Opinion
No. CV03-0175538S
May 2, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The plaintiff brought this action for declaratory judgment and other relief against the Town of Watertown and the Watertown Planning and Zoning Commission. The plaintiff alleges in the third count that § 5.4 of the Watertown subdivision regulations is invalid and unconstitutional in that it violates § 8-25 of the Connecticut General Statutes and Article First § 11 of the Connecticut Constitution. The plaintiff moves for summary judgment as to this count.
The first and second counts of the complaint were dismissed (Memorandum of Decision on Defendants' Motion to Dismiss, March 19, 2004, Holzberg, J.).
Facts
On September 14, 2002, the Watertown Planning and Zoning Commission approved and adopted an amendment to the Subdivision Regulations of the Town of Watertown. Section 5.4, as amended, provides:
The installation of sidewalks, pedestrian walkways, or ramps may be required on thoroughfares, in pedestrian easements, on local streets in the vicinity of schools and playgrounds, and in other places deemed proper by the Commission. When sidewalks are required, construction plans for the sidewalks shall be submitted and shall be shown on the plan and profile drawings required in Section 4.3.2. All sidewalks shall be at least five feet wide.
The commission may authorize as an option as part of the Subdivision Approval, the payment of a fee to a sidewalk fund of the Town of Watertown in lieu of installing the sidewalks. Such fee to be calculated by the Director of Public Works to reflect the average cost per linear foot of such construction. All monies to be so collected shall be used exclusively for the construction of new sidewalks in areas being necessary for pedestrian safety as recommended to the Town Council by the Planning and Zoning Commission.
The second paragraph is added by the amendment.
The plaintiff owns a parcel of land in Watertown consisting of 50 plus acres. The plaintiff intends to apply for subdivision approval "after the legality of § 5.4 is determined."
The plaintiff previously sought and received subdivision approval in 1990, but the approval lapsed.
Discussion
The plaintiff claims that he is entitled to summary judgment on his action for declaratory judgment because the assessment for offsite public improvements as provided in § 5.4 is not authorized under Connecticut General Statutes § 8-25 and because the regulation as amended violates Connecticut Constitution, Article 1, Section 11. "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." Monk v. Temple George Associates, LLC, 273 Conn. 108, 114-15 (2005)
The defendants argue that the plaintiff's motion for summary judgment should be denied because he has presented no facts in support of his motion that the court can review with respect to the actual application of section 5.4 to the plaintiff. They argue specifically that the plaintiff fails to present sufficient facts to the court in order to meet its burden of demonstrating the [regulation's] adverse impact on some protected interest of its own, and not merely under same hypothetical set of facts as yet unproven." This argument is analogous to the one the defendants made in their motion to dismiss the third count of the complaint ( 37 Conn. L. Rptr. 27). The court (Holzberg, J.) concluded that the plaintiff has satisfied the conditions necessary to maintain a declaratory judgment action and denied the motion, citing Bombero v. Planning Zoning Commission, 40 Conn.App. 75, 669 A.2d 598 (1996). In Bombero, the Appellate Court held: "The fact the plaintiff has not applied to subdivide his property is not determinative of whether the plaintiff has been adversely affected by the adoption of the regulation. Here, the plaintiff argues that he has been adversely affected by the adoption of the regulation because it is unconstitutionally vague and ambiguous . . . [T]he plaintiff is entitled to be able to ascertain with reasonable certainty the validity of the adopted regulation and its affect on his rights as a property owner." 40 Conn.App. pp. 87-88.
Moreover, the plaintiff here claims that Section 5.4 is facially unconstitutional. "Facial challenges . . . have no ripeness requirement." Greater Atlanta Homebuilders v. Deka, 277 Ga. 295, 296, 588 S.E.2d 694 (2003), citing Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 385, 47 S.C. 114, 71 L.E. 303 (1926)
In this case, there is no genuine issue as to any material fact. The issue is one of law.
Connecticut General Statutes. § 8-25
The plaintiff correctly asserts that the Watertown Planning and Zoning commission may not enact regulations which they are not empowered to do under statutory authority: "It has been said that the whole field of subdivision regulation is peculiarly a creature of legislation. It is therefore imperative that before subdivision regulations may be made operative, the necessary statutory authorization of such regulation must exist. In other words, in order to determine whether the regulation in question was within the authority of the commission to enact, [the court does] not search for a statutory prohibition against such an enactment; rather, [the court] must search for statutory authority for the enactment." (Internal quotation marks omitted.) Smith v. Zoning Board of Appeals, 227 Conn. 71, 81, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S.Ct. 1190, 127 L.Ed.2d 540 (1994). "Where there is an attack on the validity of a [municipal land use] regulation, the court begin[s] with the assumption that the [regulation] is valid . . . The [regulation] is valid, however, only to the extent that it is consistent with the power delegated to the town through the legislature's passage of the act . . . The town may not enlarge a grant of power from the legislature." (Internal quotation marks omitted; internal citations omitted). Leydon v. Greenwich, 57 Conn.App. 712, 725, 750 A.2d 1122 (2000).
