Stephen W. Sobaski et al. v. Sommers Planning Commission et al. (2009)

MEMORANDUM OF DECISION

The appellants, Stephen and Harry Sobaski, appeal from the decision of the Somers Planning Commission (Commission) approving a resubdivision application filed by John and Jennifer Bernier pertaining to property owned by the Berniers and located on Ninth District Road in Somers.

On November 16, 2009, the court heard this appeal and found that the appellants were statutorily aggrieved.

The appellants claim that the Commission's approval of the resubdivision application was improper because the Commission failed to give sufficient weight to the impact of surface water drainage generated by the proposed plan and the absence of drainage agreements with down-flow landowners, including the appellants;  and because the Commission ignored a right-of-way held by the appellants to traverse the Berniers' property and the Class A-2 survey submitted with the application by the Berniers failed to depict the appellants' right-of-way.

When evaluating a subdivision application, the local planning agency acts in an administrative rather than legislative or quasi-judicial role.  Kings Highway Association v. North Haven Planning and Zoning Commission, 114 Conn.App. 509, 514 (2009).   The burden is on the appellants to establish that, in reaching its decision to approve the resubdivision application, the Commission acted unreasonably, arbitrarily, or illegally.  Id., 515.

I

Drainage

The Berniers own a thirty-acre parcel abutting Ninth District Road. Presently, a residence and farm-related structures sit upon the property.   The resubdivision plan approved by the Commission will divide the parcel into six residential building lots.   Access to the majority of the lots will be via a proposed cul-de-sac originating on Ninth District Road and running for around 550 feet through the interior of the development.   The lots will be serviced by private wells and septic systems.

The subdivision will be contoured so that surface water will flow into several catch basins and be impounded in a detention pond located within the development.   From the detention pond, the water will discharge into a new 1200 foot storm water system with additional catch basins along the southeasterly side of Ninth District Road to an existing cross-culvert which empties onto the northwesterly side of that road.   The appellants own farm land upon which the cross-culvert discharges water presently.   They fear that the new subdivision will increase the volume of discharge significantly.

At the public hearing, conducted on June 28 and July 19, 2007, the Commission heard testimony and received evidence from the applicants' expert witnesses, including a certified land surveyor and a civil engineer.   The Commission also received advice from its own engineer consultant and the town planner on the issues of drainage.   These witnesses provided information indicating that the surface water drainage from the proposed development will limit peak flows downstream to rates of flow which presently occur.   The approved resubdivision plan also entails a solid sedimentation filtration system which will remove eighty percent of solids suspended in surface runoff.

According to the Berniers' experts and the town's engineer, the plan, as approved, meets all local and state regulations and standards for storm water drainage, including that set forth in Somers Zoning Regs., c. 214, § 12.   The Berniers had previously obtained an inland wetlands permit for the proposed activity.

A trial court cannot substitute its own judgment for that of the planning commission and must sustain the conclusions of the commission “as long as honest judgment has been reasonably and fairly exercised.”  Id. These conclusions must be upheld if substantial evidence supported them.  Id. “Substantial evidence” is equivalent to that sufficient to overcome a motion for a directed verdict in a jury case.  Id., 515-16.

The evidence before the Commission, as recounted above, clearly was substantial, although controverted, with respect to satisfying the drainage requirements for subdivisions.   The appeal cannot be sustained on this ground.

II

Right-of-Way

The Commission adopted subdivision regulations which require property owners wishing to subdivide land to submit a formal application which denotes rights-of-way, Somers Subdivision Regs. c.213, § 11.B.(4).  As part of this submission, the applicants must include a boundary line survey with Class A-2 accuracy, Somers Subdivision Regs., c.213, § 11B.(4).

The Berniers' resubdivision application makes no mention of a right-of-way which the appellants claim burdens the Berniers' property.   The appellants contend that this omission permitted the Commission unfairly and erroneously to depart from its own regulations by approving the resubdivision plan without the benefit of an A-2 survey depicting the disputed right-of-way and by ignoring other evidence that such a right-of-way existed.   Specifically, the appellants assert that, had the Commission properly considered the appellants' right-of-way, the layout of the proposed cul-de-sac, its intersection with Ninth District Road, the driveway locations accessing the proposed building lots, and the sight line problems created thereby would have rendered the entire configuration of the resubdivision in violation of several subdivision and zoning regulations and mandated disapproval.

