Opinion
No. HHD CV 06 4021918
November 3, 2006
MEMORANDUM OF DECISION ON PLAINTIFF'S APPEAL OF THE DECISION OF THE ENFIELD PLANNING ZONING COMMISSION
FACTS
On or about September 21, 2005 the plaintiff (hereinafter also called "Pappas"), applied to the Town of Enfield Planning Zoning Commission for a approval of a proposed fifteen-lot residential sub-division north of Bridge Lane. See Application ROR 1. The property is zoned R-33. The proposed sub-division is approximately 21.83 acres. The property is located north of Bridge Lane and abuts the end of a temporary cul-de-sac road known as Meeting House Lane. The property is bordered on the south by residential lots on Bridge Lane, on the west by railroad property abutting the Connecticut River and north by land of the Town of Enfield. The property is bordered on the east by existing building lots at the end of Meeting House Lane and by other land owned by the plaintiff. Resubdivision Plan Sheet 2 of 16 ROR 11(c). On the same date of the Application, the Enfield Wetlands Agent delivered a determination letter to the plaintiff that the Enfield Inland Wetland and Water Courses Agency had issued a jurisdiction ruling that no Inlands Wetlands or Water Courses permit was necessary for activities associated with the proposed fifteen-lot resubdivision, ROR Item 12A. The public hearing required by statute on all resubdivision applications was commenced on November 3, 2005. The plaintiff's civil engineer, Tim Coon of J.R. Russo Associates reviewed the plan and its compliance with applicable requirements of subdivision, resubdivision and zoning regulations. ROR Item 6A at pages 3-5 (transcript). The hearing essentially consisted of Attorney Ken Slater, representing the plaintiff, Tim Coon, the engineer who presented the application and the details of the proposed resubdivision and a traffic engineer, Steve Mitchell of F.I. Hesketh and Associates of East Granby. After Mr. Mitchell's presentation, which essentially indicated that there was no traffic problem that would result from approval of the resubdivision, the plaintiff's attorney and aforementioned witnesses fielded several questions from the members of the Enfield Planning Zoning Commission (hereinafter also the "Commission") regarding the application. The chairman of the Commission then opened the floor to comments from the public, and there were several comments from residents of the area. Another public hearing was held on November 17, 2005, one on December 1, 2005 and finally a hearing on January 19, 2006.
ROR refers to Return of Record and the number refers to the numbered item.
On February 16, 2006, the Commission met to consider the application. The Commission rejected a waiver of sidewalks by a 7-0 vote. The Commission voted unanimously, 7-0 in favor of accepting a monetary fee in lieu of open space. After further discussion, the main motion for approval of the resubdivision was denied by a vote of 4-3. No specific reasons were given for the action of the Commission. This appeal followed in a timely manner. The parties submitted briefs and this Court held a hearing on October 12, 2006. Further facts will be set forth as needed.
AGGRIEVEMENT
Conn. Gen. Stat. § 8-8(a)(1) defines "aggrieved person as a person aggrieved by a decision of a Board . . . in the case of a decision by a Zoning Commission, Planning Commission, combined Planning and Zoning Commission or Zoning Board of Appeals . . . Aggrieved person includes any person owning land that abuts or is within a radius of 100 feet of any portion of the land involved in the decision of the Board, Conn. Gen. Stat. § 8-8(a)(2) states in pertinent part "board" means . . . a combined Planning and Zoning Commission . . ." The plaintiff, Margaret R. Pappas, testified under oath before this Court on October 12, 2006 that at all times during the application for resubdivision approval and continuously until at least October 12, 2006, she has been the owner of the premises that are subject of the application for resubdivision. Further, she introduced into evidence a deed showing her obtaining the property which has been recorded in the town clerk's office. Since the plaintiff is clearly the owner of the premises subject of the application for resubdivision at all times relative hereto, the Court finds that she is an aggrieved person. Aggrievement is found.
