Opinion
No. FBT CV 08 4026622 S
September 28, 2009
MEMORANDUM OF DECISION
The plaintiff, Catherine McElroy, appeals to this court, pursuant to General Statutes § 8-8, challenging a decision by the defendant Town Plan and Zoning Commission of the Town of Fairfield ("Commission"). In that decision, the Commission rejected a subdivision application filed by the plaintiff with respect to property located at 1089 Church Hill Road in Fairfield. ("Property").
The plaintiff's complaint alleges that on June 17, 2008, the plaintiff filed an application for a two-lot subdivision with the Commission pursuant to General Statutes § 8-25. Public hearings on the application were held on September 9, 2008 and September 23, 2008. Thereafter, on October 14, 2008, the Commission voted to deny the application. The plaintiff claims that her subdivision application fully complies with the zoning and subdivision regulations of the Town of Fairfield and that in denying her application the Commission abused its power and acted illegally, arbitrarily and capriciously.
THE RECORD
The record shows that the Property is situated in the "Residence A District" or A zone. (Return of Record [ROR], Exhibits (Exs.) 1 and 68.) The total area of the plaintiff's Property is 20,617 square feet. (ROR, Ex. 69.) The Property is bounded on the east by Church Hill Road and on the west by Stratfield Road (State Route 59). On the south the Property is bounded two residential lots, one of which is owned by the plaintiff and her husband. On the north the Property is bounded by two residential lots. A residence with an attached garage is situated on the Property approximately thirty feet from Church Hill Road. A short driveway leads from the garage to Church Hill Road. (ROR, Ex. #69.)
The plaintiff's subdivision application proposed the creation of two lots. Under § 5.1.1 of the Fairfield Zoning Regulations, lots in the A zone require a minimum area of 9,375 square feet. (ROR, Ex. 59.) Plaintiff's first lot — parcel "A"— would contain the existing residence on a 11,175 square foot lot which would have street access solely to Church Hill Road. The second lot — parcel "B"— would be improved with a new residence on a 9,442 square foot lot which would have street access solely to Stratfield Road. The driveway serving parcel "B" would be directly opposite the Y-shaped intersection of Stratfield Road with Putting Green Road. (ROR, Ex. 69.) Both lots in the proposed subdivision meet all zoning requirements including those relating to lot shape, street frontage, and required yards.
Public hearings were held by the Commission on the plaintiff's application on September 9, 2008, and September 23, 2008. The plaintiff was represented at the hearing by attorney Timothy Herbst. The only significant issue addressed at the hearings was the safety of the new proposed driveway on Stratfield Road serving Parcel B.
The Commission considered the plaintiff's application in an executive session held on October 14, 2008. (ROR, Ex. 21.) The minutes of that meeting reflect that the Commission voted to deny the plaintiff's subdivision application by a vote of one in favor and six against. The Commission's Notice of Decision dated October 15, 2008, stated the following reasons for the Commission's decision:
It has not been demonstrated that the proposed lot is of such a character that it can be used for building purposes without danger to the health and safety of the public or the occupants pursuant to Section 1.1.14 and 2.4 of the Subdivision Regulations. The applicant has not demonstrated that an adequate sight line distance for the proposed driveway onto Stratfield Road can be achieved.
Notice of the decision was published on October 17, 2008. (ROR, Ex. 24.) Thereafter, the plaintiff filed a timely appeal to this court.
AGGRIEVEMENT
At a hearing held on August 7, 2009, the plaintiff submitted evidence of her ownership of the Property (Ex. 1.) The court found that, as the owner of the Property, the plaintiff was aggrieved. Bossert Corp. v. Norwalk, 157 Conn. 279, 285 (1968).
DISCUSSION
When enacting subdivision regulations, a planning authority is acting in its legislative capacity. J M Realty Co. v. Norwalk, 156 Conn. 185, 189-90 (1968). When reviewing a subdivision application, a planning authority is acting in its administrative capacity. Reed v. Planning Zoning Commission, 208 Conn. 431, 433 (1988).
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, conclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] 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." (Citation omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453 (2004).
"When 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 reason supporting the [board'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." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420 (2002).
