Opinion
No. 124625
September 14, 2004
MEMORANDUM OF DECISION
The plaintiffs, Groton Open Space Association, Inc. (Groton Open Space), Edith Fairgrieve, Joan Smith, James Furlong, Edward Kolnaski, Robert McCarty, John Sutphen, Eunice Sutphen and Bernice Palmer appeal from the decision of the defendant, the planning commission of the town of Groton (the commission), approving the application of the defendant MacPherson-Johnston Corporation (MacPherson-Johnston) for development of a forty-eight lot residential subdivision on approximately seventy-six acres of land owned by the defendant F.L. Merritt, Inc. (Merritt). The plaintiffs bring this appeal pursuant to General Statutes §§ 8-8 and 8-28.
BACKGROUND
On August 9, 2001, MacPherson-Johnston and Merritt filed an application with the commission for approval of a fifty-two lot subdivision, to be known as Mystic Estates Subdivision, on Route One in Groton. (Return of Record [ROR], Item 1.) The subject property is located in an RS-20 zoning district, which requires lots to be a minimum of 20,000 square feet. The terrain is sloping, primarily wooded, traversed by an unnamed stream tributary and contains a vernal pool. (ROR, Item 58, p. 3.) The proposed subdivision received an inland wetland permit on May 23, 2001. (ROR, Item 22.) The original plan, however, was revised from seventy-nine lots to fifty-two lots based upon the denial of a connector road. (ROR, Item 5.) The revised proposal was comprised of two separate development areas. The proposed western node consisted of twenty-four lots around a P-shaped road and the proposed eastern node consisted of twenty-eight lots on a Y-shaped road system; both areas were to be accessed via roadway intersections with Route 1. (ROR, Item 9, p. 1; Item 111.) Public hearings on the application were held on October 23, 2001, November 13, 2001, December 11, 2001 and December 17, 2001. The plaintiffs, Furlong, Palmer, Fairgrieve, Smith, Kolnaski, McCarty and Groton Open Space filed verified notices of intervention with the commission pursuant to General Statutes § 22a-19. (ROR, Items 17, 20, 33.) On February 19, 2002, the commission approved the subdivision subject to numerous modifications, including reduction of the overall number of lots to forty-eight. (ROR, Item 115.) Pursuant to General Statutes § 8-28, notice of the commission's decision was duly published in The Day, a daily New London newspaper, on February 23, 2002. (ROR, Item 116.)
General Statutes § 22a-19(a) provides in relevant part: "In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law . . . any person . . . corporation, association, organization or other legal entity 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."
General Statutes § 8-28 provides in relevant part: "Notice of all official actions or decisions of a planning commission . . . shall be published in a newspaper having a substantial circulation in the municipality within fifteen days after such action or decision . . ."
On March 8, 2002, the plaintiffs timely commenced the present appeal by service of process on Groton's town clerk and the commission's chairperson. (Marshal's Return.) In addition, the plaintiffs served Merritt and MacPherson-Johnston via registered mail. As grounds for the appeal, the plaintiffs allege that the commission acted illegally, arbitrarily and in abuse of its discretion in the following ways: (1) it granted approval to an entity, MacPherson-Johnston, whose corporate certificate had been revoked; (2) it did not have authority to allow the defendants to reconfigure the proposed subdivision without its further review; (3) it impermissibly delegated its authority; (4) it approved a plan that did not meet the town's subdivision regulations; and (5) it failed to consider any alternatives before concluding that the proposed subdivision would not adversely affect the environment. Subsequently, the parties filed briefs. The court heard the appeal on May 20, 2004.
The court notes that in its brief, the commission only addresses the plaintiffs' third and fourth enumerated grounds for appeal and adopts the remaining arguments of its codefendant.
JURISDICTION
"There is no absolute right of appeal to the courts from a decision of an administrative agency . . . Appeals to the court from administrative [agencies] exist only under statutory authority . . . Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed . . . In the absence of statutory authority, therefore, there is no right of appeal from a planning commission's decision . . ." (Internal quotation marks omitted.) Nine State Street, LLC v. Planning Zoning Commission, 270 Conn. 42, 46, 850 A.2d 1032 (2004). General Statutes § 8-8 governs an appeal from a decision by a municipality's zoning authority. Ensign-Bickford Realty Corp. v. Zoning Commission, 245 Conn. 257, 263, 715 A.2d 701 (1998).
General Statutes § 8-8(b) provides in relevant part: "[A]ny person aggrieved by any decision of a board may take an appeal to the superior court . . ."
General Statutes § 8-8(a)(2) provides in relevant part: "'Board' means a . . . planning commission . . ."
