Opinion
No. CV-09-4018313 S
December 3, 2010
MEMORANDUM OF DECISION
This action is an appeal, pursuant to General Statutes § 8-8(b), taken by the plaintiffs, Joseph Masi and Margaret LaFlamme, from a decision of the defendant, the planning and zoning commission of the town of Watertown (commission), which denied the plaintiffs' application for subdivision approval of a fourteen-acre parcel of land that they own located in the town of Watertown.
Margaret LaFlamme was formerly known as Margaret Raymond, but will be referred to as LaFlamme.
In this appeal, the plaintiff argues: (1) that the commission impermissibly denied the plaintiffs a waiver of the Watertown subdivision regulations (regulations) requiring a distance of 400 feet between any proposed new road intersection and any existing road intersection; (Return of Record [ROR], Exhibit III); (Watertown Subdivision Zoning Regulations [regulations], Section 5.3.7); (2) that the commission impermissibly determined that the plaintiffs' subdivision roadway would violate the regulations and require a waiver; (3) that the commission acted arbitrarily, illegally and in abuse of its discretion in not approving the open space as proposed by the plaintiffs; and (4) that two members of the commission were biased against the plaintiffs and predetermined their vote upon the application but nonetheless failed and refused to recuse themselves from participation in the proceedings. The court agrees with the plaintiff.
FACTS
A review of the record reveals the following relevant facts: The plaintiffs filed an application with the commission for the subdivision of a parcel of land containing about fourteen acres, located at 33 Pleasant View Street, Oakville, Connecticut within the town of Watertown. (ROR, Exhibit I.) The subject parcel is located in an R-12.5 zone which permits lots of 12,500 square feet, and has approximately 580 feet of frontage on the north side of French Street. (ROR, Exhibit VII.) The plaintiffs' first application sought approval of fifteen lots, four of which had frontage and access to French Street with the remaining lots being interior lots with access to French Street by a private road. The plaintiffs, however, were told that the commission would prefer that the lots along French Street not have direct access to the street. (ROR, Exhibit VI. 14.) In its next application, the plaintiffs provided that the lots be accessed by an interior private driveway that connected to the private interior road. (ROR, Exhibit I.) Under this proposal, the proposed number of lots increased from fifteen to eighteen, of which seven would have compliant frontage on a road. (ROR, Exhibit IV. 1, p. 9; VII.) Additionally, approximately 26 percent of the site was proposed to be preserved as either town open space or conservation easement. (ROR, Exhibit I.)
In the first application, the proposed road entered French Street 335 feet from the closest intersection, in violation of the town's regulations, which provided that such a road be no closer than 400 feet from an intersecting street. At the request of the commission, the plaintiffs presented an alternative plan that would meet the 400 feet requirement. The commission was concerned that the alternative plan would not provide an adequate line of sight. (ROR, Exhibit, VI. 8, pp. 7-11.) Although the plaintiffs asserted that the general waiver provisions of the regulations gave the zoning board authority to waive the 400 foot requirement, they were advised by the town that such authority may not be permitted and that the better route to follow was to amend the regulation to provide the zoning commission with specific authority to waive the 400 foot requirement. (ROR, Exhibit VI. 3, pp. 25-26.) The plaintiffs agreed and the application was withdrawn prior to the zoning commission entertaining a change in their regulations. The board approved the proposed change to the regulations permitting the commission to specifically waive the 400-foot requirement. (ROR, Exhibit VI. 18, pp. 19-20.)
Subsequently, the plaintiffs submitted the application, subject of this appeal, which provided access to French Street, 335 feet from the closest intersecting street but sought approval of eighteen lots, including three lots with complete frontage on French Street, seven lots accessible from the common driveway but also with complete frontage on a road and eleven lots along the interior road. (ROR, Exhibit I; VII.) The plaintiff sought a waiver of the 400-foot requirement on the basis that the road would not cause a safety issue and that this was the best location for the road in terms of sight line and alleviating public safety concerns. (ROR, Exhibit I; IV; VI.)
