Opinion
Nos. CV 01 0803723 S, CV 01 0809093 S
February 17, 2004
MEMORANDUM OF DECISION
These are consolidated appeals from the East Hartford Planning Zoning Commission ("commission"). The plaintiff Terra Technologies, which holds an option to purchase the parcel in question, submitted two successive applications for subdivision approval, both of which were denied by the commission. The applicant claims that both denials did not state reasons that were supported by substantial evidence, and that both were the product of improper predisposition on the part of the commission to deny the applications. I find that the plaintiffs are aggrieved.
There are technically two adjoining properties forming the parcel in issue. One of the owners is a named party in the first appeal; the other is a named party in the second appeal. The plaintiff Terra Technologies is a named plaintiff in both appeals.
The parcel is near the intersection of Ellington Road and Goodwin Street in the town of East Hartford. The property is zoned R-3, which according to zoning regulations allow single-family dwellings on lots with widths of not less than 75 feet and with a total area of not less than 8,000 square feet. The parcel consisted of 13.95 acres and the subdivision plan called for 48 lots. The parties agree that the application complied with the overall density requirements of the R-3 zone and, with one exception to be discussed below, with all of the specifications for individual lots.
There were several items of concern. One was the fact that there was only one way into the subdivision: although there was access from Goodwin Street there was no access from Ellington Road. Another of the concerns involved the application of a regulation which required each lot in the subdivision to "be of such shape that a square with sixty (60) feet on each side will fit on the lot behind and along the required setback of the front yard." Section 303.3 of the East Hartford Zoning Regulations. Other concerns, expressed at various times, involved the drainage issues, proximity of a proposed access road to a preexisting driveway, and more generalized concerns regarding traffic, density and demand on town services.
The first application was denied by the commission for a variety of reasons, on November 15, 2000. The reasons included excessive density; impact on town services; inconsistent with health, safety and welfare; contrary to best interests of the community; non-compliance with regulations; need for two entrances to the subdivision; and drainage issues. Although apparently not expressly conceded by the commission, it would appear that some of the reasons were patently not supported by substantial evidence, such as the density concern, and other reasons were so generally and vaguely stated as to not provide much guidance, at least in the context of acting on subdivision plans.
In any event, the applicants submitted a second application on January 25, 2001, and public hearings wre held after some adjustments were made in the submission. The application was again denied in June 2001. Reasons appearing in the record include: the detention basin was not consistent with the regulation and unresolved issues remained with the access road to the detention basin; inconsistent with health, safety and general welfare; traffic concerns; not in best interest of community; unsafe configuration with the intersection of the access road to Goodwin Street; and negative impact on property values. Again, it is patently clear that several of the reasons are simply not appropriate in the context of subdivision applications.
As to both applications, the appellants claim that because of questionable political interference and predisposition on the part of the commissioners, the denials of the applications should be overturned by this court. Evidence was submitted in the form of deposition transcripts of several political figures, as well as exhibits thereto. The general nature of the evidence is that shortly after the first hearing, several public figures, including the mayor and a state representative, expressed concerns about the loss of open space in East Hartford and attempted several ameliorative measures, including the introduction of a bill in the legislature to buy the parcel to preserve open space. There was evidence that the mayor would have preferred the parcel to remain undeveloped. There was also evidence that the commission, especially the chairman, consistently stressed the necessity of their not being swayed by any outside influence, and there was no credible evidence that any commissioner had had any improper contact or specific influence.
In lieu of live testimony, both sides agreed to the submission of the written material. Because there was a colorable allegation of improper influence, extrinsic evidence was allowed.
It is black letter law that, with respect to subdivision applications, that:
In the context of review of subdivision applications, "[p]roceedings before planning and zoning commissions are classified as administrative." Red Hill Coalition, Inc. v. Town Plan Zoning Commission, 212 Conn. 727, 733, 563 A.2d 1347 (1989). "Conclusions reached by the 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 agency. The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached. Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979). The action of the commission should be sustained if even one of the stated reasons is sufficient to support it." Primerica v. Planning Zoning Commission, 211 Conn. 85, 96, 558 A.2d 646 (1989); see also Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 539-40, 525 A.2d 940 (1987). "The evidence, however, to support any such reason must be substantial . . ." Huck v. Inland Wetlands Watercourses Agency, supra, 540. "This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence 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 . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury . . . [It] is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action . . . [I]t is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Citations omitted; internal quotation marks omitted.) Id., 541.
Property Group, Inc. v. Planning Zoning Comm'n, 226 Conn. 684, 696-98 (1993).