Aggrievement
"It is well settled that [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.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). "Two broad yet distinct categories of aggrievement exist, classical and statutory." Lewis v. Planning Zoning Commission, 62 Conn.App. 284, 288, 771 A.2d 167 (2001). "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.) Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 129, 836 A.2d 144 (2003).
A "plaintiff can demonstrate statutory aggrievement pursuant to [§]8-8(a)(1) if she can demonstrate that her property abuts or is within 100 feet of any portion of the land involved in the decision of the commission." (Internal quotation marks omitted.) McNally v. Zoning Commission, 225 Conn. 1, 7, 621 A.2d 279 (1993). Our Supreme Court has also recognized that General Statutes § 22a-19(a) grants statutory standing to appeal an agency's decision in a matter regarding environmental issues. See Mystic Marine Life Aquarium, Inc. v. Gill, 175 Conn. 483, 499, 400 A.2d 726 (1978). "General Statutes [§]22a-19(a) is part of the Environmental Protection Act (EPA). General Statutes 22a-14 et seq. The purpose of the EPA is to give private citizens a voice in ensuring that the air, water and other natural resources of the state remain protected, preserved and enhanced, and to provide them with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction . . . By permitting intervention under [§]22a-19(a), the EPA allows private persons to intervene in an existing judicial review of an agency action or to initiate an independent declaratory or injunctive action." (Citations omitted; internal quotation marks omitted.) Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 715, 563 A.2d 1339 (1989). "It is clear that one basic purpose of the act is to give persons standing to bring actions to protect the environment." (Internal quotation marks omitted.) Nizzardo v. State Traffic Commission, 259 Conn. 131, 183, 788 A.2d 1158 (2002).
In the present matter, John Sutphen and Eunice Sutphen allege that they are aggrieved because their real property abuts the proposed subdivision. In support, they offer a certified copy of their deed. (Plaintiffs' Exhibit 9.) Likewise, Palmer also alleges that she is aggrieved as an owner of an abutting parcel. She too offers a certified copy of her deed in support. (Plaintiffs' Exhibit 12.) Accordingly, the court finds that the Sutphens and Palmer have successfully demonstrated aggrievement pursuant to General Statutes § 8-8(a)(1). Additionally, because the plaintiffs, Furlong, Fairgrieve, Smith, Kolnaski, McCarty and Groton Open Space properly filed a notice of intervention pursuant to General Statutes § 22a-19(a) in the form of a verified pleading, they have standing to appeal the commission's approval of the application of MacPherson-Johnston and Merritt limited to associated environmental issues.
Although Palmer also filed a verified notice of intervention; (ROR, Item 17); she is not included here because it has been proven already that she was statutorily aggrieved pursuant to General Statutes § 8-8(a)(1).
Timeliness and Service of Process
"It is well established that within the context of administrative appeals, defects in service of process deny the court subject matter jurisdiction over the appeal." Gadbois v. Planning Commission, 257 Conn. 604, 607, 778 A.2d 896 (2001). General Statutes § 8-8(b) provides, in relevant 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." Subsection (f) further provides that "[s]ervice of legal process for an appeal . . . shall be directed to a proper officer and shall be made 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 record contains a certificate of publication attesting that notice of the commission's decision was published on February 23, 2002 in The Day pursuant to General Statutes § 8-28. Oh March 8, 2002, this appeal was commenced by service of process on Robin Cedio, assistant town clerk of Groton, authorized to take service in the town clerk's absence, and by leaving a true and attested copy at the usual place of abode of James Sherrard, chairperson of the commission. Accordingly, the appeal was commenced in a timely manner upon the proper parties.
SCOPE OF REVIEW
"In the context of review of subdivision applications, proceedings 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." (Citation omitted; internal quotation marks omitted.) Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 696-97, 628 A.2d 1277 (1993). "The Superior Court's scope of review is limited to determining only whether the [commission's] actions were unreasonable, arbitrary or illegal." RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "[T]he scope of review requires the appealing aggrieved party to marshal the evidence in the record, and to establish that the decision was not reasonably supported by the record . . ." (Internal quotation marks omitted.) JPI Partners, LLC v. Planning Zoning Board, 259 Conn. 675, 688, 791 A.2d 552 (2002). "If a trial court finds that there is substantial evidence to support a [commission's] findings, it cannot substitute its judgment for that of the [commission] . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citation omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004).