After the hearing to consider this application, the commission voted to deny the 400-foot intersection waiver and in addition found that § 5.3.11 of the zoning regulations provided that no more fifteen building lots could have access on a dead end street and by a vote to waive this requirement did not garner a three-fourths vote. (ROR, Exhibit 111.3, pp. 9-27.) The commission then voted to deny the application based on the following: (1) that the proposed new intersection violated § 5.3.11 of the regulations since it was less than 400 feet from another intersection and no waiver to the 400-foot intersection requirement had been granted; (2) the plan was in violation of § 5.3.11 of the regulations, which allows no more than fifteen lots to access a dead end street; and (3) the plan failed to provide the appropriate allocation of open space as required under their regulations. Id.
The plaintiffs appeal on the following basis: (1) the proposed intersection of the road although not 400 feet from an existing intersection provided the best sight line distance and was preferred by the town's director of public works; (2) the plaintiffs were not in violation of § 5.3.11 since that regulation provides that not more than fifteen lots could abut a dead end street if it was their sole access to the main road, which was not true in this plan since four lots had access to the main road; (3) there was sufficient open space dedicated to the town that complied with the open space regulations; and, in the alternative, (4) at least two of the board members who were asked to recuse themselves refused to do so and participated in the unfair and illegal denial of the plan as presented. The court will address each reason for the denial along with any additional facts relative to the claims as needed.
II JURISDICTION
"[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.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39.
Based on the facts adduced at the hearing the court finds that the plaintiffs were the owners of the subject property. Accordingly, they have an interest in the subject matter of the commission's decision. Moreover, the record shows that because their application was denied, that interest has been adversely affected. As owners and unsuccessful applicants, therefore, the plaintiffs are classically aggrieved by the commission's decision and have standing to bring this appeal. See Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703-04, 780 A.2d 1 (2001) (upholding trial court's determination that deed demonstrated plaintiff's status as owner of subject property and therefore supported its finding of aggrievement); see also Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987) (upholding trial court's finding of aggrievement, reasoning: "The plaintiff's status as owner of the property establishes that she has `a specific personal and legal interest in the subject matter of the decision.' The fact that the agency's decision resulted in the denial to the plaintiff of the ability to use this property as proposed establishes that `this specific personal and legal interest has been specially and injuriously affected'").
Second, "[i]t 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). Section 8-8(b) provides that an "appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published as required by the general statutes . . ." The notice of the commission's decision was published on September 18, 2008, and the plaintiff served this appeal eleven days later on September 29, 2008. Thus, the court finds that the appeal was timely.
Furthermore, under § 8-8(f)(2), "[f]or any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of Section 52-57 . . ." General Statutes § 52-57(b) provides in relevant part: "Process in civil actions against the following-described classes of defendants shall be served as follows . . . (5) against a . . . commission . . . of a town . . . notwithstanding any provision of law, upon the clerk of the town provided two copies of such process shall be served upon the clerk . . ." According to the marshal's return, the marshal served the commission by serving two copies of process on Virginia Russo, town clerk, on December 11, 2008. Thus, the court finds that service was proper. Accordingly, for the above reasons, the court concludes that it has subject matter jurisdiction over the appeal.
III SCOPE OF REVIEW
General Statutes § 8-8(b) provides, in relevant part, that "any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located . . ." "It is axiomatic that a planning commission, in passing on a [subdivision] application, acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations . . . The trial court can sustain the [plaintiff's] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) 200 Associates, LLC v. Planning Zoning Commission, 83 Conn.App. 167, 171-72, 851 A.2d 1175, cert. denied, 271 Conn. 906, 859 A.2d 567 (2004).
"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.) Loring v. Planning Zoning Commission, 287 Conn. 746, 756, 950 A.2d 494 (2008). "[E]vidence 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." (Internal quotation marks omitted.) Unistar Properties, LLC v. Conservation Inland Wetlands Commission, 293 Conn. 93, 114, 977 A.2d 127 (2009).
"The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts." (Internal quotation marks omitted.) Gorman Construction Co. v. Planning Zoning Commission, 35 Conn.App. 191, 195, 644 A.2d 964. The trial court reviews the commission's action "only to determine whether it was unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) Schwartz v. Planning Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). The plaintiff bears the burden of demonstrating that the commission acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988).