General Statutes § 8-25 provides the planning commission with the authority to establish subdivision regulations. It provides, in relevant part:
(a) No 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 . . . Such regulations shall provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety, that proper provision shall be made for water, sewerage and drainage, . . . that proper provision shall be made for protective flood control measures and that the proposed streets are in harmony with existing or proposed principal thoroughfares shown in the plan of conservation and development as described in section 8-23, especially in regard to safe intersections with such thoroughfares, and so arranged and of such width, as to provide an adequate and convenient system for present and prospective traffic needs. Such regulations shall also provide that the commission may require the provision of open spaces, parks and playgrounds when, and in places, deemed proper by the planning commission, which open spaces, parks and playgrounds shall be shown on the subdivision plan. Such regulations may, with the approval of the commission, authorize the applicant to pay a fee to the municipality or pay a fee to the municipality and transfer land to the municipality in lieu of any requirement to provide open spaces. Such payment or combination of payment and the fair market value of land transferred shall be equal to not more than ten percent of the fair market value of the land to be subdivided prior to the approval of the subdivision. The fair market value shall be determined by an appraiser jointly selected by the commission and the applicant. A fraction of such payment the numerator of which is one and the denominator of which is the number of approved parcels in the subdivision shall be made at the time of the sale of each approved parcel of land in the subdivision and placed in a fund in accordance with the provisions of section 8-25b. Such regulations, on and after July 1, 1985, shall provide that proper provision be made for soil erosion and sediment control pursuant to section 22a-329 . . . The commission may also prescribe the extent to which and the manner in which streets shall be graded and improved and public utilities and services provided . . ."
The statute empowers local commissions to condition approval on various factors pertinent to the land sought to be subdivided. Additionally, it expressly gives local commissions the authority to substitute mandatory payments in money and/or land for open spaces in lieu of conditioning approval on the provision of spaces in the subdivision. Of particular significance is the fact that the statute sets parameters for the regulatory charges.
The Connecticut Supreme Court has held that, "When construing a statute, [the court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature." (Internal quotation marks omitted.) Hartford Courant Co. v. Freedom of Information Commission, 261 Conn. 86, 99, 801 A.2d 759 (2002). In other words, "we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply." In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider "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." (Internal quotation marks omitted; internal citations omitted.) Parrot v. Guardian Life Ins. Co. of America, 273 Conn. 12, 18-19 (2005).
Sec. 1-2z. Plain meaning rule.
The 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. ( P.A. 03-154, S. 1.)
The plaintiff argues that the basic concept of 5.4 as amended violates the context in which regulations are required to be formulated under 8-25 because that statute provides that it is the conditions in the subdivision which are determinative, not those in other areas of the town. The defendants counter that Connecticut General Statutes § 8-25 authorizes the commission "to promulgate regulations that specifically provide that the commission, in considering subdivision regulations, must consider whether a subdivision application will promote the 'public health, safety and general welfare of the town.'" They cite their own regulations and claim that the purposes of the regulations are advanced by the amendment to section 5.4. A review of those regulations indicates that, among the purposes of Watertown's subdivision regulations, are providing for the public health, safety and welfare of the town and providing for stability and beneficial development. The defendants claim that the amendment at issue falls within the statutory authority given to a planning commission to act to protect the public health, safety and general welfare of the town. They point to the Connecticut Supreme Court's decision in Smith v. Zoning Board of Appeals, supra, as authority for authorizing a local commission to consider historic factors pursuant to the town charter's requirement that its subdivision regulations promote "public health or safety." They argue that § 5.4 is consistent with the commission's power to regulate and to encourage the orderly and beneficial development of the town. Additionally, they cite Torrington v. Zoning Commission of Harwinton, 261 Conn. 759 (2002), contending that recent zoning decisions have recognized a trend toward investing zoning commissions with greater discretion in determining whether conditions to approval or modifications to the proposal are necessary to protect public health, safety and property values.