STANDARD OF REVIEW CT Page 20421
A Trial Court may grant relief in an Appeal from a decision of an administrative authority only where the authority has acted unreasonably, illegally, arbitrarily or has abused discretion. Smith v. Zoning Board of Appeals, 227, 71, 80 629 A.2d 1089 (1993). The Court, however, "may not substitute its judgment for the wide and liberal discretion vested in the local authority when acting within its prescribed legislative powers . . ." (internal quotation marks omitted.) Frito Lay, Inc. v. Planning and Zoning Commission, 206 Conn. 554, 572-73, 538 A.2d 1039 (1988). The Court simply determines whether the record reasonably supports the conclusion reached by the agency. DeBerahinis v. Zoning Commission, 228 Conn. 187, 198, 635, A.2d 12-20 (1994)."The burden of proof is on the plaintiff to demonstrate that the Board acted improperly." Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). Where the agency has not stated the reasons for its decision, the Court must review the record to determine whether the decision is supported thereby. A.P.W. Holding Corp. v. Planning and Zoning Board, 167 Conn. 182, 186, 355 A.2d 91 (1974).
ISSUES AND FINDINGS
There were no formal reasons given by the Commission for its decision denying the resubdivision application. Accordingly, the Court has reviewed the record to determine whether the decision is supported by the record. A.P.W. Holding Corp. v. Planning and Zoning Board, supra.
The comments made during the meeting of February 16, 2006, were primarily from Commissioner Duren and Chairman DiPace. Commissioner Duren stated in pertinent part: . . ." that the applicants from my way have met and in some cases exceeded the requirements. The Town's engineers agree there will be no problems. Their engineers say there will be no problems. I just find that they have met or exceeded the requirements of the Subdivision Regulations."
Chairman DiPace stated, inter-alia, "I don't think I agree that you could put fifteen houses in there and not adversely affect the rest of the neighborhood." Chairman DiPace also was concerned that a house in the neighborhood would be torn down to make way for the resubdivision. He said that the professionals stated the water table is rather high back there, and indicated that was a big concern for him. He also stated ". . . I don't think that putting these houses in there is going to help the water problem. I really don't . . . the big factor is can this neighborhood withstand the water and this and that . . ."
The Connecticut Supreme Court has frowned on generalized statements TLC Development, Inc. is Planning Zoning Commission, 215 Conn. 527, 530-32 (1990). Chairman DiPace also stated, just before the vote: "I don't think I agree that you could put fifteen houses in there and not adversely affect the rest of the neighborhood. That's my opinion." ROR 6e pg. 9. During the hearing before this Court, counsel for the defendant agreed that that statement was vague (generalized).
Commissioner Duren voted in favor of the resubdivision and Chairman DiPace voted against it. Transcript of February 16, 2006 meeting ROR 6(e).
1. OPEN SPACE: Nothing was mentioned by the members of the Commission regarding open space other than to vote 7-0 to accept a fee in lieu of open space. The Subdivision Regulations, ROR 14, require (on page 6) that as part of any subdivision the Commission shall require such open space as it may deem proper. (Emphasis added.) Regulation 1A provides "The total amount of area to be reserved for open space purposes shall be a minimum of 10% of the gross area of the subdivision, unless otherwise specified by the Commission" emphasis added. Section B permits, inter-alia, "mechanisms of a fee dedication to the Town of Enfield, a fee dedication to the State of Connecticut or a fee dedication to the Local Land Trust." The Commissioners voted for a fee in lieu of the dedication of actual open space. The amount of the fee would be 10% of the value of the land, which the applicant considered to be the value of the subdivision land based upon 21.83 acres.
