operative, the necessary statutory authorization for such regulation must exist . . . [I]n order to determine whether the regulation in question is within the authority of the commission to enact, we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authorization for the enactment." (Citations omitted; internal quotation marks omitted.) Finn v. Planning Zoning Commission, supra, 156 Conn. 545. In enumerating the potential responsibilities and powers a municipality may grant a conservation commission, the statute states: "It may make recommendations to zoning commissions [and] planning commissions . . . on proposed land use changes." (Emphasis added.) General Statutes § 7-131a(b). The mission statement of the Sherman Conservation Commission acknowledges this role: "The Conservation Commission provides advisory opinions to other land use commissions concerning specific aspects of the land use proposal." (Emphasis added.) Mission Statement, Sherman Conservation Commission.
In Thoma v. Planning Zoning Commission, 229 Conn. 325, 640 A.2d 1006 (1994), our Supreme Court previously affirmed the rejection of an argument that was similar but stronger than plaintiffs' argument here. The argument therein centered around General Statutes § 8-26, which provides, in pertinent part, "the [planning and zoning] commission shall not render a decision until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the commission shall give due consideration to the report of the inland wetlands agency." (Emphasis added.) General Statutes § 8-26. In Thoma the Supreme Court stated: "The dispositive issue on this land use appeal is whether a town regulation can lawfully limit the discretion that General Statutes § 8-26 confers on a town planning and zoning commission. The [applicants] . . . sought approval for a proposed subdivision in the town of Canterbury. The . . . planning and zoning commission . . . granted their application despite its having been disapproved by the town inland wetlands commission. The plaintiffs [as intervenors] appealed to the trial court, which sustained the appeal on the ground that § 4.12.3 of the Canterbury zoning regulations deprived the commission of the authority to grant a proposed subdivision application that had been disapproved by the inland wetlands agency." Thoma v. Planning Zoning Commission, supra, 229 Conn. 326.
"The Appellate Court granted defendants' request for certification at appeal and reversed the judgment of the trial court . . . The Appellate Court held that the regulation was a delegation of authority to the inland wetlands agency that was impermissible in light of the conflicting provisions of § 8-26, which requires the commission to give only due consideration to a report prepared by the inland wetlands agency . . ." (Citations omitted; internal quotation marks omitted.) Id., 326-27.
The Supreme Court "conclude[d] that the judgment of the Appellate Court must be affirmed. The issue . . . was properly resolved in the thoughtful and comprehensive opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion contained there." Id., 327. The Appellate Court had stated in that opinion: "The final decision contained in the wetlands report is merely one of the many factors the zoning commission must consider in rendering its own decision . . . The zoning commission must give the wetlands commission report due consideration. We do not read this as a statutory mandate that the zoning commission's decision be based on the wetlands report. To afford due consideration is to give such weight or significance to a particular factor as under the circumstances it seems to merit, and this involves discretion." (Internal quotation marks omitted.) Thoma v. Planning Zoning Commission, 31 Conn.App. 643, 650 (1993), aff'd, 229 Conn. 325, 640 A.2d 1006 (1994).
Essentially, "[t]he Appellate Court [in Thoma] determined that the zoning regulation effectively gave the wetlands agency veto power over any proposed subdivision application thereby undermining the provision in § 8-26 that the commission need only give `due consideration' to the agency's report . . . It concluded that the regulation was an impermissible delegation of authority from the commission to the agency." River Bend Associates v. Planning Commission, 271 Conn. 41, 61, 856 A.2d 959 (2004).
In Carr v. Planning Zoning Commission, 273 Conn. 573, 872 A.2d 385 (2005), the Supreme Court stated: "[A] wetlands agency's determination that the construction of a subdivision would have an adverse effect on the wetlands does not necessarily render the subdivision infeasible. A [planning] commission could determine, for example, that the subdivision application should be modified to avoid any such adverse effect. Moreover, the statutory provision vests discretion in the commission to determine that, even if the adverse effects cannot be avoided, they do not justify denial of the subdivision. Thus, the statute effectively gives the commission discretionary authority to contravene the agency's decisions. Again, this makes sense in light of the fact that the risk of damage to wetland areas does not necessarily render a subdivision plan practically infeasible, but may merely present a public policy concern . . . It is clear, therefore, that the report of a conservation commission is not binding on a planning and zoning commission in considering a subdivision application." Id., 597-98.
