Opinion
No. NNH-CV-07-4023905
January 28, 2009
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiff, Land Developers CT, LLC, appeals from the decision of the defendant, the planning and zoning commission (PZC) of the town of East Haven, denying the plaintiff's subdivision application.
II BACKGROUND
On or about July 5, 2006, the plaintiff submitted an application to the PZC seeking approval for a 32-lot subdivision Foxon Hill Road in East Haven. On October 4, 2006, the defendant held a public hearing on the plaintiff's application. On December 6, 2006, the defendant denied the plaintiff's application.
III JURISDICTION
General Statutes § 8-8 et seq. governs an appeal taken from a decision of a planning and zoning commission. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 487 A.2d 559 (1985).
A Aggrievement CT Page 2463
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). An "`aggrieved person' includes any person owning land that abuts . . . any portion of the land involved in the decision of the board." General Statutes § 8-8(a)(1).
"The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 394, 941 A.2d 868 (2008).
The plaintiff has pleaded aggrievement in its complaint; and provided uncontested witness testimony by Mr. Arenas, a member of the plaintiff corporation, that the plaintiff owns the property that is the subject of the denied subdivision application. There is established proof of aggrievement.
B Timeliness and Service of Process
An appeal must be commenced within fifteen days from the date that notice of the board's decision is published; see General Statutes § 8-8(b); and, for appeals commenced after October 1, 2004, two copies of the process must be served upon the municipal clerk. See General Statutes § 8-8(f)(2) (land use appeals shall conform to the service requirements of General Statutes § 52-57(b)(5)).
The record reflects that the board's decision was published as required and the appeal was commenced by proper service of process.
IV
CT Page 2464
STANDARD OF REVIEW
"There is no dispute in the present case that, in reviewing the plaintiff's . . . subdivision application, the defendant was acting in an administrative capacity. When acting in its administrative capacity, a planning commission has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance . . . A municipal planning commission, in exercising its function of approving or disapproving any particular subdivision plan, is acting in an administrative capacity and does not function as a legislative, judicial or quasi-judicial agency . . . When acting in its legislative capacity, in contrast, a planning commission's discretion is much broader than that of an administrative board . . . When reviewing a site plan application, a planning commission similarly acts in an administrative capacity and may not reject an application that complies with the relevant regulations." (Citations omitted; internal quotation marks omitted.) Pansy Road, LLC v. Town Plan Zoning Commission, 283 Conn. 369, 374-75, 926 A.2d 1029 (2007)."In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] 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 [board] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . 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." (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60, 916 A.2d 5 (2007).
"[Zoning] boards of appeal are necessarily entrusted with the function of deciding, within prescribed limits and consistent with the exercise of a legal discretion, whether a regulation applies to a given situation, and the manner of its application . . . When evaluating the validity of a decision of a zoning board . . . [t]he trial court [has] to decide whether the board correctly interpreted the [regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal. Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." (Citations omitted; internal quotation marks omitted.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 668-69, 894 A.2d 285 (2006).
The East Haven PZC did not provide the reasons for its decision on the record. "[W]hen a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision. Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations The principle that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action It does not apply to mere utterances of individual members of the agency." (Internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 439-40 n. 6, 908 A.2d 1049 (2006).
"[O]ur case law clearly requires the trial court, in appeals from planning and zoning authorities, to search the record to determine the basis for decisions made by those authorities. [A] commission's failure to state on the record the reasons for its actions . . . renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission's decision . . . [I]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld." (Emphasis in original; citations omitted; internal quotation marks omitted.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 670, 894 A.2d 285 (2006).
"[T]he designation of a particular use of property as a permitted use establishes a conclusive presumption that such use does not adversely affect the district and precludes further inquiry into its effect on traffic, municipal services, property values, or the general harmony of the district." (Emphasis in original; internal quotation marks omitted.) Pansy Road, LLC v. Town Plan Zoning Commission, 283 Conn. 369, 376, 926 A.2d 1029 (2007).
"The importance of providing the applicant an opportunity to respond to a commission's concerns, particularly concerns that form the basis of a denial of an application, is well settled. In Feinson v. Conservation Commission, 180 Conn. 421, 429 A.2d 910 (1980), the court considered the sufficiency of the commission's review and decision making process involving an application to conduct a regulated activity in an inland wetland. The court determined that `the sparsity of reliable evidence in this record is underscored by the fact that the commission acted in a manner which placed its data base beyond the plaintiff's scrutiny. Nowhere in the public hearing, or at any other time and place, was the plaintiff afforded a fair opportunity to hear the commission's fears and to attempt to allay them.' Feinson v. Conservation Commission, supra, 428; see also Frechette v. Coventry, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 96 059673 (April 8, 1997, Bishop, J.) (applying Feinson and determining that because agency members did not publicly express concerns used as basis for denying application, applicants were not given opportunity to allay these concerns); Gonthier v. Planning Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. CV 940119318 (July 12, 1995, Fasano, J.) (applying Feinson and determining that one of the grounds for denying the application was not raised during public hearing and applicant lacked opportunity to respond to commission's concerns; therefore, ground was invalid basis for denial)." Florian v. Cheshire Planning Zoning Commission, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 020279661 (May 30, 2003, Graham, J.) [35 Conn. L. Rptr. 74].
V CONCLUSION
"The reviewing court should only uphold a decision denying an application without reasons where the agency acted in an administrative capacity if there is some obvious defect or noncompliance with the regulations which is readily apparent from the record, and should proceed with the assumption that no reasons were given because the agency had none." Land Use Law and Practice, Tests for Judicial Review, § 33:1, Fuller.
The court is frankly astonished that the defendant created no record other than a record of the Commission's vote on this matter. "In an appeal from the denial of a subdivision the question for the court is whether any of the reasons assigned by the planning commission for denial of the application were valid." Id., § 33.8. Since no reasons were given, the test of validity cannot be reached by the court.
The court also agrees with the plaintiff's argument that raising an issue concerning the number of homes that can be built on a dead end street as contained in § 7.3.10 of the town's Subdivision Regulations for the first time in the defendant's brief is clearly a violation of basic due process and fundamental fairness.
The decision of the PZC is reversed and the matter is returned to the East Haven planning and zoning commission on the single issue of resolving the plaintiff's compliance with § 7.3.10 of the East Haven subdivision regulations.