Opinion
No. CV04-0351308 S
May 20, 2005
MEMORANDUM OF DECISION
The plaintiffs, Timber Trails Associates, Tessa Pascarella and The Timber Trails Community Service Corporation, appeal from amendments to zoning regulations adopted by the Sherman planning and zoning commission.
Timber Trails Associates, a partnership controlled by Jerald Greenberg and Henry W. Pascarella, and Tessa Pascarella, the wife of Henry W. Pascarella, own investment property within an area defined under Sherman's zoning regulations as residence zone B, where the minimum lot size is 80,000 square feet. (Exhibits 1, 2.) The Timber Trails Community Service Corporation owns and maintains private roads that service a development known as Timber Trails, which is adjacent to the land owned by Timber Trails Associates and Tessa Pascarella. (Exhibit 3.) The plaintiffs, who have previously appealed earlier amendments to Sherman's zoning and subdivision regulations, plan to use the property for residential development. (Plaintiffs' Brief p. 1.)
See, e.g., Timber Trails Corp. v. Planning Zoning Commission, 222 Conn. 374, 610 A.2d 617 (1992); Timber Trails Corp. v. Planning Zoning Commission, 222 Conn. 380, 610 A.2d 620 (1992); Timber Trails Corp. v. Planning Zoning Commission, 165 Conn. 820, 310 A.2d 764 (1973); Timber Trails Associates v. Planning Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 324154 (February 18, 1998, Radcliffe, J.); Timber Trails Associates v. Planning Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 324154 (December 24, 1996, Moraghan, J.) ( 18 Conn. L. Rptr. 389); Timber Trails Associates v. Planning Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 310683 (April 26, 1994, Flynn, J.); Timber Trails Associates v. Planning Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 310623 (April 16, 1994, Flynn, J.); Timber Trails Corp. v. Planning Zoning Commission, Superior Court, judicial district Danbury, Docket No. CV 272170 (September 19, 1992, Fuller, J.) ( 7 Conn. L. Rptr. 331, 7 C.S.C.R. 1178).
Throughout 2003, approximately April through September, the planning and zoning commission held several study sessions, referred to as workshops; (Return of Record [ROR], Item 26, pp. 6-7, Items 61-86); to fulfill tenets written in the Sherman plan of conservation and development, labeled the "master plan," which, pursuant to General Statutes § 8-23, the commission amended on August 4, 2001. (ROR, Item 96.) The plan of conservation and development prompts the commission, within a specified number of years, to reassess characteristics of the zoning regulations including the adequacy of minimum lot sizes, the slope of land unsuitable for development, and the requisite conditions to perpetually meet water supply and septic needs on site. (ROR, Item 96.) The commission decided that members of the public would not participate in the initial workshops. (ROR, Item 64.)
Along with an introduction and statement of purpose, the workshops resulted in proposed amendments, for which the commission issued legal notice on November 14, 2003, published on November 19, 2003 and November 26, 2003, and offered a public hearing on December 2, 2003. (ROR, Items 5, 7, 8, 17.) The commission thereafter held meetings on December 3, 2003, December 10, 2003 and December 17, 2003, to review, revise and vote down versions of the proposed amendments. (ROR, Items 27, 28, 29.) Art Von Plachecki, first selectman (nonvoting, ex-officio), attended the public hearing and each subsequent meeting. (ROR, Items 26, 27, 28, 29.) D. Randall DiBella, attorney for Sherman, and Tom McGowan, planning consultant for Sherman, attended only the final two meetings. (ROR, Items 28, 29.) Though he did not concede any personal bias or conflict of interest, Thomas A. Joyner, the chairman of the commission during the relevant period, who allegedly owns a house within the Timber Trails development, participated in the initial workshops, but recused himself from the public hearing, the commission meetings, and the vote on the proposed amendments. (ROR, Item 26, pp. 5-6.)
The commission originally scheduled the public hearing for November 19, 2003, provided legal notice on October 31, 2004, and published on November 5, 2003 and November 12, 2003. (ROR, Item 3, 4.) The hearing was then postponed to December 2, 2003.
On December 17, 2003, the commission amended the Sherman zoning regulations, including, inter alia, Sherman zoning regulation § 331.3, pertaining to farm-residence zone A, and Sherman zoning regulation § 332.3, pertaining to residence zone B, to exclude the following from the calculation of the minimum lot area requirement of 80,000 square feet:
i. Land reserved for or used as an existing road, right-of-way, accessway, and conservation and utility easements.
ii. Inland Wetlands and Watercourses as defined and delineated in accord with Sherman Inland Wetland and Watercourses Regulations and Map.
iii. Naturally occurring slope of 25% or more as measured using 2-foot contour intervals.
iv. 100 year Flood Hazard Areas as shown on maps prepared by FEMA which are on file with the office of the Town Clerk.
(ROR, Item 25.)
The adopted amendments also include a revision to Sherman zoning regulation § 321.4, providing that the principal building on a lot in zones A and B "shall not be located within land areas defined under 331.3 and 332.3 subsections i, ii, iii, and iv." (ROR, Item 25.)
The plaintiffs, on January 27, 2004, pursuant to General Statutes § 8-8, filed an appeal challenging the adopted amendments in the form of a single-count complaint. The overarching basis for the appeal is that the most recent amendments represent the latest example of what the plaintiffs assert is the commission's plan to target their property and adopt wholesale changes to the zoning regulations in an effort to inhibit development on their land. (Complaint, ¶¶ 17-18.) In the present appeal, the plaintiffs allege specifically, inter alia, that (1) the recused chairman tainted the commission's proceedings by presiding over a series of preliminary workshops that resulted in versions of proposed amendments voted upon by the commission; (2) the commission's action was illegal, arbitrary and an abuse of discretion; and (3) the commission confined the plaintiffs to a three-minute time limitation at the public hearing and denied the plaintiffs an opportunity to review documents, question commissioners and cross-examine expert witnesses.
Pursuant to General Statutes § 8-8(b), an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date the notice of the decision was published as required by the General Statutes." Subsection (f) provides that service of process "shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and leaving a true and attested copy with the clerk of the municipality."
Notice was published in the New Fairfield Citizen News on January 14, 2004. (ROR, Item 24.) The appeal was commenced by service of process on the proper parties on January 23, 2004. (Marshal's Return.) Accordingly, the appeal was properly commenced in a timely manner.
[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised." (Internal quotation marks omitted.) Stauton v. Planning Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004).
"In the context of zoning, [our Supreme Court has] recognized that diminution of property value may establish aggrievement. See Timber Trails Corp. v. Planning Zoning Commission, 222 Conn. 380, 394, 610 A.2d 620 (1992) (depreciation in property values of real property owned by members of association in amount of 5 percent to 10 percent sufficient to support aggrievement); see also Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 381, 311 A.2d 77 (1972); Berlani v. Zoning Board of Appeals, 160 Conn. 166, 168-69, 276 A.2d 780 (1970)." Bongiorno Supermarket v. Zoning Board of Appeals, 266 Conn. 531, 540 n. 12, 833 A.2d 883 (2003). " Timber Trails Corp. v. Planning Zoning Commission, 222 Conn. 374, 378, 610 A.2d 617 (1992)] involved our zoning laws, which . . . provide a comprehensive remedial scheme that gives rise to specific legal rights . . . A change of zone necessarily alters one of the bundles of rights possessed by a landowner — the use of the property — such that a legal interest is affected." (Citation omitted.) Edgewood Village, Inc. v. Housing Authority, 265 Conn. 280, 297, 828 A.2d 52 (2003).
