Opinion
No. CV 05-4003571
May 16, 2007
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiffs, Zocco Builders, LLC, and Joseph A. Grous, Frank R. Grous and Donald J. Grous, appeal from the decision of the defendant, the Tolland Planning and Zoning Commission, denying the plaintiffs' application to develop a subdivision on certain property in the town of Tolland.
II BACKGROUND
On or about March 2, 2005, the plaintiffs filed a subdivision application with the defendant commission. (Return of Record [ROR], Exhibit [Exh.] 43.) The public hearing on the application began on June 13, 2005; (ROR, Exhs. 1, 2); and was continued to July 11, 2005; (ROR, Exhs. 1, 3); August 15, 2005; (ROR, Exhs. 1, 4); and August 22, 2005. (ROR, Exhs. 1, 5.) During the August 22, 2005 meeting, the commission voted unanimously to deny the plaintiffs' application. The plaintiffs have appealed the commission's decision.
The plaintiffs' plan required a wetlands crossing and thus the plaintiffs also filed a permit to perform regulated activities with the Tolland inland wetlands commission pursuant to General Statutes § 8-26. Following the inland wetlands commission's denial of the plaintiffs' permit application, the plaintiffs appealed to the Superior Court. That appeal is Zocco Builders, LLC v. Inland Wetlands Commission, Docket No. CV 05 4003572.
III JURISDICTION
General Statutes § 8-8 governs appeals to the Superior Court from decisions of a planning and zoning commission. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). Aggrievement is a question of fact for the trial court to determine. Id., 665.
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two-part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest . . .
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665.
Plaintiffs Joseph A. Grous, Frank R. Grous and Donald J. Grous allege aggrievement by reason of the fact that they own the property in question. (Appeal, ¶¶ 2, 13.) Plaintiff Zocco Builders, LLC, alleges aggrievement through ownership of an option to purchase the property. (Appeal, ¶ 5.) Zocco Builders also alleges aggrievement by virtue of the fact that it is the named applicant on the application for the subdivision. (Appeal, ¶ 12.) At trial on December 15, 2006, Zocco Builders submitted into evidence a copy of the option agreement.
No specific appellate authority exists regarding the issue of whether ownership of such an option may be the basis of aggrievement in a planning and zoning appeal. Our Appellate Court has held that an agreement to develop a subdivision between the owner of property and a developer was sufficient to support a finding of aggrievement on the part of the developer in an appeal of a denied subdivision application. CT Page 7177 RYA Corp. v. Planning Zoning Commission, 87 Conn.App. 658, 671-72, 867 A.2d 97 (2005). In addition to its option to purchase the subject property, and similar to the developer in RYA Corp., Zocco Builders here submitted the subdivision application to the defendant commission. (ROR, Exh. 43.) The court finds that the plaintiffs have a specific, personal and legal interest in the subject property and the application to develop the subdivision, and that such interest was injuriously affected by the commission's denial of the application. The plaintiffs are therefore aggrieved for the purposes of this appeal.
B Timeliness and Service of Process
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 "[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." 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 record does not contain an affidavit of publication of the commission's decision. The plaintiffs allege in their complaint that notice was published in the Journal Inquirer on August 29, 2005; (Appeal, ¶ 11); and the commission admits this fact in its answer. (Answer, ¶ 2.) The plaintiffs commenced this appeal by service of process upon the Tolland town clerk on September 13, 2005. (Marshal's Return.) Accordingly, the court finds the appeal timely and proper.
IV SCOPE OF REVIEW
A planning and zoning commission considering a subdivision application acts in an administrative capacity. Reed v. Planning Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988). "The planning commission . . . has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance." (Internal quotation marks omitted.) Id.
"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).
"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 . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The [commission's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given . . . The evidence . . . to support any such reason [however] must be substantial . . ." (Citation omitted; internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).
"The substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." (Internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 452, 908 A.2d 1049 (2006). Substantial evidence is "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." (Internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 541, 525 A.2d 940 (1987).
A planning commission must state the reasons for its decisions regarding subdivisions on the record. General Statutes § 8-26. When a commission has provided such reasons, "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." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
General Statutes § 8-26 provides in relevant part: "The grounds for [the planning commission's] action shall be stated in the records of the commission."
