Opinion
No. CV05 401 30 33 S
October 31, 2008
MEMORANDUM OF DECISION
On October 14, 2005, the Trumbull Zoning Board of Appeals granted variances as to lot area and setbacks to allow the plaintiff's property to be divided into two residential building lots. (ROR, Item 1G.)
On August 17, 2005, the Planning and Zoning Commission of the Town of Trumbull (hereinafter "the Commission") held a public hearing on the application of James McWain and Bonnie McWain (hereinafter jointly "the Plaintiff") with regard to an application for a two (2) lot resubdivision of property located at 32 Calhoun Avenue. On October 14, 2005 after its work session, the commission denied the application. In its Notice of Decision dated October 24, 2005, the commission set forth its reasons for denial which were as follows:
1. The Commission expressed concern about the precedent this would establish in the area. The Town should abandon the road R.O.W.
2. There is hunting in the "valley," and the house would protrude too far into the safety zone for hunting.
3. The Commission did not consider the R.O.W. to be a road because it would be too steep; it would be out of character with the area.
Pursuant to the provisions of Connecticut General Statutes § 8-8, the Plaintiff filed a timely appeal from this decision of the Commission. At its hearing before this court on July 11, 2008, the Court made a finding that the plaintiffs had standing to bring this appeal and has established aggrievement.
The plaintiff's application sought a resubdivision of the parcel in order to create one (1) additional single family building lot that would conform to all requirements of the Zoning regulations as varied by the Zoning Board of Appeals. The application met all of the Town's subdivision regulations other than the new lot lacked the required frontage on an improved town road. The plaintiff asked that the Commission allow the lot to front on an unimproved road.
The Commission denied the subdivision application. The Commission at its October 14, 2005 meeting, explicitly stated that its reasons for denial was because the "right of way" or street was not in compliance with regulations as well as safety problems. The chairman set forth two reasons for denying the application: (1) the addition of the new house would intrude into the hunting safety zone in the Pequonnock Valley and (2) the road was inadequate and thus dangerous.
A planning commission reviewing a subdivision application acts in an administrative capacity and must approve a plan which conforms to the subdivison regulations. To require uniformity in treatment of applicants, the regulations must be controlled by fixed standards to be uniformly applied to all cases of a similar nature. Beach v. Planning and Zoning Commission of Town of Milford, 141 Conn. 79, 85, 103 A.2d 814, 817 (1954); R.K. Development Corporation v. City of Norwalk, 156 Conn. 369, 375-77, 242 A.2d 781, 784-85 (1968).
The commission is limited to determining whether or not the subdivision application complies with the subdivision regulations. R.B. Kent Son, Inc. v. Planning Commission of Town of Ledyard, 21 Conn.App. 370, 373, 573 A.2d 760, 762 (1990); Weatherly v. Town Plan and Zoning Commission of Town of Fairfield, 23 Conn.App. 115, 119, 579 A.2d 94, 96 (1990); Reed v. Planning and Zoning Commission of Town of Chester, 208 Conn. 431, 433, 544 A.26 1213, 1214 (1988).
Where a subdivision application meets the existing regulations of a planning commission, the commission must approve the application. RK Development Corporation v. City of Norwalk, 156 Conn. at 376, 242 A.2d at 784; Beach v. Planning and Zoning Commission of Town of Milford, 141 Conn. at 84, 103 A.2d at 817; Town of Westport v. City of Norwalk, 167 Conn. at 157, 355 A.2d at 28; Purtill v. Town Plan Zoning Commission of Glastonbury, 146 Conn. 570, 573, 153 A.2d 441, 443 (1959); Reed v. Planning and Zoning Commission of Town of Chester, 12 Conn.App. 153, 156, 529 A.2d 1338, 1340 (1987), affirmed, 208 Conn. 431, 433, 544 A.2d 1213, 1214 (1998); Gagnon v. Municipal Planning Commission of City of Ansonia, 10 Conn.App. 54, 57, 521 A.2d 589, 590 (1997), certification denied, 203 Conn. 807, 525 A.2d 521 (1987).