The plaintiffs plead that they own property within the area affected by the commission's decision and that the amendments adversely affect their interest in the property. They rely on maps, which, they argue, demonstrate a significant percentage of their property containing slopes of 25 percent or more, and an informal appraisal by Henry W. Pascarella, who is an experienced real estate lawyer, stating that the amendments would reduce the value of his property by millions of dollars. (Exhibits 4, 5, ROR, Item 44.) At the trial, the plaintiffs presented the court with copies of the deeds supporting their allegation. (Exhibits 1, 2, 3.)
"As owners of land in zone B, the plaintiffs are aggrieved parties. See General Statutes § 8-8(b); Fletcher v. Planning Zoning Commission, 158 Conn. 497, 502-03, 264 A.2d 566 (1969)." Timber Trails Corp. v. Planning Zoning Commission, supra, 222 Conn. 376 n. 3. The court concludes accordingly that it properly has jurisdiction over the appeal.
"The proper, limited scope of judicial review of a decision of a local zoning commission when it acts in a legislative capacity by amending zoning regulations is well established. [T]he commission, acting in a legislative capacity, [has] broad authority to adopt . . . amendments . . . In such circumstances, it is not the function of the court to retry the case. 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 . . . [reach] the same conclusion but whether the record before the agency supports the decision reached . . . Acting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function . . . This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 415-16, 788 A.2d 1239 (2002).
The plaintiffs first challenge the amendments on the ground that Thomas A. Joyner essentially ignored his disqualification from the proceedings when he chaired a series of preliminary workshops. As an owner of a house within the Timber Trails development, the plaintiffs allege that Joyner, over a thirty-year period, exhibited extreme hostility toward them and continues an effort to implement a systematic plan designed to up-zone the plaintiffs' property and inhibit the development of the land. The complaint chronicles a list of examples including, inter alia, allegations that he participated in the efforts to increase the minimum lot size from 40,000 square feet to 80,000 square in the zone where the plaintiffs' property is located, speaks negatively of the plaintiffs in public and in private, attempted to form a tax district in an attempt to take control over the development's private roads, paid road maintenance charges in an untimely fashion, and filed suit against the plaintiffs over the ownership of certain facilities and trails within the development.
Under General Statutes § 8-11, directed to zoning commissions, "[n]o member of any zoning commission or board and no member of any zoning board of appeals shall participate in the hearing or decision of the board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense." In addition, General Statutes § 8-21, directed to municipal planning commissions, provides in relevant part: "No member of any planning commission shall participate in the hearing or decision of the commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense." The plaintiffs argue that Joyner, as the commission chairman until January 7, 2004, participated in decisions related to the zoning amendments until they filed suit against him and the commission, whereupon he agreed to recuse himself from voting on the proposed amendments. His subsequent recusal, they maintain, did not cure Joyner's influence upon the amendments.
"[T]he test for disqualification is not whether personal interest does, in fact, conflict, but whether it reasonably might conflict . . . In such matters, however, [our Supreme Court has] not always adhered to a per se rule of invalidation when a member of a board or commission had a conflict of interest that should have counseled disqualification in a matter upon which the member should not have participated." (Citations omitted; internal quotation marks omitted.) Murach v. Planning Zoning Commission, 196 Conn. 192, 202, 491 A.2d 1058 (1985). "The statutes at issue . . . do not in their language provide any guidance as to what remedy a reviewing court should grant in the event of a post-hoc . . . disqualification." Id. Nevertheless, it is the "[plaintiffs'] . . . burden . . . to show that [a disqualified member] tainted the entire proceeding . . ." Id., 204.
The court in Murach analyzed whether the participation of a commissioner, who voted in favor of a zone reclassification when he should have recused himself from the proceeding, rose to a level of material prejudice. Finding that the plaintiffs neither alleged the commissioner's personal interest nor attempted to sway other members of the commission, the court held that his participation did not render the commission's decision invalid. "Significantly, the court did not hold that the illegal votes per se tainted the entire action. In cases involving municipal councils, generally where the required majority exists without the vote of a disqualified member, his presence and vote will not invalidate the result. 56 Am.Jur.2d, Municipal Corporations 172, p. 225 (1971); see also . . . annot., 43 A.L.R.2d 698, 751, 27[b] (1955)." (Citation omitted; internal quotation marks omitted.) Murach v. Planning Zoning Commission, supra, 196 Conn. 203, 206 (reviewing a case with a similar set of facts from another jurisdiction).
Though the plaintiffs in the present matter, in contrast to the plaintiffs in Murach, specifically plead facts alleging that Joyner bore a personal or financial interest in the outcome of the vote, the evidence they reference to illustrate an attempt to influence or sway the other members of the commission is less convincing. The plaintiffs cite an email message from Joyner, addressed to Art Von Plachecki, D. Randall DiBella, and David Hopkins, a member of the commission, and apparently forwarded to other members of the commission, to argue that Joyner unduly influenced the commission. (ROR, Item 79.) Only the chairman, Joyner notes, is authorized to ask DiBella to conduct research or act on behalf of the commission. To guard the commission from accusations of prejudgment, he then recommends that other commissioners resist engaging in individual dialogues with DiBella. The message, while officious in tone, simply reminds its recipients of the commission's procedural rules of order, recommends informal standards of etiquette, and concludes with the admonition that an upcoming election could present the commission with an inadequate number of returning members who actually participated in drafting and proposing the amendments.
No portion of the message shows Joyner endeavoring to manipulate commissioners' votes. "[H]e made no additional statements in any attempt to influence or sway other members of the commission . . ." (Internal quotation marks omitted.) Murach v. Planning Zoning Commission, supra, 196 Conn. 203-04. Although Joyner originally attempted to assume all the authority to direct the town attorney's work, the directive was merely a rule of efficiency and procedure. The commissioners remained free to offer recommendations and suggest areas appropriate for the solicitation of expert opinions. Joyner merely counseled the others that the official request for such services should come through the chairman. Any claim that Joyner improperly influenced the commission through his control of DiBella's work during the preliminary workshops is diminished by the fact that the vice chairman assumed the right to seek DiBella's services once Joyner recused himself, and the fact that the full commission gained the opportunity to analyze DiBella's recommendations through his letter that the commission read at the public hearing on December 2, 2003, and considered during the meeting on December 3, 2003. (ROR, Item 26, pp. 18-20, Item 32.) Moreover, the commission was able to question DiBella directly during his personal appearances at the meeting on December 10, 2003, and the meeting and voting sessions on December 17, 2003. (ROR, Items 28, 29.) Joyner was not present to influence the votes on the versions of the amendments considered by the commission because he was not present at any of the meetings subsequent to his recusal.
Viewing the facts available in the return of record, Joyner, despite his participation in the early stages of producing versions of the amendments, did not taint the commission's ultimate decision. The minutes of the special meeting on December 17, 2003; (ROR, Item 20); along with the transcript; (ROR, Item 29, pp. 39-40); indicate that the adopted amendments to §§ 331.3, 332.3, and 321.4 carried, without a vote from Joyner, with five votes in favor and one opposed. "[Zoning] regulations . . . shall be . . . changed . . . only by a majority vote of all members of the zoning commission . . ." General Statutes § 8-3(b). The decision, therefore, is strengthened by a vote that exceeded that necessary to approve the amendments. Murach v. Planning Zoning Commission, supra, 196 Conn. 205; see also Canterbury Estates, Inc. v. Inland Wetlands Commission, Superior Court, judicial district of Windham, Docket No. CV 01 0065390 (April 29, 2002, Foley, J.) (finding a commissioner who participated in public hearings but recused himself from voting did not materially prejudice the proceeding when the commission's vote was unanimous). Without evidence demonstrating that Joyner's presence and conduct at the preliminary workshops affected the ultimate granting of the zoning amendments, the plaintiffs have not shown material prejudice. See Murach v. Planning Zoning Commission, supra, 206.
