Opinion
CV156059013
12-27-2016
Whitney C. Watts et al. v. Planning and Zoning Commission of the Town of Cheshire et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
James W. Abrams, Judge.
The plaintiffs, Whitney C. Watts and Gina E. Watts, appeal from a decision of the defendant Planning and Zoning Commission of the Town of Cheshire approving the defendant Apex Developer's application for a seven-lot subdivision on property then owned by the defendant William Coleman, IV with a cul-de-sac, rather than requiring a future road connection. The plaintiffs argue that the Commission's decision is illegal, arbitrary, and an abuse of its discretion.
I
Findings of Fact
The court finds the following facts by a preponderance of the evidence.
1) The original defendant William Coleman, IV (" Coleman") was the owner of property located at 678 Coleman Road in Cheshire, Connecticut (hereinafter " the affected property").
2) The plaintiffs Whitney C. Watts and Gina E. Watts are the owners of property located at 825 Wallingford Road in Cheshire, Connecticut (" the Watts property"), which abuts the affected property. The Watts property is a rear lot that consists of 45 acres and is accessed by right-of-way to Wallingford Road that is approximately 1300 feet in length. There is no pending application for development of the Watts property and the plaintiffs have no immediate plans to develop it.
3) On July 8, 2015, the defendant Apex Developers, LLC (hereinafter " the Applicant") filed an application (hereinafter " the Application") with the Planning and Zoning Commission of the Town of Cheshire (hereinafter " the PZC") for approval of a seven-lot subdivision on the affected property, which the Record indicates is slightly less than 20 acres in size. At the time of the Application, the affected property was owned by Coleman, but it was subsequently purchased by the Applicant.
4) The Application proposed a cul-de-sac running from Coleman Road and terminating at a point approximately 600 feet from the affected property's border with the Watts property rather than requiring an easement for a future road running to the border with and providing potential future access to the Watts property.
5) The PZC held a public hearing on the Application on September 16, 2015 at which the plaintiffs read a letter from their attorney urging the PZC to condition any approval on the Applicant's provision of an easement for a future road providing potential future access to the Watts property.
6) The public hearing was continued to September 28, 2015, at which representatives of the Applicant presented arguments against the proposal of an easement for a future road as a condition for approval and the plaintiffs' attorney appeared and presented arguments supporting it.
7) The public hearing was continued to October 14, 2015, at which representatives of the Applicant and the plaintiffs again espoused their positions on the Application.
8) At a Special Meeting held on November 9, 2015, the PZC unanimously voted to approve the Application with the proposed cul-de-sac rather requiring the establishment of an easement for a future road running to the border of the Watts property.
9) The PZC caused notice of the Application approval to be published in the Cheshire Herald on November 12, 2015.
10) The plaintiffs' appeal was commenced by service on the Cheshire Town Clerk on November 24, 2015.
II
Discussion of Law
Appeals of decisions of zoning authorities to the Superior Court are governed by § 8-8 of the Connecticut General Statutes. In order to prevail on an appeal, the plaintiffs must demonstrate that they are aggrieved by the decision of the Planning Commission, Alvord Invesment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007), and that the Planning Commission's decision was illegal, arbitrary, or constituted an abuse of its discretion. Id., 408 .
A
Are the Plaintiffs Aggrieved?
" Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiff's appeal." Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). At the hearing on this matter, testimony and documentary evidence were presented demonstrating that plaintiff owns property that abuts the affected property. " '[A]ggrieved person' includes a 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." Connecticut General Statutes § 8-8(a)(1). Based on the foregoing, the court finds that the plaintiffs, as abutters, are aggrieved by the Planning Commission's decision and the court has subject matter jurisdiction over this appeal.
B
Is the Action Timely and was it Properly Served?
General Statutes § 8-8(b) provides that " [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 that notice of the decision was published as required by the general statutes." Section 8-8(f)(2) requires that " for 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." In an action against a town commission, process must be served " notwithstanding any provision of law, upon the clerk of the town . . . 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 . . . commission . . ." General Statutes § 52-57(b)(5). The Planning and Zoning Commission caused notice to be published in the Cheshire Herald on November 12, 2015. Plaintiff's appeal was commenced by service on the Cheshire Town Clerk on November 24, 2015. Accordingly, the court finds that the action is timely and was served in a proper manner.
C
Was the PZC's Decision Illegal, Arbitrary or an Abuse of its Discretion?