If planning and zoning commissions may elect to approve a subdivision even after giving "due consideration" to an adverse impact opinion of an inland wetlands commission or similar agency under § 8-26, then a planning and zoning commission can certainly approve a subdivision after receiving the adverse impact "recommendation" of a conservation commission under § 7-131a, regardless of what additional authority a particular municipality may attempt to bestow upon that agency or commission through its regulations. Were this court to sustain the appeal under the reading of section 6(g) of the Sherman Subdivision Regulations urged by the plaintiffs, it would give "veto power" to the conservation commission and stand as an "impermissible delegation of authority." Furthermore, the Commission is entitled to interpret its own regulations. Baron v. Planning Zoning Commission, supra, 22 Conn.App. 257. See also, Griffin Hospital v. Commission on Hospitals Health Care, 200 Conn. 489, 496-97, 512 A.2d 199 (1986) ("it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement . . . This principle applies with even greater force to an agency's interpretation of its own duly adopted regulations"). Thus, the Commission was well within its authority to interpret the conservation commission's letter as a recommendation.
B SUBSTANTIAL EVIDENCE
Plaintiff further argues that there was not substantial evidence on the record for the Commission to conclude that "the application does comply with all applicable zoning and subdivision regulations." (ROR, Exhibit 116.) The plaintiffs specifically argue there was insufficient evidence on the record to conclude the application for subdivision was in conformity with section 4 of the Sherman Subdivision Regulations, entitled "Roads," which incorporate by reference the Sherman road ordinance, and the Soil Erosion and Sediment Control ("SESC") Regulations, incorporated under section 6(f) of the Subdivision Regulations. They further argue the there was not substantial evidence on the record to conclude that the subdivision would not unreasonably pollute, impair or destroy the public trust in the air, water or other natural resources of the state.
The Plaintiffs also argue that the application was nonconforming under the following provisions: Conservation Commission report under section 6(g) of the subdivision regulations, scheduling the hearing under section 7(b) of the subdivision regulations, and the hearing requirements under section 7(d) of the subdivision regulations. The advisory nature of section 6(g) was dealt with above. Also, section 7(b) and the necessity to process the application was discussed above. Finally, section 7(d) simply states: "The Commission shall hold a public hearing . . . The subdivider or his agent shall appear at the public hearing . . . Notice of any public hearing shall be provided by mail and by publication, in the form and within the time limits provided by state statute." The plaintiffs have not argued that the hearing failed to comply with any of the specific requirements of this subsection. The plaintiffs may also contend that the storm water management plan was inadequate. The plaintiff's other complaints about the hearing process will be discussed under section VI of this opinion, entitled "Due Process."
"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 . . . This so-called 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 . . . [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Citations omitted; internal quotation marks omitted.) Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 696-98, 624 A.2d 1277 (1993).
Over the course of the three public hearings, the Commission heard a great deal of conflicting testimony, much of it from experts, concerning whether the application conformed to the subdivision regulations. (ROR, Exhibit 126, 11/16/2005 transcript; Exhibit 127, 1/12/2006 transcript; Exhibit 148, 2/9/2006 transcript.) The Commission was able to conclude the application met the terms of the subdivision regulations by reviewing the substantial evidence before it and determining the credibility of witnesses. "[A]n administrative agency is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 597, 628 A.2d 1286 (1993). See also Woodburn v. Conservation Commission, 37 Conn.App. 166, 172, 655 A.2d 764 (1995) ("[i]n determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency's assessment of the credibility of the witnesses . . . even an expert, in whole or in part" (Internal quotation marks omitted.)).
