Opinion
No. TTD-CV-05-4002608
August 7, 2006
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiff, David F. Warner, appeals from a decision of the defendant, the planning and zoning commission of Vernon, approving the subdivision application of another named defendant, The Madrid Corporation (Madrid). Also named as defendants are Mary R. Waitt and Martin F. Fagan, Jr. as trustees of the Heather M. Waitt Trust Indenture (trust), which owns the property involved in this appeal.
II BACKGROUND
Pursuant to the zoning and subdivision regulations of Vernon, Madrid filed a subdivision application with the commission on February 2, 2005. (Return of Record [ROR], Item 1.) In its application, Madrid sought to subdivide a lot known as 201 Washington Street in Vernon, which is located on the west side of Washington Street and to the north of Phoenix Street. (ROR, Item 1.) The subject parcel, which is owned by the trust, contains a single-family residence and is zoned as "R-27." (ROR, Item 1.)
Madrid conveyed the subject parcel to the trust by warranty deed, dated December 16, 1999, for $170,000. (ROR, Item 1, "Statutory Form Warranty Deed," p. 1.) This deed is attached to Madrid's subdivision application in lieu of a letter from the trustees authorizing Madrid to seek approval of the application from the inland wetlands commission. (ROR, Item 1, p. 13.) In the deed, Madrid reserves the right to require the trust to reconvey to Madrid a portion of the lot, known as the "Reconveyance Parcel." (ROR, Item 1, "Statutory Form Warranty Deed," p. 1.) Madrid also retains the right to file "any wetland, zoning or governmental applications necessary to subdivide the Reconveyance Parcel or develop it for single family residential use." (ROR, Item 1, "Statutory Form Warranty Deed," p. 2.) The "Reconveyance Parcel" is supposedly defined in Schedule B of the deed; (ROR, Item 1, "Statutory Form Warranty Deed," p. 1); but Schedule B is not in the record.
A lot zoned as "R-27" is required to have a minimum lot area of 27,000 square feet and a minimum lot width of 150 feet. (ROR, Item 18, p. 34.)
Originally, the subject parcel included additional acreage to the north of the existing parcel. (Supplemental ROR [Supp. ROR], Item 1; Supp. ROR, Item 2; Defendant's Exhibit [Exh.] A.) Madrid conveyed this area to Jeffrey T. Waitt and Mary R. Waitt by warranty deed, dated December 28, 2004, for $67,000 to provide street access for a lot known as 195 Washington Street. (Supp. ROR, Item 2; Exh. B.) The subject parcel also contained acreage to the south and west that Madrid applied to the commission to subdivide to create another lot with an access strip. (ROR, Item 1, "Brief Narrative"; Supp. ROR, Item 1; Exhs. A, B and C.)
On March 3, 2006, Madrid filed a motion to supplement the record, proposing to add two items. The motion was granted on March 21, 2006. The two added items are a warranty deed, dated September 8, 2004, conveying 201 Washington Street to Madrid and a warranty deed, dated December 28, 2004, conveying the additional acreage to the north of the subject parcel from Madrid to Jeffrey T. Waitt and Mary R. Waitt, the owners of 195 Washington Street. The deeds are not labeled and are hereinafter referred to as Supp. ROR, Item 1 and Item 2, respectively. Additionally, when the appeal was heard by this court on April 13, 2006, Madrid, without objection, submitted three maps as exhibits that were labeled by Madrid as Exhibits A, B, and C. These maps are hereinafter referred to as Exhibits A, B and C respectively.