Section 1.2 of the Watertown Planning and Zoning Commission provides that "[t]hese Regulations are adopted to promote and ensure the orderly development of land with the town so that the land, when subdivided, can be used for building purposes without danger to health and safety and for the following specified purposes: . . . (2) To protect and provide for the public health, safety and general welfare of the town . . . (5) To protect the character and the social and economic stability of the town and to encourage the orderly and beneficial development of the town."
Smith v. Zoning Board of Appeals involved a subdivision of property situated in a historic district. The application to subdivide the property into three lots was denied because it proposed a single family dwelling to be built on unimproved land directly in front of the plaintiffs' residence. In denying the application, the commission expressed concern that granting it would "permit construction of a house in the . . . significant open space, thereby disrupting the essential characteristic of the historic district." The Connecticut Supreme Court noted that Greenwich Planning and Zoning Commission's authority to promulgate regulations that consider historical factors arose from 101(d) of the Greenwich Charter which provided that subdivision regulations must mandate that the proposed subdivision be of such character so as to be used for building purposes without danger to health or the public safety. The Court agreed with the defendant that it had authority for its action: "[Public health and safety includes protecting the environment, which, in turn, includes historic preservation." Smith v. Zoning Board of Appeals, supra, p. 84.
Municipalities in Connecticut may exercise zoning power either by adopting the provisions of chapter 124 of the General Statutes, 8-1 through 8-13a, or by enacting a municipal charter authorized by a special act of the legislature. Burnham v. Planning Zoning Commission, 189 Conn. 261, 263-64, 455 A.2d 339 (1983). "In either case, the power of the local zoning authority to adopt regulations is limited by the terms of the statute or special act." T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 42. Smith v. Zoning Board Of Appeals, supra fn.7.
The issue in Torrington v. Zoning Commission of Harwinton was whether a zoning commission's exercise of the power to vary special permit regulations under the unusual circumstances existing in that case was authorized. The court noted: "Recent decisions of this court . . . have evidenced a trend toward investing zoning commissions with greater discretion in determining whether [a] proposal meets the standards contained in the regulations. The agency [may now] [decide] within prescribed limits whether a particular section of the zoning regulations applies to a given situation and the manner in which it applies . . . In making such determinations, moreover, a zoning commission may rely heavily upon general considerations such as public health, safety and welfare." (Internal quotation marks omitted; internal citations omitted.) Torrington v. Zoning Commission, supra, p. 770.
Smith and Torrington dealt with the application of land use regulations relative to the property under consideration. Here the plaintiff challenges the regulation as amended on the grounds that it allows the commission to condition approval of a subdivision application on the payment of a fee for offsite improvements which may have nothing to do with the property under consideration.
The defendants cite Property Group v. Planning Zoning Commission, 226 Conn. 684, 692. (1993), wherein the Connecticut Supreme Court stated that it would leave for "another day" the issue of "whether a zoning commission had the authority to condition approval of a subdivision application on an off-site improvement." Id., p. 686. The issue is squarely before this court now. Based on the mandate of Connecticut General Statutes § 1-2z, the court concludes the intent of the legislature can be ascertained by the plain language of section 8-25. The statute clearly limits a planning commission to consider those factors pertaining to the land to be subdivided which would affect the health, safety and welfare of the public. Except for the explicit provision for off-site open spaces, section 8-25 does not permit a local commission to condition subdivision approval on the payment of money for off-site improvements. A specific provision for conditioning approval of a subdivision on donation money or land for open spaces in § 8-25 does not logically lead to the conclusion that a commission may condition approval on payments for any off site improvement which would benefit the community.
Connecticut General Statutes Section 8-26The defendants argue that the amendment to § 5.4 is authorized by § 8-26 of the General Statutes. Section 8-26 provides, in relevant part:
"Such [zoning] regulations may contain provisions whereby the [planning] commission may waive certain requirements under the regulations by a three-quarters vote of all the members of the commission in cases where conditions exist which affect the subject land and are not generally applicable to other land in the area, provided that the regulations shall specify the conditions under which a waiver may be considered and shall provide that no waiver shall be granted that would have a significant adverse effect on adjacent property or on public health and safety. The commission shall state upon its records the reasons for which a waiver is granted in each case. The commission may establish a schedule of fees and charge such fees. The amount of the fees shall be sufficient to cover the costs of processing subdivision applications, including, but not limited to, the cost of registered or certified mailings and the publication of notices, and the costs of inspecting subdivision improvements. Any schedule of fees established under this section shall be superseded by fees established by ordinance under section 8-1c."