The only specific ground assigned by the Commission for its denial of the plaintiff's application was plaintiff's failure to demonstrate that "an adequate sight line distance for the proposed driveway onto Stratfield Road can be achieved." The plaintiff claims that off-site traffic concerns do not afford a tenable basis for rejecting a subdivision application. The plaintiff relies on the recent case of Pansy Road, LLC v. Town Plan Zoning Commission, 283 Conn. 369 (2007). In that case, also an appeal from the denial of subdivision approval by the Town Plan and Zoning Commission of Fairfield, the Supreme Court held that issues of existing off-site traffic conditions could be considered for the "limited, site-specific purpose of addressing traffic flow within the site and entering and exiting the site." Id., 370. The court reversed the decision of the trial court upholding the decision of the Commission to deny a subdivision application when the record did not show that the Commission has conducted such a limited review.
The issue of the sight lines available at the intersection of the plaintiff's proposed driveway with Stratfield Road was the subject of considerable evidence presented to the Commission. The Fairfield Subdivision Regulations do not include any standards with respect to the sight lines required at such intersections. The reports and testimony considered by the Commission were contradictory as to, not only the sightlines required for safe ingress to and egress from the plaintiff's property, but also as to how such sightlines should be measured.
Laura Pulie, a senior civil engineer employed by the Town of Fairfield, provided comments to James Wendt, the town's assistant director of planning and zoning, on July 3, 2008, stating: "Sight Line Plan submitted and is acceptable as 390 lf (linear feet) of sight line is provided and currently, 225 lf is recommended." (ROR, Ex. 6.)
On July 22, 2008, John Ficke, transportation supervisor of the Fairfield Public Schools, sent a letter to the Commission conveying concerns regarding the proposed driveway at the intersection of Stratfield Road and Putting Green Road. He described the existing intersection as a blind one which bus routes are scheduled to avoid. He expressed his view that the creation of the proposed driveway would increase safety concerns. (ROR, Ex. 8.)
Because Stratfield Road is designated as State Route 59, the District Permit Section of the Connecticut Department of Transportation was requested by Commission staff to comment on the proposed new driveway. In an August 29, 2008 e-mail to James Wendt, Ernest Lagoja on behalf of the District Permit Section commented: "The District Permit Section received plans for the subject proposal. Although a drive may be built onto Route 59 for the subject home, the District believes that the safest means of egress can be best provided from Church Hill Road. Route 59 is a high volume and faster road than Church Hill, most importantly drive geometry and sightlines are far better on Church Hill Road than Route 59. The state will not deny access to this parcel but we encourage the town to develop these properties with access to Church Hill Road." (ROR, Ex. 11.)
James Wendt responded to Lagoja's e-mail on the same day: "Ernie: I agree in principal that access to Church Hill Road is favorable. The Plan and Zoning Commission denied an earlier version of the subdivision in 2000 and recommended the applicant seek such access. That access requires a variance of the regulations for the decreased lot width for the driveway easement. The applicant applied for a variance and was denied in June of 2001. A new application could be attempted. In the absence of a variance however, can the applicant obtain a State driveway permit with the plans in hand or is there additional information required for such a determination?" (ROR, Ex. 12.)
On September 3, 2008, Lagoja informed Wendt he was working with Michael Galante, the plaintiff's traffic engineer, and stated "When a final plan is submitted we will issue a permit for a new driveway for House No. 2156 Stratfield Avenue (sic)." (ROR, Ex. 12.)
In an e-mail sent on the morning of September 9, 2008, Lagoja informed Wendt: "I received a call from Bruce Hillson regarding the subject subdivision, it appears that there is a significant difference of opinion regarding sightline measurements for the proposed drive onto Route 59. Prior to issuing a permit for this site, we will need an independent survey of the proposed sightline. If the drive sightline does not meet the minimum sight line for the posted speed limit, we will have to rethink this proposal." (Emphasis in original.) Later that same morning, Wendt responded, via e-mail: "What is the minimum distance you are looking for?" Also on the same morning, Lagoja replied: "The Speed Limit is 35 mph mm. sight line should be 390 feet in each direction from 10 feet behind the curb line. We should ask for 500 feet since the design speed is 45 mph. Both McEnroy (sic) and Hillson measured very different sight line distances. We may need an individual without interest in this matter to measure the proposed drive sight lines. Any chance in providing a drive onto Church Hill?" (ROR, Ex. 15.)
Bruce Hillson, a traffic engineer, was retained by neighbors opposing the plaintiff's subdivision and spoke in opposing to the proposal at the September 23, 2008 public hearing.