Specifically, Madrid's subdivision application proposed to divide the 1.67 acres of 201 Washington Street into a front lot, lot A, and a flag-shaped "rear lot," lot A1. (ROR, Item 1, "Brief Narrative"; ROR Item 25, Topographic Survey Map; Exh. C.) Lot A consists of 0.65 acres, or 28,437 square feet, and the existing single-family residence. (ROR, Item 1, "Brief Narrative"; Exh. C.) Including the access strip, lot A1 contains 1.02 acres, or 44,395 square feet upon which Madrid intends to develop another single-family residence. (ROR, Item 1, "Brief Narrative"; Exh C.) This "rear lot" is approximately 260 feet to the west of lot A with an access strip approximately 480 feet long, running along the southern border of lot A and 195 Washington Street, from lot A1 in the west, to Washington Street in the east. (ROR, Item 1; ROR, Item 25, Topographic Survey Map.) The plaintiff owns a lot at 205 Phoenix Street that abuts lot A1 to the south. (ROR, Item 25, Topographic Survey Map.)
A "rear lot" is defined by § 2.74 of the zoning regulations as "[a]ny lot which has less than 51 feet of frontage on a public or private street in a mobile home park, has at least 1.25 times the minimum required lot area (including the access strip) for the zone in which it is located and has less than the required lot width at any point within the fifty feet of the lot frontage;" (ROR, Item 8, p. 14.) Lot A1, zoned as "R-27," has more than 1.25 times the minimum required lot area at 44,395 square feet. (ROR, Item 1, "Brief Narrative"; Exh. C.) It also has less than the 150 feet required lot width because it is only approximately 30 feet wide within 50 feet of the lot frontage. (ROR Item 25, Topographic Survey Map; Exh. C.) Lot A1 is, therefore, a "rear lot."
Madrid's subdivision application was accepted by the commission at its meeting on February 17, 2005. (ROR, Items 4, 5 and 20.) The chairman of the commission told those in attendance at the meeting that a subdivision application did not require a public hearing, but the commission decided to hear comments from the public and scheduled the public hearing for March 3, 2005. (ROR, Items 4, 5 and 20.) Notice of the public hearing was published in the Journal Inquirer on February 19 and 22, 2005. (ROR, Item 6.)
In the transcript of that hearing, Thomas Joyce, the town planner, indicated that there was "considerable interest" in the subdivision application when it came before the inland wetlands commission. (ROR, Item 20.) Because of this interest, a commissioner made a motion to have a public hearing on the application and the motion passed. (ROR, Items 5 and 20.) It should be noted that all of the transcripts of the public hearings submitted by the commission contain no pagination. Consequently, no page numbers are cited herein.
On March 3, 2005, the public hearing on Madrid's application did not occur because other matters took up the time of the commission. (ROR, Items 9, 10 and 21.) Madrid's application was continued to March 17, 2005, April 7, 2005 and May 5, 2005. (ROR, Items 10, 11, 12, 13, 21, 22 and 23.) Notwithstanding the continuance to May 5, 2005, the commission mailed notice of an April 21, 2005 public hearing on Madrid's application to all abutting landowners within 200 feet of the subject parcel on April 12, 2005. (ROR, Item 2.)
On April 21, 2005, a public hearing was held on Madrid's application. (ROR, Items 14, 15 and 24.) Immediately following the public hearing, a commissioner made a motion to approve the application, which was seconded and unanimously passed. (ROR, Items 15 and 24.) The plaintiff appealed this decision to the Superior Court and the appeal was heard by this court on April 13, 2006.
III JURISDICTION A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of [an administrative] appeal." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. General Statutes § 8-8(a)(1) provides, in relevant part, that an "`aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
In the present case, the plaintiff alleges that he owns property abutting the land involved in the commission's decision. At trial, the parties stipulated to facts concerning the plaintiff's ownership of property abutting the subject property. As a result, the court finds that the plaintiff is aggrieved.
B Timeliness and Service of Process
General Statutes § 8-8(b), in relevant part, provides, "any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes . . ."
General Statutes § 8-8(f)(2) further provides that "[f]or any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57. Such service shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal."
General Statutes § 52-57(b)(5) provides, in relevant part, that "[p]rocess in civil actions against the following-described classes of defendants shall be served as follows . . . against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
Notice of approval of the application was published on April 27, 2005. (ROR, Item 16.) The plaintiff caused two copies of process to be served upon the commission, care of the Vernon assistant town clerk, on May 11, 2005. (Marshal's return.) Thus, the court finds that the proper parties were served in a timely manner.