The Commission received substantial evidence that the application conformed to section 4 of the subdivision regulations entitled "Roads." Again, the February 9th meeting was conducted in a manner to analyze the comments of the town's engineer, Zarecki, which he had submitted to the applicant on February 2nd. (ROR, Exhibit 27.) At the hearing, Zarecki would first give his report on a particular aspect of the application, which then would be followed by comments by Szymanski, the applicant's engineer, and finally by the public, which often included the plaintiffs' engineer, Goodin. Many of the changes in the February 9th plan were aimed at complying with Zarecki's comments. For instance, in responding to Zarecki's analysis of the roadway (ROR, Exhibit 27), Szymanski testified that the February 9th plan incorporated several of these requests including comment 1 (ROR, Exhibit 148, 2/9/2007 transcript, pp. 30-31) ("[T]he revised plans . . . show temporary grading easements along the property lines"), comment 2 (ROR, Exhibit 148, 2/9/2007 transcript, p. 31) ("I believe that comment has been taken care of"), comment 8 (ROR, Exhibit 148, 2/9/2007 transcript, p. 38) ("[a]nd the guard rail end treatment detail has been added to the revised plans"), and comment 9 (ROR, Exhibit 148, 2/9/2007 transcript, p. 39) ("No. 9 is in regards to the base of the curb. That — the detail has been revised to demonstrate that."). In addition, Szymanski attempted to comply with several comments at the February 9th meeting, including comment 4 (ROR, Exhibit 148, 2/9/2007 transcript, p. 33.) ("No. 4 it is recommended that cross sections be provided . . . I'm just going to read it verbally, and I'll submit afterwards what I've written . . .), and comment 5 (ROR, Exhibit 148 9/9/2007 transcript, p. 34) ("the letter does say if significant failure of the road does occur, we are willing to contribute. And I'll submit this letter so that's on the record.").
Importantly, Zarecki chose to refer to this document as "comments," rather than "areas of noncompliance with the regulations" or other similar language, because, as became clear at the hearing, they were not all aimed at avoiding noncompliance. Many of the comments undoubtedly were made in an effort "[t]o insure and regulate the layout of roads in accordance with sound engineering practices." Sherman Subdivision Regs., § 1. Szymanski, the applicant's engineer, prefaced his remarks to the suggested changes by Zarecki by saying: "I feel that most of the comments are construction detail related and are very prudent to be taken care of prior to construction. I do feel that a lot of them . . . may not be specifically required by the subdivision regulations but are good to implement and proceed with. And, as such, we've attempted to include as many of them as we can, but we would request consideration for the fact that we only received his comments this past Friday." (ROR, Exhibit 148, 2/9/2006 transcript, p. 32.) The Commission members expressed this same belief during Zarecki's presentation: "This triggers one of my questions the questions I have, which is: As we go through here, if you could indicate to the extent that you can where your comments are required by the regulations as you read them and where perhaps they're required in the sense that that's the engineering practices, but it may not be called for in the — in the regulations, per se." (ROR, Exhibit 148, 2/9/2006 transcript, p. 20.) Zarecki couched many of the comments about the roads in language that made this interpretation of his comments reasonable. (ROR, Exhibit 148, 2/9/2006 transcript, pp. 16-27.)
For example, in discussing roadway comment 3 (ROR, Exhibit 27), regarding the test holes that were eventually included as a condition of approval, Zarecki stated: "On January 9th, I performed an extensive site inspection of the proposed road layout as staked in the field . . . Based on the site condition — it is recommended that test holes along the center line of the road be performed." (Emphasis added.) (ROR, Exhibit 27; Exhibit 148, 2/9/2006 transcript, p. 18.) Zarecki did not anchor this comment to a specific requirement of the Road Ordinance or subdivision regulations. He simply stated: "It's just good practice to know what we're dealing with." (ROR, Exhibit 148, 2/9/2006 transcript, p. 18.) Szymanski went on to point out, "I don't see this in the road ordinance or the subdivision regulations. It's something we would be willing to provide, but we don't feel it's a requirement for the subdivision approval. But as stated on the record, we are willing to provide this." (ROR, Exhibit 148, 2/9/2006 transcript, pp. 33-34.)