DISCUSSION
As a threshold issue, the defendants argue that to the extent that the intervenors are appealing issues unrelated to the environmental concerns addressed in their respective petitions of intervention they do not have standing. Our Supreme Court has held that "one of the basic purposes of the EPA is to give persons standing to bring actions to protect the environment and standing is conferred only to protect the natural resources of the state from pollution or destruction." Mystic Marine Life Aquarium, Inc. v. Gill, supra, 175 Conn. 499. Accordingly, the intervenors have statutory standing to appeal from the commission's decision for only that limited purpose. To the extent that the plaintiffs collectively argue issues other than environmental ones, standing is confined to those plaintiffs statutorily aggrieved under General Statutes § 8-8(a).
As previously noted, the plaintiffs challenge the commission's approval of the proposed subdivision on several grounds. First, they allege that the commission acted illegally, arbitrarily and in abuse of its discretion in acting upon the subdivision application inasmuch as MacPherson-Johnston was a nonexistent corporate entity when it filed the subject application and throughout the hearing period. The plaintiffs argue that Rhode Island, the state in which MacPherson-Johnston incorporated, revoked MacPherson-Johnston's corporate certificate on November 20, 2000. In support, they offer a certified copy of the certificate of revocation dated July 18, 2003. They also argue that a dissolved corporation may only conduct business if it qualifies as a de facto corporation and that MacPherson-Johnston does not qualify as such because it has failed to make a good-faith effort to reinstate itself. Furthermore, the plaintiffs argue that since filing the present appeal, they have learned that MacPherson-Johnston assigned its rights in the purchase contract to a partnership comprised of some of its shareholders prior to filing the subdivision application. (Defendants' Exhibit 3.) Consequently, the plaintiffs contend that MacPherson-Johnston had no legal interest in the property at the time it filed the application and, thus, no standing to do so.
Subsequent to filing the subject application, Paul MacPherson, a partner in the partnership, sold his entire partnership interest (50% of the partnership), including his interest in the assigned Merritt agreement, as evidenced by copies of the agreement for sale and the bill of sale to Talyn, LLC filed with the court on June 1, 2004.
The defendants counter that as a Rhode Island corporation, MacPherson-Johnston's corporate status is controlled by the laws of that state. Although MacPherson-Johnston acknowledges that its certificate of incorporation was administratively revoked by Rhode Island's secretary of state under Rhode Island General Laws §§ 7-1.1-87 and 7-1.1-88, the defendants argue, however, that under § 7-1.1-88.1 the revocation was undone and Macpherson-Johnston's corporate existence was reinstated. In support, Macpherson-Johnston offers a certified copy of its certificate of good standing dated February 16, 2004. (Defendants' Exhibit 1.) The defendants argue, therefore, based on the statutory provision, it was as if MacPherson-Johnston was in good standing and was a properly authorized corporation at the time it submitted the subject application through the present day. Consequently, the defendants argue, the application was properly before the commission. Additionally, the defendants counter that whether MacPherson-Johnston had agreed to assign its financial interest in the subject property, conditional upon receipt of final subdivision approval, is irrelevant because it had the legal right to do so and, furthermore, Merritt, as owner, signed the application as well. The defendants argue that the question of rights to the Merritt property is presently pending before the court in a related matter and, therefore, it is not properly at issue here.
Rhode Island General Laws § 7-1.1-88.1 was repealed effective July 2, 2004. It was replaced by § 7-1.2-1312 which provides in relevant part: "(a) Within ten (10) years after issuing a certificate of revocation as provided in Section 7-1.2-1311, the secretary of state may withdraw the certificate of revocation and retroactively reinstate the corporation in good standing as if its articles of incorporation had not been revoked . . ."
Because MacPherson-Johnston was organized under Rhode Island law, Rhode Island law controls its corporate existence. Accordingly, because Rhode Island General Laws § 7-1.2-1312 provides for withdrawal of a certificate of revocation and retroactive reinstatement of a corporation and MacPherson-Johnston has provided evidence that under this statute it has been returned to good standing, the court finds the plaintiffs' argument that MacPherson-Johnston was a nonentity at the time the application was filed to be without merit. Consequently, it need not reach the issue of whether MacPherson-Johnston was a de facto corporation in order to determine whether it had standing to file the subdivision application inasmuch as it was a properly organized corporation in good standing.
The certified copy of Groton's subdivision regulations provided to the court reveals that § 2.3(1) governs subdivision application procedures and requirements. This section does not specify that the applicant be a person or entity with a legal interest in the subject property. Furthermore, § 3.1(2)(f) merely requires that the final plan show "[t]he name of the owner or owners of land to be subdivided and the name of the subdivider if other than the owner." Additionally, "[w]here zoning ordinances have not specifically required owners to apply or to authorize the application, [our Supreme Court] has sustained the issuance of permits to persons who were not owners but who did have substantial interests in the property." Richards v. Planning Zoning Commission, 170 Conn. 318, 321-22, 365 A.2d 1130 (1976).
