Elizabeth Egan et al. v. Planning Board of the City of Stamford et al. (2010)

MEMORANDUM OF DECISION

On June 17, 2008 the Stamford Planning Board (hereinafter “the Board”) approved a three-lot residential subdivision in the RA-2 zone.   The plaintiffs have appealed, alleging that the Board acted illegally in three ways:  (1) the lot lines are tortured in violation of the Stamford subdivision regulations;  (2) parcel B-2 which has inadequate frontage is not served by an unobstructed access way in violation of the zoning regulations;  (3) parcel B-1 does not meet the minimum frontage requirements of the zoning regulations.

At trial, the plaintiffs Elizabeth Egan, Jean Barden and Robert Barden were found to be aggrieved persons by virtue of their ownership of real property abutting or within 100 feet of the proposed subdivision.  Gen.Stat. §§ 8-30a and 8-8.   All other plaintiffs were found not to be aggrieved persons because no evidence was offered to prove their status.

It was apparent at trial that the pivotal issues in this case arise from the second and third of the plaintiffs' claims.   They will be considered in order.   It is unnecessary for the court to resolve the first claim for the reasons that appear below.   The parties agree that underlying the Board's action is the requirement of Section 6-30-14 of the Stamford city charter that all decisions of the Board, in acting on subdivision applications, conform to the zoning regulations.

The court must begin by stating the general principles which govern its review of a subdivision approval.  “It is axiomatic that a planning commission, in passing on a[re]subdivision application acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulation ․ It is equally axiomatic that the trial court, in reviewing the action of a planning commission regarding a[re]subdivision application, may not substitute its judgment on the facts for that of the planning commission ․ The evidence, however, to support any [reason stated by the planning commission for its action] must be substantial ․ [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 trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion ․ The court can sustain the plaintiff[s'] appeal only upon a determination that the decision of the Commission was unreasonable, arbitrary or illegal.”  Pelliccione v. Planning and Zoning Commission, 64 Conn.App. 320, 326-28 (2001).

In this specific case the Court is called upon to determine whether the Board has correctly interpreted its own subdivision regulations and the zoning regulations which it is legally bound to apply.

Because a question of proper statutory interpretation is involved, the court must go beyond the conventional scope of administrative review and conduct a plenary review of the Board's action.  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 416 (2007).  “Ordinarily [trial courts afford] deference to the construction of a statute applied by an administrative agency empowered by law to carry out the statute's purpose ․ Cases that present pure questions of law, however, invoke a broader standard of review that is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily or in abuse of its discretion ․ Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny ․ the agency is not entitled to special deference ․ [It] is for the courts, and not administrative agencies, to expound and apply governing principles of law.”  (Internal quotation marks omitted.)  Wood v. Zoning Board of Appeals, 258 Conn. 691, 698-99 (2001).   Whether the Board properly interpreted and applied the relevant regulations depends upon whether it read the particular regulations “in the context of all the regulations, their evident purpose and policy, and recognized principles of zoning in general.”  Field Point Park Association, Inc. v. Greenwich Planning and Zoning Commission, 103 Conn.App. 437, 441 (2007).

In this case there is some evidence in the record that the Board has, in the past, given its own interpretation of these specific regulations.   Our courts “have afforded deference to ‘time tested’ agency interpretation of a statute but only when the agency has consistently followed its construction over a long period of time, the statutory language is ambiguous and the agency's interpretation is reasonable.”  (Internal quotation marks added.)   Connecticut State Medical Society v. Connecticut Board of Examiners In Podiatry, 208 Conn. 709 (1988).   With these general principles in mind the Court proceeds now to a consideration of the specific issues.

Unobstructed Access Way

Parcel B-2 is what Section 3-A-56 of the zoning regulations calls an “accessway lot.”   The regulation defines it as “a lot which has less than the required minimum frontage but which complies with the provisions of Article III, Section 7, Subsection O.” Article III-7-O, in pertinent part, provides that “accessway lots, not having the street frontage normally required ․ shall be permitted ․ provided that each such accessway lot has access to a street by means of an unobstructed legal accessway held in the same ownership as the accessway lot.”  (Emphasis added.)