General Statutes § 8-3(b) also provides in relevant part: "If a protest against a proposed change is filed at or before a hearing with the zoning commission, signed by the owners of twenty per cent or more of the area of the lots included in such proposed change . . . such change shall not be adopted except by a vote of two-thirds of all the members of the commission." The plaintiffs submitted statements in opposition to the proposed amendments. (ROR, Items 49, 50.) The parties have not raised an issue regarding whether the statements constitute a protest under the statute; the commission nevertheless passed the amendments by a vote exceeding two-thirds of the commission's members.
The next criticism the plaintiffs offer with respect to the adopted amendments is that the commission's decision was arbitrary, illegal, and an abuse of discretion. The commission's statement that it based the amendments on the master plan, they argue, is unpersuasive considering the master plan is only advisory. In response, the commission maintains that amending zoning regulations is a legislative function, a factor that provides the appropriate discretion to act in accordance with the master plan when the record provides a factual basis supporting the conclusions.
"[T]he test of the action of the commission is twofold: (1) The zone change must be in accord with a comprehensive plan, General Statutes § 8-2, Summ v. Zoning Commission, 150 Conn. 79, 87, 186 A.2d 160, and (2) it must be reasonably related to the normal police power purposes enumerated in § 8-2 . . ." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 417.
"[T]he zoning purposes recited in . . . § 8-2 . . . indicate neither the relative strength of competing considerations, nor how to evaluate any one of them. As such, they do very little to constrain the discretion of zoning commissions when deciding the objectives they will pursue with the power delegated to them." T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 57. Our Supreme Court also "has looked for the meaning of the comprehensive plan requirement within Chapter 124. In practice, the decisions do not appear to turn on whether a plan existed or not, or whether it was followed. Where a community has adopted a plan regardless of its name, and the contested amendment conforms to the plan, the [c]ourt not only finds the comprehensive plan requirement satisfied but also appears to be even more reluctant than usual to listen to a challenge to the commission's decision . . ." Id., 59.
"A comprehensive plan has been defined as a general plan to control and direct the use and development of property in a municipality or a large part thereof by dividing it into districts according to the present and potential use of the properties. The requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interests of the entire community." (Citation omitted; internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 218, 779 A.2d 750 (2001). "In the absence of a formally adopted comprehensive plan, a town's comprehensive plan is to be found in the scheme of the zoning regulations themselves." (Internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 551, 600 A.2d 757 (1991).
Sherman's zoning regulations contain an express statement of purposes entitled a comprehensive plan:
Section 100. Statement of Purposes: Comprehensive Plan
Section 110. The Planning and Zoning Commission of The Town of Sherman, Connecticut, hereby adopts these Regulations in furtherance of the Town's adopted Plan of Conservation and Development and in accordance with the purposes, authority and requirements of Chapter 124 of the General Statutes of the State of Connecticut, as amended, more particularly described as follows:
111. To guide the future growth and development of the Town in accordance with this comprehensive plan designed to promote the most beneficial and convenient relationship among the residential, commercial and public use areas within the Town, considering the appropriateness of the various uses in each area, and the suitability of each area for such uses, as indicated by existing conditions and trends in development.
112. To provide adequate light, air and privacy; secure safety from fire and other dangers; and prevent overcrowding of the land and undue concentration of population.
113. To protect the character and the stability of all parts of the Town, and ensure that all development shall be orderly and beneficial.
114. To protect and conserve the value of land throughout the Town and the value of the buildings appropriate to various zones established by these Regulations.
115. To regulate the height, number of stories and size of buildings and other structures, the percentage of the area of the lot that may be occupied, the percentage of the area of the lot may comprise impervious surfaces; the size of the areas adjacent to buildings and other structures and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence and other purposes as provided for under Chapter 124, Section 8-2 of the Connecticut General Statutes.
116. To bring about the gradual conformity of the uses of land and buildings throughout the Town to the adopted plan of development, and to minimize conflicts among the uses of the land and buildings.
117. To promote the most beneficial relation between the uses of land and buildings and the circulation of traffic throughout the Town, having particular regard to the avoidance of congestion in the roads and the provision of safe and convenient traffic access appropriate to the various uses of land and buildings throughout the Town.
118. To aid in providing a guide for public policy and action in the efficient provision of public facilities and services, and for private enterprise in building development, investment, and other economic activity relating to uses of land and buildings throughout the Town.
119. To ensure that development is commensurate with the availability and capacity of public facilities and services, thereby facilitating adequate provision for transportation, water, schools, parks and other public requirements.
120. To prevent the pollution of ponds and streams, protect existing and potential surface and ground water drinking supplies, safeguard the water table and encourage the wise use and sound management of natural resources throughout the Town in order to preserve the integrity, stability and beauty of the community and the value of the land.
Zoning Regulations, Town of Sherman, Art. I. (As Amended by Adopted Amendments, Effective November 1, 2003.) (ROR, Items 98, 97, 101.)
The comprehensive plan, which is binding on the commission, must be distinguished from the plan of conservation and development, the master plan, which is merely advisory. "[T]he plan of development [is] properly called a `master plan' to distinguish it from the comprehensive plan zoning authorities are required to follow . . ." (Citation omitted.) First Hartford Realty Corp. v. Plan Zoning Commission, 165 Conn. 533, 542, 338 A.2d 490 (1973). "[A]dopted pursuant to General Statutes § CT Page 9706 8-23 [our Supreme Court] repeatedly has recognized that a town plan is merely advisory. The purpose of the [town] plan is to set forth the most desirable use of land and an overall plan for the town . . . Because the overall objectives contained in the town plan must be implemented by the enactment of specific regulations, the plan itself can operate only as an interpretive tool." (Citations omitted; internal quotation marks omitted.) Avalon Bay Communities, Inc. v. Orange, 256 Conn. 557, 573-76, 775 A.2d 284 (2001). "The master plan does not control the zoning board in its enactment of zoning regulations . . ." (Citations omitted; internal quotation marks omitted.) Furtney v. Zoning Commission, 159 Conn. 585, 598, 271 A.2d 319 (1970).
Notwithstanding the advisory character of conservation and development plans, a commission, pursuant to § 8-2(a), "shall consider the plan of conservation and development prepared under section 8-23." Furthermore, under General Statutes § 8-3(b), the commission "shall take into consideration the plan of conservation and development . . . and state on the record its findings on consistency of the proposed establishment, change or repeal of such regulations . . . with such plan." "Acting in . . . [its] legislative capacity, the local [commission] is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change." (Internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 416. "Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment . . . The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission. Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion." (Citations omitted; internal quotation marks omitted.) Id., 417.
To examine changing conditions and meet the town's demands pursuant to the authority cited above, the commission adopted a plan of conservation and development that directs the commission to evaluate, not later than five years after the date of passage of the plan, minimum lot sizes and other conditions for approval of building lots to reflect the amount and conditions of land necessary to perpetually meet residential water supply and septic disposal needs on site. (ROR, Item 96, p. 12.) It directs the commission, within two years of the adoption of the plan, to determine the feasibility of new zones and comprise lands whose slopes, soils and ledge depths, or other characteristics are unsuitable for the level of development currently permitted, and which shall be characterized by larger minimum lot sizes than those pertaining elsewhere in the town. (ROR, Item 96, p. 13.)
The commission's brief, page three, and the transcript of the public hearing on December 2, 2003, page six, indicate that an evaluation must occur not later than three years after passage of the plan. The transcript references the plan of conservation and development, effective August of 2001, on page 12, paragraph B, subparagraph 19. The plan of conservation and development provided to the court, however, effective August 4, 2001, lacks a subparagraph 19, and instead, in paragraph B, subparagraph 1, refers to a review five years after the date of passage of the plan. (ROR, Item 96.) The court is not aware of any amendments to the August 4, 2001 plan of conservation and development.