Section 2.3(1) of Groton's subdivision regulations provides:
Application Procedure and Requirements — The application shall:
a) Be made on forms available at the Planning Department together with required fees.
b) Include all the information required in Section 3 of these regulations.
c) Be accompanied by evidence of submission of application with the necessary plans and data for a permit to the Connecticut Department of Transportation, where a proposed street or highway joins a state highway or drainage system.
The application at issue in Richards concerned a variance and not a subdivision. The Appellate Court, however, relied on Richards in deciding D.S. Associates v. Planning Zoning Commission, 27 Conn.App. 508, 512, 607 A.2d 455 (1992). In that case, in which a subdivision application was at issue, the court held that because "[t]he zoning regulations did specifically require the property owner or its agent to apply for subdivision approval," it was irrelevant whether the applicant had a substantial interest in the subject property. Id. In the present case, however, Groton's zoning regulations do not specifically require the property owner or its agent to apply for subdivision approval, but the owner, Merritt, did sign the application, thus indicating its consent. Consequently, it is unnecessary to determine whether MacPherson-Johnston had a substantial interest in the property. The court, therefore, finds that the subdivision application was properly filed and the commission did not act illegally, arbitrarily or in abuse of its discretion when it acted upon the application.
The court notes that the subdivision application was signed by William B. Bentley as agent for MacPherson-Johnston. Bentley is also a member of Talyn, LLC, the purchaser of the 50% partnership interest of the assignee of the MacPherson-Johnston contract as evidenced by the agreement for the sale of the partnership interest.
The plaintiffs next argue that the commission impermissibly delegated its authority when it conditioned approval on reducing the number of lots in the eastern node of the proposed subdivision from twenty-eight to twenty-four without any further review by either the commission or the public. They contend that this violates the general principle that a land use agency cannot delegate its decision making power inasmuch as the commission did not identify which four lots are to be eliminated or reconfigured and has left it up to the applicant to decide. The plaintiffs rely on Shailer v. Planning Zoning Commission, 26 Conn.App. 17, 596 A.2d 1336 (1991), to support their contention that the commission's statutory power to approve a subdivision of land cannot be delegated. Furthermore, the plaintiffs point out that several of the lots are required to have either conservation easements or soil control plans and question what would happen should any of these lots be eliminated or reconfigured.
The notice of approval from the commission to the applicant's agent Bentley, states in relevant part: "To approve the plan for Mystic Estates Subdivision, Route 1, with the following modifications and attached findings . . . 15. The number of lots in the eastern node shall be reduced to 24 lots in accordance with Section 4.3(1)(c)(i) of the Subdivision Regulations."
Section 4.3(1)(c)(i) of the town's subdivision regulations provides: "All subdivisions shall have frontage on and vehicular access from an existing Town accepted street, state highway, or street shown on a plan approved by the Planning Commission and recorded in the Land Records of the Town of Groton. In subdivisions containing 25 or more lots, the Commission may require that the development be accessible from two directions."
The defendants counter that the plaintiffs are generally mistaken in their classification of the approval as a delegation of authority. Rather, they contend, the approval incorporates only modifications to the original application. The defendants note that General Statutes § 8-26 authorizes a commission to "modify and approve" a subdivision application. Additionally, they argue that the plaintiffs' focus on the process of reconfiguring the lots is irrelevant and their reliance on Shailer is misplaced inasmuch as that case affirmed the trial court's holding that the final subdivision plan must ultimately be reviewed and approved by the commission. The defendants also contend that the commission's decision to reduce the overall number of lots in the eastern node is not arbitrary, illegal or unreasonable because the modification relates to requirements imposed by § 4.3(1)(c)(i) and, therefore, it is rationally related to the public health, safety and welfare. Accordingly, they conclude that because the record supports the reduction in the number of lots in order to address traffic safety concerns, it is not an impermissible delegation of authority inasmuch as the final plan will be approved by the commission in accordance with General Statutes § 8-25 and § 1.4(2) of the town's regulations.