The Board's written decision of approval recites 14 conditions mandating compliance.   Conditions 1 and 2 are relevant to this discussion.¹

The approved subdivision map clearly shows service of parcel B-2 by a twenty-five-foot accessway and also shows virtually the entire area of the accessway impressed with an “open space/conservation easement.”   By agreement, the record has been supplemented by a copy of the “standard easement agreement” which is referred to in the Board's decision and which applies to the accessway area.   Paragraph No. 1 of that document provides as follows:  “That no structures of any kind, including without limitation fences, sewage disposable systems, wells, and watering systems, shall be placed or erected upon or within the Conservation Areas until application therefor[e] (sic) (with plans and specifications of such structures, together with a statement of the purpose for which such structures will be used) has been filed with, and prior written approval obtained from, the EPB or its successor agencies.”

It is noted that except as stated, the easement document does not further define “structures.”

The plaintiffs allege that both conditions (1) and (2) and the easement instrument itself legally prohibit use of the accessway for any purpose other than for conservation purposes.²  Additionally, the plaintiffs point to item 29 in the record (topographic map) which shows the existence of a knoll which has a steep grade, is heavily forested and is presently impassable.   They argue that in order for the accessway to be unobstructed within the meaning of Article III-7-O, the EPB would have to approve a modification of the conservation easement in order to allow removal of the trees and a cutting of the knoll so as to reduce the severity of the grade to make the accessway passable to vehicular traffic.

The defendants disagree that these constitute obstructions within the meaning of the regulation.   They argue that nothing in the zoning or subdivision regulations mandates that a driveway actually be constructed within the limits of the accessway.   In fact, the Court permitted the Board to expand the record by including a legislative history which supports this position.   The court agrees that the regulations do not require construction of a driveway within the accessway.   That however, begs the question.   The issue is rather whether the regulation mandates that the accessway be legally unobstructed, whether or not a driveway is ever constructed within its boundaries.

In support of the Board's statutory interpretation the defendants invite the court's attention to the following items in the record.   First, item 26 consists of a letter from the applicant's attorney in which he states the following:  “as for the ‘unobstructed legal access way’ this Board has long determined that an ‘obstruction’ is that which consists of such obstructions as area (sic) created by buildings, man made structures and other legal impediments.   Dozens of accessways have been approved without regard to topographic conditions, flooding, intervening wetlands and/or watercourses and other land feature, when a common driveway is made a component of and a condition to subdivision.”   Next, is item 24 which is a letter from the applicant's surveyor Edward J. Frattaroli, Inc. which states the following:  “Accessway for rear lot B-2 Not having and (sic) unobstructed legal accessway.   Response:  the Accessway shown on the subdivision plan is a paper accessway and will not be utilized for a driveway.   Therefore the driveway and utility easement has been provided to allow for the construction of this driveway to provide the unobstructed legal access drive and the legal frontage being the 25' Accessway shown on the Map. This is not a new concept and has been used for many years.”

Additionally, the transcript of proceedings before the Board (item 35 at p. 72) reveals that the applicant's attorney told the Board that James Lunney (Lunney), the Zoning Enforcement Officer, reviewed the subdivision plan and approved it as in compliance with the zoning regulations.   Finally, the record shows that the Environmental Protection Board herein after the “EPB” approved the subdivision and stated that the subdivision was “consistent with the zoning regulations.”

The defendants have referred the court to nothing in the record to indicate that the Board itself has engaged in a long-standing, time tested practice of deeming similar conditions not to constitute obstructions to legal access.   This court does not consider these references in the record to constitute substantial evidence to support the Board's interpretation.

The action of an agency acting in its administrative capacity to approve a subdivision must satisfy the substantial evidence rule.  Huck v. Inland Wetland and Watercourses Agency, 203 Conn. 525, 540 (1987).  “Substantial evidence” means enough evidence in the record “to justify, if the trial were to a jury, a refusal to direct a verdict.”   There must a substantial basis of fact from which the fact in issue can reasonably be inferred.  Samperi v. Inland Wetland Agency, 226 Conn. 579, 588 (1993).   Moreover, past practice by developers and surveyors does not constitute time tested agency interpretation.   Nor does the Board's knowledge of or acquiescence in the practice rise to the level of statutory construction entitled to judicial deference.  Connecticut State Medical Society v. Connecticut Board of Examiners in Podiatry, 208 Conn. at 719.

As for the statements of compliance with the zoning regulations mentioned by the applicant's counsel above, the court notes that there is nothing in the record directly from the Zoning Enforcement Officer on this subject and the EPB has no authority to interpret the zoning regulations, consequently its statement concerning zoning compliance is of no significance.   Finally, the parties have not directed the court's attention to any previous construction of this regulation by other courts.