V DISCUSSION
During the commission's August 22, 2005 meeting, the fourth and final evening of the public hearing on the plaintiffs' subdivision application, commissioner Robert Quick read two memoranda into the record. (ROR, Exhs. 1, p. 63-65; 5, p. 2.) One memorandum was from Steven Lowrey, Tolland wetlands agent, to Linda Farmer, Tolland director of planning and community development. (ROR, Exh. 17.) Lowrey's memorandum stated that the inland wetlands commission had voted to deny the plaintiffs' application for a permit to conduct regulated activities on the subject property. The second memorandum read into the record was from Farmer to Marilee Beebe-Kostrun, chair of the commission. (ROR, Exh. 16.) Farmer's memorandum read as follows: "The Wetlands Commission, at their meeting of August 18, 2005, denied the request for a Wetlands Permit for [Zocco Builders'] subdivision request . . . The Planning Zoning Commission cannot approve this subdivision without a Wetlands Permit and is, therefore, obliged to deny the request." Shortly alter the commission received the two memoranda, the commission voted to close the public hearing on the plaintiffs' subdivision application. (ROR, Exh. 1, pp. 67-68.)
Near the close of the commission's August 22, 2005 meeting, a motion was made to deny the plaintiffs' application based on the fact that the plaintiffs had not received approval from the inland wetlands commission. (ROR, Exh. 5, p. 6.) The commission unanimously approved the motion without any discussion. (ROR, Exh. 5, p. 6.)
The commission acted contrary to law in denying the plaintiffs' application solely due to the denial by the inland wetlands commission. In Thoma v. Planning Zoning Commission, 31 Conn.App. 643, 644, 626 A.2d 809 (1993), aff'd, 229 Conn. 325, 640 A.2d 1006 (1994), the court considered the validity of a town's zoning regulation prohibiting the planning and zoning commission from approving a subdivision application if the town's inland wetlands agency failed to find that the subdivision would not adversely affect the involved wetlands area. The court found that the zoning regulation conflicted with General Statutes § 8-26, and, thus, was invalid.
General Statutes § 8-26 provides in relevant part: "If an application involves land regulated as an inland wetland or watercourse under the provisions of chapter 440, the applicant shall submit an application to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for the subdivision or resubdivision. The commission shall not render a decision until the inland wetlands agency has submitted a report with its final decision to sub-commission. In making its decision the commission shall give due consideration to the report of the inland wetlands agency."
In so holding, the court stated: "Section 8-26 provides that before rendering a decision on a subdivision application, the commission must receive and give `due consideration' to a report prepared by the inland wetlands agency. If the legislature had intended to give the inland wetlands agency `veto power' over the approval of any proposed subdivision, or intended that approval of the proposed subdivision by the wetlands agency was to be a condition precedent to approval by the commission, § 8-26 would have clearly enunciated such policy. It did not. Absent such expression, we decline to transform the concept of `due consideration' into something more." Thoma v. Planning Zoning Commission, supra, 31 Conn.App. 648.
The commission acknowledges that it should not have based its decision solely on the report of the inland wetlands commission and asks the court to remand the case so that it might consider the application appropriately. (Defendant's trial brief, pp. 1-2.) In support, it cites to Bogue v. Zoning Board of Appeals, 165 Conn. 749, 345 A.2d 9 (1974) and Thorne v. Zoning Commission, 178 Conn. 198, 423 A.2d 861 (1979).
In Bogue our Supreme Court stated: "It is true that when on a zoning appeal it appears that as a matter of law there was but a single conclusion which the zoning authority could reasonably reach, the court may direct the administrative agency to do or to refrain from doing what the conclusion legally requires . . . In the absence of such circumstances, however, the court upon concluding that the action taken by the administrative agency was illegal, arbitrary or in abuse of its discretion should go no further than to sustain the appeal taken from its action. For the court to go further and direct what action should be taken by the zoning authority would be an impermissible judicial usurpation of the administrative functions of the authority." (Citations omitted.) Bogue v. Zoning Board of Appeals, supra, 165 Conn. 753-54. The Thorne court cited the language above from Bogue approvingly. Thorne v. Zoning Commission, supra, 178 Conn. 206.