In Shailer, the Appellate Court affirmed the trial court's decision that the commission did not impermissibly delegate its statutory authority by requiring a town engineer to first approve a subdivision because the commission retained final approval and the condition was imposed on the plaintiff in an effort to ensure the development's safety. See Shailer v. Planning Zoning Commission, supra, 26 Conn.App. 17, 27-29. "General Statutes [§]8-25 and [§]8-26 are all inclusive statutes regulating the subdivision of land and the procedures for seeking subdivision approval." Thoma v. Planning Zoning Commission, 31 Conn.App. 643, 647, 626 A.2d 809 (1993), aff'd, 229 Conn. 325, 640 A.2d 1006 (1994). General Statutes § 8-25 provides in relevant part: "(a) No subdivision of land shall be made until a plan for such subdivision has been approved by the commission . . . No such plan shall be recorded or filed by the town clerk . . . until its approval has been endorsed thereon by the chairman or secretary of the commission, and the filing or recording of a subdivision plan without such approval shall be void . . ." In addition to entrusting the commission with the authority to either approve or disapprove any subdivision or resubdivision application, General Statutes § 8-26 "authorizes a planning and zoning commission to 'modify and approve' a subdivision application, but does not define the scope of the term 'modify.' It is well established, however, that [i]n exercising its function of approving or disapproving a subdivision plan, the [commission] acts in an administrative capacity. In passing upon a plan, its action is controlled by the regulations adopted for its guidance." (Internal quotation marks omitted.) Timber Trails Corp. v. Planning Zoning Commission, 222 Conn. 380, 387, 610 A.2d 620 (1992). Section 1.4(2) of Groton's regulations prohibits the subdivision of land until the subdivider or his agent does the following: "(a) . . . submit[s] an application and necessary supporting data to the Planning Commission; (b) [o]btain[s] approval of the plan by the Planning Commission; and (c) [f]ile[s] the approved plan with the Town Clerk." In addition, § 1.2(1) of the regulations states that the regulations serve "[t]o protect and provide for the public health, safety and general welfare of the Town."
In the present matter, reduction of the overall number of lots in the eastern node of the proposed development bears a rational relationship to health, safety and public welfare considerations regarding prospective traffic needs. Section 4.3(1)(c)(i) of Groton's regulations enables the commission to require access from two directions if the development exceeds twenty-four units. Consequently, because the eastern node of the proposed development has only one road designated for both ingress and egress, the modified number of approved lots reflects the commission's concern regarding the effects of increased traffic likely to be generated by four additional units.
Although the requirement to reduce the number of lots is rationally related to a safety issue, the remaining process to secure final approval is unclear in the commission's notification to the applicant dated February 20, 2002. Groton's subdivision regulation § 3.1(2)(d), however, requires the final plan to show "[t]he locations, dimensions, areas, and numbers of all proposed or existing lots." To the extent existing plan does not include these specifications for the forty-eight reconfigured lots, it cannot be considered a "final" plan. Therefore, to be in statutory and regulatory compliance, as the defendants acknowledge, a revised plan needs to be submitted to the commission for final approval. Accordingly, the commission did not act illegally, arbitrarily or in abuse of its discretion by requiring the applicant to reconfigure and reduce the overall number of lots in the proposed subdivision.
In conclusion, the notice of approval states: "Since this subdivision was required to be redesigned from 52 lots to 48 lots, staff reserves the ability to provide other technical items once new design is submitted." (ROR, Item 115.)
The court next addresses the plaintiffs' claim that the commission impermissibly delegated numerous details and conditions of its approval to staff. The plaintiffs argue that despite the amount of time that was collectively spent on the present matter over the course of the four public hearings, the commission failed to sufficiently involve itself in the actual decision-making process regarding many of the conditions it imposed on the plan. Instead, they contend, the commission merely adopted those suggested by its staff. Additionally, the plaintiffs argue that neither the applicant nor the commission has any control over several of the requirements because they are dependent upon approval by another municipal agency, town official or professional and, furthermore, there is little or no evidence that the various approvals are likely to be granted.
The defendants counter that even a cursory review of the minutes of the several public hearings will reveal that the commission's level of interaction was appropriate. Furthermore, the defendants contend that based on the complexity of the application, the commission would have been remiss had it not relied on its professional staff for technical guidance. Additionally, the defendants argue that General Statutes § 8-26 expressly authorizes the commission to modify the subdivision plan and that is what it did. They argue further that whether a commission's action constitutes a modification rather than a condition depends on the nature of the action taken by the commission and not the name attached to it and, therefore, the plaintiffs' contention that the commission attached conditions is an inaccurate classification of the requirements. The defendants argue that because the commission's actions are merely permissible modifications under General Statutes § 8-26, the court need not address whether they are within the control of either the commission or the applicant.
A "commission, pursuant to General Statutes [§]8-26, is not required to hold a public hearing in every case regarding a subdivision proposal presented to it. The statutory requirement provides that the commission may hold such a hearing if, in its judgment, the specific circumstances require such action." Forest Construction Co. v. Planning Zoning Commission, 155 Conn. 669, 6674, 236 A.2d 917 (1967). To the extent that the commission held four public hearings on the subject application, it is apparent that the commission was sufficiently involved in the decision-making process and did not act impermissibly by enlisting the aide of its professional staff.