The court's review of the PZC's action in this matter is limited: " It is axiomatic that a planning commission, in passing on a subdivision application, acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations. The commission is entrusted with the function of interpreting and applying its zoning regulations. The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts." Gorman Construction Company v. Planning and Zoning Commission, 35 Conn.App. 191, 195, 644 A.2d 964 (1994) (internal citations omitted).
" In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, conclusions reached by the board 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 board. The question is not whether the trial court would have reached the same conclusion, but whether the record before the board supports the decision reached. If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board. If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court cannot substitute its judgment as to the weight of the evidence for that of the commission. The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60, 916 A.2d 5 (2007).
The plaintiffs maintain that in approving the Application with the cul-de-sac proposal, the PZC failed to comply with § 5.6 of the Cheshire Subdivision Regulations (hereinafter " the Regulations") and that in failing to require an easement for a future road, the PZC failed to comply with § 6.6 of the Regulations. They also claim that the Regulations at issue are impermissibly vague, thus rendering the PZC decision illegal.
1) Did the PZC's Approval of the Application with the Cul-de-Sac Proposal Constitute a Failure to Comply with § 5.6 of the Regulations?
The plaintiffs maintain that in approving the Application with the cul-de-sac proposal, the PZC failed to comply with § 5.6 of the Regulations, which provides that subdivision plans should not be approved " unless the Commission finds that the land characteristics and physical site conditions make the creation of a cul-de-sac street practicable and desirable, and only if the Commission determines that there is no logical and feasible alternative for the property to be served by a through street at the present time or in the foreseeable future."
In addressing the dictates contained in § 5.6, the PZC concluded that " the proposed cul-de-sac is practical and desirable and there is no logical or feasible alternative for the subject property to be served by a through street at the present time or in the foreseeable future." The PZC's reasons included the narrowness of the affected property and the proximity of sensitive wetlands. In addition, the PZC found that the alternative to the cul-de-sac, specifically a through road, would not only require a 600-foot extension to the boundary with the Watts property, but also the eventual construction of 1400-foot road to connect to a road on the other side of the Watts property. Finally, the PZC concluded that the through road would " adversely and significantly affect the proposed subdivision" as it would cause the elimination of one lot or, in the alternative, the location of one of the houses and its septic system " close to the wetlands."
The plaintiffs argue that in determining that development of the Watts property with a through road was not logical or feasible, the PZC constructively and improperly ruled on the viability of a site plan proposal of the Watts property when no such proposal was before it. However, logic dictates that some evaluation of the viability of any future development must play a role in the PZC's proper conclusion of whether future development is foreseeable pursuant to the language of the Regulations.
The court rejects the plaintiffs' arguments as it is abundantly clear from the Record that in considering whether to approve the cul-de-sac proposal, the PZC specifically addressed the issue of whether the cul-de-sac was practicable and desirable and determined that there was no logical and feasible alternative as set forth in § 5.6 of the Regulations. Based on the foregoing, the court finds that the PZC's decision is supported by substantial evidence in the Record and that it correctly interpreted § 5.6 and applied it with reasonable discretion to the facts before it.
2) Did the PZC's Approval of the Application without Requiring an Easement for a Through Road Constitute a Failure to Comply with § 6.6 of the Regulations?
The plaintiffs maintain that in approving the Application without requiring a through road, the PZC failed to comply with § 6.6 of the Regulations, which provides that " [t]he Commission shall require, at places where it deems appropriate, that provision be made in the street layout of the Subdivision Plan for the reservation of easements for streets to connect with future streets in adjoining properties." In addressing the requirements contained in § 6.6, the PZC made the finding " that it would not be appropriate to require the applicant and owner to provide for the reservation of an easement for the proposed street to connect to the adjoining property for the following reasons: 1) The location of any potential easement would cause either the elimination of Lot 4 because it would then be undersized or would result in house and septic system close to the wetlands on Lot 5 which wetlands are contained in the watershed of the Broad Brook Reservoir"; and " (2) All logical extensions of any easement providing access to the adjoining property for the construction of a future town road would have to contend with steep slopes and cross extensive wetlands and watercourses which are tributaries to the Broad Brook Reservoir and the watershed of the Broad Brook Reservoir."
As with the prior Regulation, the court rejects the plaintiffs' arguments as the Record reveals that the PZC specifically addressed the issue of whether a through street was " appropriate" as required by § 6.6 of the Regulations. Based on the foregoing, the court finds that the PZC decision is supported by substantial evidence in the Record and that it correctly interpreted § 6.6 and applied it with reasonable discretion to the facts before it.