It should be noted that, when the Commission heard and decided this application, there was pending before this court a quiet title action regarding the existence of the right-of-way claimed by the appellants before the Commission.   This court decided that case around seventeen months after the resubdivision approval which is the subject of this administrative appeal.   Sobaski v. Bernier, Superior Court, Tolland J.D., d.n. CV 07-5001651 (January 6, 2009, Sferrazza, J.) [47 Conn. L. Rptr. 32].   In that case, this court, after four days of testimony, found that the appellants retained a right-of-way across the Berniers' land as they claimed at the subdivision hearing before the Commission.

A.

As mentioned above, Somers Subdivision Regs., c.218. § 11.B(14) mandates that subdivision applications include a map with “[b]oundary lines ․ certified to class A-2 accuracy.”   In Appendix III of their brief, the appellants point out that the standards for a Class A-2 survey with respect to subdivisions, adopted by the Connecticut Association of Land Surveyors Inc. lists as contents of such a survey “record easements,” “physical evidence of record easements,” and “unresolved conflicts with maps and descriptions.”   At the hearing before the Commission, the appellants introduced testimony, maps, photographs, and land records to support their claim of a right-of-way across the Berniers' land.

The appellants assert that the absence of reference to the disputed right-of way in the Class A-2 survey submitted by the Berniers as part of their formal application breached the subdivision regulations and misled the Commission.   The court rejects this assertion.   Somers Subdivision Regs., c.213, § 11.B.(14) does not demand that a Class A-2 survey be submitted.   Rather, it merely requires that boundary lines be specified with Class A-2 accuracy.   The right-of-way in question forms no part of any boundary line in this case, and the failure to depict the right-of-way on the boundary line map is, therefore, immaterial.

B.

The appellants also argue that the evidence before the Commission compelled recognition of the appellants' right-of-way because the existence of that easement is one of the important features of the property which ought to have been considered by the Commission before approving the resubdivision.   Indeed, Somers Subdivision Regs., c.213, § 11.B.(4) requires the formal application to identify rights-of-way.

The Commission, however, also had before it testimony that no physical evidence of the disputed easement was observable on the Berniers' land.   The applicants' certified land surveyor found no such evidence nor did the town engineer and planner who visited the property specifically to look for such physical evidence.

A claim similar to that of the appellants' in this case was put forth in Gagnon v. Municipal Planning Commission of Ansonia, 10 Conn.App. 54 (1987), cert. denied.  203 Conn. 807 (1987).   In that case, the planning agency also had a requirement that all easements be disclosed in the subdivision application.   Despite the fact that the evidence before that agency was conflicting regarding a right-of-way, the planning commission approved the plan.  Id., 56.   The trial court sustained an administrative appeal by the party asserting the benefit of the right-of-way and found that that party possessed “some right” to use the easement.  Id.

Our Appellate Court reversed the trial court and held that a planning commission lacks authority to resolve rights-of-way disputes when evaluating a subdivision application for conformity or nonconformity with subdivision regulations.  Id., 58.   The task of a planning commission is to determine if a proposed subdivision comports with the criteria for approval contained within the subdivision regulations.  Id. Only a quiet title action filed in a court can resolve a controversy such as that before the commission, and the appellants in that case had failed to avail themselves of that procedure.   Id. The planning commission “was correct in not addressing the question of whether the plaintiffs had an easement.”  Id., 59.

Throughout the administrative process, the Berniers denied the existence of the right-of-way claimed by the appellants.   The Commission had before it testimony that no physical evidence confirming the presence of such a right-of-way could be observed.   The Commission honestly and reasonably acted within its authority in deciding that the resubdivision application met the regulations regarding disclosure of easements.  Gagnon, supra.

The fact that seventeen months later this court determined that such a right-of-way did exist is of no moment.   It is true that this later adjudication by the court may cramp or even prevent the Berniers' efforts to develop the parcel as approved, but that practical obstacle bears no relation to the Commission's decision to approve the application.   Resubdivision approval is but one step in the direction of development, and other barriers, financial or legal, may thwart execution of the plan.

For these reasons, the appeal is denied.

Sferrazza, J.

Sferrazza, Samuel J., J.