"Where the zoning authority has stated the reasons for its decision, the court is not at liberty to probe beyond them. DeMaria v. Planning Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970). `It should not attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission's final collective decision.' Id. The commission's action should be sustained if even one of the stated reasons is sufficient to support it. Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 697, 628 A.2d 1277 (1993)." Konandreas v. Planning Board, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 98 0162843 (August 24, 1999, Mintz, J.). The evidence supporting any such reason, however, must be substantial. Id. The question is whether the record before the commission supports its decision, and not whether the trial court would have reached the same conclusion. Id.
IV DISCUSSION
A. Denial of Intersection Distance Waiver
The plaintiffs first challenge the commission's denial of a waiver to § 5.3.7 of the regulations. Section 5.3.7.1 provides: "No more than two streets shall intersect at one point. Intersections shall be spaced not less than 400 feet apart. The Commission may waive the 400 feet spacing and change the spacing to a different number of feet with a 3/4 (6 member vote of approval to waive). The Commission shall take into consideration public safety and state on the record the reasons for waiving the intersection spacing requirements." (Supplemental Return of Record [Sup. ROR], Exhibit V: Regulations.) The waiver provision went into effect on May 23, 2008.
The plaintiffs argue that the commission had no valid reason to deny the needed waiver under § 5.3.7 of the regulations. They argue that the testifying engineers, including the town's staff, agreed that locating the intersection more than 400 feet from the nearest existing intersection would lower the sight line in the opposite direction to unsafe levels. The engineers agreed that the sight line was more important than the spacing of intersections in terms of safety. (Sup. ROR, Exhibit II, p. 4-6.) Nevertheless, the plaintiffs argue that the commission improperly denied the waiver.
The defendant argues that the commission properly denied the waiver and that the plaintiffs, despite having adequate frontage on French Street to meet the 400-foot requirement, chose to put the subdivision road intersection closer rather than create site line problems resulting from locating the intersection too close to the crest of a hill to the west. The defendant argues that, as is required by the regulations, the commission considered public safety in determining whether to waive the requirement. (ROR, Exhibit III.3, pp. 9-27.) Specifically, commission members expressed traffic safety concerns associated with waiving the 400-foot requirement. The defendant argues that the court may only look to whether the decision, based on traffic safety concerns, was illegal, arbitrary or an abuse of discretion.
General Statutes § 8-25 provides in relevant part: "[T]he commission shall adopt regulations covering the subdivision of land . . . such regulations shall provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety . . . that the proposed streets are in harmony with existing or proposed principal thoroughfares shown in the plan of development as described in Section 8-23, especially in regard to safe intersections with such thoroughfares, and so arranged and of such width, as to provide an adequate and convenient system for present and prospective traffic needs."
Additional facts are relevant to the determination of this issue. When the original plan was submitted to the commission, the zoning regulations provided that no new street intersection may be located within 400 feet of an existing intersection. (ROR, Exhibit VIII: Regulations § 5.3.7a). Based on sight line distances, it became clear that the best location for the new street was 330 feet from the nearest intersection. The plaintiffs asserted that the commission had the power to waive that strict requirement of 400 feet under the commission's general powers; nevertheless, the town chose to amend the regulations to specifically provide in that section a waiver provision allowing the commission to waive the 400-foot requirement when a lesser distance alternative might be safer. (ROR, Exhibit VI.3, pp. 25-26; VI.18, pp. 19-20.) The commission did amend § 5.3.7 of its regulations, while suggesting that the plaintiffs file a new application for a subdivision. Subsequently, the plaintiffs filed a new application thereafter seeking a waiver of the 400-foot requirement. (ROR, Exhibit I; IV; VI.)