"[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." (Internal quotation marks omitted.) Timber Trails Corp. v. Planning Zoning Commission, CT Page 13751 222 Conn. 380, 389-90, 610 A.2d 620 (1992). "Nothing in the subdivision approval statute, § 8-26, allows for the imposition of conditions upon the . . . commission's approval of a subdivision plan . . ." Carpenter v. Planning Zoning Commission, 176 Conn. 581, 592, 409 A.2d 1029 (1979). Our Supreme Court has held, however, that a condition may be imposed upon a subdivision plan if it "bears a rational relationship to the subjects which fall fairly within the [commission's] police power . . ." Nicoli v. Planning Zoning Commission, 171 Conn. 89, 96 368 A.2d 24 (1976). On the other hand, if the requirement can be fulfilled by the applicant without any outside preliminary approval and within a reasonable time, it appears to be a permissible modification within the meaning of General Statutes § 8-26. See id. 391-93. Thus, "it is the nature of the underlying action taken by the planning commission that will determine its legality, not whether it is phrased in terms of a 'modification' or 'conditional approval.' " Moscowitz v. Planning Zoning Commission, 16 Conn.App. 303, 311, 547 A.2d 569 (1988).
In the present matter, the plaintiffs neither separately analyze the twenty-one requirements they claim the commission imposed upon its approval, nor offer any support for their bald claim that the requirements are improper conditions as opposed to permissible modifications. "Where an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived." Bridgeport Hospital v. Commission on Human Rights Opportunities, 232 Conn. 91, 115, 653 A.2d 782 (1995). Accordingly, the commission did not act illegally, arbitrarily or in abuse of its discretion by requiring that additional items be addressed by the applicant prior to final approval as long as they qualify as modifications, within the general understanding of that term, or conditions imposed within the scope of health and safety.
The court next turns to the plaintiffs' general claim that the commission approved a plan that failed to satisfy several of its own subdivision regulations and, therefore, it must be disapproved. Specifically, they identify the following four issues as violations of the regulations: 1. the commission did not establish the amount of the performance bond as required by § 5.1(2)(a); 2. the waiver of the requirement that the recreation area fronts a street, pursuant to § 4.9(4)(b) was impermissible because it was accomplished by the affirmative vote of only three members of the commission and not four as required by General Statutes § 8-26 and § 1.10(3) of the regulations; 3. no evidence was presented to the commission that an application had been submitted to the Connecticut department of transportation (DOT), as required by § 2.3(1)(c); and 4. both of the proposed roads exceed the dead-end road limitations expressed in § 4.3(1)(k). The plaintiffs contend that the first three enumerated examples of the commission's failure to follow its own regulations are self-explanatory based on the record.
MacPherson-Johnston argues that to the extent the plaintiffs have failed to brief issues one though three of this argument, the court should deem them abandoned. The defendants contend, however, if the court should consider their merits, the plaintiffs' claim that the commission failed to establish the amount of the performance bond as required by § 5.1(2)(a) is irrelevant inasmuch as setting a performance bond is essentially an administrative and technical matter. Furthermore, they contend, until all the modifications are incorporated into the final plan, it is impossible to calculate a reliable estimate for the bond. The defendants also contend that the plaintiffs' claim of error regarding the commission's alleged waiver of the dimensional requirements of the recreation area is inaccurate because § 4.9(4)(b) allows approval of the application by a majority vote, which in this case is three of the five members. They also respond that MacPherson-Johnston did submit the required application and information to the DOT on August 15, 2000, as required by § 2.3(1)(c).
First, the court addresses the plaintiffs' contention that the commission improperly failed to set a performance bond. General Statutes § 8-25 provides in relevant part that "the commission may accept a bond in an amount and with surety and conditions satisfactory to it . . ." Section 5.1(2)(a) of Groton's subdivision regulations merely requires the applicant to post the performance bond "prior to the time of filing the subdivision plan in the Land Records in an amount estimated by the Commission." Insofar as the applicant has not yet filed the final plan on the land records, it is not in violation of either the statute or the regulation. Additionally, common sense dictates that until the modification and/or conditions are incorporated into the final plan, it is unrealistic to expect the commission to set a reasonable performance bond.