The essential question is whether the commission's decision is reasonably supported by the record. Town of Westport v. City of Norwalk, supra, 167 Conn. at 161, 355 A.2d at 30; Gagnon v. Municipal Planning Commission of City of Ansonia; 10 Conn.App. at 57, 521 A.2d at 589 (1987); Blakeman v. Planning Commission of City of Shelton, 152 Conn. at 308, 206 A.2d at 428; Raybestos-Manhattan, Inc. v. Planning and Zoning Commission of Town of Trumbull, 186 Conn. 466, 469, 442 A.2d 65, 67 (1982).
The commission's authority is limited to whether the proposal complies with the regulations and it cannot make law or determine legal rights. Gagnon v. Municipal Planning Commission of City of Ansonia, 10 Conn.App. 54, 57, 58, 521 A.2d 589, 590, 591 (1987); 203 Conn. 807, 525 A.2d 521 (1987). In the present case the record fails to support the board's action.
In a review from the denial of a subdivision application the question for this Court is whether the reasons assigned by the Commission for denial of the application were valid. RK Development Corporation v. City of Norwalk, 156 Conn. 369 (1968); Blakeman v. Planning Zoning Commission of the City of Shelton, 152 Conn. 303 (1965).
Where the Commission states formal reasons for its actions, the Court will not speculate upon other possible reasons for denial. RK Development Corporation v. City of Norwalk, supra, at 374. This Court must determine whether the reasons given by the Commission for denial of the application are supported by the express language of the Commission's regulations and whether the denial, based upon specific sections of the regulations, is reasonably supported by the evidence. Westport v. Norwalk, 167 Conn. 151 (1974); Crescent Development Corporation v. Planning Commission of the Town of New Canaan, 148 Conn. 145 (1961); Nicoli v. Planning Zoning Commission of the Town of Easton, 171 Conn. 89 (1976).
In interpreting provisions of the Zoning Regulations, the strict construction rule applies and the regulations should not be extended by implication to include more than is within their expressed authority. Schwartz v. Planning Zoning Commission of the Town of Hamden, 208 Conn. 146 (1088).
The Court finds the Commission's reasons are not supported by its regulations and no evidence exists in the record that the subdivision regulations have not been met.
A careful examination of the record summarizing the Commission's reasons for denial sets forth the following:
1. " Precedent." The Commission expressed "concern" about the precedent it would establish if the application was granted. Such "concern" was specious.
As the record reflects there was no precedent being established as this Commission regularly grants subdivision and resubdivision approvals to allow the creation of building lots on unimproved town roads. Statements with regard to the Commission constantly approving the same were made by David Bjorklund, the plaintiff's representative; Brian Smith, the Assistant Town Engineer and Joan Gruce, the Town Zoning Administrator.
The plaintiff cannot be treated differently than other applicants. To require uniformity in treatment of applicants, the regulations must be controlled by fixed standards to be uniformly applied to all cases of a similar nature. Beach v. Planning and Zoning Commission of Town of Milford, 141 Conn. 79, 85, 103 A.2d 814, 817 (1954); R.K. Development Corporation v. City of Norwalk, 156 Conn. 369, 375-77, 242 A.2d 781, 784-85 (1968).
The Commission's improper claims of "concern" over setting a precedent were summarized by the Assistant Town Engineer, who stated: "It's setting a precedent of honoring an old subdivision which a Court is going to give these people anyway, in my opinion . . ." (ROR, Item 6; Smith, Pg. 10.)
By denying the plaintiff's request to vary the subdivision regulations the Commission acted in a arbitrary and capricious manner and in violation of the standard of review required by the Commission.
2. " Hunting." The Commission said the house would protrude too far in the "safety zone" for hunting in the Pequonnock River Valley. This is beyond the scope of the regulations. No such "safety zone" exists in the subdivision regulations nor has it been defined in the regulations. A planning Commission cannot deny a subdivision application based upon a standard or for a reason not contained in its existing regulations. RK Development Corporation v. City of Norwalk, 156 Conn. at 377, 242 A.2d at 78.
There is nothing in the record to determine where hunting is or is not permitted in the valley, whether this property is anywhere near the portions of the valley in which hunting is permitted and whether this property is any closer to such areas than other existing or potential building lots. In fact, the portion of the assessor's map made part of the record show other houses in the immediate neighborhood being closer to the valley than plaintiff's property.