It is true that the subdivision land was cut out of a total parcel of at least 31 acres. The Commission's attorney claims that not only the 31 acres but the 8.4 acres which holds another proposed subdivision should all be considered in the land of which 10% would be dedicated for open space, or 10% of the value would be the fee in lieu of the open space. However, this claim is a creative argument by the Commission's attorney in his brief, and is not based upon anything in the record. The Commission although voting to accept a fee in lieu of the open space dedication, never considered or set an amount of the fee. It is possible that the Commission would have wanted 10% of the value of all of the acreage owned by the plaintiff which is adjacent to the subdivision and possibly would include the 8.4 acres, and it may well be that the plaintiff would agree to an amount based upon all of the acreage. That issue never surfaced because the Commission did not take up the subject of a fee as to the amount and then denied the application. Probably if the application had been approved, then the Commission would have considered what would be a reasonable fee and it would not necessarily be 10% of the value because, as stated in the Subdivision Regulations, it is the 10% "unless otherwise specified by the Commission." Therefore, there is no basis to determine what fee would be required by the Commission, and there is no indication that the plaintiff would not pay such a fee in order to obtain approval.
As indicated on the subdivision map, sheet 5 of 16 (ROR 11c), the 8.4 acres is entitled "Remaining Land to be combined with N/F Margaret R. Pappas Area = 8.24 ± Ac (includes 3.345 ± Ac. which is part of a 3-Lot Subdivision off of Riverview Street that is currently being appealed)." Since the 8.24 acres includes a proposed subdivision, counsel's claim that the 8.4 acres should be included in the amount of the property the value of which is to be considered as open space is, under the Regulations, not valid. However, even this claim by counsel for the defendant is moot because the issue of the value of the property to determine the monetary amount in lieu of open space was never taken up by the Commission other than in general terms and with no action or decision during the public hearing or during the meeting of February 16, 2006. Accordingly, the open space is a non issue.
Certainly, there is nothing in the record as to the fee amount and, therefore, this issue has no merit. The plaintiff has proposed 15 lots for a residential development only on a 21.8-acre portion of her land. Therefore, that is the only portion of the property within the proposed resubdivision and the only area of the site requiring resubdivision approval. See Conn. Gen. Stat. § 8-18 for the definition of subdivision and resubdivision. The specific regulation requirements apply only to that area of property being approved as building lots.
By adding the reserved 8.24 acres to plaintiff's adjoining land does not create a new lot, does not change the layout of any street, and does not reduce the size of any property dedicated to public use. Therefore, the merger of that area of the lot does not constitute a resubdisision and can be accomplished at any time without need for approval by the Commission. Accordingly, that area cannot be considered as part of the area within the subdivision.
2. STORM WATER MANAGEMENT
Section 5d(1) of the Regulations provides in pertinent part that "It will be the responsibility of the developer to install an adequate storm water drainage system, which will handle the run-off from a (25) year storm. The plaintiff's professional engineer, Tim Coon, at the request of the town engineer, provided a system that will manage storm water during a 50-year storm which is even more than the Regulations require. Mr. Coon and the town's professional engineer John Cabibbo, agreed that the system will manage storm water during a 50-year storm. In ROR 7g, John Cabibbo sent an e-mail dated December 19, 2005 to Jose Giner, the town planner, stating in pertinent part "Engineering Division has received drainage analysis along with a narrative dated December 13, 2005 indicating that with an inlet modification at the last manhole in the existing Town drainage system, there would be sufficient capacity for the 50-year flow, as requested by the Commission." On January 6, 2006 John Cabibbo sent another e-mail to Jose Giner stating in pertinent part "Engineering Division has reviewed the materials referenced in the e-mail attached below submitted by the Applicant's Engineer (the e-mail attached below is the aforementioned e-mail of December 19, 2005). Based on the analysis and the proposed modification to the manhole submitted, the Applicant's Engineer has met the requirement of the Commission." It is incumbent upon the members of the Commission to accept the evidence put forth by the experts. "[A] lay Commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues . . ., in disregard of contrary expert testimony" (emphasis added). Feinson v. Conserv. Comm'n, 180 Conn. 421, 429 (1980). "While we recognize that an administrative agency is not required to believe any of the witnesses, including expert witnesses . . ., it must not disregard the only expert evidence available" Tanner v. Conserv. Comm'n, 15 Conn.App. 336, 341 (1998). (emphasis added). The defendant Commission which is comprised of lay persons, cannot disregard, the testimony and documentation by two civil engineers, namely the plaintiff's engineer and the Town engineer that the plan submitted by the plaintiff satisfies the Drainage Manual adopted by the Regulations as the standard for storm water systems.