The plaintiff also caused process to be served upon the commission's chairman on May 12, 2005 and upon Madrid's agent for service and the trustees on May 11, 2005. (Marshal's Return.)
IV STANDARD OF REVIEW
General Statutes § 8-25(a), in relevant part, provides that "[n]o subdivision of land shall be made until a plan for such subdivision has been approved by the commission . . . Before exercising the powers granted in this section, the commission shall adopt regulations covering the subdivision of land . . ." General Statutes § 8-26, in relevant part, further provides that, "[t]he commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application . . ."
"[A] municipal planning commission, in exercising its function of approving or disapproving any particular subdivision plan, is acting in an administrative capacity . . . The planning commission, acting in its administrative capacity herein, has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance . . . If it does not conform as required, the plan may be disapproved." (Citations omitted; internal quotation marks omitted.) Reed v. Planning Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988).
"In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." (Internal quotation marks omitted.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 669, 894 A.2d 285 (2006). "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 make factual determinations on its own." (Internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record." (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, 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 authority was required to apply under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (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).
In the present case, the commission acted in an administrative capacity when it approved the defendant's subdivision application. See Reed v. Planning Zoning Commission, supra, 208 Conn. 433. Because the commission stated the reasons for its approval; (ROR, Item 17, p. 2); this court must determine if the reasons given are reasonably supported by the record and are relevant to the commission's decision. Harris v. Zoning Commission, supra, 259 Conn. 420. This court cannot substitute its judgment for that of the commission or make its own factual determinations. RR Pool Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 470. The plaintiff bears the burden to prove that the commission acted illegally, arbitrarily or abused its discretion in approving Madrid's subdivision application. See Graff v. Zoning Board of Appeals, supra, 277 Conn. 669.
V DISCUSSION
The commission granted approval of the plaintiff's application "because the proposed development is compatible with the Town Master Plan of Conservation of Development, meets the requirements of the Subdivision Regulations, is not likely to create the unreasonable destruction of natural resources, is not detrimental to the health, safety, general welfare, property values, future land use or road layout, is a logical and feasible use of the land, and will provide a residential parcel for development." (ROR, Item 17, p. 2.) The plaintiff contests the approval of the application and sets forth three grounds for his appeal in his amended complaint. (Amended Complaint, ¶ 20.) He alleges that the "Commission exceeded its statutory authority and acted illegally, arbitrarily and in abuse of the discretion vested in it by law . . . in that: a. [it] approved a subdivision application which does not conform to its regulations; b. [it] approved a sub-division application despite the lack of unusual conditions, required by its regulations; and c. [it] failed to consider [that] there is no evidence indicating that the approval of the Rear Lot of the Subject Parcel `is not detrimental to the . . . property values . . . of . . . abutting landowners,' including the Plaintiff . . ., as required by [§]13.1.2.2 of the Subdivision Regulations of . . . Vernon; d. [it] failed to follow [§§]19.3 through 19.3.3 of the Zoning Regulations of . . . Vernon which requires the Commission to make specific findings before approving a subdivision containing Rear Lots." (Amended Complaint, ¶ 20.) In the plaintiff's brief, he argues that approval of Madrid's application was improper because the commission authorized a two-lot subdivision in violation of § 3.2.11 of the subdivision regulations, which the plaintiff argues requires three lots; because the commission improperly approved a rear lot, lot A1, within 350 feet of another rear lot, 179 Washington Street, in violation of § 19.2.8 of the zoning regulations and § 13.2.7 of the subdivision regulations; and because the commission's approval of the rear lot contravenes the subdivision regulations' public policy, which the plaintiff argues is to discourage rear lots. These issues are discussed in turn.