After an evaluation motived by the provisions cited above, the commission responded by drafting proposed amendments to the zoning regulations addressing the conditions identified by the review. The following statement of purposes precedes the proposals:
It is the belief of this Commission that, pending additional input, comment, and information, these proposed regulations best fulfill its mandate, both statutory and as delineated in the Master Plan of Development [Plan of Conservation and Development], and in other planning documents, and as stated in the Purposes section of the Zoning Regulations, to plan for the orderly future growth of the Town of Sherman, particularly:
To protect property values and the overall health, safety and quality of life of its residents;
To provide for an orderly and sustainable growth of the population that will not unduly tax the existing and likely future infrastructure of the Town and its ability to provide services and protect the health and safety of its residents;
To control the overall density of population in its various zones, and to fulfill the goals of the State of Connecticut's Plan of Conservation and Development and the Housatonic Valley Regional Plan prepared by the Housatonic Valley Council of Elected Officials especially as regards the preservation of the rural character of the town and designation of Sherman in the regional plan as a remote area;
To protect the water quality and environmental viability of Candlewood Lake and Squantz Pond, and the Town's numerous other bodies of water and watercourses, as recreational resources and possible future water supply resources, and to protect property values of the lands thereon;
To protect the quality of drinking water supply throughout the town, including its aquifers, its groundwater and its public water supply watersheds, in particular the Croton watershed.
(ROR, Items 4, 8, 15.)
Replying to the statement of purposes, the plaintiffs suggest that the commission cloaked the reasons for adopting the amendments in broad, general language paraphrasing § 8-2 in a maneuver to conceal its underlying agenda, which, the plaintiffs argue, the commission designed to exclude new citizens from moving to Sherman and keep taxes down. For support, they cite individual statements made by members of the public at the public hearing, including statements they made themselves. (Plaintiffs' Brief, p. 18 n. 43, n. 45; ROR, Item 26, pp. 29-68.) The plaintiffs also point to statements at the hearing and principles in the plan of conservation and development stating that "Sherman is, wishes to remain, and will remain a rural town." (ROR, Item 26, p. 8, Item 96; p. 5.) Prohibiting the subdivision of land because it would place financial burdens on the town, they maintain, is not authorized under § 8-2, and maintaining a rural town, they contend, should not be a factor that precludes further development.
Despite the plaintiffs' theory, the court, restricted to the reasons the commission articulates, must constrain its review to whether the evidence in the record supports the purposes cited by the commission. "The principle that a court should confine its review to the reasons given by a zoning agency . . . applies . . . where the agency has rendered a formal, official, collective statement of reasons for its action." (Internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 420. "Where a zoning agency has stated its reasons for its actions, 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 [commission] was required to apply under the zoning regulations . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 51 n. 8, 808 A.2d 1107 (2002). "The [decision] must be sustained if even one of the stated reasons is sufficient to support it." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995). "[W]here a zoning commission has formally stated the reasons for its decision, the court should not go behind that official collective statement . . . [and] attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission's final collective decision." (Internal quotation marks omitted.) Kaufman v. Zoning Commission, 232 Conn. 122, 142, 653 A.2d 798 (1995). The commission formally articulated its reasons for the amendments in a statement of purposes therefore, barring evidence of material procedural violations, a challenge to the amendments will be dismissed if any one of the articulated reasons sufficiently supports the challenged amendments.
Under § 8-2(a), the commission is "authorized to regulate . . . the percentage of the area of the lot that may be occupied; . . . the size of . . . open spaces; the density of population and the location and use of buildings . . . for . . . residence or other purposes, including water-dependant uses . . ." All regulations dividing a municipality into districts "shall be . . . subject to . . . conditions necessary to protect public health, safety, convenience and property values." General Statutes § 8-2(a). The commission also "may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land" and the "regulations shall be designed to lessen congestion on the streets . . . to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for . . . water, sewerage . . . and other public requirements." General Statutes § 8-2(a). "Zoning regulations . . . shall be made with reasonable consideration for the protection of existing and potential public surface and ground drinking water supplies." General Statutes § 8-2(a).
The comprehensive plan states objectives in line with § 8-2 including, most significantly in relation to the zoning amendments under appeal, provisions to regulate the percentage of the area of a lot that may be occupied and the location of buildings for residence, ensure the availability of public facilities for the adequate provision of water, prevent the pollution of ponds and streams, protect existing and potential surface and ground water drinking supplies, and safeguard the water table. Zoning Regulations, Town of Sherman, Art. I. (As Amended by Adopted Amendments, Effective November 1, 2003.) The commission apparently added the provisions in § 115, regarding the area of a lot that may be occupied, and § 120, regarding water pollution and drinking supplies, on November 1, 2003, shortly before the commission issued legal notice for the proposed amendments on November 14, 2003. Nevertheless, "the courts . . . allow the pre-articulation requirement to be satisfied as part of the same process that . . . applies the zone to the ground . . . Even in communities that zone under special acts with explicit requirements that zoning changes be consistent with the plan of development, towns can avoid whatever limitations the requirement imposes by holding two successive public hearings in one evening, the first to change the plan . . . the second to amend the zoning regulations." T. Tondro, supra, p. 63, citing Malafronte v. Planning Zoning Board, 155 Conn. 205, 207-08, 230 A.2d 606 (1967).
The court finds the adopted amendments, informed by the preceding statement of purposes, consistent with the mandates of the comprehensive plan and the authority in § 8-2. For example, the amendments exclude slopes and inland wetland and watercourses from the minimum lot area and the locations available for a principal building, which the statement of purposes indicates are regulations intended to protect the quality of drinking water in areas including neighboring watersheds. This provision relates to objectives in the comprehensive plan that suggest regulating the area of a lot that may be occupied in order to prevent pollution to potential water sources, a goal authorized by § 8-2. In Harris v. Zoning Commission, supra, 259 Conn. 426-27, an amendment excluding wetlands, watercourses and slopes greater than 25 percent from the minimum lot area for residential development was recently found to be reasonably related to balancing development and conservation. Sherman is part of the Croton watershed, which supplies water to New York, as well as the Candlewood Lake watershed. (ROR, Item 26, p. 11, Item 96, p. 24.) The transcripts of the meetings in the present appeal indicate that the commission was careful to exclude the slopes from both the minimum lot size and the buildable land area in order to avoid runoff into the water sources. (ROR, Item 26, p. 12, Item 28, pp. 64, 88.)
The plaintiffs, nevertheless, allege that they can safely build on their lots in conformity with the public health code and that the public water system in Timber Trails negates any concern that drinking water in the area could become contaminated; they further allege that the blanket exclusion of any wetlands in determining minimum lot size conflicts with the wetlands statutes, which recommend preserving wetlands with open space. As a final matter, the amendments create nonconforming lots, a result that is inconsistent with the goal of zoning, which, the plaintiffs argue, is the ultimate elimination of nonconforming uses.
All of these concerns, however, implicate debatable questions properly within the province of the commission.