The plaintiffs' claim that the commission waived of § 4.9(4)(b) of the regulations, which controls parks, playgrounds and public area reservations, is without merit. Although General Statutes § CT Page 13753 8-26 and regulation § 1.10(3) both require a super majority vote of all commission members in order to effectuate a waiver, § 1.10(3) also provides that "[a] petition for any such waiver shall be submitted in writing by the subdivider at the time when the subdivision plan is filed for the consideration of the Planning Commission." The record reveals that when the applicant submitted the subdivision plan, no waivers were noted. (ROR, Item 1.) Consequently, the plaintiffs' reliance on § 1.10(3) and General Statutes § 8-26 is misplaced inasmuch as the requirements imposed on the play area are not waivers. Furthermore, § 4.9(4)(b) permits the commission to specifically approve playgrounds with dimensions and frontage other than those stated in the regulation.
Section 2.3(1)(c) of the regulations provides that a subdivision application shall "[b]e accompanied by evidence of submission of application with the necessary plans and data for a permit to the Connecticut Department of Transportation, where a proposed street or highway joins a state highway or drainage system." The record reveals that MacPherson-Johnston submitted the requisite application and plans to the DOT on August 15, 2000. Therefore, the plaintiffs' claim that the commission violated this regulation when it approved the subdivision application also fails.
Finally, in addressing the plaintiffs' claim that in approving the proposed subdivision the commission failed to satisfy several of its own regulations, the court addresses the plaintiffs' allegation that the two proposed road systems are both "dead-ends" and, therefore, they violate § 4.3(1)(k). The plaintiffs argue that although the term is not defined in the subdivision regulations, its customary meaning is a road that "leads nowhere," or has "no exit." The plaintiffs contend that although § 4.3(1)(k) refers to cul-de-sacs, § 6(5) of the regulations defines a cul-de-sac as "a street or a portion of a street with only one vehicular outlet." Consequently, they argue, the terms are interchangeable. They further argue that the commission purposely disregarded § 4.3(1)(k) in an effort to invoke § 4.3(1)(c)(i) and to avoid the lot and road length limitations of § 4.3(1)(k). Finally, the plaintiffs argue that the commission's interpretation of § 4.3(1)(k) since its adoption has been inconsistent and, therefore, should not be given much weight.
Section 4.3(1)(k) provides: "Dead-end roads — Permanent dead-end roads in residential subdivisions shall be limited to serving 15 lots and shall not exceed an extreme length of 1,200 [feet] (measured to the end of the turnaround right-of-way). A cul-de-sac turnaround shall be provided at the end of all permanent dead-end streets, having a diameter of 110 [feet] at the right-of-way line and 90 [feet] at the curb line. The Commission may require a center island with a 15 [foot] radius which shall be planted as provided by the Planning Commission."
The defendants counter that § 4.3(1)(k), read in conjunction with § 4.3(1)(c)(i), allows roads with a single outlet to be classified as other than dead-ends. They contend that the court should adopt the holding of Tulka v. Groton Planning Commission, Superior Court, judicial district of New London, Docket No. 560173 (July 19, 2002, Purtill, J.T.R.), and find that the plaintiffs have failed to demonstrate that the commission acted improperly because the proposed road systems are similar to those in that case. As the Tulka court concluded, so too, argue the defendants, should the court conclude that there is nothing in Groton's regulations that prevents one dead-end street being accessed from another.
As a threshold issue, the court addresses the plaintiffs' argument that the commission's interpretation of § 4.3(1)(k) has not been consistent. The plaintiffs do not, however, provide any evidence in support of this claim. Consequently, the court will not consider it.
Next, the court turns to the issue of whether the proposed road systems are dead-ends within the meaning of § 4.3(1)(k). Our Appellate Court has affirmed a trial court's finding that despite having only one point of access to the public highway, a horseshoe-shaped road system in a proposed subdivision in the town of Fairfield, was actually comprised of three separate intersecting streets and, therefore, was not a "cul-de-sac" within the meaning of that term in Fairfield's subdivision regulations. Paige v. Town Plan Zoning Commission, 35 Conn.App. 646, 654, 646 A.2d 277 (1994), rev'd on other grounds, 235 Conn. 448, 668 A.2d 340 (1995). The court, Purtill, J, in Tulka noted that "[a]s in Paige, the Groton regulations contain no specific prohibition against a dead-end street branching off from an existing such street." Tulka v. Groton Planning Commission, supra, Superior Court, Docket No. 560173. Consequently, the court there refused to combine the lengths of the roads or add the total number of building lots served by the connecting dead-ends as the Tulka plaintiffs argued should be done. Although Fairfield's definition of a cul-de-sac differs somewhat from Groton's inasmuch as it does not restrict the meaning to include only those roads with one vehicular access, the configuration of at least one of the proposed road systems here is similarly situated. The proposed Fieldstone Drive loops around, much in the shape of a "P," and intersects itself near its entrance. Neither is this configuration customarily considered to be a dead-end, nor does the language of § 4.3(1)(k) encompass it inasmuch as the road has no cul-de-sac turnaround. Secondly, the "Y" configuration created by the proposed Summer Lane and Autumn Court fall squarely within the rationale of Paige. Thus, each road, considered alone, does not violate the requirements of § 4.3(1)(k). Accordingly, the commission's actions regarding the aforesaid subdivision regulations did not exceed its authority.
