Opinion
CV156048607S
11-19-2015
Matthew Lahey v. Fairfield Town Planning and Zoning Commission et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Richard P. Gilardi, Judge Trial Referee.
This is an appeal filed by the plaintiff, Matthew Lahey, from the denial of his application for a re-subdivision of his property located at 1295 Mill Hill Rd., Fairfield.
The record reveals the following relevant facts and procedural history:
The lot presently owned by the plaintiff, Matthew Lahey, was created in April 1955 by a predecessor in title, Michael Devore. At that time the Fairfield County Planning and Zoning Commission approved an application by Devore for a four-lot subdivision. The Lahey lot, 1295 Mill Hill Rd. was referenced as lot number four on the subdivision map. Access to 1295 Mill Hill Road (Lahey) was depicted on the map by means an unpaved 10-foot right-of-way which begins on Mill Hill road and crosses 1295 Mill Hill Road, a residence presently owned by the intervening plaintiff, Kimberly Cooper.
The only requirement with the approval by the Commission of the 1955 subdivision map was that Devore have permission to cross 1295 Mill Hill Rd. (Cooper) to access the boundary of 1295 Mill Hill Rd. (Lahey). The map indicates that the 10-foot right-of-way proceeds approximately 300 feet across the Cooper property from Mill Hill Road and then diverts southerly across the Cooper property 118 feet to the boundary of 1295 Mill Hill Road (Lahey), as was required.
In addition to the Devore right-of-way, the 1955 map also describes a previously approved 20-foot right-of-way adjacent to the Lahey 10-foot right of way. This came about with the approval in 1954 of a three-lot subdivision application by Rune and Francis Hansen. The map of the Hansen subdivision includes the 20-foot right-of-way, which originates on Mill Hill Road and crosses 1325 Mill Hill Rd. which is a residence presently owned by Matthew and Candace Wagner, also intervening plaintiffs. After crossing the Wagner property, the 20-foot right-of-way ends at the boundary of 1305 Millville Road providing the exclusive right of ingress and egress for 1305 Mill Plain Road, presently is owned by Michael and Michelle Danielle Bartlett.
In addition to the Devore right-of-way, the 1955 map also depicts an unfinished road within dotted lines on the Lahey property. The road was labeled " Wagon Road" and it originates entirely within the northern boundary of 1295 Mill Hill Road. It continues in a southern direction diagonally across the lot branching into two routes.
The plaintiff's re-subdivision application proposes dividing his property into two lots. The plaintiff claims that " Wagon Road" is a private road 30 feet in width, which was created and approved by its inclusion in the 1955 Subdivision Map. (To create a private road, the Fairfield Regulations required that there must be a written request or offer to the Town and acceptance of the road by The Town.)
The proposed map extends the 30-foot Wagon Road 100 feet into the Leahy lot dividing the property into the two separate lots. At the end of the 100 hundred-foot road the map depicts a cul-de-sac with an 80-foot diameter. (Section 2.1.6. of the subdivision regulations require " cul-de-sacs" must provide sole frontage to no more than (10) lots, nor shall any cul-de-sac provide sole frontage to less than (3) building lots.) The proposed map depicts the cul-de-sac as providing frontage to the two separate Lahey lots created by the resubdivision and frontage for the required third lot to 1305 Mill Plain Rd., owned by Michael and Daniel Bartlett.
The proposed Lahey subdivision map incorporates the 10-foot right-of-way on the Cooper property and the 20-foot right-of-way on the Wagner property, into a 30-foot road claiming the additional 30-foot use was designated and approved by the 1955 subdivision map when it created " Wagon Road." The proposed map designates the 30-foot wagon road extending across the Cooper property and the Wagner property to the intersection of Mill Plain Road. (2.1.1.6. of the Fairfield Subdivision Regulations require that the proposed road provide a site distance of 240 feet in both directions for cars entering Mill Plain Road.)
The re-subdivision application and map is based on several presumptions, including compliance with the Fairfield Subdivision Regulations. The plaintiff presumes in 1955 that Wagon Road was an unfinished but accepted private road by the Fairfield Planning and Zoning Commission. The plaintiff further presumes that he has the legal authority to integrate the 10-foot right-of-way, located on 1295 Mill Plain Rd. owned by Cooper, as well as the 20-foot right-of-way, located on 1325 Mill Plain Rd. owned by Matthew and Candace Wagner.
Expanding the 30-foot road to Mill Plain Road would require that the plaintiff demolish an historic concrete pillar on Mill Plain Road, which is located on the Wagner property and a similar concrete pillar on Mill Plain Road located on the Cooper property. The pillars are approximately 11 feet apart. An 11-foot unpaved road has been the exclusive means of ingress and egress to 1295 Mill Plain Rd. (Lahey) and 1305 Mill Plain Rd. (Bartlett). Entrance to the unpaved road is between the two pillars. The Cooper 10-foot right-of-way has never been used as an easement.