"It is true that a goal of zoning is the ultimate elimination of nonconforming uses . . . But this goal is not, in every instance, an effective shackle on a zoning commission. If it were . . . zoning, once established, would be forever fixed and immutable." (Citation omitted.) Allin v. Zoning Commission, 150 Conn. 129, 134, 186 A.2d 802 (1962). At least one Superior Court case has stated that the expansion of nonconformities should not prevent a zoning commission from enacting a zone change if conditions require it. Mechanics Farmers Savings Bank v. New Canaan Planning Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 0071856 (June 27, 1986, Flynn, J.) ( 1 C.S.C.R. 460, 461), citing First Hartford Realty Corp. v. Planning Zoning Commission, 165 Conn. 533, 544-45, 338 A.2d 490 (1973). As DiBella informed the commission in a letter that it read at the public hearing; (ROR, Item 32); under General Statutes § 8-26a, property owners with approved subdivision lots maintain a vested right exempting them from subdivision and zoning regulations enacted subsequent to approval. Poirier v. Zoning Board of Appeals, 75 Conn.App. 289, 815 A.2d 716, cert. denied, 263 Conn. 912, 821 A.2d 766 (2003). "A zoning commission [therefore] has broad discretion in enacting and amending its regulations. The fact that a large percentage of the buildings became nonconforming or more nonconforming does not in and of itself constitute an abuse of discretion." Mechanics Farmers Savings Bank v. New Canaan Planning Zoning Commission, supra, 462, citing Burnham v. Planning Zoning Commission, 189 Conn. 261, 265, 455 A.2d 339 (1983). Although one policy of zoning is to reduce nonconformities, reducing harmful side effects of certain land uses and implementing the overall legitimate interests of the town is more important. See T. Tondro, supra, pp. 147, 149, citing Mechanics Farmers Savings Bank v. New Canaan Planning Zoning Commission, supra, 462.
Our Supreme Court has often stated: "It is a general principle in zoning that nonconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit. In no case should they be allowed to increase." (Internal quotation marks omitted.) Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 383-84, 311 A.2d 77 (1972); see also Weyls v. Zoning Board of Appeals, 161 Conn. 516, 290 A.2d 350 (1971); Raffaele v. Planning Zoning Board of Appeals, 157 Conn. 454, 254 A.2d 868 (1969); DeForest Hotchkiss Co. v. Planning Zoning Commission, 152 Conn. 262, 205 A.2d 774 (1964); Salerni v. Scheuy, 140 Conn. 566, 102 A.2d 528 (1954). These cases, however, concern owners of individual properties seeking to extend nonconforming uses, not actions by zoning commissions amending zoning regulations.
General Statutes § 8-26a provides in relevant part:
(a) Notwithstanding the provisions of any general or special act or local ordinance, when a change in the subdivision regulations is adopted by the planning commission of any town, city or borough, or other body exercising the powers of such commission, no subdivision plan which has been approved, prior to the effective date of such change, by such planning commission or other body, and filed or recorded with the town clerk, shall be required to conform to such change.
(b)(1) Notwithstanding the provisions of any general or special act or local ordinance, when a change is adopted in the zoning regulations or boundaries of zoning districts of any town, city or borough, no lot or lots shown on a subdivision or resubdivision plan for residential property which has been approved, prior to the effective date of such change, by the planning commission of such town, city or borough, or other body exercising the powers of such commission, and filed or recorded with the town clerk, shall be required to conform to such change.
The court recognizes that the Connecticut Practice Series: Land Use Law Practice treatise states: "A zone change which has the effect of changing some properties from conforming uses to nonconforming ones should be subject to challenge as violating the comprehensive plan." R. Fuller, 9A Connecticut Practice Series: Land Use Law Practice (2d Ed. 1999) § 4.3, p. 52. The court, nevertheless, adopts the view articulated in the Connecticut Land Use Regulation treatise, interpreting the decision by Judge Flynn in Mechanics Farmers Savings Bank, which places greater emphasis on implementing the legitimate interests of the town. T. Tondro, supra, p. 149.
"There was ample evidence before the commission for it to adopt the vote it did based on the reasons it gave. The change cannot be said to be out of harmony with the comprehensive plan for the good of the community as a whole and cannot therefore be classified as spot zoning . . . The amendment adopted by the zoning commission was a logical development of the town's comprehensive plan and did not constitute an abuse of the commission's discretion . . . The action taken by the commission involved a fairly debatable question which was within its province, acting in its legislative capacity, to resolve . . . So long as it appears that an honest judgment has been reasonably and fairly exercised by the commission after full hearing, courts should be cautious about disturbing its decision . . . Courts cannot substitute their judgment for the wide and liberal discretion vested in the local zoning authority when it is acting within its prescribed legislative powers . . . The courts allow zoning authorities this discretion in determining the public need and the means of meeting it, because the local authority lives close to the circumstances and conditions which create the problem and shape the solution . . . It is only where the local zoning authority has acted arbitrarily or illegally and thus abused the discretion vested in it that the courts can grant relief on appeal." (Citations omitted; internal quotation marks omitted.) Dooley v. Town Plan Zoning Commission, 154 Conn. 470, 478-79, 226 A.2d 509 (1967).
As a policy matter, the plaintiffs aver that purchasers of property within a zoned district have the right to expect that zoning regulations will not be changed unless a change is required for public welfare. Property owners have the right to expect zoning regulations to remain consistent, they argue, in order for owners to make reliable land use decisions.
"An essential purpose of zoning regulations is the stabilization of property uses." Damick v. Planning Zoning Commission, 158 Conn. 78, 84, 256 A.2d 428 (1969). "Those who buy property in a zoned district have the right to expect that the classification made in the ordinance will not be changed unless a change is required for the public good." Zoning Commission v. New Canaan Building Co., 146 Conn. 170, 175, 148 A.2d 330 (1959). The Damick case, however, concerned changes to zoning classifications benefitting a single property to the detriment of many other owners in the area. Damick v. Planning Zoning Commission, supra, 85. Meanwhile, the New Canaan CT Page 9713 Building case reviewed a judgment enjoining the erection of an apartment house after the commission, without any pretense that the rezoning would promote the public welfare or serve the good of the community as a whole, changed a small tract of land from an apartment house zone to a residence zone for the sole purpose of preventing a corporation from going forward with its project. Zoning Commission v. New Canaan Building Co., supra, 176. In both cases, the court found the commissions' decisions did not promote the public welfare and were fundamentally inconsistent with the towns' respective comprehensive plans. Damick v. Planning Zoning Commission, supra, 77; Zoning Commission v. New Canaan Building Co., supra, 85.
In the context of amendments to the Sherman zoning regulations, the plaintiffs' argument is weakened by the fact that the commission adopted the amendments to apply to property owners throughout zones A and B, and not property owned by a single entity. Though the decision negatively impacts the plaintiffs, the record evinces the commission's intention to positively impact the town as a whole with revisions in line with the principles chronicled in the comprehensive plan. The court, therefore, finds the plaintiffs' arguments concerning land buyers' expectancy interests and stabilization of land uses unavailing in the present appeal.
Under the level of scrutiny determined by the courts above, the court finds that the commission, which lives close to Sherman's unique circumstances and conditions, appropriately exercised its discretion by adopting the amendments in an effort to respond to public needs.
The plaintiffs also argue that the commission's decision was arbitrary, illegal, or an abuse of discretion because changes to the regulations are unjustified without evidence of new conditions or substantial changes in the area. Under § 8-2, which provides that "regulations shall be made with reasonable consideration as to the character of a district and its peculiar suitability for particular uses," the plaintiffs assert that the commission failed to consider the special status of their property, which is the only land in Sherman with a state-of-the-art public water system. Although the source of water supply for a majority of households in Sherman comes from individually drilled wells, the plaintiffs allege that their property is unique in that it is the only large holding of undeveloped land in the town that is served by a public water system, a system once operated by The Timber Trails Community Service Corporation, but now controlled by Aquarion Water Company, a publicly listed company, which, with the approval of the department of public utility control and the department of public health, allegedly spent millions of dollars improving and upgrading the system.
Sherman has not experienced any fundamental changes in topography, water supply or population, the plaintiffs contend, and therefore, the amendments are patently arbitrary. It is further argued that the commission should have conducted and consulted feasibility studies, sought expert testimony, and considered alternative amendments.