Thus, this court must apply well recognized principles of statutory construction in determining the meaning of “unobstructed legal access.”   The beginning point for this task is found in Section 1-2 of the General Statutes which states “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.”

“When construing a statute our fundamental objective is to ascertain and give affect to the apparent intent of the legislature ․ 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.”  ․ Freizo v. Freizo, 281 Conn. 166, 181 (2007).

Words in a statute shall be construed according to the commonly approved usage of the language.  Gen.Stat. § 1-1.  Martone v. Lensink, 207 Conn. 296, 302 (1988).   When the language used by the legislature is plain and unambiguous there is no room for statutory construction by the courts and the statute will be applied as its words direct.  Verrastro v. Siverstein, 188 Conn. 213, 220 (1982);  Kelemen v. Rim Rock Corporation, 207 Conn. 599, 606 (1988).   “In construing a statute common sense must be used and the courts will assume that the legislature intended to accomplish a reasonable and rational result.”  King v. Board of Education, 203 Conn. 324, 332-33 (1987).   To ascertain commonly approved usage when a term is not defined, resort may be had to a dictionary definition of the term.  Stone Krete Construction, Inc. v. Eder, 280 Conn. 672, 678 (2006).

The key word in “unobstructed legal access” is unobstructed.   To limit the word to physical obstructions as the plaintiff urges is to assign too narrow a meaning to the word and to ignore its modifier, the word “legal.”   Webster's New World Dictionary, College Ed. at 983 (1979) defines “obstruct” as “to block or stop up (a passage) with obstacles or impediments.”   The term “legal” clearly denotes a requirement that the property owner possess a clear right to use the access way at the time the subdivision approval is given.   With this definition in mind, an examination of the conservation easement instrument reveals that the City of Stamford and the EPB are given “the perpetual right to preserve the natural state of the conservation area.”   Thus, without permission from the EPB, access could never be had over the easement area by installing a driveway to accommodate vehicular traffic.   The parties agree that there is nothing in the record to indicate that the EPB has granted such permission contingent upon a future need for access or that it has done so with respect to other conserved accessways or that a future EPB might do so.   If the court were to accept the defendants' argument based upon future permission from the EPB it would violate the principle that a zoning agency's approval of an application which is dependent for its proper functioning on action by another agency over which the approving agency has no control cannot be sustained unless the action appears to be a probability.   The record is entirely silent on this point.   In conclusion, the court holds that a conservation easement given in perpetuity over an otherwise permitted accessway is inconsistent with the requirement of unobstructed legal access as mandated by Article III-7-O of the Stamford Zoning Regulations.³  Faubel v. Zoning Commission, 154 Conn. 202 (1966).

In view of this holding it is unnecessary to determine whether the steep knoll and the trees which populate it themselves constitute an obstruction in contravention of the regulation.

Lawful Frontage

In the RA-2 zone the minimum frontage requirement is 200 feet (Zoning Regulations, Article III, Section 4, subsection 1.5.b).  Article II, Section 3 subsection 60 defines lot frontage as “the distance between the sidelines of a lot measured along the front lot line.”   In approving the subdivision, the Board permitted the applicant to use the boundary of parcel B-1 along Spring Hill Lane East (hereinafter “the Lane”) as the front lot line rather than Ingleside Drive.   The issue presented by this choice is whether the Lane, a private road, is a street on which frontage may be measured.  Article III, Section 3, subsection 96 defines “street” as “a public thoroughfare including road, highway, drive, lane, avenue, place, boulevard, and any other thoroughfare which affords the principal means of access to abutting property.”  (Emphasis added.)   The plaintiffs argue that the Lane does not qualify as a street within the above definition because the applicant has no deeded right to use the Lane and therefore it is not and cannot afford the principal means of access to his property.⁴

While the definition of “lot frontage” does not expressly include the requirement that the front lot line abut a street, such a requirement is necessarily implicit.   Ballentine's Law Dictionary 3rd Ed. at p. 504 defines frontage as “the measure in feet ․ of the boundary between a street or highway and an abutting property.” ⁵

As with the accessway lot discussed earlier, the defendants once again refer the court to evidence in the record which is offered to establish that the Lane provides legal frontage for parcel B-1. Item 24 of the record reflects the belief of the applicant's surveyor that a legal right of ingress and egress to and from a private road upon which a subdivision lot abuts is not necessary in order for that private road to qualify as required frontage for that lot and that the Zoning Enforcement Officer agrees with him.⁶  Likewise, the applicant states at p. 4 of his brief that if this were not the case, the homes on the Lane would similarly be deprived of frontage.   The court cannot consider this argument in support of the time tested practice principle because there is no evidence in the record that these homes do not enjoy legal access to the Lane and therefore would be similarly situated.