Upon seeking the waiver, the commission held hearings on the plaintiffs' application. One of the plaintiffs' engineering consultants, Don Nolte, testified that the proposed intersection location had been modified from the prior application and that the driveways onto French Street had been removed. (ROR, Exhibit III, pp. 32-33.) Chuck Berger, the town engineer, stated that the proposed intersection optimized the sight line. Id. Charles Spath, an engineer, testified that the proposal's use of a common driveway was necessary because a road in that location could not meet the geometric requirements of the town's regulations. (ROR, Exhibit IV.1, pp. 19-20.) He further testified that a common driveway made it unnecessary to put individual driveways onto French Street and would meet all safety and regulatory requirements. Id. Traffic engineers from BL Companies submitted written and oral evidence that the 400-foot requirement for intersection spacing distance in the regulations was arbitrary. (ROR, Exhibit IV.1, pp. 11-12.) The testimony in total indicated that the proposed location of the Interior Road intersection with French Street optimized sight lines, while posing no operational traffic or safety issues. Id. Fred Greenberg, a traffic engineer, confirmed the substance of the written reports that the proposed spacing of 335 feet was adequate and safe and allowed a better sight line in the other direction then the 400-foot spacing would allow. (Sup. ROR, Exhibit II, p. 4-6.) Berger agreed with this assessment. Id., 6.
Additionally, the record shows that town officials testified as to the arbitrariness of the 400-foot requirement. Roy Cavanaugh, the town's director of public works, stated that the 400-foot requirement was a guideline and that in this case the preferred position would be to have the intersection distance at 320 feet in order to maximize the sight line. (ROR, Exhibit VI.14.) There was no testimony to the contrary.
Despite the overwhelming evidence and testimony, the commission denied the waiver application and ultimately the subdivision application. The commission's decision to deny the waiver was not reasonably supported by the record and it was unreasonable, arbitrary and an abuse of discretion.
B. Denial Pursuant to Dead End Regulation
The commission also denied the plaintiffs' subdivision application based on § 5.3.11 of the regulations. Section 5.3.11 provides in relevant part: "Dead end streets are permitted but not encouraged and shall provide sole access to exceed no more than 15 building lots and shall not exceed a length of 1000 feet. The Commission by a 3/4 vote of all the members of the Commission may approve sole access on dead-end streets to exceed no more than 15 building lots, and street length shall not exceed 2000 feet if the street is safe and convenient for vehicular access including emergency vehicles." (Sup. ROR, Exhibit V.)
The plaintiffs argue that this denial was inappropriate based on the plain language of the regulations. They note that three of the proposed eighteen lots have full street frontage on French Street, in addition to access on the interior road. As a result, the plaintiffs argue that these three lots cannot be said to have "sole" access onto the proposed interior road.
The defendant argues that the denial under § 5.3.11 of the regulations was based on traffic safety concerns. Specifically, they argue that because the access driveways for the three lots with access to French Street would be closer to the crest of the hill, and the entrance to the Watertown high school, the commission was virtually unanimous in its desire that none of the subdivision's driveways have access onto French Street due to potentially poor site lines. The defendant argues that the commission would not have approved the development of the three lots if their sole access was onto French Street, thus the true sole access to these three lots is from the interior road.
"Because the interpretation of the regulations presents a question of law, our review is plenary . . . Additionally, zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended . . . The process of statutory interpretation involves the determination of the meaning of the statutory language [or . . . the relevant zoning regulation] as applied to the facts of the case, including the question of whether the language does so apply . . .
"[O]rdinarily, this court affords deference to the construction of a [statute] applied by the administrative agency empowered by law to carry out the [statute's] purposes . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law . . .
"Finally, we note that a court that is faced with two equally plausible interpretations of regulatory language . . . properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation . . . Thus, in construing regulations, our function is to determine the expressed legislative intent . . . Moreover . . . the words employed therein are to be given their commonly approved meaning." (Citations omitted; internal quotation marks omitted.) Trumbull Falls, LLC v. Planning Zoning Commission, 97 Conn.App. 17, 21-23, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006).
In the present case, the regulations provide that dead end streets shall provide "sole access" to no more than fifteen lots. (Sup. ROR, Exhibit V: Regulations § 5.3.11.) Under the plan, eighteen lots would have access to the dead end street, while three lots would have direct access to French Street, the main road. (ROR, Exhibit I.) The plaintiffs argue that only fifteen lots would have sole access on the dead end street. The members of the commission indicated that they did not want the lots along French Street to only have driveways accessible by the main road. (ROR, Exhibit VI.14.) The plaintiffs' plan providing interior road access was based on the commission's input. The only issue, therefore, is whether those three lots have "sole" access to the interior road, the dead end road.