"Ordinarily, unless new conditions arise which substantially alter the character of an area, a change in zone classification is unwarranted . . . A local zoning authority, however, acts in a legislative capacity when it enacts or amends its regulations . . . In acting, such a legislative body must be relatively free to amend or modify its regulations whenever time and experience have demonstrated the need for a revision . . . The [commission], acting in a legislative capacity, was, therefore, not bound by the general rule which would prohibit it from reversing an earlier decision without evidence of a change in conditions . . . The discretion of a legislative body, because of its constituted role as a formulator of public policy, is much broader than that of an administrative board [such as a zoning commission], which serves a quasi-judicial function. Thus, although . . . a zoning commission should not ordinarily alter the classification of a certain area in the absence of changed conditions, it is clear that this rule, which is a restriction on the principle of legislative discretion, will only be applied in those rare instances where the zoning amendment is patently arbitrary. A less strict rule would require the court to exercise a legislative judgment." (Citations omitted; internal quotation marks omitted.) Morningside Assn. v. Planning Zoning Board, 162 Conn. 154, 157-59, 292 A.2d 893 (1972).
The unacceptable level of patent arbitrariness identified by the appellate courts is absent from the process the commission used to propose and adopt the challenged amendments. As authorized by § 8-3(b), the commission followed the advisory provisions in the plan of conservation and development by evaluating the factors enumerated in the plan within the relevant time frame. It conducted a series of workshops resulting in several draft versions of possible amendments and a formal list of proposed amendments, together with statement of purpose, that it published in advance of a public hearing. Following the hearing, the commission adopted a version of the amendments consistent with the statement of purposes the commission provided to the public; Scovil v. Planning Zoning Commission, 155 Conn. 12, 16, 230 A.2d 31 (1967) (prehearing proposed regulations, as a result of objections and suggestions made at the public hearing, might well differ from the new regulations as finally adopted); and in accordance with the principles in the town's comprehensive plan and the authority provided by the legislature in § 8-2.
The plaintiffs cite Feinson v. Conservation Commission, 180 Conn. 421, 429 A.2d 910 (1980), for the proposition that the commission should have canvassed experts for testimony on complex issues including pollution control. In Feinson, however, the court, in an administrative capacity, reviewed the denial of an individual plaintiff's application to conduct a regulated activity in an inland wetland. The plaintiff offered expert testimony in support of his application, yet the commission relied solely on its own knowledge and experience without demonstrating that it possessed any form of specialized expertise on the subject. No other evidence contesting the application was presented and the court found the commission's record deficient of reliable evidence in support of the decision. Id., 427. "[A] lay commission acts without substantial evidence, and arbitrarily, when it relies on its own knowledge and experience concerning technically complex issues such as pollution control, in disregard of contrary expert testimony, without affording a timely opportunity for rebuttal of its point of view." Id., 429.
Contrary to the plaintiffs' arguments, the commission in the present matter, acting in a legislative capacity, received and reviewed expert input from a variety of sources and the return of record contains sufficient evidence to support the amendments. At the opening of the public hearing, the commission read correspondence it received from the Housatonic Valley Council of Elected Officials (HVCEO) (ROR, Items 26, pp. 15, 33); referencing the HVCEO regional growth guide map and written plan (ROR, Items 88, 94); which is incorporated by reference into Sherman's plan of conservation and development (ROR, Item 96, pp. 2-3); along with an analysis of open space conservation subdivisions commissioned by the Newtown planning and zoning commission. (ROR, Item 33.) Sherman is a member of the HVCEO, a regional council of elected officials established under General Statutes § 4-124c with duties that include considering matters of a public nature common to its members and providing recommendations to public agencies that perform functions within the member regions. (ROR, Item 96, pp. 2-3.) HVCEO, under General Statutes § 4-124d, exercises the duties of a regional council, and, under General Statutes § 4-124h, the powers of a regional planning agency. Pursuant to General Statutes § 8-35a, HVCEO is authorized to produce regional plans of development and assist municipalities in developing and carrying out regional plans.
General Statutes § 4-124c provides in relevant part: "Within any planning region of the state as defined or redefined by the Secretary of the Office of Policy and Management, or the secretary's designee under the provisions of section 16a-4a, or within any two or more such contiguous planning regions, a regional council of elected officials may be created by ordinance of the legislative bodies of two or more towns, cities or boroughs within such region or regions. Any other towns, cities or boroughs within such region or regions may join such council by similar action."
General Statutes § 4-124d provides: "The council shall consider such matters of a public nature common to two or more members of the council as it deems appropriate, including matters affecting the health, safety, welfare, education and economic conditions of the area comprised by its members. The council shall promote cooperative arrangements and coordinate action among its members and make recommendations therefor to the members and such other public agencies as exist or perform functions within the region or regions."
General Statutes § 4-124h provides: "Wherever a regional council of elected officials exists in a region where there is no regional planning agency, such regional council may exercise all the powers of a regional planning agency as defined in chapter 127 of the general statutes, as amended."
General Statutes § 8-35a provides in relevant part: "Each regional planning agency shall make a plan of development for its area of operation, showing its recommendations for the general use of the area including land use, housing . . . public utilities and such other matters as, in the opinion of the agency, will be beneficial to the area. Any regional plan so developed shall be based on studies of physical, social, economic and governmental conditions and trends and shall be designed to promote with the greatest efficiency and economy the coordinated development of its area of operation and the general welfare and prosperity of its people. Such plan may encourage energy-efficient patterns of development, the use of solar and other renewable forms of energy, and energy conservation. Such plan shall be designed to promote abatement of the pollution of the waters and air of the region. The plan of each region contiguous to Long Island Sound shall be designed to reduce hypoxia, pathogens, toxic contaminants and floatable debris in Long Island Sound. Before adopting the regional plan of development or any part thereof or amendment thereto the agency shall hold at least one public hearing thereon . . . The regional planning agency shall assist municipalities within its region and state agencies and may assist other public and private agencies in developing and carrying out any regional plan or plans of such regional planning agency. The regional planning agency may provide administrative, management, technical or planning assistance to municipalities within its region and other public agencies under such terms as it may determine, provided, prior to entering into an agreement for assistance to any municipality or other public agency, the regional planning agency shall have adopted a policy governing such assistance."
The plaintiffs assert that the input from HVCEO is valueless because HVCEO qualified its remarks by stating that the letter responds primarily to amendment proposals that would have increased the minimum lot size from 80,000 to 160,000 square feet, a possibility not ultimately adopted by the commission. (ROR, Item 33, p. 1.) The letter, however, refers to several plans of general applicability that contain recommendations and analyze factors in addition to minimum lot size. Moreover, in addition to the letter, the return of record contains additional advisory and analytical materials from HVCEO that are independently significant in that each provides guidance on many aspects of the proposed amendments. (ROR, Items 87, 88, 92,93, 94, 95.)
The commission also noted a regulatory review by the Candlewood Lake Authority (ROR, Items 89, 90); received input from Tom McGowan, a land use consultant (ROR, Items 28, 29); and read into the record letters from D. Randall DiBella, attorney for Sherman, Ron Pizzarelli, chairman of the conservation commission, and several members of the public. (ROR, Item 26, pp. 17-20, Items 32, 36.) The commission further referenced an Environmental Protection Agency program named Stormwater II, which is designed to manage storm water, and acknowledged possible legislation on smart growth, which would be intended to reflect the rural character of the state. (ROR, Item 26, p. 11.) As a final matter, the commission announced a list of exhibits, including several land use and planning maps (ROR, Item 87); a growth guide map for the northern HVCEO region (ROR, Item 93); the Sherman zoning and subdivision regulations (ROR, Items 97, 98); the Sherman sanitary code (ROR, Item 99); the Sherman master plan (ROR, Item 96); a summary of plan policies and recommendations (ROR, Item 59); and several email exchanges between commission members, McGowan and DiBella, dating from April through October of 2003 (ROR, Items 61-86). (ROR, Item 26, pp. 20-24.)