On July 14, 2005, the plaintiff filed an amended appeal. In the plaintiff's amended complaint, he alleged that the subject parcel is less than 350 feet from a rear lot known as 175 Washington Street. (Amended Complaint, ¶¶ 14-15.) On January 31, 2006, the plaintiff filed a "motion for order amending first amended appeal" solely to correct the address of this rear lot from 175 Washington Street to 179 Washington Street. The motion was granted by the court, Peck, J. on February 23, 2006. Consequently, any reference to the "amended complaint" in this memorandum refers to the first amended complaint as amended by the "motion for order amending first amended appeal."
It should be noted that the plaintiff's amended complaint makes allegations that were not briefed. For example, the plaintiff alleged that lot A1 was less than 350 feet from another rear lot, 195 Washington Street. (Amended Complaint, ¶¶ 16-17.) Nevertheless, the plaintiff did not argue or address this in his brief. "[The Supreme Court is] not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . These same principles apply to claims raised in the trial court." (Internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). Therefore, any issues not briefed by the plaintiff are deemed abandoned and the court does not address them.
A
The plaintiff contends that the commission acted illegally, arbitrarily and abused its discretion by improperly approving a two-lot subdivision in violation of § 3.2.11 of the subdivision regulations. He argues that § 3.2.11 defines a subdivision as a "division of a tract or parcel of land into three or more parts or lots for the purpose . . . of sale or building development . . ." (Emphasis added.) (ROR, Item 19, p. 3.) Because Madrid's application only involved a two-lot subdivision, he contends that Madrid should have applied instead for a special permit. Consequently, he argues that the commission improperly applied its subdivision regulations. The plaintiff further asserts that, if the commission had viewed Madrid's application under the special permit regulations, it would have had more discretion to grant or to deny the application.
Section 19.2 of the zoning regulations provides, in relevant part, that "[a]ll rear lots require approval of the Commission. Those lots, which do not require subdivision approval, must apply for and receive a Special Permit from the Planning [and] Zoning Commission . . ." (ROR, Item 19, p. 34). Section § 13.2 of the subdivision regulations reiterates this. (ROR, Item 18, p. 148.)
The defendants argue that the commission appropriately applied the subdivision regulations to the application because the subject parcel had been divided into two parcels prior to the application. The defendants assert that the subject parcel originally contained additional acreage to the north that was conveyed by warranty deed to the owners of 195 Washington Street in December of 2004. As a result, the defendants argue that this was a "free cut" and that any subsequent division of the property required the commission's approval of a subdivision application.
Madrid and the trustees jointly filed a brief. The commission filed a brief that states that it agrees with the facts and arguments in Madrid and the trustees' brief and that it adopts Madrid and the trustees' brief as its own. (Commission's Brief.) Accordingly, Madrid, the trustees and the commission are collectively referred to as "the defendants."
In reviewing the commission's approval of Madrid's application, this court must determine whether the commission's implicit decision, that the application constituted a subdivision within the meaning of its regulations, is reasonably supported by the record. See, e.g., Lombardo v. Planning Zoning Commission, 43 Conn.Sup. 508, 514, 663 A.2d 1128 (1994), aff'd, 38 Conn.App. 812, 663 A.2d 431 (1995). General Statutes § 8-18 defines a subdivision as "the division of a tract or parcel of land into three or more parts or lots . . . for the purpose, whether immediate or future, of sale or building development." (Emphasis added.) Section 3.2.11 of Vernon's subdivision regulations repeats this definition. (ROR, Item 19, p. 3.) Nevertheless, a "first cut," also known as a "free cut," is the division of one lot into two lots. Hoffer v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. CV 03 0348152 (December 5, 2003, Frankel, J.), citing R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 10-9, pp. 213-14. A "first cut" is not considered to be a subdivision and is not subject to review by a municipal board or commission. Hoffer v. Zoning Board of Appeals, supra, Superior Court, Docket No. CV 03 0348152; see also Nafis v. Planning Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 99 0494127 (October 21, 1999, McWeeny, J.) ( 25 Conn. L. Rptr. 620, 620); Lee v. Planning Zoning Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0148764 (November 7, 1996, Ryan, J.) ( 18 Conn. L. Rptr. 144, 145); R. Fuller, supra, § 10-9, pp. 213-14 (2005 pocket part) § 10-9, pp. 41-42; T. Tondro, Connecticut Land Use Regulation (2d Ed. 1996 Cumulative Supplement), p. 77 ("an owner can divide the land into two parcels and not be subject to the subdivision regulations when doing so, a so-called `free cut'"). "It is a second cut that results in a subdivision." Hoffer v. Zoning Board of Appeals, supra, Superior Court, Docket No. CV 03 0348152, citing R. Fuller, supra, p. 215.