Szymanski addressed all of Zarecki's comments. (ROR, Exhibit 148, 2/9/2006 transcript, p. 30-46.) Another illustrative discussion occurred over Zarecki's comment 10 (ROR, Exhibit 27), concerning typical driveway profiles and a typical driveway cross-section. (ROR, Exhibit 27.) Szymanski stated: "In regards to providing driveway profiles, we would prefer not to provide them at this point, just because this plan is to demonstrate suitability for subdivision to show that we can have a house with a number of bedrooms located on the property with a septic system and a driveway that can comply to the — to the requirements. We feel that the driveways as shown with the grading now shown conform to the driveway ordinance and to the subdivision regulations." (ROR, Exhibit 148, 2/9/2006 transcript. p. 39.) On behalf of the intervenors, Goodin made his opinion clear: "[The issues regarding the roadway] are required by the regulations." (ROR, Exhibit 148, 2/9/2006 transcript, p. 56.) Again, especially in a situation where experts are offering conflicting testimony regarding an application's compliance with various regulations, the Commission has the authority and discretion to find one expert's interpretation more credible. See Samperi v. Inland Wetlands Agency, supra, 226 Conn. 597. Thus, the Commission was well within its rights to credit Szymanski's characterization of the issues more than Goodin's. Overall, the testimony and documentation presented to the Commission provided substantial evidence for it to find that the plan complied with subdivision regulations.
There was also substantial evidence to conclude that the application met the SESC. During the hearing, Szymanski discussed and addressed each of Zarecki's SESC comments. (ROR, Exhibit 148, 2/9/2006 transcript, p. 172-83.) Over the course of this discussion, it was clear Szymanski believed that the revised February 9th plan complied with the SESC. For instance, "a modified rip-rap of 6 inch stone" was added to comply with Zarecki's comment that "Water bars must be directed to a stable outlet." (ROR, Exhibit 148, 2/9/2006 transcript, p. 176.) The plan was revised in accordance with Zarecki's comment that "[h]ay bales are not to be placed within watercourse." (ROR, Exhibit 27; Exhibit 148, 2/9/2006 transcript, p. 177.) Much of Zarecki's requests were simply for more information, such as: "It would appear that runoff would follow the fill section from approximately station 14+50 down 5+00. What will happen to this channelized flow?" (ROR, Exhibit 27.) The revised plan and Szymanski's report to the Commission provided this elaboration. (ROR, Exhibit 148, 2/9/2006 transcript, p. 181.) Again, it was within the Commission's discretion to credit Szymanski's testimony as being valid. See Samperi v. Inland Wetlands Agency, supra, 226 Conn. 597. Thus, substantial evidence existed on the record to find that the plan complied with the SESC regulations.
Plaintiff's last major contention is that substantial evidence did not exist on the record for the Commission to conclude that the application would not unreasonably pollute, impair or destroy the public trust in the air, water or other natural resources of the state. Plaintiff notes that the conservation commission had "serious concerns" about this. (ROR, Exhibit 57.) As discussed above, however, this opinion is only advisory. Furthermore, the conservation commission did not render any report definitively stating that there were or were not endangered species on Chapel Hill's property. (ROR, Exhibit 57.) In addition, ecologist Jody Chase submitted a report stating: "The Connecticut Department of Environmental Protection natural diversity database indicates northern slimy salamander habitat is present in the vicinity of the site." (Emphasis added.) (ROR 91, p. 5.) Being in the vicinity, however, is not the same as being located on the site of the subdivision.
At the public hearing on February 9, 2006, Dr. Ronald W. Abrams, a certified environmental professional with a PhD in ecology and a Masters Degree in Biology, informed the Commission that the northern slimy salamander is "not an endangered species." (ROR 148, 2/9/2006 transcript, p. 244.) He further informed the conservation commission that he did perform a wildlife habitat assessment, and based upon his site visits to the property, he did not believe that the salamander was present on the Chapel Hill site. (ROR, 2/9/2006 transcript, pp. 244-45.) When he visited the site in the fall, "looking . . . in particular [for] the slimy salamander," he did not find any. (ROR, Exhibit 148, 2/9/2006 transcript, pp. 202-03.) He acknowledged that looking in the springtime was preferable. Dr. Abrams further testified, however, that, based on a habitat assessment he conducted involving the age of the forest in the area, much of it "is not going to be very good habitat for the slimy salamander . . ." (ROR, Exhibit 148, 2/9/2006 transcript, p. 204.) The Commission was free to exercise its authority to credit the testimony of Dr. Abrams above any other testimony presented on the issue of whether there was an endangered species on the site. See Samperi v. Inland Wetlands Agency, 226 Conn. 597.