At oral argument before this Court, counsel stipulated that the Town engineer's opinion was that "the drainage facilities in the area, those being installed as part of the subdivision, were adequate to handle a 50 year storm . . ."
3. FLOODING AND GROUNDWATER
It is true that some residents of the area who spoke at the public hearings commented on the high water table and made comments about their own properties as to possible flooding. However, none of them stated that there was a flooding problem in the proposed resubdivision, and even if they had, they were all lay persons, and as stated above, the members of the Commission had to accept the opinions of the two licensed engineers mentioned who are experts over the citizens who appeared at the hearings who were not experts.
The engineers also agreed that the subject property is not in a Flood Plain.
ROR 6d. pg. 12, 1/16/06 hearing: Plaintiff's engineer, Tim Coon: "It is not located within the flood hazard zone . . . I do not believe that this would qualify as land subject to flooding." Also, see ROR 7g in which the Town Engineer agreed that the Applicant had met the regulations.
There are no provisions in the Regulations which concern ground water management. They do provide that a developer will be required to carry away any spring water that may exist on the proposed development. However, there are no springs identified in the resubdisision. If ordinary ground water is to be considered spring water, they are above the expected level of basement floors and will be directed by footing drains and pipes into the storm water system. There is nothing in the Regulations that requires a developer to measure ground water depths or authorizes the Commission to regulate building practices related to ground water management such as the design of basements, sub-pumps or footing drains. These matters are left for decision to the Director of Public Works and building code enforcement officers to make sure that any ground water or spring water that may exist in the resubdivision will be properly handled by footing drains and pipes. Further, it is clear from the proposed resubdivision that any spring water or ground water that runs through footing drains or pipes will enter into the storm water system which has already been approved for a 50-year storm by both civil licensed engineers with the knowledge by them as to the potential for spring water and ground water. Under Section 5d1 of the subdivision Regulations, it does state that the developer shall be required by the Commission to carry away by pipe or open ditch based upon recommendations by the Director of Public Works any spring water that may exist on the proposed development. The Applicant's expert civil engineer has testified that there is no spring water on the proposed development, and if there were, it would be taken care of by footing drains and/or design of basement which would carry it into the storm water system which has been approved by both licensed civil engineers, the developer's engineer and the town engineer. Certainly proper footings and drains subject to the approval of the public works director could be added as a condition of approval. In sum, there is no basis in the record for any concern that storm water and spring water/ground water will not be properly handled through a 50-year storm design that will carry all storm water and spring/ground water away from the subdivision and into the Connecticut River or a nearby pond. The Commission has ignored the opinions of the Applicant's and Town's professional engineers and has done so at its peril. This ignoring of their opinions was arbitrary as stated in Feinson, supra, and Tanner, supra.
ROR 6a pg. 13 in an answer to a question from Commissioner Robert Egan, Mr. Coon, the Applicant's engineer, testified: "Our particular site-the stuff that goes into our drainage system either comes from our site or comes from a portion of Bridge Lane and the area of Bridge Lane which actually contributes to the drainage system is included in our calculations." It is certainly a reasonable inference here and in other parts of the record that the Applicant's engineer has included ground water/spring water in his calculations for the drainage system which, as previously mentioned, has been approved by the Town engineer.
CONCLUSION
This Court has searched the record for a valid basis for the decision of the Commission to deny the plaintiff's Application. There is nothing in the record that is a reasonable basis for the Commission's action. Further, the Commission's ignoring the opinions of the only two experts on storm water drainage, flooding etc. was arbitrary. Therefore, this Court finds that the denial of the plaintiff's Application was unreasonable, illegal, arbitrary and in abuse of the Commission's discretion.
Accordingly, the plaintiff's appeal is sustained, and the Commission is ordered to approve the plaintiff's Application forthwith.