The plaintiffs argue that to remand to the commission without direction would be to give the commission a "second bite at the apple" and would be contrary to fundamental fairness. They request that the court remand with an order to the commission to approve the plaintiffs' subdivision. In support of their position, the plaintiffs specifically cite RYA Corp. v. Planning Zoning Commission, supra, 87 Conn.App. 658.
In RYA Corp., the plaintiff developers appealed from the decision of the Enfield planning and zoning commission denying the plaintiffs' application to develop a subdivision. RYA Corp. v. Planning Zoning Commission, supra, 87 Conn.App. 660. The trial court sustained the plaintiffs' appeal finding that the commission lacked authority to deny the application on the ground stated by the commission: the poor condition of an abutting town road. Id., 661. In sustaining the appeal, the trial court did not direct the commission to take any particular action. Id., 679. On appeal to the Appellate Court, the commission argued that the trial court should have given the commission specific directions as to how the commission should proceed. Id.
In addressing the commission's argument, the Appellate Court stated: "To allow the commission to expand its administrative review of the plaintiffs' subdivision application by belatedly considering additional objections to the plaintiffs' application, each of which could have been raised earlier, would subject the plaintiffs to indefinite delay that the Enfield regulations do not authorize. We conclude, therefore, that the plaintiffs' application must be approved as it stands." RYA Corp. v. Planning Zoning Commission, supra, 87 Conn.App. 680.
It is unclear from the respective opinions of the Appellate Court and the trial court in RYA Corp. to what extent the commission deliberated upon the plaintiffs' application. The trial court noted that, following the close of the public hearing the commission's decision was deferred until the town attorney could address some of the commission's concerns and that the town attorney submitted an opinion to the commission. RYA Corp. v. Planning Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV 01 0805349 (January 16, 2003, Caruso, J.). In the present appeal, it is clear that the commission did not deliberate whatsoever upon the merits of the plaintiffs' application. The record demonstrates that the public hearing was closed shortly after the commission received Farmer's memorandum and that the commission voted to deny the application thereafter without any debate or discussion.
The plaintiffs acknowledge this fact and emphasize: "[T]here is no evidence that the Commission gave any `consideration' to the inland wetlands] report at all or used it as `one of many factors' in making its decision . . . [T]he minutes from the [August 22, 2005] meeting are bereft of any discussion, deliberation, or debate concerning the merits of the Plaintiffs' subdivision application . . . There was no evaluation of the final proposal in relation to the requirements of the subdivision regulations, nor in relation to anything else for that matter." (Plaintiff's trial brief, pp. 9-10.)
In denying the application without deliberation, and solely upon the basis of the inland wetlands commission's action, the commission abdicated its statutory authority over subdivision review, See General Statutes §§ 8-25, 8-26. Although a planning commission acts in an administrative capacity in reviewing subdivision applications; Reed v. Planning Zoning Commission, supra, 208 Conn. 433; the statutes clearly mandate that the planning commissions must exercise some measure of discretion in dealing with an application which implicates wetlands. "The final decision contained in the wetlands report is merely one of the many factors the zoning commission must consider in rendering its own decision . . . The zoning commission must give the wetlands commission report due consideration. We do not read this as a statutory mandate that the zoning commission's decision be based on the wetlands report. To afford due consideration is to give such weight or significance to a particular factor as under the circumstances it seems to merit, and this involves discretion." (Emphasis added; internal quotation marks omitted.) Thoma v. Planning Zoning Commission, supra, 31 Conn.App. 650. The court finds that allowing the commission to fully and properly consider the plaintiffs' application is an appropriate remedy in the particular circumstances of this appeal. Such remedy reflects the fact that here there is not "as a matter of law . . . but a single conclusion which the zoning authority could reasonably reach . . ."; Bogue v. Zoning Board of Appeals, supra, 165 Conn. 753; and also is in harmony with the discretion afforded the commission by the statutes.
VI CONCLUSION
The plaintiffs' appeal is sustained and the case is remanded to the commission with direction to proceed according to law.