Also of note is that the Sherman Inland Wetlands Commission approved the subdivision application. (ROR, Exhibit 26.) In making its determination, an inland wetlands commission must consider, "[t]he environmental impact of the proposed regulated activity on wetlands or watercourses . . ." General Statutes § 22a-41(a)(1). The inland wetlands commission's determination is more limited than the environmental inquiry before the planning and zoning commission. Specifically, the inland wetlands commission can only consider the effect of the application on the wetlands and watercourses and cannot consider the "impact on wildlife dependent on the wetlands." Toll Bros., Inc. v. Inland Wetlands Commission, 101 Conn.App. 597, 602, 922 A.2d 268 (2007). In their "approval with conditions," the inland wetlands commission stated: "The Commission finds that with proper management and construction practices that the proposed activities will not have a significant adverse impact of polluting, impairing, or destroying the public trust in air, water, or other natural resources of the Town of Sherman or the State of Connecticut." (ROR, Exhibit 26.) Given that its approval is based on an analysis of the physical environment of the wetlands involved therein, this provides further support for the conclusion that the planning and zoning commission had substantial evidence available on the record to conclude that the subdivision did not pollute, impair, or destroy the environment.
CT Page 1112
V ILLEGAL CONDITIONS
The plaintiffs argue that the Commission imposed illegal conditions on the subdivision approval. They rely on Carpenter v. Planning Zoning Commission, 176 Conn. 581, 592, 409 A.2d 1029 (1979), for the proposition that "[n]othing in the subdivision approval statute, § 8-26, allows for the imposition of conditions upon the planning commission's approval of a subdivision plan; the statute merely provides for the commission to `approve, modify and approve, or disapprove' a subdivision application." In that case, however, the court went on to elaborate: "[W]here a commission makes the approval of a plan of subdivision subject to a condition, the fulfillment of which is within the control of neither the commission nor the applicant, such as approval by a coordinate municipal agency, the commission has `failed to act' within the intendment of General Statutes §§ 8-26 and 8-28, unless the coordinate agency approval appears to be a reasonable probability." Carpenter v. Planning Zoning Commission, supra, 176 Conn. 592-93. This language clearly implies that there are circumstances under which conditions are permissible. As the Supreme Court later noted in discussing this language: "In light of our ultimate conclusion in Carpenter that a planning and zoning commission has authority to impose a condition on a subdivision approval if the fulfillment of that condition is a reasonable probability, it is clear that we did not intend this language to suggest that the commission has no authority to impose conditions on a subdivision approval." (Emphasis in original.) River Bend Associates, Inc. v. Planning Commission, supra, 271 Conn. 56 n. 14.The plaintiffs contend that the third condition is illegal. This condition states: "A study shall be done by an appropriately licensed professional to ascertain the presence or absence of endangered species, and this study shall be made available to the state Department of Environmental Protection as part of the required DEP review of the application prior to the start of any development." (ROR, Exhibit 116.) While the plaintiffs object to this condition, it must be viewed in light of the fact that the Commission, in ordering the study, retains control of it. Simply making it available to the department of environmental protection does not mean the Commission relinquishes its control of it. The plaintiffs' real contentions with this condition are that the Commission's ordering of this study indicates that it did not have substantial evidence before it to approve the subdivision and that requiring the study was a violation of due process. As discussed above, there is substantial evidence in the record to support the Commission's conclusion that the application conformed with the regulations and did not unreasonably pollute, impair or destroy the public trust in the air, water or other natural resources of the state.
The plaintiffs argue that the fourth condition is illegal. It provides that: "The following note shall be placed on the mylar[:] All lots shall be developed such that there is no increase in runoff from the lots, considering driveway, house, septic system, lawn area, any other ancillary structures, and any clearing of vegetation, and no channeling of the existing runoff that would concentrate flow or increase erosion." (ROR, Exhibit 116.) The plaintiffs only reference this argument in a footnote. Brief of Plaintiffs, p. 25, n. 7. Essentially, they argue that this condition could potentially result in the redesign of the stormwater system, the SESC plans, the road orientation, and after the corresponding wetlands impact. However, it is easily within the control of the applicant and the Commission to require the placement of such a note on the mylar.