The statutory language clearly mandates subdivision compliance with zoning regulations and provides that the zoning regulations may authorize a waiver of requirements "where conditions exist which affect the subject land and are not generally applicable to other land in the area" and which would not "have a significant adverse effect on adjacent property or on public health and safety." The language mandates that a commission's regulations specify the conditions under which a waiver may be considered. It is this language that the defendants claim validates § 5.4 as amended. The court disagrees. Section 8-26 provides, in part, for a planning commission to adopt regulations specifying the conditions under which a property under consideration for subdivision may be excused from compliance with a municipality's zoning regulation. Section 5.4 of the Watertown regulations, as amended, however, goes beyond what this statute permits. It allows a planning commission to condition a waiver of a subdivision regulation on the payment of a fee for an improvement which is neither necessitated by nor connected with the property under consideration for approval. Moreover, the Connecticut Supreme Court had occasion to comment on the legislative history of § 8-26 with regard to the fees to be charged: "Originally enacted in 1947, § 8-26 was first amended in 1959 to authorize planning commissions to charge limited fees for "the processing of subdivision applications and inspection of subdivision improvements." Public Acts 1959, No. 679, § 6. The statute was subsequently amended several more times to increase the authorized minimum and maximum fees. See Public Acts 1963, No. 55, § 2; Public Acts 1975, No. 75-40; Public Acts 1978, No. 78-243. The General Assembly expressed concern that the municipalities were spending more on the approval process than they could collect under the statute. Conn. Joint Standing Committee Hearings, General Law, Pt. 1, 1975 Sess., pp. 58-59, remarks of Representative Raymond C. Ferrari. Legislation to increase the authorized fees was enacted to "enable the towns to more nearly meet their actual cost involved in subdivision processing and inspection." 18 H.R. Proc., Pt. 3, 1975 Sess., p. 1112, remarks of Representative Dorothy S. McCluskey. It is apparent that the purpose of § 8-26 is to enable planning commissions to cover the costs incurred during the evaluation of subdivision applications and the subsequent inspections required to assure compliance. The legislature was obviously concerned that the towns and, therefore, the taxpayers, were bearing a disproportionate burden of the costs of subdivision regulation. As previously indicated, the legislative history of § 8-1c demonstrates an identical concern pertaining to the several land use commissions and numerous application processes.
Sec. 8-1c. Fees for municipal land use applications.
Any municipality may, by ordinance, establish a schedule of reasonable fees for the processing of applications by a municipal zoning commission, planning commission, combined planning and zoning commission, zoning board of appeals or inland wetlands commission. Such schedule shall supersede any specific fees set forth in the general statutes, or any special act or established by a planning commission under section 8-26.
In 1993, the legislature again amended § 8-26 by authorizing planning commissions to charge sufficient fees to cover "the cost for the processing of subdivision applications, including, but not limited to, the cost of . . . the inspection of subdivision improvements."10 Public Acts 1993, No. 93-124, § 1. That act also provides that any specific fees established by a planning commission under § 8-26 are superseded by a fee schedule enacted by ordinance under § 8-1c. Therefore, the amendment clearly defined in pertinent part "the cost for the processing of subdivision applications" to include "the inspection of subdivision improvements," and specifically amended §§ 8-1c and 8-26 by providing that an enactment under § 8-1c supersedes any prior enactment under § 8-26." Pollio v. Planning Commission, 232 Conn. 44, 53, 54, 55, 652 A.2d 1026 (1995).
Section 8-26 mandates that subdivisions must comply with zoning regulations and that zoning regulations may provide for exceptions. In addition, the statute provides for fees to be charged in connection with the processing of subdivision applications and any necessary inspections of the land in order to assure compliance with said regulations. When considered in relation to § 8-25, nothing in § 8-26 may be reasonably construed to permit a subdivision regulation, which conditions approval of a subdivision on the payment of a fee for offsite improvements. Therefore, the plaintiff's motion for summary judgment is granted on this ground.
Having found that section 5.4 of the Watertown planning and zoning regulations is invalid as amended, the court finds that it is unnecessary to address the plaintiff's constitutional claim. "Ordinarily, constitutional issues are not considered unless absolutely necessary to the decision of a case." (Internal quotation marks omitted.) State v. Cofield, 220 Conn. 38, CT Page 8209 49-50, 595 A.2d 1349 (1991); State v. Onofrio, 179 Conn. 23, 37-38, 425 A.2d 560 (1979); State v. DellaCamera, 166 Conn. 557, 560-61, 353 A.2d 750 (1974); see Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Bauer v. Waste Management of Connecticut, 234 Conn. 221, 230, 662 A.2d 1179 (1995).
GALLAGHER, J.