"It is a basic tenet of statutory construction that `the legislature did not intend to enact meaningless provisions . . . Accordingly, care must be taken to effectuate all provisions of the statute . . . Moreover, statutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant." (Internal quotation marks omitted.) State v. Gibbs, 254 Conn. 578, 602, 758 A.2d 327 (2000). "In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly." General Statutes § 1-1(a). "If it is not otherwise defined, a word has its usual and customary meaning . . ." 200 Associates, LLC v. Planning Zoning Commission, supra, 83 Conn.App. 174.
The American Heritage Dictionary (4th Ed. 2000), defines the term "sole" as "being the only one; existing or functioning without another or others; only." In this context, fifteen of the lots have sole access to the interior road, while three also have access to an alternative road. To interpret the regulation as the defendant does would render the use of the word "sole" meaningless. The plaintiffs are correct in arguing that "sole access" would exclude three lots, making denial of the application on this ground inappropriate. The defendant's argument, that without the access to the interior road the application would have been denied, is inapposite Accordingly, the commission's decision to deny the application pursuant to § 5.3.11 of the regulations was improper, since only 15 lots had "sole access" to the dead end street, and its speculation that if the three lots had access to French Street it would cause a safety issue since access to those lots were not to French Street. The decision of the commission was unreasonable and arbitrary and was not a proper interpretation of 5.3.11.
C. Denial of Application Pursuant to Open Space Regulations
The commission also denied the plaintiffs' application for failure to comply with the town's open space regulations. Section 7.1 of the regulations provides in relevant part: "For any subdivision of land under these Regulations, the Commission may require of the subdivider the disposition and official dedication of appropriately located and sized open space or recreation areas. For the purpose of this Section, `open space or recreation areas' shall be defined to include, but not be limited to: areas left in their natural, undisturbed state; agricultural land for which development rights have been assigned or otherwise alienated in perpetuity; areas and facilities for non-commercial, non-profit recreation; and similar areas for wildlife habitat, passive and active recreation, groundwater recharge, scenic preservation, and the like." (Sup. ROR, Exhibit V.) Section 7.2 of the regulations provides: "When open space and/or recreation area disposition is deemed appropriate, the size of the required areas shall be determined by the Commission based on the site's value and importance in meeting the objectives cited in Section 7.1 and the scope of the subdivision proposal. Required open space and/or recreation areas may be up to ten percent of the property under consideration." (Sup. ROR, Exhibit V.)
The plaintiffs argue that the commission impermissibly rejected the plan on the ground that it dedicated less than 10 percent of the property to open space. They argue that the commission's calculations are wrong and that, even if correct, the regulations make no such requirement. The regulations merely require open space and/or recreation areas up to 10 percent of the property under consideration, and that, moreover, the plaintiffs' proposal included conservation easements totaling more than 10 percent of the property.
The defendant dismisses the plaintiffs' argument insisting that the denial was permissible, as it was based on the commission's preference that the open space be contiguous to the park currently on the adjacent Ice House Road. The defendant argues that General Statutes § 8-25 affords commissions the power to require open spaces, specifically "when, and in places, deemed proper by the planning commission, which open spaces . . . shall be shown on the subdivision plan." The defendant further argues that case law provides the commission with broad discretion in determining the size and placement of open spaces.
The regulations permit the commission to require up to 10 percent for open space. The regulations do not mandate that there be 10 percent for open space. (Sup. ROR, Exhibit V.) The plan provides 6.25 percent for open space, however, if the approximately 2.8 acres of the conservation easement, which is permissible under Section 7.3.5 of the regulations, are included in that calculation then 20 percent of the land is open space. (ROR, Exhibit 11.6.) Although the regulations afford the commission discretion in determining how much open space should be in a plan, the regulations do not permit the commission to require more than 10 percent open space. Moreover, the commission raised no concerns that the subdivision did not have enough open space. Instead, the commission's basis for the denial is that the open space was not contiguous to an adjacent park. (ROR, Exhibit III.3 pp. 20-27.) This determination is not supported by the applicable regulations and is therefore arbitrary and unreasonable.
Section 7.3.5 of the regulations states: "The Commission shall determine the most appropriate method of disposition considering, among other things, the relationship of the subject area(s) and its specific characteristics to the Plan of Development and the objectives cited in Section 7.1; the desirability and suitability of public access and use and the scope of the subdivision proposal. The following disposition options may be utilized by the Commission: Utilization of conservation restriction(s), with or without public access." (Supp. ROR, Exhibit V.)