In searching the record for some evidence of historical interpretation of the frontage provision the court finds a single reference by the Board to the issue at item 36, p. 9. Here, the chairperson of the Board states the following:  “ ․ since Spring Hill Lane East is a private street and they (the applicant) do not have rights over that, can they use that for frontage calculations.   The answer is the regulations state-now whether it is clear or not-that any road whether it is public or private can be used for frontage even if you don't have-cannot use it directly for access.”

Whether the Board, as reflected through its chairperson's comments, constitutes a correct interpretation of the zoning regulations likewise requires the court to engage in the same process of statutory interpretation which it did earlier with respect to the “unobstructed legal access way.”   Clearly, if the applicant presently possessed an easement of way for vehicular access over the Lane, that easement could easily be deemed the principal means of access to parcel B-1, but it does not and therefore it is obvious that the Lane cannot qualify under the regulation as affording the principal means of access to the parcel.⁷  Because the regulations do not define “afford” resort must again be had to the dictionary definition which simply defines the word by giving the synonym “furnish,” Webster's New World Dictionary, 2d Ed. at 23.   Thus, in using the present tense “affords” the legislative body which enacted the regulation contemplated that from the outset the lot would have ingress and egress to and from a street.

To sustain the Board's understanding of “street” is to ignore the plain and unambiguous words of the definition.   The court does not agree that the requirement is unclear.   There is no ambiguity in the words “affords the principal means of access.”   They mean exactly what they say, and because parcel B-1 has no access to and from the Lane, the Lane cannot serve as frontage for the lot.   Accordingly, there is no substantial evidence to support the Board's interpretation.

At trial, the applicant's attorney offered a new look at the language of the regulation.   For the first time, he argues that the words “affords the principal means of access” are modified by the words “to abutting property” in the sense that as long as the Lane affords the principal means of access for property which abuts his own property then he may use the Lane as frontage whether or not he has a legal right to use it.   So, in this particular case, the subdivision map shows David A. Blum, et al. as owning property which abuts the Lane at the cul de sac and also abuts parcel B-1. Counsel represented that the abutting strip of land serves as the principal means of access for the Blum property and therefore he argues that parcel B-1 may use the Lane as its frontage.

As a preliminary matter, the court notes that counsel has not identified any evidence in the record which supports the factual claim that the Blum property actually has any access to the Lane, whether over this strip or otherwise.   But more importantly, such an interpretation would revolutionize zoning jurisprudence by introducing the concept that zoning restrictions on one property should be governed not by conditions and features which exist on that land but rather by those that are present on the next door neighbor's land.   This view of the regulation would extend its meaning beyond its express terms.  Raymond v. Zoning Board of Appeals, 76 Conn.App. 220, 234 (2003) and would lead to irrational results.  King v. Board of Education, 203 Conn. 332-33.

The controversy in this case is not unlike that which confronted the Appellate Court in Azzarito v. New Canaan Planning and Zoning Commission, 79 Conn.App. 614 (2003).   In that case the Court applied well recognized principles of statutory construction in determining that one of the subdivision lots did not have sufficient frontage on either a public highway or “upon ” a private road 50' in width because it had less than the required portion of its width upon that road as required by the particular zoning regulation.   The pertinent regulation further provided all such lots must have their “minimum width parallel to the street front.”  (Emphasis added.)   The court focused on the meaning of the words “upon” and “width” and held that the entire required frontage not just a portion of it must have bordered the private road in order to satisfy the frontage requirements.   The foregoing analysis leads to the conclusion that the Board's interpretation of the lot frontage regulation is incorrect.⁸

Because the court has determined that the Board acted illegally in approving the subdivision, a revised subdivision will, of necessity, have different lot lines.   Therefore, there is no need for the court to adjudicate the plaintiff's claim that the lot lines are tortured in violation of Section 5.2.5 of the subdivision regulations.

The appeal is sustained.

THE COURT

By MOTTOLESE, J.T.R.