At the hearing held on evening of September 9, 2008, Michael Galante, the plaintiff's traffic engineer spoke at length regarding the proposed subdivision plan. With regard to safety, he noted that the records of the Fairfield Police Department reflected that there were four traffic accidents in the vicinity of the proposed driveway on Route 59 during a three-year period from 2005 to 2007. He commented that the main issue for the proposal was sight line distances. He noted that although the project had been under consideration for about eight years, he had only been involved for the past "month or so." He stated that he had met with Ernie Lagoja the prior week "to provide a site plan, actually a revised site plan, and profile plans to District 3 to have our discussion to hopefully obtain approval for this driveway because we need their approval to build this house." (ROR, Ex. 17, p. 6.)
Galante stated that the maximum sight distances now shown in the plans were 587 feet to the north and 497 feet to the south. He noted that "the book" says for 30 mph of speed, sightlines of 390 feet are required, for 40 mph, 445 feet and for 45 mph, 500 feet. (ROR, Ex. 17, p. 7.) He stated that sight lines should be measured fifteen feet from the edge of the pavement at the intersection of two roads. However, he noted that "the book" did not provide guidelines for the point from which sight lines were to be measured at the intersection of a driveway and a road. Galante had measured his sight lines eight feet from the edge of the pavement, a point he said Lagoja agreed to. (ROR, Ex. 17, pp. 8-9.) In response to questions from members of the Commission, Galante said that he did not perform the survey measuring sight lines, but instead relied on a survey prepared by the plaintiff's husband, a licensed land surveyor who had signed the survey and affixed his official seal. (ROR, Ex. 17, p. 11.)
Members of the public spoke for and against the proposal at both the September 9, 2008 and September 23, 2008 hearings. The comments of those opposing the proposal reflected their concerns that the existing heavy traffic traveling at high speeds on Route 59 would prevent the construction of a new driveway without adversely affecting the safety of the public. (ROR, Exs. 17 and Ex. 20.) In rebuttal, the plaintiff herself spoke at the September 23, 2008 hearing in support of her application and responded to the criticisms made by and on behalf of her neighbors. (ROR, Ex. 20, pp. 89-94.)
At the September 23, 2008 hearing, Attorney Austin Wolf, representing the owners of property in the neighborhood, questioned Galante concerning sight lines. Galante confirmed that he had not surveyed or measured the sight lines, but had relied on the survey prepared by the plaintiff's husband. (ROR, Ex. 20, pp. 19-21.) Attorney Wolf introduced Bruce Hillson, the traffic engineer retained by his clients. Hillson stated that in his conversations with representatives of the Connecticut Department of Transportation, it had been made clear to him that it was imperative that the driveway only be used to enter the highway head first and not used for backing into traffic on Route 59. He found that the design of the proposed driveway would make it difficult to turn a car around so as to enter the highway moving in a forward direction. The maneuver would be especially difficult if other vehicles parked in the drive. (ROR, Ex. 20, pp. 24-25.)
Michael Galante's report dated September 3, 2008, addressed to Michael L. McElroy, L.L.S., also agreed that the driveway must be constructed so as to allow cars to turn around and drive out onto Stratfield Road. (ROR. Ex. 62, p. 2.)
Hillson stated that he had measured sight lines at the location of the proposed driveway and found that they were far less than those shown on the survey prepared by the plaintiff's husband. Hillson measured his sight lines from ten feet from the edge of the road and found the sight line to be between 170 to 200 feet. A sight line of 487 feet in that direction could only be obtained at a distance of five feet from the edge of the road. Similarly, Hillson found that the sight line available to right would be 270 feet at ten feet for the edge of the road and 335 feet at five feet from the edge. (ROR, Ex. 20, pp. 26-28.) He noted that a vehicle could be seen at a distance of 587 feet, but that because of the curvature of the road and the embankment, it would disappear and not reappear until it was 270 feet to 330 feet away depending on the point of measurement. (ROR, Ex. 20, p. 29.)
Attorney Wolf was followed by Attorney Steven Studer, who represented neighbors opposed to the plaintiff's proposal. Attorney Studer claimed that the proposed driveway was "situated on the inside of a dangerous curve on a very busy roadway." He submitted photographs demonstrating his claim. (ROR, Ex. 20, pp. 43-45.) He also noted that the objection was not based on existing traffic congestion, but on the public safety concerns arising out of the inadequacy of the sight lines provided in the plaintiff's subdivision plan. (ROR, Ex. 20, p. 51.)
Included in the record are photographs taken by an opposing neighbor which visually depict the sight lines available to a driver from the location of the plaintiff's proposed driveway. (ROR, Ex. 29.) Similar photographs were included in the traffic engineering report prepared by Michael Galante. (ROR, Ex. 66, exhibits 1 through 6.) The photographs show that the plaintiff's property is located in the inside of a relatively sharp curve on Route 59. The view in both the northerly and southerly directions is limited by the presence of a hillside or berm which appears to be approximately eight to ten feet in height. (ROR, Ex. 64.)