D. Conflict of Interest Claims
Lastly, the plaintiffs argue that at least two members of the commission should have recused themselves from considering the plaintiffs' application. The plaintiffs claim that Gary Martin and Carl Mancini, members of the commission, should have recused themselves for conflicts of interest.
The defendant argues that commission members did not need to recuse themselves because they did not have any biases against the plaintiffs. Specifically, they maintain that there was no financial or personal interest at stake for the commission members and thus no need for them to recuse themselves from consideration on the underlying application. They argue that the fact that the 400-foot intersection waiver amendment passed is contrary to the plaintiffs' claims of bias.
"While it is true that neutrality and impartiality of members of administrative boards and commissions are essential to the fair and proper operation of these authorities . . . a charge of bias must be supported by some evidence proving probability of bias before an official can be faulted for continuing to exercise her duties." (Citation omitted.) Obeda v. Board of Selectmen, 180 Conn. 521, 523-24, 429 A.2d 956 (1980). "Because public officers, acting in their official capacities, are presumed, until the contrary appears, to have acted legally and properly . . . the burden on such a claim rests upon the person asserting it." (Citations omitted.) Huck v. Inland Wetlands Watercourses Agency, supra, 203 Conn. 537.
"Section 8-11 of the General Statutes clearly requires that a member of the zoning commission or board shall disqualify himself when the decision of the zoning authority could inure to his benefit, and forbids a member of a zoning commission or board of appeals from participating in any matter in which he has a personal interest in the outcome. A personal interest has been defined as an interest in either the subject matter or a relationship with the parties before the zoning authority impairing the impartiality expected to characterize each member of the zoning authority. A personal interest can take the form of favoritism toward one party or hostility toward the opposing party; it is a personal bias or prejudice which imperils the open-mindedness and sense of fairness which a zoning official in our state is required to possess.
. . . The decision as to whether a particular interest is sufficient to disqualify is necessarily a factual one and depends on the circumstances of the particular case." (Internal quotation marks omitted.) Thorne v. Zoning Commission, 178 Conn. 198, 204-05, 423 A.2d 861 (1979).
First, in addressing commissioner Martin's recusal, the court finds the following facts. Martin's father-in-law, Richard Fusco, opposed the plaintiff's application when it was before the inlands wetlands commission. (ROR Exhibit III.3, p. 3; Sup. ROR, Exhibit I.) When the original application then came before the defendant commission, the plaintiffs asked that Martin recuse himself. (ROR, Exhibit III.3, p. 3.) Martin initially did recuse himself and said "I will step down because you want to know what I don't even want to hear their proposal. How's that? They don't deserve my ear to hear this proposal." Id., 5. In spite of his recusal in considering the first application, Martin did not recuse himself in either the deliberations or the voting of the present application. The evidence shows a bias on the part of Martin, to which Martin should have recused himself from hearing the present application. The court finds that Martin should have recused himself from considering the application.
Another commissioner, Carl Mancini announced at the amendment hearing to the 400-foot regulation that he would not agree to change the 400-foot requirement under any circumstances. (Sup. ROR, Exhibit VI.16, p. 79.) It is clear he made up his mind as to this issue and could not be fair when the vote was taken in this case as to this issue, but unlike Martin he recused himself from voting on the present application. (ROR, Exhibit III.3, p. 9.)
V CONCLUSION ORDER
Based on the foregoing analysis, the court finds that the commission lacked substantial evidence to deny the plaintiffs' subdivision application for any of the reasons they advanced and was unreasonable and arbitrary. As to what relief the court should grant, the court is swayed by the plaintiffs' argument that a remand to the commission would be unfair to the plaintiffs and instead the court should sustain the appeal and order the commission to approve the application as presented.
General Statutes § 8-8(l) provides in relevant part that "[t]he court, after a hearing thereon, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from. If a particular board action is required by law, the court, on sustaining the appeal, may render a judgment that modifies the board decision or orders the particular board action . . ." Accordingly, the court hereby sustains the plaintiffs' appeal and remands this case to the commission with direction to approve the application.