Moodus Sportsmen's Club v. E. Haddam PZC

Full title: MOODUS SPORTSMEN'S CLUB v. EAST HADDAM PLANNING ZONING COMMISSION ET AL

Court: Connecticut Superior Court Judicial District of Middlesex at Middletown

Date published: Jun 10, 2008

2008 Ct. Sup. 9659 (Conn. Super. Ct. 2008)

45 CLR 697

Opinion

No. CV 07 4006593

June 10, 2008

MEMORANDUM RE WHETHER DECISION OF THE ZONING BOARD OF APPEALS IMPROPERLY DELEGATED

CLARANCE J. JONES, JUDGE.

In the present case, the East Haddam Planning and Zoning Commission approved the application of Curtis and Myriah Rodowicz for the construction of a single-family home subject to the condition that a retest of the percolation rates for its septic system be conducted, and the successful results of that test be submitted to the land use administrator. Moodus Sportsmen's Club, Inc. occupies an abutting parcel of land under a ninety-nine-year lease. A well on the leased property is the only source of drinking water for the club.

Appellant Moodus Sportsmen's Club has taken this appeal of the action of the Commission. The appellant argues that the commission acted illegally, arbitrarily and in an abuse of its discretion by granting a conditional approval of the site plan in violation of Section 14A.4.G of the East Haddam Zoning Regulations which governs, inter alia, the percolation rates of septic waste disposal systems. The appellant also argues that the conditional approval constituted an impermissible delegation of the zoning commission's authority, and expresses its fear that the disposal system may contaminate its well water.

In reaching its decision to approve the construction subject to a favorable outcome from a retesting of the percolation rate for the septic system, the commission noted that one of its commissioners was knowledgeable in construction matters and that the commission was drawing on his expertise in deciding that a retest of the percolation rates would be successful. (ROR, Item C, p. 32-33.) The retest was successful and the zoning enforcement officer was notified that the percolation test was in compliance with the regulations. A revised site plan was submitted to reflect the percolation test location and the result summary. This appeal followed.

A. Delegation of Authority CT Page 9660

Pursuant to General Statutes § 8-3(g): "The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations." It is the plaintiff's argument that the East Haddam zoning regulations vest the authority to review site plans with the commission, and, therefore, the commission's decision to approve the application subject to a zoning officer's subsequent approval is an impermissible delegation of authority. The appellant argues that the commission "effectively transferred its authority to modify and approve to a staff member, to exercise his judgment in place of theirs as to whether the non-conformance of the site plan as submitted has been corrected." This argument, however, is without merit. A review of the record, particularly the transcript of the November 28, 2006 meeting, reveals that the commission approved the site plan conditioned on the successful retest of the percolation rates. (ROR, Item C.) A specific site plan was approved, but was conditioned on the zoning officer's subsequent acknowledgment that the results fell within the range specified by the regulations. Specifically, the condition stated that "no [c]ertificate of [z]oning [c]ompliance shall be issued by the [a]cting [z]oning [e]nforcement [o]fficer unless and until new percolation tests are performed in the area of the proposed septic system which establish rates in conformance with the requirements set forth in section 14a-4(g) . . ." (ROR, Item 26.) Section 14A.4.G of the East Haddam zoning regulations delineate the specific range of impermissible percolation rates as "rates faster than one (1) minute per inch, or slower than sixty (60) minutes per inch . . ."

"Where the zoning commission, acts upon a site plan application, it acts in an administrative capacity . . . Pursuant to General Statutes § 8-3(g), regulations may require that a site plan be filed with the commission . . . to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations, and a site plan application may be denied only if it fails to comply with requirements already set forth in the zoning regulations. When an agency undertakes consideration of a site plan application, it has no independent discretion beyond determining whether the plan complies with the site plan regulations and applicable zoning regulations incorporated into the site plan regulations by reference." (Citation omitted; internal quotation marks omitted.) Borden v. Planning Zoning Commission, 58 Conn.App. 399, 408, 755 A.2d 224 (2000). Thus, in the present case, the commission, acting under reasonable belief that a retest would establish percolation rates in conformity with the regulation, approved a site plan. A review of the record reveals that any subsequent approval by the zoning officer was to verify that the test did in fact conform with the regulation, and was not intended to delegate authority to approve or deny a site plan.