3. "` R.O.W.' Not Town Road" The Commission failed to consider the law and facts by declaring that the town's right of way was not an unimproved town road. Their conclusion is unsupported by the record and, in fact, is completely contrary to the facts as stated in the record in numerous places. (Item 6 — Transcript Voting Session, Smith Pgs. 2-4; Item 4 — Transcript — Hearing, Bjorklund, Pg. 3 P. 12; Gruce Pg. 2, Pg. 4 Pgs. 29-30.) The Town Engineer testified that while the road may not meet current regulations, it predated the same and thus was a town road. In response to questions the Town Attorney advises the Commission:" I think we're over-thinking this in discussing the roadway." (Item 4; Cordone, Pg. 15.)
The Commission then exceeded its powers by making up a new standard of fact finding: declaring that a road is not a road because ". . . in my mind, it's not a Town road," in complete derogation of the facts. (Item 6 — Transcript Voting Session, Commission Chairman Chory; Pg. 8.)
The Commission then made up new "law" in addition to making up "facts." One Commission member stated that R.O.W. was taken by the property owners by "adverse possession" against the town (Item 6 — Transcript of Voting Session Herbs Pg. 5 P. 8), and argued with both the Town Attorney and Assistant Town Engineer when they explained that no one can adversely possess against a municipality. It is clear from the transcript that the Commissioner's misunderstanding of the law directly affected its decision.
It is well settled that in construing a zoning regulation the Court seeks to ascertain the intent of the local agency as expressed in the regulation. Essex Leasing Co. v. Zoning Board of Appeals of the Town of Essex, 206 Conn. 595 (1988). In ascertaining the intent of the regulations the Court looks first to the language of the ordinance itself. Hutchison v. Zoning Board of Appeals of the Town of Stratford, 140 Conn. 381 (1953). In undertaking this analysis our Supreme Court has repeatedly held that where the language of the regulation is plain and unambiguous, the intention of the agency is determined from the actual words used. Weigel v. Planning Zoning Commission of the Town of Westport, 160 Conn. 239 (1971). Where the words and phrases used are clear and unambiguous, the Court will not read into the regulation by construction provisions or qualifications that are not clearly stated. Harlow v. Planning Zoning Commission of the Town of Westport, 194 Conn, 187 (1984); Dowling v. Zoning Board of Appeals of Town of Old Lyme, 187 Conn. 689 (1982).
All of these rules of construction are based upon the well settled principal that zoning regulations are in derogation of common law property rights and cannot be construed to include or exclude by implication what is not clearly and expressly stated within their terms. Planning and Zoning Commission of Town of Lebanon v. Gilbert, 208 Conn. 696, 705, 546 A.2d 823, 828 (1988); Dowling v. Zoning Board of Appeals of Town of Old Lyme, 187 Conn. 689, 694, 447 A.2d 1172, 1174 (1982); J M Realty Co. v. Board of Zoning Appeals of City of Norwalk, 161 Conn. 229, 233, 286 A.2d 317, 319 (1971); Reed v. Planning and Zoning Commission of Town of Chester, 12 Conn.App. 153, 158 n. 7, 529 A.2d 1338, 1341 n. 7 (1987), affirmed, 208 Conn. 431, 544, A.2d 1213 (1998); Fisher v. Board of Zoning Appeals of Town of Monroe, 143 Conn. 358, 361, 122 A.2d 729, 730 (1956); Service Realty Corporation v. Planning and Zoning Board of Appeals of Town of Greenwich, 141 Conn. 632, 638, 109 A.2d 256, 260 (1954). Our courts have repeatedly held that a restrictive interpretation of a zoning regulation will not be made unless it is expressed in or implied from the plain language of the regulation. Children's School, Inc. v. Zoning Board of Appeals of City of Stamford, 66 Conn.App. 615, 626, 785 A.2d 607, 616 (2001), cert. denied, 259 Conn. 903, 789 A.2d 9990 (2001); Santini v. Zoning Board of Appeals of the City of Bridgeport, 149 Conn. 290, 291, 179 A.2d 621, 622 (1962).
The plaintiff's application complied with Trumbull's zoning and subdivision regulations. The Zoning Board of Appeals properly granted variances to allow two building lots on plaintiff's property. The Planning and Zoning Commission acted in an administrative capacity in reviewing the resubdivision application.
The Commission did not follow its prior rulings, the standards of law or the facts as stated on the record as to this application. In its denial, the Commission imposed standards with regard to the review of said application that are not contained within its existing Regulations and were not consistent with the legal authority of case law regarding subdivision or resubdivision review.
The plaintiff's appeal is sustained.