Furthermore, as to the fifth condition, it ensures that the stormwater management plan will be executed as planned and that the Commission will retain control over it.
See footnote 6 supra.
The due process analysis of the conditions will be conducted under section VI of this opinion.
VI DUE PROCESS
The plaintiffs argue that the Commission violated their due process rights in two ways: first by the Commission's acceptance of applicant's revised subdivision plan during the final public hearing and, second, by the Commission's approving the subdivision plan with a condition that a wildlife study be completed subsequently which would result in the public having no opportunity to comment on the outcome of the study.
"[W]e have recognized a common-law right to fundamental fairness in administrative hearings . . . The only requirement [in administrative proceedings] is that the conduct of the hearing shall not violate the fundamentals of natural justice . . . Fundamentals of natural justice require that there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary . . . Put differently, [d]ue process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act . . . and to offer rebuttal evidence . . . The purpose of administrative notice requirements is to allow parties to prepare intelligently for the hearing." (Citations omitted; internal quotation marks omitted.) Grimes v. Conservation Commission, 243 Conn. 266, 273-74, 703 A.2d 101 (1997).
As noted above, the record reveals that the applicant submitted a revised plan during the February 9, 2006 public hearing. (ROR, Exhibit 148, 2/9/2007 transcript.) The Commission, the applicant, and the plaintiffs then undertook a five-hour discussion of this revised plan. (ROR, Exhibit 148, 2/9/2007 transcript.) The subdivision had been the subject of two other Commission meetings. (ROR, Exhibit 126, 11/16/2005 transcript; Exhibit 127, 1/12/2006 transcript.) The issues surrounding the plan had been discussed extensively before that final meeting. (ROR, Exhibit 126, 11/16/2005 transcript; Exhibit 127, 1/12/2006 transcript.) The revisions to the plan over the course of the public hearings were based largely on the extensive review the application had already undergone. The specific changes to the February 9th revisions were primarily a result of the February 2, 2007 comments of town engineer Zarecki. (ROR, Exhibit 27; Exhibit 148, 2/9/2007 transcript, p. 7.) The plaintiff concedes as much in discussing the revisions to the stormwater management plans: "Many of the revisions were directly responsive to the concerns articulated by Goodin, Commission members, the Commission's engineer, and members of the public. [(ROR, Exhibit 61.)]" Brief of the Plaintiff, p. 11.
Furthermore, changes to an application are a normal part of the hearing process. As plaintiffs note in their brief, "it is contemplated that changes may occur to a proposal during the course of a public hearing." Brief of Plaintiffs, 19 n. 4. The Appellate Court has confirmed the veracity of plaintiffs' statement: "[T]he hearing process involved various changes in and refinements of the plan as it was originally proposed. Such changes are a common result of a land use commission's deliberations . . ." (Citations omitted.) Woodburn v. Conservation Commission, supra, 37 Conn.App. 174. While it would have been desirable for the revised plan to have been submitted prior to the final public hearing, the record demonstrates that the plaintiffs were nonetheless given due notice of the hearing, produced relevant evidence at the hearing, and were fairly apprised of the relevant facts. Ultimately, the right to fundamental fairness in administrative proceedings is not the same as constitutional due process. See Grimes v. Conservation Commission, supra, 243 Conn. 273 n. 11 ("this common law right [to fundamental fairness in administrative proceedings] is not coextensive with constitutional due process"). "There is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission . . . Even if that presumption concerning the proceedings is rebutted, however, not all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown." (Citations omitted; internal quotation marks omitted.) Murach v. Planning Zoning Commission, 196 Conn. 192, 205, 491 A.24 1058 (1985). While it is not clear that presumption of regularity was rebutted here, the plaintiffs were nonetheless not prejudiced by the Commission's acceptance of an application that had addressed comments by the town engineer, the public, and the plaintiffs themselves in order to conform to the subdivision regulations. Thus, the Commission's acceptance of the revised plan on February 9th was not a violation of administrative due process.