"Control over subdivision of land by a planning commission established pursuant to the General Statutes was first authorized in 1947. The original statute and subsequent revisions have considered a subdivision as `the division of a tract or parcel of land into three or more parts or lots.' This differs from many other states, which make any division of land, or a division of a parcel of land into two lots subject to subdivision approval requirements. Other states besides Connecticut also have a three lot requirement for subdivision. Under this approach, while one division into two lots is not a subdivision subject to regulation, there are sound policy reasons why a first cut or division should not trigger municipal review. Division of one lot into two lots would rarely cause public safety problem or require construction of a road." R. Fuller, supra, pp. 213-14. "The timing of the second cut which results in the subdivision is not controlling. Once the first cut has occurred, another one even many years later will require planning commission approval unless the first cut was exempt or a division which was not for the purpose of sale or building development." Id., p. 215.
In the present case, the subject parcel originally contained additional acreage to the north that Madrid conveyed by warranty deed, dated December 28, 2004, to Jeffrey T. Waitt and Mary R. Waitt, to provide street access for 195 Washington Street. (Sup. ROR, Item 1; Supp. ROR, Item 2; Exh. A; Exh. B.) This was the "first cut." See Hoffer v. Zoning Board of Appeals, supra, Superior Court, Docket No. CV 03 0348152. In its 2005 subdivision application, Madrid sought to make another cut in the subject parcel to create lot A1. (ROR, Item 1; ROR, Item 25, Topographic Survey Map; Exh. C.) This second cut resulted in a subdivision of land subject to the subdivision regulations. See Hoffer v. Zoning Board of Appeals, supra, Superior Court, Docket No. CV 03 0348152. Because any subdivision of land must be approved by a municipal planning commission, pursuant to § 8-25(a), the second cut of the subject parcel had to be approved by the commission. Thus, Madrid correctly applied to the commission for subdivision approval, instead of a special permit. (ROR, Item 1.) Consequently, this court finds that the commission's implicit decision that Madrid's application constituted a subdivision within the meaning of its regulations is reasonably supported by the record and that the commission did not act illegally, arbitrarily or abuse its discretion by approving the two-lot subdivision.
The record indicates that the subject parcel was conveyed from Madrid to the trustees in 1999; (ROR, Item 1, "Statutory Form Warranty Deed"); but fails to explain how Madrid, arid not the trustees, conveyed the northern, additional acreage to the owners of 195 Washington Street in 2004. Nevertheless, "[a] subdivision depends upon division of land and ownership of it is not a factor." R. Fuller, supra, p. 215.
In the defendants' briefs and the plaintiff's reply brief, the parties each argue that Lombardo v. Planning Zoning Commission, supra, 43 Conn.Sup. 508, supports their respective positions. In Lombardo, the court, Hodgson, J., addressed "the issue of whether a landowner who seeks simultaneously to create a rear lot and to divide the resulting front lot into two lots can do so by a process other than compliance with the subdivision regulations of the town of Manchester." Id., 512-13. The court held that "[t]he plaintiff's presentation of two applications, bifurcating the division into two simultaneous steps, did not render inapplicable the regulations that required the commission to apply its subdivision standards to the division of a property into three lots." Id., 517.