TRAFFIC SAFETY ON EXISTING PUBLIC HIGHWAYS AS A LEGITIMATE CRITERIA IN CONSIDERING A SUBDIVISION APPLICATION
In support of her claim that a planning commission considering a subdivision application may not consider off-site traffic safety, the plaintiff relies on Pansy Road, supra, 283 Conn. 369, and a recent Superior Court case which sustained the appeal of a property owner who sought subdivision approval for another property located on Route 59 in Fairfield. Mayer v. Fairfield Town Plan Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV 06 4014893 (April 8, 2008, Radcliffe, J.).
In Pansy Road, supra, the commission denied the plaintiff's application to subdivide residential property along a public road into five lots, for which the construction of a cul-de-sac would be necessary. The cul-de-sac would provide access for all five lots and intersect with a public highway. The trial court affirmed the commission's decision, and the issue addressed by our Supreme Court was "whether a planning commission has the legal authority to deny a subdivision application because of off-site traffic congestion." Id., 374. Reversing and remanding, the court held that "the defendant did not consider the existing traffic congestion on Pansy Road for the proper limited, site-specific purpose of addressing traffic flow within the site and entering and exiting the site." Id., 380. Instead "the defendant improperly denied the plaintiff's subdivision application because of the existing traffic congestion on Pansy Road." Id.
In Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 431-32 (2008), the Supreme Court made it clear that the principles stated in Pansy Road, apply to the proposed intersections of both driveways and subdivision roads with public roads.
Mayer, supra, addressed the denial of the plaintiff's residential two-lot subdivision applications of a parcel situated on Route 59 in Fairfield. In the first application, an existing driveway from Route 59 was proposed as access to the unimproved parcel. In the second application, two alternate means of access over rights of way were proposed. In reversing the commission's denials, the court stated that § 2.4 of the Fairfield Subdivision Regulations is a "conclusion in search of a regulation." Section 2.4 provides, in pertinent part: "The lots shall be of such character that they can be used for building purposes without danger to the health and safety of the public or the occupants." The court in Mayer cited Sonn v. Planning Commission, 172 Conn. 156 (1976), for the proposition that "the criteria contained in the commission's regulations [must be] as reasonably precise as the subject matter requires and . . . reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations." (Internal quotation marks omitted.) Id., 159.
The plaintiffs submitted their first subdivision application on September 1, 2005, seeking a two-lot subdivision, On January 20, 2006, the commission denied the application, citing two reasons: (1) health and safety of the public issues pursuant to § 2.4 of the subdivision regulations and (2) the commission considered the extent of the maintenance necessary for line of sight to be problematic for the length of the sight line required.
The plaintiffs submitted a second subdivision application on May 8, 2006, proposing two alternative means of accessing the proposed building lot from the road, using easements which were recorded. On July 25, 2006, the commission again denied the application, citing two reasons: (1) health and safety of the public pursuant to § 2.4 of the subdivision regulations, stating that "neither driveway proposed has adequate width for the number of lots served," and (2) that one proposed lot is a non-conforming functional rear lot.
The court in Mayer, noted that the only reasons for denial of the first application were a general statement of § 2.4 to support the public safety concern, and that the "extent of the maintenance necessary for line of sight to be problematic for the length of the sight line required." However, the court found that, the record contained evidence that "appropriate sight distances can be achieved."
The plaintiff argues that Mayer must be read as expanding the holding of Pansy Road to exclude all off-site safety issues as well as the off-site traffic congestion. The court disagrees. Since the Mayer court found that the record did not contain evidence supporting the commission's denial of the application on the basis of public safety concerns, the court's criticism of § 2.4 of the Fairfield subdivision regulations is mere dicta.
"The standard for determining the adequacy of subdivision regulations [therefore] is whether they are as reasonably precise as the subject matter requires and are reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations . . . Although some standards may be general, the regulation must be reasonably sufficient to identify the criteria to be evaluated in their enforcement in order to meet the many variables involved since it would be impossible to establish one standard which would adequately cover all future cases." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 429 (2002).
General Statutes § 8-25 provides for the adoption of subdivision regulations by municipal planning commissions, and requires, in relevant part, "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 . . ." As applied to the plaintiff's subdivision application, the court finds that §§ 1.1.14 and 2.4 of the Fairfield Subdivision Regulations are legitimate regulations authorized and, indeed, mandated by the General Statutes and that these regulations were properly considered by the Commission in rejecting the plaintiff's subdivision application.