General Statutes § 7-151a(a) and (c) provide in relevant parts:
(a) . . . Any two or more towns which have within their territorial limits a body of state water may establish by ordinance a lake authority. Said authority shall act as agent for the member towns in cooperating with the Commissioner of Environmental Protection in the enforcement of the boating laws on such water.
(c) In addition to the power granted in subsection (a) a lake authority may be granted by the legislative bodies of its respective towns powers to: (1) Control and abate algae and aquatic weeds in cooperation with the Commissioner of Environmental Protection; (2) study water management including, but not limited to, water depth and circulation and make recommendations for action to its member towns; (3) act as agent for member towns with respect to filing applications for grants and reimbursements with the Department of Environmental Protection and other state agencies in connection with state and federal programs; and (4) to act as agent for member towns with respect to receiving gifts for any of its purposes.
Neither the Environmental Protection Agency materials nor an example of the potential legislation are present in the return of record.
The list of exhibits recited at the public hearing also included a plan referred to as the State of Connecticut plan and a document referred to as Croton watershed 2000. (ROR, Item 26, pp. 21, 24.) Documentation matching these descriptions do not appear in the return of record submitted by the commission. The commission also stated that the exhibits included an official inland wetlands and watercourses map. (ROR, Item 26, pp 20-21.) The return of record contains the Sherman inland wetlands and watercourses regulations; (ROR, Item 100); an item labeled as an official inland wetlands and watercourses map, however, is not present in the record.
All of these materials demonstrate that the commission received considerable guidance from sources beyond its own knowledge and experience. With the aid of a town planning consultant and town attorney, the commission drafted the amendments to fulfill goals found in the plan of conservation and development, which is consistent with HVCEO's regional plan, the Candlewood Lake Authority's regulatory recommendations and the Sherman sanitary code. (ROR, Item 26, p. 10, Item 29, p. 31.) Specifically, the proposals lower the density of development, maintain the rural character of the town, and protect the area's watersheds to sustain high water quality. (ROR, Item 26, pp 10-12.) Aside from their own statements and documents from the water company, which they submitted to the commission during the public hearing (ROR, Items 43-51); the plaintiffs offer no significant contrary expert testimony. The public hearing also provided a forum for the plaintiffs to voice their point of view and to rebut the evidence relied upon by the commission. Under the attending circumstances, the evidence in the record, together with the process the commission used to reach its ultimate decision, demonstrate sufficiently that the commission's decision was not illegal, arbitrary or an abuse of discretion.
The plaintiffs' last contention on the substance of the amendments is based on an allegation that the commission engaged in predetermination in deciding to adopt the amendments as part of a plan to inhibit the plaintiffs from developing their land. The actual motivation behind the amendments, they argue, is to prevent an increase in population, which would place an extra financial burden on the town, and to preserve the property values of already developed land at the expense of land that has yet to be developed.
"The law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities. It would be strange, indeed, if this were true." (Internal quotation marks omitted.) Ghent v. Zoning Commission, 220 Conn. 584, 594, 600 A.2d 1010 (1991). "The decisive question . . . is whether [commission members] had actually made up [their] mind[s], in advance of the public hearing, that [they would] approve the proposed change of zone regardless of any changes or arguments in opposition which might be urged at the hearing. To discover the truth of the matter, [the] state of mind [of] a member of the commission [must] be determined as a question of fact, and the burden of proving the illegality of [the] action [is] on the plaintiffs." Furtney v. Zoning Commission, 159 Conn. 585, 594-95, 271 A.2d 319 (1970).
The plaintiffs' charge is inconsistent with the spirit of the commission's statements at the beginning of the public hearing. In the course of an introduction identifying the guidelines and authorities the commission used in formulating drafts of the proposed amendments, Art Von Plachecki explained: "I think it's important to remember as you sit here this evening that this commission has not decided anything else yet. This evening is to obtain feedback from you. The proposal on the table is best described as the most aggressive, or the extreme relating to the minimum lot size and variety of ways to control density and development; but it is not the only choice the commission has or can select." (ROR, Item 26, p. 12.) Before illustrating the commission's options in greater detail, he continued: "[W]hat I would like to do is just to demonstrate to you that no decisions have been made. The reason the current recommendation is out there is because it made a great more sense to the commission to start at the start, and perhaps, if required, work its way down. Or perhaps, if they felt it was the need to go, but that the community could see what maximum recommendations should be in order to give their input." (ROR, Item 26, pp. 12-13.)
The commission, in fact considered a number of modifications and amendments to the zoning regulations. (ROR, Item 60.) A comprehensive examination of the transcripts reveals genuine struggle and disagreement over the advisability and severity of several proposals. (ROR, Items 28, 29.) It is not insignificant, for example, that the commission, after lengthy debate, decided the minimum lot size should remain at 80,000 square feet instead of increasing to 160,000 square feet. (ROR, Item 28, pp. 20-25, 28-29, 46-47, 76-82; Item 29, pp. 7, 17-19, 25, 34-37.) There is no evidence that the commission had ever taken a definite and unalterable position with reference to the proposed zone change.
Under the controlling authorities, none of the plaintiffs' allegations rise to the level of illegality, meet the standard of arbitrariness, or exhibit the degree of discretionary abuse necessary to sustain the appeal.
"Our due process clause, like that of the federal constitution, does not guarantee any particular form of state procedure. Due regard must be had to the nature of the proceeding and the individual right affected by it . . . The fact that the proceeding is legislative, rather than adjudicative, in nature plays a role in the determination of what process is due . . . Moreover, [c]onstitutional principles permit an administrative agency to organize its hearing schedule so as to balance its interest in reasonable, orderly and non-repetitive proceedings against the risk of erroneous deprivation of a private interest." (Citations omitted; internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, supra, 220 Conn. 554-55. "The only requirement [in administrative proceedings] is that the conduct of the hearing shall not violate the fundamentals of natural justice . . . Fundamentals of natural justice require that there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary . . . Put differently, [d]ue process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act . . . and to offer rebuttal evidence . . . The purpose of administrative notice requirements is to allow parties to prepare intelligently for the hearing." (Citations omitted; internal quotation marks omitted.) Grimes v. Conservation Commission, 243 Conn. 266, 273-74, 703 A.2d 101 (1997).
"There is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission . . . Even if that presumption concerning the proceedings is rebutted, however, not all procedural irregularities require a reviewing court to set aside an administrative decision; material prejudice to the complaining party must be shown." (Citations omitted; internal quotation marks omitted.) Murach v. Planning Zoning Commission, supra, 196 Conn. 205.
The plaintiffs first contend they were denied the right to cross-examine "the only expert" used by the commission. McGowan, the commission's land use consultant, who, the plaintiffs argue, consulted the commission during the preliminary workshops when the commission did not allow members of the public to speak, was not present at the public hearing. McGowan also participated in the executive meetings following the public hearing. The commission responds that the plaintiffs never requested the right to cross-examine anyone and notes that the plaintiffs could have subpoenaed McGowan to attend the public hearing had they wished to question him.