3) Are the Regulations at Issue Impermissibly Vague?
The court finds the plaintiffs' vagueness argument far less easy to dismiss. " We have held that the burden of showing that regulations are unconstitutionally vague rests with the plaintiff. Russo v. East Hartford, 179 Conn. 250, 257, 425 A.2d 1282 (1979), cert. denied, 445 U.S. 940, 100 S.Ct. 1334, 63 L.Ed.2d 773 (1980); see also, Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S.Ct. 911, 34 L.Ed.2d 678 (1973). Moreover, the plaintiff is required to show that the regulation complained of is impermissibly vague as applied to the facts of the particular case. Bombero v. Planning & Zoning Commission, 218 Conn. 737, 743, 591 A.2d 390 (1991)." Barberino Realty and Development v. Planning & Zoning Commission, 222 Conn. 607, 620, 610 A.2d 1205 (1992).
Some vagueness challenges to zoning regulations are required to be brought in declaratory judgment actions rather than in administrative appeals, but this not such a case: " [A]n aggrieved person who wishes to challenge the land use authority granted to his neighbor that is based on an invalid regulation should be permitted to do so by way of an appeal from that grant of authority." Bombero v. Planning & Zoning Commission, supra, 737, 745 n.10 (1991), citing Sonn v. Planning Commission, 172 Conn. 156, 374 A.2d 159 (1976).
The plaintiffs argue that the standards contained in Regulations § § 5.6 and 6.6 are impermissibly vague because they essentially provide the PZC with no standards by which to determine whether to allow a cul-de-sac or require easements for through roads when approving subdivision plans. Specifically, the plaintiffs maintain that the terms " practicable and desirable" and " no logical and feasible alternative" as they relate to whether to allow a cul-de-sac and " appropriate" regarding whether to require a through road are not standards at all, but, rather, allow the PZC to consider these questions with unfettered discretion.
" 'Vague regulations which contain meaningless standards lead to ambiguous interpretations in determining the approval or disapproval of different subdivisions. Adequate, fixed and sufficient standards of guidance for the commission must be delineated in its regulations so as to avoid decisions, affecting the rights of property owners, which would otherwise be a purely arbitrary choice of the commission; such a delegation of arbitrary power is invalid.' Sonn v. Planning Commission, 172 Conn. 156, 162, 374 A.2d 159 (1976). 'The subdivision regulations upon which the commission, acting administratively, should rule must contain known and fixed standards applying to all cases of a like nature, and must conform to the principle that a regulation, like a statute, cannot be too general in its terms.' Aunt Hack Ridge Estates, Inc. v. Planning Commission, [160 Conn. 109, 115-16, 273 A.2d 880 (1970)]. The test of a permissible subdivision regulation is whether 'the criteria contained in the commission's regulations are as reasonably precise as the subject matter requires and are reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations. American Power & Light Co. v. Securities & Exchange Commission, 329 U.S. 90, 105, 67 S.Ct. 133, 91 L.Ed. 103 [1970]; Ours Properties, Inc. v. Ley, 198 Va. 848, 851, 96 S.E.2d 754 [1957]; 1 Am.Jur.2d, Administrative Law, § 118. Although some of the standards may be general in their terms, they . . . [must be] reasonably sufficient to identify the criteria to be evaluated in their enforcement in order to meet the many variables involved since it would be impossible to establish one standard which would adequately cover all future cases. Blakeman v. Planning Commission, 152 Conn. 303, 307, 206 A.2d 425 [1965].' Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 680, 236 A.2d 917 [1967]; Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 93, 368 A.2d 24 [1976]." Sonn v. Planning Commission, supra, 172 Conn. at 159-60, 374 A.2d 159." Ghent v. Planning Commission, 219 Conn. 511, 517-18, 594 A.2d 5 (1991).
On the other hand, it is too much to expect that regulations be written with such precision that they anticipate every possible circumstance and eventuality: " It is unrealistic to demand detailed standards which are impractical or impossible. Bowles v. Willingham, 321 U.S. 503, 515, 64 S.Ct. 641, 88 L.Ed. 892. As the complexity of the economic and governmental conditions increases, the modern tendency is liberal in approving broad regulatory standards so as to facilitate the operational functions of administrative boards or commissions." Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 679, 236 A.2d 917 (1967). However, " [a]lthough some of the standards may be general in their terms, they [must be] reasonably sufficient to identify the criteria to be evaluated in their enforcement in order to meet the many variables involved since it would be impossible to establish one standard which would adequately cover all future cases." Blakeman v. Planning Commission, 152 Conn. 303, 307, 206 A.2d 425 (1965).