Michelle Riley submitted a report and testified to the Commission as an expert in title research for the intervening plaintiffs. While previously employed by a law firm, she was in charge of a company, Titled Center, Inc. specializing in title searches. She has since then started her own title research company, Advantage Title Services, LLC. She testified that she performs title searches for most of the major title companies in the state of Connecticut, as well as attorneys in Fairfield and New Haven. There was no dispute as to her qualifications.
She testified that she was engaged to research the titles of the various properties relative to the present application and specifically to determine whether " Wagon Road" as depicted on the original Devore subdivision map is or is not private road as well as the legality of the creation of the 30-foot private road across the Wagner property and the Cooper property to Mill Plain Road. In her opinion, " Wagon Road" is nothing more than a " paper road" which is depicted in the 1955 Subdivision Map on the Lahey property. She testified there was no evidence submitted that it has ever been a offered, dedicated or adopted by the Town of Fairfield, as is required. Summarily, in her opinion, the road does not even exist. In her testimony she submitted all of the deeds comprising the title history for 1285 Mill Hill Rd (Cooper), 1325 Mill Hill Rd (Wagner), 1305 Mill Hill Rd (Bartlett) and 1295 Mill Hill Rd (Lahey). She testified that with the exception of the 1955 subdivision map, there is no map or deed in the chain of title to the properties involved which reference a private road called " Wagon Road."
Ms. Riley submitted A Surveyor Certificate and photographs, confirming historically that the only access to and from 1395 Mill Plain Rd. and 1305 Mill Plain Rd. is an 11-foot unpaved road, beginning between the two pillars on Mill Plain Road. There has been no use of the right-of-way across 1285 Mill Hill Rd. (Cooper). Ms. Riley testified that she visited the Fairfield Department of Public Works and confirmed that there is no " Wagon Road" in existence anywhere in Southport or Fairfield.
Ms. Riley reported that when the town of Fairfield adopts and designates a private road, the Fairfield Tax Assessors Office lists that property a parcel number for taxation purposes. The only private road listed in the tax assessor's office with respect to the properties involved is Fawn Ridge Lane. She testified that the deeds and maps depict that the Bartlett property at 1305 Mill Plain Rd. has 180 feet of frontage on Fawn Ridge Road.
Ms. Riley was of the further opinion that the plaintiff cannot create a 30-foot road across the Cooper property or the Wagner property as an extension of a nonexistent road.
There is only the 20-foot right-of-way on the Wagner property, 1325 Mill Plain Rd., which is listed for the exclusive ingress and egress to the Bartlett property, 1305 Mill Plain Rd. and there is the 10-foot right-of-way on the Cooper property, 1285 Mill Plain Rd. which is limited to provide exclusive ingress and egress to the Lahey property, 1295 Mill Hill Rd. In granting the rights-of-way, the 1955, sub division map makes no reference to wagon road within the designation of the rights-of-way. The only title to the 20-foot right-of-way on 1285 Mill Plain Rd. is in the name of the Coopers and the only title to 1305 is in the name of the Wagners. Both owners pay all of the taxes on the respective rights-of-way. Ms. Riley testified that a private road is subject to taxation.
Historically, the only easement in existence, which is located on the Wagner property, is an 11-foot unpaved road, beginning on Mill Plain Road through the concrete pillars and providing access to 1305 Mill Plain Rd. (Bartlett) and 1295 Mill Plain Rd. (Lahey).
In summary, Ms. Riley confirmed that the plaintiff was prohibited from attempting to appropriate and expand an existing 10-foot easement, as well as a 20-foot easement on properties owned by the Wagners and the Coopers, as well as destroying the historic pillars on both properties which provide an entrance to the 11-foot unpaved road, which is the only easement in existence.
The court found Ms. Riley to be a credible witness.
Ms. Laura Pulie, who is a Fairfield Town Engineer, testified as to her review of the subdivision plans. She noted that 2.1.1.6. of the Fairfield Subdivision Regulations require the proposed subdivision Road intersecting with Mill Plain Road requires that there be a site distance, which is the required length of vision for cars entering Mill Plain Road is 240 feet. The proposed subdivision lists a distance of 190 feet in one direction and 170 feet in the other direction both of which violate the Fairfield Subdivision Regulations.
The plaintiff produced a report from Frederick P. Clark Associates, Inc., which is listed as providing Planning, Transportation, Environment and Development information.
The report confirmed, that the proposed subdivision has a site distance of 170 feet Southerly on Mill Plain Road and 190 feet Northerly on Mill Plain Road. There was no denial that the site distances did not comply with the Subdivision Regulations. The report simply indicated that regardless of noncompliance the site distances were adequate for the proposed.