In the present case, the issue is whether the commission acted outside the scope of its authority under General Statutes § 8-18 an under § 3.2.11 of its subdivision regulations by approving an application for a two-lot subdivision, instead of a three-lot subdivision, when the two-lot subdivision was preceded by a "first cut." This was not the issue in Lombardo. See id., 512-13. Furthermore, Lombardo is distinguishable from this case because Madrid did not make the first cut and the second cut at the same time. (Supp. ROR, Item 2; ROR, Item 1.)
B
The plaintiff also argues that the commission acted illegally, arbitrarily and in abuse of its discretion by approving the application in violation of § 19.2.7 of the zoning regulations and § 13.2.7 of the subdivision regulations. In identical language, these regulations provide as follows: "The minimum separation distance, as measured along one side of the street, between single rear lots shall be three hundred fifty (350) feet. The minimum separation distance between adjoining access strips sharing a common driveway and any other access strip shall be six hundred (600) feet. All measurements shall be from the midpoint of the access strip(s)." (ROR, Item 18, p. 149; ROR, Item 19, p. 35.) The plaintiff asserts that the third sentence of these regulations, i.e., "[a]ll measurements . . . be from the midpoint of the access strip(s)," solely modifies the second sentence, regarding adjoining access strips, because only the second sentence refers to access strips. The plaintiff further contends that the "all measurements" language does not apply to the first sentence because the first sentence does not contain the words "access strip(s)."
The defendants argue that the language of the regulations is clear. They assert that the regulations require the measurement between lot A1 and 179 Washington Street to be taken from one side of the street, as measured from the midpoint of the access strips. Therefore, because lot A1 and 179 Washington Street are over 350 feet from each other using this method of measurement, the defendants argue that the commission did not act illegally, arbitrarily or in abuse of its discretion by approving the subdivision application.
"[Z]oning regulations are local legislative enactments and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended." (Internal quotation marks omitted.) Campion v. Board of Aldermen, 278 Conn. 500, 510, 899 A.2d 542 (2006). "The process of statutory interpretation involves the determination of the meaning of the statutory language [or in this case, the relevant zoning and subdivision regulations] as applied to the facts of the case, including the question of whether the language does so apply." (Internal quotation marks omitted.) Graff v. Zoning Board of Appeals, supra, 277 Conn. 652. In determining that meaning, General Statutes § 1-2z provides that "[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." See also Fedus v. Planning Zoning Commission, 278 Conn. 751, 756, 900 A.2d 1 (2006).
The plaintiff appears to be arguing that the word "all" in the third sentence actually means "some" in that he asserts that "all measurements" applies to the distance requirement of the second sentence, but not that of the first. To bolster this argument, the plaintiff contends that "the regulations could have stated in the first sentence . . . that the measurement of separation distances between single rear lots shall be from the `access strip' or even from the `midpoint of the access strips,' but chose not to do so." This court is not persuaded. Using the same logic, the regulations could have included the reference point of the midpoint of the access strips in the second sentence. Instead, the reference point is given in a separate sentence and uses the word "all."
"In construction of the words of a regulation, like those of a statute, common sense must be used." Smith v. Zoning Board of Appeals, 227 Conn. 71, 92, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S.Ct. 1190, 127 L.Ed.2d 540 (1994). "If it is not otherwise defined, a word has its usual and customary meaning . . ." 200 Associates, LLC v. Planning Zoning Commission, 83 Conn.App. 167, 174, 851 A.2d 1175, cert. denied, 271 Conn. 906, 859 A.2d 567 (2004). While the zoning and subdivision regulations do not define "all," the usual meaning of "all" is inclusive and means "every." Webster's Third New International Dictionary; cf. Burndy Corp. v. Planning Zoning Board, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 87 0022960 (July 11, 1996, Curran, J.T.R.) ( 17 Conn. L. Rptr. 361, 362) (defining "all" as "the whole of" and "every member or individual component of"); Commission on Human Rights Opportunities v. Board of Education, 270 Conn. 665, 707, 855 A.2d 212 (2004) (explaining that `any' may sometimes mean `some' or `one' as opposed to `all'). It follows, therefore, that every measurement between rear lots, including those between single rear lots, must be taken from the midpoint of the access strips of the lots.