" Statutory uniformity requires that regulations are sufficiently precise so as to apprise both the zoning commission and an applicant of what is required, as well as to provide guidance to the zoning commission in applying the regulation, and to ensure equal treatment to each applicant subject to the regulation." Harris v. Zoning Commission, 259 Conn. 402, 435, 788 A.2d 1239 (2002). " The rule that 'regulations be as reasonably precise as the subject matter requires, ' Forest Construction v. Planning & Zoning Commission, supra, 680, echoes the wisdom of Aristotle, 'For it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits.' Aristotle, Nichomachean Ethics, translated by W.D. Ross, Book 1, stanza 3." Jackson, Inc. v. Planning & Zoning Commission, Docket No. CV 06-4024137, Judicial District of Hartford (June 2, 2008, Satter, J.T.R.) [45 Conn.L.Rptr. 685, ], affirmed, 118 Conn.App. 202, 982 A.2d 1099 (2009).
In Jackson, the court found a regulation that permitted a zoning board to deny subdivision applications when it deemed the land to be unsuitable " due to flooding, improper drainage, steep slopes, rock formations, adverse earth formations or topography, utility easements or other features" to be sufficiently precise to withstand a challenge based on vagueness. Id., 206. The trial decision in Jackson contains a detailed overview of examples of regulatory language that underwent vagueness challenges. Examples of language that withstood vagueness challenges included the following: 1) " [A] zoning regulation that proposed streets in a subdivision be 'in harmony with the existing proposed thoroughfares within the town, ' 'provide an adequate and convenient system for present and specific traffic needs, ' and conform and connect with the existing and proposed streets or highways within the town." Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 93, 368 A.2d 24 (1976); 2) Consideration of " historical factors" and " historical streetscapes, " in regard to subdivision applications in an historic district, Smith v. Zoning Board of Appeals, 227 Conn. 71, 73, 629 A.2d 1089 (1993); and 3) That roads within subdivisions " shall be laid out to conform with existing roads on adjacent properties" and that " road intersections, gradients and curves shall be so designed as to permit adequate visibility for both pedestrian and vehicle traffic, " Forest Construction v. Planning & Zoning Commission, supra, 678.
Regulatory language that courts found impermissibly vague include: 1) The requirements that a nonconforming use could be established by " sufficient proof as the Zoning Commission may require, " Helbig v. Zoning Commission, 185 Conn. 294, 310, 440 A.2d 940 (1981); and 2) Site plan approval based on the " health, safety and welfare of the public." Berlin Batting Cages, Inc. v. Planning & Zoning Commission, 76 Conn.App. 199, 222, 821 A.2d 269) (2003).
The two cases that seem most analogous to the matter at issue are Ghent, supra, and Sonn, supra . In Ghent, the court found the following regulatory language impermissibly vague: " Dead-end streets will be approved by the Commission only when the Commission feels the extension of the street is impractical." Id., 517. In so finding, the court stated: " In Sonn v. Planning Commission, 172 Conn. 156, 374 A.2d 159 (1976), we considered the language of an allegedly ambiguous subdivision regulation and stated: '[T]he words 'practical difficulties, ' without additional guidelines, are in themselves insufficient to afford a guide to determine where a variation should be granted . . . The facts show clearly the need for a more precise standard governing [this] unbridled, ambiguous and vague exception . . .' Id., 160. We view the word " impractical, " as used in § 5.6, in the same light as " practical difficulties, " i.e., as being so vague and imprecise that neither the commission nor the public is fairly apprised of the circumstances under which a dead-end street would be permitted." Id., 518.
It is impossible to draw a meaningful distinction between the terms at issue in this case, specifically " practicable and desirable, " " no logical and feasible alternative, " and " appropriate, " and the terms " impractical" and " practical difficulties" that were found to be impermissibly vague. As a result, the court concludes that the standards contained in Regulations § § 5.6 and 6.6 are impermissibly vague and, as a result, the PZC's approval of the Application was illegal.
III
Conclusion
The court having found that the PZC's action was illegal because it was based on impermissibly vague regulations, the plaintiffs' appeal is sustained and the decision of the PZC approving the subdivision plan is hereby declared null and void.