The report from the planning and zoning staff indicated a list of variations from the subdivision regulations, and in particular, Section 2.1.6 with respect to private streets and that cul-de-sacs shall provide sole frontage to no more than 10 building lots, nor shall any street provide sole front to less than three building lots. The proposed re-subdivision lots were not qualified for access over the proposed private street as the adjacent Bartlett property uses the existing 20-foot right-of-way, but cannot be counted to make the frontage requirements for the three lots on a private road. The Bartlett property has 180 feet of direct frontage on Fawn Ridge Road, which is an existing private road. As such, it would not qualify as the third parcel because it has frontage on the street. There can be no waiver of this provision because the subdivision regulations do not provide for one for Section 2.1.6.
Following the public hearing on December 9, 2014, the commission unanimously denied the Lahey application. On February 10, the commission designated three reasons for denying the application:
1. The commission finds the existing driveway serving the property has never been established as a private road pursuant to the subdivision regulations.
2. The establishment of a private road to serve the proposed subdivision would not be in compliance with Section 2.1.4.4 of the Subdivision Regulations, as there is inadequate site line distances for the proposed intersection, as outlined in the report from the town engineer.
3. The proposed private road is not in compliance with Section 2.1.6 of the subdivision regulations because the proposed road will provide sole frontage to only two building lots.
In his final brief, the plaintiff stated that absence of evidence to the contrary, the court could presume, that in 1955 there had been the required written offer and acceptance by the commission to establish " Wagon Road" as a private road. If not, the court could presume that it had been granted on a prior occasion.
The court declines the request.
An administrative appeal to the court does not require or permit the court to review evidence de novo, or to substitute its findings and conclusions for the decision of the zoning authority. Verney v. Planning & Zoning Board of Appeals, 151 Conn. 578, 580, 200 A.2d 714 (1964). The sole question is whether the authority acted legally and within its discretion. Lindy's Restaurant, Inc. v. Zoning Board of Appeals, 143 Conn. 620, 622, 124 A.2d 918 (1956). If the zoning authority's decision is reasonably supported by the evidence in the record, the reviewing court is not able to disturb that decision on appeal. Bora v. Zoning Board of Appeals, supra, 161 Conn. 299-300.
It is well settled that the burden of overthrowing the decision of an administrative board rests squarely upon the plaintiff. Goldreyer v. Board of Zoning Appeals, 144 Conn. 641, 646, 136 A.2d 789 (1957). On an appeal from a zoning authority's action, the plaintiff has the burden of proof to show that the authority acted improperly. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 265-66, 455 A.2d 339 (1983); Bora v. Zoning Board of Appeals, 161 Conn. 297, 300, 288 A.2d 89 (1971); Chouinard v. Zoning Commission, 139 Conn. 728, 731, 97 A.2d 562 (1953). When the evidence shows that the commission had an adequate basis for its decision, the conclusion must be drawn that its action was within its powers and should be sustained. Van DeMark v. Board of Zoning Appeals, 1 Conn.Supp. 89, 90 (1935).
The scope of the court's review is limited in an administrative appeal. It is the role of the Superior Court, when an appeal is taken, to review the record to determine whether the Commission acted properly in the exercise of its functions and not to substitute its judgment for the judgment of the zoning authority. De Maria v. Enfield Planning & Zoning Com., 159 Conn. 534, 540, 271 A.2d 105 (1970). A court's review of a zoning decision is based on the record, which properly includes knowledge which zoning board members gain through personal observation of the site or personal knowledge of the area involved. Oakwood Development Corp. v. Zoning Board of Appeals, 20 Conn.App. 458, 460, 567 A.2d 1260, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990).
It is well settled in Connecticut that the decisions of zoning authorities are afforded great deference, and they are to be overruled only when it is found that the authority had not acted fairly, with proper motive and upon valid reason. McMahon v. Board of Zoning Appeals, 140 Conn. 433, 438, 101 A.2d 284 (1953); Mallory v. West Hartford, 138 Conn. 497, 505, 86 A.2d 668 (1952). " Where it appears that an honest judgment has been reasonably and fairly exercised after a full hearing, courts should be cautious about disturbing the decision of the local authority." McMahon, supra, 140 Conn. 438, quoting Kutcher v. Town Planning Commission, 138 Conn. 705, 710, 88 A.2d 538 (1952). The court may only grant relief on appeal if it finds that the local zoning authority acted illegally, arbitrarily or in an abuse of its discretion. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 427 A.2d 1346 (1980); Raybestos-Manhattan, Inc. v. Planning & Zoning Commission, 186 Conn. 466, 470, 442 A.2d 65 (1982).
Furthermore, the agency's decision must be upheld if even just one of the reasons given for denial is supported by substantial evidence. Tarullo v. Inland Wetlands & Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003).
It is the finding of the court that the decision of the Fairfield Planning and Zoning Commission was an honest judgment, which had been reasonably and fairly exercised after the full hearing, and that the commission did not act illegally, arbitrarily, or an abuse of its discretion. The commission was fully justified in concluding each of the three conditions was an adequate basis for denial.
Accordingly, the appeal is dismissed and judgment is entered for the defendants.