Additionally, "[a] regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms." Spero v. Zoning Board of Appeals, 217 Conn. 435, 441, 586 A.2d 590 (1991). The plaintiff's contrary interpretation excludes any reference point from which to measure the distance between single rear lots. Such an interpretation construes the regulations beyond their express terms. See id.
Furthermore, the plaintiff's argument ignores the fact that the regulations clearly and unambiguously provide that the distance between single rear lots "be measured along one side of the street." (ROR, Item 18, p. 149; ROR, Item 19, p. 35.) Consequently, even if the measurement along one side of the street is not to be taken from the midpoint of the access strip, the distance between the lots is more than 400 feet, measuring from the lots' closest boundary lines, along the street. (ROR, Item 25, Subdivision Plan Map.)
After examining the language of the regulations, the court finds that the regulatory language is clear and unambiguous. See General Statutes § 1-2z; Fedus v. Planning Zoning Commission, supra, 278 Conn. 756. "[W]here the meaning of a statute . . . is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it." (Internal quotation marks omitted.) Fishbein v. Kozlowski, 252 Conn. 38, 46, 743 A.2d 1110 (1999). Applying the regulations to the present case, the record demonstrates that lot A1 and 179 Washington Street are more than 350 feet, and are actually in excess of 450 feet, from each other as measured along the street from the midpoints of their access strips. (ROR, Item 25, Subdivision Plan Map.) Because the distance between the lots is in excess of 350 feet, the commission did not violate § 19.2.7 of the zoning regulations or § 13.2.7 of the subdivision regulations and, consequently, did not act illegally, arbitrarily or abuse its discretion by approving Madrid's application.
C
Finally, the plaintiff argues that the commission contravened the public policy of its zoning and subdivision regulations when it approved Madrid's subdivision application. The plaintiff contends that the regulations demonstrate a general discouragement of rear lots. Furthermore, the plaintiff asserts that the commission did not consider "the adverse effects on surrounding land and abutting landowners" and did not follow § 19.1.3 of the zoning regulations or § 13.1.3 of the subdivision regulations.
The defendants counter that the plaintiff has not satisfied his burden of proof on this issue because he has not cited any legitimate evidence to indicate that the approval of the subdivision application contravenes public policy. Additionally, they point out that no landowner appeared before the commission to object to Madrid's application on any basis.
Rear lots are specifically authorized by the zoning and subdivision regulations. (See ROR, Item 18, pp. 147-49; ROR, Item 19, pp. 33-35.) Contrary to the plaintiff's argument, § 19.1 of the zoning regulations sets forth the commission's intent with regard to rear lots. (ROR, Item 18, p. 1.) In relevant part, the intent "is to provide greater residential development flexibility, particularly where a site has an unusual lot line . . . This section is not intended to . . . discourage new development." (Emphasis added.) (ROR, Item 18, p. 1.)
In the present case, the record contains substantial evidence demonstrating that the subject parcel had an unusual lot line and that approval of the subdivision application was the only feasible way to develop the rear portion for single-family residence use. (ROR, Item 24; ROR, Item 25, Topographic Survey Map.) The commission stated that one of the reasons for the approval was to "provide a residential parcel for development." (ROR, Item 17, p. 2.) By approving Madrid's application, the commission authorized a residential parcel for development and furthered the intent of its regulations by "providing for greater residential development flexibility." (See ROR, Item 18, p. 1.) As a result, this court cannot find that commission contravened the public policy of its regulations when it approved the application.