Although, as noted above, some of the reasons advanced by the commission to support the denial of the first application were not appropriate, the decision of the commission must be sustained if even one of the reasons is sufficient. The town suggests that the following reasons are supported by the evidence: the existence of only one means of access road to and from the subdivision and noncompliance with a regulation regarding the shape of proposed lots. I find that the determination of the commission is supported by substantial evidence. As to the first reason, the plans show two cul-de-sacs within the proposed subdivision; more importantly, the entire subdivision is accessed by only one roadway. The commission interpreted § 8.31(1), which prohibits cul-de-sacs in excess of five hundred feet, unless "near-future connections may be possible," to prohibit approval of the subdivision. It may be significant to note that public safety officials had expressed concern at the lack of secondary access; a commission may consider generalized regulations such as those regarding health, safety and congestion at least if reference to them is included in the subdivision regulations. See, e.g., Irwin v. Planning Zoning Commission, 244 Conn. 619, 626-27 (1998); Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 73 Conn. App. 442, 456-58 (2002). The commission was acting well within its authority in determining that the lack of a second access violated both specific subdivision regulation and the more general zoning regulation incorporated into the subdivision regulations.
As a general proposition, for example, a reason that a proposal is not in the best interest of the community, where the proposal is specifically authorized by the zoning regulations, will not support a denial.
I note in this context that the applicants argue that because a motion containing the reasons for denial was not amended in a procedurally formal manner, the reasons not included in the specific formal motion may not be considered by the court. I disagree with such a formalistic approach when reviewing proceedings of municipal commissions. See, e.g., Belanger v. Planning Zoning Commission, 64 Conn. App. 184 (2001); Couch v. Zoning Commission, 141 Conn. 349, 358 (1954).
See §§ 1.10 of the Subdivision Regulations; 100 of the Zoning Regulations of the town of East Hartford.
A commission's disapproval of a subdivision plan providing for only one access road to the rest of the roadways was upheld for safety concerns in Forest Construction Company v. Planning Zoning Commission, 155 Conn. 669 (1967). Much of the language in Forest is apropos to the case at hand.
The second reason urged by the commission on appeal to be supported by substantial evidence is the application of § 303.3 of the regulations. This regulation, as noted above, requires that each lot be configured in such a way that a square sixty feet on a side will fit on each lot "behind and along the required setback of the front yard." According to the record, four lots did not so fit. I have reviewed the record in this regard and, while it is not entirely clear to me, I cannot hold that there is not substantial evidence supporting the position of the commission. The regulation itself makes some sense, in that very oddly shaped and therefore problematic lots are prohibited.
The final issue is whether improper political influence predisposed the commission to come to only one conclusion, thus making the process something of a sham. It cannot be denied that political figures in the town of East Hartford addressed the problems attending development, both in a generalized way and specifically to the parcel in question, shortly after the denial of the first application, and it seems clear that at least some and probably all of the commissioners were aware of these efforts. It is also apparent that the commissioners, at least in theory, tried not to be influenced by such pronouncements, and there is no credible evidence of any specifically improper conduct. The applicants argue that their interpretation of the record is that the commissioners were examining their application with nitpicking zeal, thus showing a predisposition to find fatal flaws. I do not think that such a conclusion is compelled and, given the separation of functions between the courts and municipal administrative agencies, I do not think such a conclusion should be lightly reached. We are dealing not with back room shenanigans but rather primarily with expressions of policy.
The commission argues that this argument should not be addressed to the first denial, because the public and not-so-public pronouncements occurred after the denial. I find it appropriate to discuss the issue at this point, and simply to incorporate the sane position in the consideration of the second denial.
At least there is no credible evidence of such.
The applicants rely primarily on Marmah, Inc. v. Greenwich, 176 Conn. 116 (1978), and AvalonBay Communities, Inc. v. Orange, 256 Conn. 557 (2001). The contexts of those cases are markedly different from the facts underlying the matter at hand. In Marmah, the applicants sought to build a post office in a zone which allowed such a use. The commission's consideration of the application was "casual and perfunctory," Marmah was not given an opportunity meaningfully to present its plan or to confront the opposition, and the application was denied for reasons not supported by the evidence. The commission then amended the zoning regulations to prohibit such a use in the zone, and the Supreme Court affirmed the trial court's determination that the change of zone was not effected for a public purpose but rather to thwart the applicant's proposal.
In AvalonBay, the trial court had enjoined the town from exercising powers of eminent domain over the property in question following a series of actions taken in bad faith; the Supreme Court generally affirmed the court's actions. The factual context is far removed from that at hand.
Although both cases are instructive and indeed their principles impose some restraint on the exercise of power by municipal authorities, the sort of conduct which was found to have occurred in those cases is different from the behavior in this case. As a starting point, the review of the plans in the case at hand was not perfunctory and the record shows that the applicant had every opportunity to present its case. As noted above, some of the reasons for denial were supported by substantial evidence. While it is true that the scattershot listing of general reasons for denial is not helpful, neither does it, in itself or in tandem with expressions of others, create such a hostile environment that meaningful and reasoned consideration of the merits is prevented.