"Section 2.1.6 of the Fairfield subdivision regulations states that a cul-de-sac is a 'street closed at one end by building lots and which will not be extended in the future.'" Paige v. Town Plan Zoning Commission, 35 Conn.App. 646, 653 n. 9, 646 A.2d 277 (1994), rev'd on other grounds, 235 Conn. 448, 668 A.2d 340 (1995).
The court turns to the plaintiffs' final claim that the commission failed to consider feasible and prudent alternatives to the proposed subdivision as required by General Statutes § 22a-19(b). The plaintiffs argue that an administrative agency must consider all alternatives presented to it when deciding the reasonableness of a proposed development. They also contend that insofar as the commission relied on dicta in Paige v. Town Plan Zoning Commission, 235 Conn. 448, 462-63, 668 A.2d 340 (1995), wherein the Appellate Court cited General Statutes § 22a-19(b) to illustrate that statutory construction may be limited by the statute's plain meaning, in determining that alternative plans only need to be considered in certain circumstances, it erred. The plaintiffs argue that in State v. Courchesne, 262 Conn. 537, 816 A.2d 562 (2003), our Supreme Court abandoned the "plain meaning" rule of statutory construction in favor of a less restrictive means, thus invalidating the commission's interpretation of General Statutes § 22a-19. The plaintiffs argue, therefore, that based on the legislative history of the Environmental Protection ACT (EPA), the commission was bound to consider all of the evidence they presented to it when deciding if the proposed subdivision would cause unreasonable pollution, impairment or destruction of the land
General Statutes § 22a-19(b) provides: "In any administrative . . . proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare."
The defendants counter that the plaintiffs' contention that the commission was obligated to consider its alternative plan is baseless and refuted by the record. Furthermore, they counter that the plaintiffs' reliance on Courchesne is misplaced because Public Act 03-154 has called into question the force of the Supreme Court's remarks concerning acceptable limits on statutory construction and, therefore, General Statutes § 22a-19(b) should be construed pursuant to its plain meaning because it is unambiguous.
Public Act 03-154 § 1 provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
The court finds that there is no merit to the plaintiffs' argument that the commission failed to consider feasible and prudent alternatives to the proposed subdivision as required by General Statutes § 22a-19(b). "Statutory construction . . . presents a question of law over which [the court's] review is plenary . . . Such plenary review also applies to questions of law relating to the interpretation of regulations." (Citations omitted; internal quotation marks omitted.) A. Audi Sons, LLC v. Planning Zoning Commission, 267 Conn. 192, 197, 837 A.2d 748 (2004). In addressing the issue of whether extratextual evidence may be considered in statutory and regulatory construction, our Supreme Court has noted that the legislature "enacted P.A. 03-154 in direct response to [the Court's] decision in State v. Courchesne . . . and [it] ha[s] recognized that this act has legislatively overruled that part of Courchesne in which [the Court] stated that [it] would not require a threshold showing of linguistic ambiguity as a precondition to consideration of sources of the meaning of legislative language in addition to its text." (Citation omitted; internal quotation marks omitted.) Goodyear v. Discala, 269 Conn. 507, 512 n. 4, 849 A.2d 791 (2004).
Consequently, despite the plaintiffs' claim that the commission was bound to consider their alternative plan prior to approving the proposal, the plain terms of General Statutes § 22a-19(b) require the consideration of such plans only if the commission determines that it is reasonably likely that the proposal would cause unreasonable pollution, etc. The record substantiates that in arriving at its decision with respect to the provisions of § 22a-19(b) the commission considered all relevant information, including testimony. (ROR, Item 115, pp. 4-5.) Therefore, the commission had no obligation to consider alternative plans once it found that no unreasonable impairment of natural resources existed.
CONCLUSION
Accordingly, the court concludes that the plaintiffs have not met their burden of showing that the commission acted illegally, arbitrarily or in abuse of its discretion when it approved the proposed subdivision. For the foregoing reasons, the plaintiffs' appeal is dismissed.
D. Michael Hurley, JTR