At the public hearing, Attorney Leonard Jacobs, representing Madrid, stated, "It seems to us, at least, that when you consider the shape of this property, the unusual shape of the property, the fact that we meet all of the requirements of the zoning regulations it does seem to us that you need to approve this application." (ROR, Item 24.) Later, he reiterated, "Clearly we think this is the best development of the land because of the unusual shape of the property. The other thing to remember is that there is no other feasible way that we can develop this particular property with a front lot and a rear lot." (ROR, Item 24.)
Additionally, the plaintiff does not point to any evidence that the commission failed to consider the adverse effects that the approval might have on surrounding land and abutting landowners. "[T]he plaintiffs bear the burden of establishing that the board acted improperly." (Internal quotation marks omitted.) Graff v. Zoning Board of Appeals, supra, 277 Conn. 669. The record reveals that no one at the public hearing, not even the plaintiff, objected to Madrid's application on any basis. (ROR, Item 24.) In fact, the owner of 179 Washington Street, Paul M. Barselau, was the only person to speak at the public hearing when the commissioner asked if anyone objected to Madrid's application. (ROR, Item 24; ROR, Item 25, Topographic Survey Map.) Barselau did not object, however, to the application and only questioned whether the granting of the application would impact any future subdivision of his lot, which contains seven acres. (ROR, Item 24; ROR, Item 25, Topographic Survey Map.) The record shows that this concern was addressed to Barselau's satisfaction. (ROR, Item 24.) Additionally, one of the commissioners questioned whether the approval of the subdivision application would adversely impact 195 Washington Street. (ROR, Item 24.) The record reveals that Madrid's attorney responded to this concern. (ROR, Item 24.) Therefore, the plaintiff has not sustained his burden of establishing that the board acted improperly by not considering the adverse effects on surrounding land or abutting landowners.
Lastly, the court must consider whether the commission followed § 19.1.3 of the zoning regulations and § 13.1.3 of the subdivision regulations. In identical language, these sections provide that, "[r]ear lot applications shall be considered as special situations, each requiring individual justification by the applicant. The burden of proof shall be on the applicant to demonstrate how special circumstances make a specific rear lot development proposal consistent with this section and how it will avoid adverse effects on surrounding land." (ROR, Item 18, p. 148; ROR, Item 19, p. 34.) As noted above, Madrid's counsel, at the public hearing, explained that a subdivision was needed because of the unusual lot lines of lot A1. (ROR, Item 24.) Madrid's counsel also explained that the application was consistent with the regulations and that, as the development was only one lot for the purposes of a single-family residence, it would not have adverse effects on the surrounding land. (ROR, Item 24.) No evidence or testimony was given in opposition. (ROR, Item 24.) Thus, the court cannot find that the commission violated § 19.1.3 of the zoning regulations or § 13.1.3 of the subdivision regulations.
The commission had liberal discretion in applying the law to the facts of this case. See Graff v. Zoning Board of Appeals, supra, 277 Conn. 669. Additionally, this court "is not permitted to substitute its judgment for that of the agency or make factual determinations on its own." (Internal quotation marks omitted.) See RR Pool Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 470. The approval of Madrid's application adds only one single-family residence lot to Vernon. (ROR, Item 25, Topographic Survey Map; ROR 24.) Neither the Vernon traffic authority nor the fire marshal objected to the application. (ROR, Item 7; ROR, Item 8; ROR, Item 24.) In fact no one opposed the application at the public hearing. (ROR, Item 24.) Consequently, the commission specifically found that "the proposed development . . . [met] the requirements of the [s]ubdivision [r]egulations." (ROR, Item 17, p. 2.) Having found that Madrid's application met all of the requirements for subdivision, the commission had no choice but to approve the application. See Reed v. Planning Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988). Therefore, this court, after considering all of the issues briefed by the plaintiff and after thoroughly reviewing the record, finds no evidence that the commission acted unreasonably, arbitrarily or in abuse of its discretion in approving Madrid's application.
VI CONCLUSION
For the foregoing reasons, the court dismisses the plaintiff's appeal.