B. Conditional Approval

Several Superior Court decisions have discussed the appropriateness of a conditional approval of a site plan in instances where the conditions are proscribed in the regulations. See Douskey v. Planning Zoning Commission of Hamden, Superior Court, judicial district of New Haven, Docket No. 416513 (July 20, 1999, Levin, J.) (commission permitted, but not required, to condition approval upon the fulfillment of conditions set forth in regulations to further the site plan objectives); Floch v. Planning Zoning Commission of Westport, Superior Court, judicial district of Fairfield, Docket No. 311201 (June 27, 1995, Levin, J.) (regulations specifically allow commission to approve site plan with conditions). In these cases, the conditions attached to approval have created additional steps beyond demonstrating compliance with the zoning regulations. See Clifford v. Planning Zoning Commission of Ansonia, 280 Conn. 434, 908 A.2d 1049 (2006) (planning and zoning commission granted site plan application conditioned on approval of the inland wetlands commission because the subject property adjoined a wetland and watercourse); Tarlow v. Stamford Planning Board, Docket No. FST CV 05 4006021 S (Jun. 26, 2007, Nadeau, J.) (board presumably would be allowed to condition approval of subdivision plan on blasting prohibition due to public safety concerns).

In the present case, however, the "condition" attached to approval was subsequent proof that the site plan conformed with the regulation. The appellant maintains that the regulation allows for a site plan to be approved, or modified and approved, neither of which occurred. Instead, the plaintiff maintains that the commission approved, and then modified the plan; however, the site plan that was approved at the meeting was the site plan that was subsequently found to conform to the regulations. Although a revised site plan was submitted to demonstrate the new data, the approved plan was not subsequently modified. Although not directly on point, it is relevant to note that in Perry Brothers v. Canton Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV 90382078 (November 5, 1991, Sullivan, J.) [5 Conn. L. Rptr. 650], the procedural background underlying the appeal indicated that the consequence of a condition not being satisfied was to have the approval withdrawn, not modified. In Perry, a planning commission granted conditional approval of a site plan, subject to the subsequent approval of a special exception; however, when the special exception was denied, the board withdrew its approval. Id.

It should also be noted that the Supreme Court has held that "commission action which is dependent for its proper functioning on action by other agencies over which the zoning commission has no control cannot be sustained unless the necessary action appears to be a probability." (Internal quotation marks omitted.) River Bend Associates, Inc. v. Zoning Commission, 271 Conn. 41, 56, 856 A.2d 959 (2004); see also Cambodian Buddhist Society v. Planning Zoning Commission, 285 Conn. 381, 941 A.2d 868 (2008). The reason for this being that "an `approval' subject to a condition, the fulfillment of which is not within the control of the applicant, or in which an approval by a coordinate agency is not shown to be a reasonable probability, is not an `approval' within § 8-26 of the General Statutes, and such an approval is thus a `failure to act' within the meaning of that statute." (Internal quotation marks omitted.) River Bend Associates, Inc. v. Zoning Commission, supra, 271 Conn. 56. Although the present case does not address conditional approval subject to another agency's approval, it is relevant to note that the commission, in making its decision to approve the application subject to a successful retest, relied on the expertise of Commissioner Curtin, who believed, based on his experience, that such a retest of the percolation rates would be successful. (ROR, Item C, p. 32-33.) Therefore, even if the commission's approval is considered subject to a condition, the satisfaction of the condition "appeared to be a probability."

It should also be noted that in its supplemental brief, the appellant attempts to distinguish the case cited by the defendant, Lurie v. Planning Zoning Commission, 160 Conn. 295, 307, 278 A.2d 799 (1971), from the present case. The Lurie case, and the Superior Court cases interpreting it, all arise out of a third party's challenge to a zoning authority's decision to approve a special permit subject to subsequent approvals by other agencies. The appellant maintains that Lurie is distinguishable because the present case involves a site plan application whereas Lurie involves a special permit application. A review of Connecticut case law does not reveal any case directly on point; however, as set forth above, several cases involve appeals based upon peripheral issues surrounding conditional approvals of site plans. Thus, while the appellant is correct in its contention that Lurie is distinguishable in that it carves out an exception for special permits, its argument does not establish that conditional approval of site plans is impermissible.

Aggrievement

Given the nature of the lease in this case, and appellant's use of the property, the court finds that appellant Sportsmen's Club is aggrieved for the purpose of taking this appeal. See appellant's citation to Primerica v. Planning Zoning Commission, 211 Conn. 85, 94 (1989) and cases referenced therein.

Conclusion

For the reasons articulated in Parts A and B of this Memorandum of Decision, the appeal is dismissed.