The plaintiffs also claim that the Commission, by conditioning its approval on an endangered species study, violated their right to be fairly appraised of the relevant facts. In support of this argument, the plaintiffs rely on Gustafson v. East Haven Inland Wetlands and Watercourses Commission, Superior Court, judicial district of New Haven, Docket No. 03 0476072 (June 2, 2004, Devlin, J.) ( 37 Conn. L. Rptr. 189), in which the court held that "[a]llowing a contested issue at the hearing . . . to be resolved by the preparation of a report to be done after the application was approved and without an opportunity for the plaintiffs to be heard, is not consistent with . . . due process . . ." Id., 190. These same plaintiffs made a similar argument in their appeal from the approval of the Sherman Inland Wetlands and Watercourses Commission for the same property. Grossnickle v. Inland Wetlands and Watercourses Commission, Superior Court, judicial district of Danbury, Docket No. CV 06 4005519 (August 27, 2007, Thim, J). This case is distinguishable for much the same reasons as those articulated by Judge Thim: "The present case is distinguishable from Gustafson where the trial court found the proceedings deficient because the public was unable to respond to an `ambiguous' report of the applicant's expert that was submitted after the application was approved." Grossnickle v. Inland Wetlands and Watercourses Commission, supra, Superior Court, Docket No. CV 06 4005519. Here, the Commission was not dealing with an ambiguous report, but rather, a report that was to be made a condition of the approval. Moreover, specific information about the possibility of the presence of an endangered species was presented to the Commission during the hearing, the plaintiffs were aware of substantial evidence on that issue and were given ample opportunity to address that evidence. (ROR, Exhibit 13, 11/16/2005 minutes; Exhibit 9, 1/12/2006 minutes; Exhibit 7, 2/9/2006 minutes; Exhibit 126, 11/16/2005 transcript; Exhibit 127, 1/12/2006 transcript; Exhibit 148, 2/9/2006 transcript.) See also, section IV, B of this opinion, supra.
Judge Thim's reasoning is also relevant here. He emphasized that:
The Supreme Court previously rejected an argument similar to that which the plaintiffs offer in the present case. In Gardiner v. Conservation Commission, 222 Conn. 98, 608 A.2d 672 (1992), the plaintiff appealed the approval of an application to develop an industrial park, the construction of which would impact certain wetlands and watercourses. Id., 101. Similar to the present case, the approval in Gardiner was subject to twenty-nine conditions, including a requirement that the applicant submit engineering calculations for two detention basins, in order to allow the town engineer to review their structural integrity. Id., 101-02. As in the present case, the Gardiner plaintiff argued that the information required to be submitted as a result of the conditions constituted data that should have been provided at the outset before the commission could render any decisions at all. Id., 102 . . .
[T]he court went on to describe the condition requiring additional engineering calculations as "merely an implementation of a previous request for the same information." Gardiner v. Conservation Commission, supra, 222 Conn. 106. In response to the plaintiff's argument that the post-decision data will not be subjected to adequate public review, the court speculated: "Presumably [the plaintiffs would raise no such complaint if the commission had simply approved [the] application without imposing the four conditions he challenges, despite the additional protection of the public interest they would afford. To adopt [the plaintiffs'] view would inhibit [the commission from] imposing such conditions as it deemed necessary to safeguard against the risk of pollution in the light of concerns raised during its deliberations." Id. The same may be said of the commission's actions in the present case."
CT Page 1117 Grossnickle v. Inland Wetlands and Watercourses Commission, supra, Superior Court, Docket No. CV 06 4005519, citing Gardiner v. Conservation Commission, supra, 222 Conn. 106.
Similarly, in this case, so long as there was substantial evidence on the record to support the decision, a condition requiring a study to confirm the presence or absence of an endangered species as one additional safety measure is lawful, and does not undermine the validity of the approval.
VII CONCLUSION
The Commission's approval of the subdivision application was supported by substantial evidence on the record, did not contain any illegal conditions, and did not violate the plaintiffs' due process rights. The decision of the Commission cannot be said, based on the record before this court, to have been arbitrary, illegal, capricious or an abuse of discretion. Accordingly, the appeal is dismissed.