In accordance with this statute, § 2.4, Lot Size and Arrangement, of the Fairfield Subdivision Regulations states in pertinent part: "The lots shall be of such character that they can be used for building purposes without danger to the health and safety of the public or the occupants." In addition, § 1.1.14 states in pertinent part: "The property to be subdivided is of such character that it can be used for building purposes without danger to health or the public safety."
The Commission's decision in the present case specifically identified the public safety concern, that of inadequate sightlines at the location of the plaintiff's proposed driveway, which led to the denial of the plaintiff's application. The record contains substantial evidence to support the Commission's conclusion that the construction of the driveway as proposed would necessarily create sightlines which would endanger the members of the public traveling on Route 59, as well as the future occupants of the proposed lot fronting on that highway. Such safety considerations were expressly recognized by the court in Pansy Road, supra, as appropriate factors for a commission to consider in passing on a subdivision application.
The court finds that the holding of Mayer, supra, is not controlling. In the present case, the record contains substantial evidence to support the Commission's finding that the inadequate sight lines at the location of the plaintiff's proposed driveway would create a safety risk for the public and the occupants of the residence to be erected on the plaintiff's proposed lot. Although the Supreme Court in Pansy Road, held that a subdivision application could not be rejected because of general off-site traffic concerns, the court expressly recognized the right of a planning commission to consider locations of proposed entrances and exits from the subdivision. 283 Conn. 380.
EXCLUSIVITY OF STATE TRAFFIC COMMISSION JURISDICTION
In her reply brief the plaintiff argues that the safety issues arising out of her proposed driveway were not a proper concern for the Commission. She argues that because Stratfield Road is a state highway, the Connecticut Department of Transportation has exclusive jurisdiction to determine whether or not to permit construction of the proposed driveway.
"The State Traffic Commission (which is within the Department of Transportation) regulates the use of state highways." R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 49:16, p. 143. "The extent of improvements and conditions for curb cuts, driveways and private roads entering state highways is within the exclusive jurisdiction of the state traffic commission (STC), which preempts any jurisdiction of any municipal zoning commission, planning commission or board of selectmen. This limitation applies only to the activities connected with the highway itself and regulated by the STC, and does not prevent application of land use regulations to other aspects of development of land adjacent to a state highway." (Emphasis added.) Id.; see also Jalowiec Realty Association v. Planning Zoning Commission, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 03 0081041 (January 24, 2006, Nadeau, J.), rev'd on other grounds, 278 Conn. 408, 898 A.2d 157 (2006); Radot, Inc. v. Planning Zoning Commission, Superior Court, judicial district of Hartford, Docket No. 371861 (July 26, 1991, Stengel, J.).
Fuller's treatise does not cite any statutes or cases supporting his analysis. However, a review of the pertinent provisions of the General Statutes confirms his accuracy. General Statutes §§ 14-279 et seq., regulates traffic control and highway safety. Those statutes provide that developments and commercial establishments abutting state highways are regulated under General Statutes § 14-311c. There are no comparable statutory provision addressing single-family residential lots. The statutes do not, as the plaintiff claims invest the State Traffic Commission or the Department of Transportation with exclusive jurisdiction over access to a state highway from a proposed single-family residential lot.
In the present case, as the Fairfield Subdivision Regulations did not specify a sightline requirement, the district permit section of the Department of Transportation, was consulted. Correspondence between Ernest Lagoja, a traffic engineer for the department of transportation, and James Wendt, the assistant town planner for the Town of Fairfield, revealed that it was Lagoja's opinion that because the road to which the proposed driveway is supposed to connect, is a state highway with a speed limit of 35mph, the appropriate sightline requirement would be 390 feet. Also noted in the letter, however, was that because the "design speed" is 45 mph "we should ask for 500 feet."
The Commission was entitled to consider the commended sightline of 500 feet proposed by Lagoja, in weighing various expert testimony as to what the sightline ought to be and what sightline would, in fact be available. Because the Department of Transportation does not have exclusive jurisdiction in the matter, and because it is within the discretion of the Commission to believe one expert over another; Unistar Properties, LLC v. Conservation Inland Wetlands Commission, supra, 293 Conn. 93, 114 (2009); it was proper for the Commission to deny the plaintiff's application for subdivision based upon public safety concerns regarding traffic.
The court finds that there is substantial evidence in the record supporting one of the reasons stated by the Commission for its rejection of the plaintiff's application. The plaintiff's appeal must be and it hereby is denied.