"The principle requiring a testing of testimonial statements by cross-examination has always been understood as requiring, not necessarily an actual cross-examination, but merely an opportunity to exercise the right to cross-examine if desired. 5 Wigmore, Evidence (3d Ed.) 1371." (Internal quotation marks omitted.) Welch v. Zoning Board of Appeals, 158 Conn. 208, 213, 257 A.2d 795 (1969). When an agency, acting in a quasi-judicial capacity in review of a personal interest, receives the full benefit of a witness's direct testimony, appellate authority requires it to produce the person again for cross-examination. See Dragan v. Connecticut Medical Examining Board, 24 Conn.App. 662, 591 A.2d 150 (1991), rev'd on other grounds, 223 Conn. 618, 613 A.2d 739 (1992) (reviewing an agency's revocation of a medical license). "In this case [however] the commission was acting in a legislative capacity. Its ultimate determination had town-wide and long-term effects, and was not confined to the property of any particular plaintiff. Furthermore, the commission set out in advance the schedule of proceedings that it would follow. That schedule provided for an orderly, reasonable process by which all interested parties, including the plaintiffs, had ample opportunity to present their evidence and views insofar as they pertained to the legislative task before the commission. The fact that the plaintiffs viewed that task as site-specific and project-specific, and chose accordingly to introduce evidence that called for rebuttal . . . did not create a constitutional right of surrebuttal . . ." Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, supra, 220 Conn. 555.
The plaintiffs had the right to offer evidence to the court to determine what, if any, effect McGowan's presence at the workshops and executive sessions might have had on the decision of the commission. See McCrann v. Town Plan Zoning Commission, 161 Conn. 65, 77-78, 282 A.2d 900 (1971). At no time did the plaintiffs communicate an interest or desire to cross-examine anyone who assisted the commission in drafting the amendments. The plaintiffs' position, that McGowan acted as a consultant for the commission but the commission never made him available for cross-examination, does not in itself indicate the lack of a fair hearing. See id. "He was a mere technical adviser to the commission. Because the commission is composed of laymen it is entitled to professional technical assistance in carrying out its responsibilities." Id., 77. "The plaintiffs had a full opportunity to meet the issues with which they were confronted. There was no evidence that [McGowan] had any personal or business interest in the matter. There is no showing of error or prejudice that would constitute a denial of due process." Id., 78; see also T. Tondro, supra, pp. 415-16. As a result, the plaintiffs' argument on this ground must fail.
The plaintiffs also object to the fact that they could not directly question the commission. At the public hearing, the commission stated: "We're here to hear your comments. We're not going to have a discussion back and forth with you. We're looking for input . . ." (ROR, Item 26, p. 24.) Without an opportunity to hear responses to their questions, the plaintiffs argue that the commission denied them an opportunity to be informed of the basis for the amendments.
"The claims now made are that the plaintiffs, as of right, could have cross-examined the members of the board at the public hearing but were deprived of that right because, the members having then expressed no views, there was nothing then on which a cross-examination could be made; that the personal knowledge of the situation possessed by the members of the board and on which they had acted should be subject to cross-examination . . ." Welch v. Zoning Board of Appeals, supra, 158 Conn. 214. "The short answer to the effort to cross-examine the members of the board is that cross-examination of the members of the board [is] not permissible . . . at the original hearing . . . Chicago, B. Q. Ry Co. v. Babcock, 204 U.S. 585, 593, 27 S.Ct. 326, 51 L.Ed. 636. `Just as a judge cannot be subjected to such a scrutiny . . . the integrity of the administrative process must be equally protected.' United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 [(1941)]; see 2 Am. Jur. 2d, Administrative Law, 754." Welch v. Zoning Board of Appeals, supra, 215.
The commission, at the beginning of the public hearing, informed the plaintiffs of the statutes, regulations, plans, input and other guidance that formed the basis for the amendments. (ROR, Item 26.) The plaintiffs then had an opportunity to respond and present opposing evidence. Although the plaintiffs suggest that some exhibits and reports in the record had not been available for public scrutiny prior to the hearing, the court is without facts or examples of an attempt or a request to acquire specific materials that was refused by the commission. According to the commission, many of the materials were public documents available to anyone and the materials specific to the proceeding on the proposed amendments were on file with the commission in advance of the public hearing. The only express statutory requirement, which the commission complied with, is § 8-3(a), which provides that "[a] copy of such proposed regulation . . . shall be filed in the office of the town . . . for public inspection at least ten days before such hearing . . ." No authority exists for the plaintiffs' contention that they should have been allowed to question the commission and receive specific responses to their questions. As such, the commission, by disallowing a back and forth discussion on the amendments, did not violate the plaintiffs' due process rights.
The plaintiffs' next argument concerns the three-minute time limitation that the commission stated it would enforce on initial comments at the public hearing. Acknowledging that courts in the past have dismissed challenges to five-minute time limitations, they claim the commission denied them an opportunity to be heard because they could not summarize their objections within three minutes.
Section 8-3(a) provides that "[n]o . . . regulation . . . shall become effective or be established or changed until after a public hearing in relation thereto . . ." The commission may limit the amount of time for each speaker at a public hearing without violating due process guarantees, at least if after everyone has spoken those who wish to further comment are allowed to do so. Moscarillo v. Planning Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV 0053899 (December 18, 1991, Dranginis, J.) ( 5 Conn. L. Rptr. 782, 7 C.S.C.R. 200); Alaimo v. Planning Zoning Commission, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 251501 (January 21, 1988, Hammer, J.) ( 3 C.S.C.R. 247); T. Tondro, supra, p. 406. In these cases, the key factor is whether the commission, after it provides other members of the public with a chance to speak, accommodates people wishing to extend their remarks with a meaningful opportunity to continue their comments.
In an effort to ensure everyone attending the public hearing a turn to speak, the commission initially limited comments to three minutes. It was clearly communicated, however, that people with the desire to speak longer would be heard again after everyone had spoken: "We're looking for input, and as much as possible we'd like you to keep it to 3 minutes for courtesy. And at the end we have a list, and we can go back over — I realize there's a few that 3 minutes are going to be difficult." (ROR, Item 26, p. 24.) Though the plaintiffs who spoke at the hearing referenced the pressure induced by the time restrictions (ROR, Item 26, pp. 29, 38); the commission (1) informed them that additional comments could be made at the end of the hearing (ROR, Item 26, p. 33); (2) inquired, after the rest of the public had spoken, whether the plaintiffs cared to make more comments (ROR, Item 26, p. 81); and (3) finished the hearing with time to spare: "We do have a few minutes before 10 o'clock. Is there any further comments?" (ROR, Item 26, p. 84.)
For the record, the plaintiffs also submitted detailed written materials including affidavits, letters, maps, exhibits, and statements opposing the amendments. (ROR, Items 43-57.) They argue that the commission did not adequately consider the prepared materials. The transcript of an executive meeting, on December 3, 2003, however, indicates that members of the commission reviewed or were in various stages of reading and discussing the weight to give to the material. (ROR, Item 27, pp. 15-21, 26-27.) The record also indicates that the commission had more time to review the material before the meeting on December 10, 2003, and before the votes were taken on December 17, 2003. Without an allegation that the commission would have been unwilling to grant more time for additional comments, the record shows that the commission, pursuant to § 8-3(a), provided an adequate forum for public comment.
Though the plaintiffs did not explicitly request more time at the close of the hearing, the tone of their initial comments demonstrate that they considered the time limit inadequate to the point that a few additional minutes would have been insufficient to complete their remarks, making a request for extra time futile. In fairness, Henry W. Pascarella did suggest, and the commission had discretion to grant, a more extensive moratorium with more complete participation by Timber Trails, and presumably, members of the public. (ROR, Item 26, p. 32.) The plaintiffs, however, cite no authority in the land use statutes, the regulations, or the case law that would mandate such a proceeding.
Under the circumstances, the court finds no violation of the plaintiffs' rights to due process of law.
For the foregoing reasons, the court dismisses the plaintiffs' appeal.
Mintz, J.