FOOTNOTES

FN1. The conditions are as follows:(1) Delineation of “Open Space Preserve/Conservation Area”-to be maintained in a natural state except as may be authorized by the Environmental Protection Board (EPB) and where appropriate, reconstituted as meadow;  the area so designated is approximately 2.8 acres and is shown on a map dated revised 5/6/08 on file in the Planning Board office.(2) Filing of a Standard “Conservation Easement Agreement” to include the area designated as “Open Space Preserve/Conservation Area” at the time of filing of the final subdivision map.   This area shall be field staked with iron pipes at all property boundaries at turning points of the easement boundary..  FN1. The conditions are as follows:(1) Delineation of “Open Space Preserve/Conservation Area”-to be maintained in a natural state except as may be authorized by the Environmental Protection Board (EPB) and where appropriate, reconstituted as meadow;  the area so designated is approximately 2.8 acres and is shown on a map dated revised 5/6/08 on file in the Planning Board office.(2) Filing of a Standard “Conservation Easement Agreement” to include the area designated as “Open Space Preserve/Conservation Area” at the time of filing of the final subdivision map.   This area shall be field staked with iron pipes at all property boundaries at turning points of the easement boundary.

FN2. The approved subdivision map shows that actual access to parcel B-2 will be over a driveway to be constructed on adjacent parcel B-1. While the propriety of such access has been debated among the parties it is unnecessary for this court to resolve that issue in view of its resolution of the other issues presented by this appeal..  FN2. The approved subdivision map shows that actual access to parcel B-2 will be over a driveway to be constructed on adjacent parcel B-1. While the propriety of such access has been debated among the parties it is unnecessary for this court to resolve that issue in view of its resolution of the other issues presented by this appeal.

FN3. See Bankers Trust Company, Executor v. Zoning Board of Appeals of Weston, 165 Conn. 624, 633 (1974) in which our Supreme Court held that under the Weston zoning regulations an easement of way could not be used to make up yard and area requirements because the definition of “lot” required that land used for that purpose be “open space” and an easement of way is therefore inconsistent with the concept of open space..  FN3. See Bankers Trust Company, Executor v. Zoning Board of Appeals of Weston, 165 Conn. 624, 633 (1974) in which our Supreme Court held that under the Weston zoning regulations an easement of way could not be used to make up yard and area requirements because the definition of “lot” required that land used for that purpose be “open space” and an easement of way is therefore inconsistent with the concept of open space.

FN4. The plaintiffs also assert that Spring Hill Lane East is not a street because it is not public and it is not an “other thoroughfare” because it terminates in a cul de sac.   The court rejects such a restrictive interpretation.   Webster's New World Dictionary 2nd College Ed. at 1481 defines the word more broadly as “a way or passage through.”.  FN4. The plaintiffs also assert that Spring Hill Lane East is not a street because it is not public and it is not an “other thoroughfare” because it terminates in a cul de sac.   The court rejects such a restrictive interpretation.   Webster's New World Dictionary 2nd College Ed. at 1481 defines the word more broadly as “a way or passage through.”

FN5. Connecticut courts have consistently treated zoning frontage as street related.   See, Bankers Trust Company, Executor v. Zoning Board of Appeals Weston, 165 Conn. at 633-34..  FN5. Connecticut courts have consistently treated zoning frontage as street related.   See, Bankers Trust Company, Executor v. Zoning Board of Appeals Weston, 165 Conn. at 633-34.

FN6. The parties agree that reference to Spring Hill Lane West in this letter was intended to mean Spring Hill Lane East..  FN6. The parties agree that reference to Spring Hill Lane West in this letter was intended to mean Spring Hill Lane East.

FN7. It is noted that the Stamford definition of street differs from other municipalities in that the latter's regulations are silent on whether the frontage street must provide legal access to the lot.   Fuller, Land Use Law and Practice, 4:34 at 142..  FN7. It is noted that the Stamford definition of street differs from other municipalities in that the latter's regulations are silent on whether the frontage street must provide legal access to the lot.   Fuller, Land Use Law and Practice, 4:34 at 142.

FN8. The court also notes the curious inconsistency in the Board's treatment of the Lane as frontage when the subdivision map shows a side yard setback of 35' from the Lane rather than a front yard setback of 60.'   See Zoning Regulations Article III Sec. 4, subsection 1.5.e..  FN8. The court also notes the curious inconsistency in the Board's treatment of the Lane as frontage when the subdivision map shows a side yard setback of 35' from the Lane rather than a front yard setback of 60.'   See Zoning Regulations Article III Sec. 4, subsection 1.5.e.

Mottolese, A. William, J.T.R.