I turn, then, to the second appeal. Much of the background facts and black letter law apply with equal force to the second appeal, so the discussion may be more brief. After the denial of the first application, the applicants made some changes to the application, and a second set of public hearings were duly held. Perhaps the most significant change was the addition of a second access road to connect to Ellington Road; additional changes were made to the drainage system such that the detention pond was now located on a separate parcel.
The commission again denied the application. The reasons were that the detention basin plans, including the access road to the detention basin, were not consistent with the regulations; an unsafe intersection at Goodwin Street; traffic impact; and more general concerns regarding health, safety and general welfare and best interests of the community. On appeal, the commission argues that several reasons for the denial are supported by substantial evidence: that the proposed intersection of the access road, "Cornfield Drive," with Goodwin Street was unsafe; that the access road to Ellington Road would create unsafe traffic conditions; and that there were still unresolved issues involving access to the detention basin. Again, if only one of the reasons is supported by substantial evidence, the action of the commission must be sustained.
The first issue is that of the intersection of Cornfield Drive with Goodwin Street. A driveway owned by one Dattilio was located very close to the proposed intersection and, at the public hearings, it is fair to say that all parties recognized the potential hazard. Various solutions had been proposed, such as having Mr. Dattilio's driveway relocated by the applicants, but none seemed to have been realized. Mr. Dattilio apparently had changed his mind about having his driveway moved.
Relying on authority such as Carpenter v. Planning Zoning Commission, 176 Conn. 581 (1979), and Arway v. Bloom, 29 Conn. App. 469 (1992), the applicants argue that the action of the commission was improper because approval of the application, or at least of the problem of the Dattilio driveway, depended on the action of another person, in this case Dattilio. Although the argument is interesting, it does not bear scrutiny. The issue in Carpenter was whether an approval which required a second approval by the highway superintendent, which was not necessarily likely, was an approval at all. The court held that where an approval was conditioned on action which could not be satisfied by the applicant or on action by another agency, which was not necessarily likely, the approval really constituted a failure to act for purposes of applying time limits on action. This is clearly not the situation in the case at hand, where the application was disapproved, in part because there had been no resolution of the driveway problem. It may be that the applicants had no direct control over where Dattilio's driveway was or whether it would be moved, but applicants have no direct control over all sorts of factors which might affect approval.
Arway is even farther removed from the facts at hand. There, a planning and zoning commission had approved a plan after considering, as it was required to by statute, recommendations by the inland wetlands commission. The action of the inland wetlands commission was later reversed. The issue was whether the action of the zoning agency was automatically invalidated as well. The court, exercising statutory construction and conducting a review of legislative history, held that the role of the inland wetlands commission in zoning actions was essentially advisory, and that the planning and zoning commission was bound to consider the inland wetlands commission's report but not be controlled by it. Again, the theme was that zoning authority cannot, as a general proposition, lawfully be delegated to another agency. Again, there was no delegation of authority in the case before us.
It is clear that a commission may take special traffic conditions into consideration if the regulations so allow. Friedman v. Planning Zoning Commission, 222 Conn. 262 (1992). Here, the subdivision regulations specifically incorporate zoning regulations; § 1.0A of the subdivision regulations; see also §§ 1.0 and 1.0B of the subdivision regulations; and the zoning regulations refer to safety and congestion. Section 100 of the zoning regulations. It has not been suggested that an unsafe distance between a driveway and an access road is not a legitimate area of concern for a commission, and there was a considerable amount of evidence offered on this point. I cannot say that this reason is not supported by substantial evidence. See also Blakeman v. Planning Commission, 152 Conn. 303 (1965) (evidence supported commission's determination that a proposed intersection was unsafe).
The second traffic concern involved the access onto Ellington Road. The configuration was such that traffic turning into Ellington Road could turn only north. If drivers intended to go south, the thought was that unsafe U-turns would be encouraged. Given the evidence presented at the hearing, I cannot say that this reasoning was a pretext. See authority such as Forest Construction Company v. Planning Zoning Commission, 155 Conn. 669 (1967), and Friedman v. Planning Zoning Commission, 222 Conn. 262 (1992) and regulations previously cited.
Finally, another of the reasons concerned the access road to the detention basin. According to the regulations, the access road was to have a minimum width of ten feet. Section 8.5L(5) of the subdivision regulations. The proposed access road was two feet shy of the requirement. Clearly the reasoning of the commission was justified.
The argument as to predisposition was set forth in the previous section, devoted to the first denial. Simply put, the applicants did not sustain the burden of showing that the proceeding was fatally infected by predetermination or predisposition. The applicants' position on political influence is undermined somewhat by the flaws in the plan itself, which quite reasonably did not pass muster with the commission.
Both appeals are dismissed.
Beach, J.