LLC v. Haddam Planning and Zoning Commission (2011)

MEMORANDUM OF DECISION

Plaintiff Nason Group, LLC (hereinafter “Nason”) appeals from a decision of the defendant Planning and Zoning Commission of the Town of Haddam (hereinafter “the Commission”) denying Nason's application for approval of a 21-lot subdivision.   Nason argues that the Commission's decision is illegal, arbitrary, and an abuse of its discretion.

I. Findings of Fact

In 2004, Nason filed for approval for Phases I and II of the Chatham Lake subdivision (hereinafter “the subdivision”).   The Commission approved a conventional subdivision for Phase I, which consisted of 38 lots and 14 existing lots.¹  The Commission took no action on Nason's Phase II application, which contained 21 lots.   As part of the Commission's approval of Phase I, it waived the requirement that Nason file an application for a conservation subdivision.   On March 12, 2008, Nason again filed an application with the Commission seeking approval of Phase II as a conventional subdivision.²  Between June 2, 2008 and September 15, 2008, the Commission held seven public hearings on Nason's subdivision application.   At the Planning Commission's October 20, 2008 meeting, it unanimously denied Nason's subdivision application.   Notice of the decision was published in the Middletown Press on October 22, 2008.

By Complaint dated October 27, 2008, Nason appealed the Commission's decision pursuant to § 8-8 of the Connecticut General Statutes, alleging that the Commission acted illegally, arbitrarily, and in abuse of its discretion.   The Haddam Town Clerk was served with the appeal on October 28, 2008.   Nason filed its Brief dated May 28, 2009, the Commission filed its Brief dated July 7, 2009, and Nason filed a Reply Brief dated August 11, 2009.   The parties presented oral argument before the court on October 12, 2010.

II. Discussion of Law

Appeals of decisions of planning and zoning commissions to the Superior Court are governed by § 8-8 of the Connecticut General Statutes.   In order to prevail on an appeal, a plaintiff must demonstrate that it is aggrieved by the decision of the commission, Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399 (2007), and that the commission's decision was illegal, arbitrary, or constituted abuse of its discretion.  Id., 408.

A. Is Plaintiff 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 (2006).  “An owner of property that is the subject of an application is aggrieved for the purpose of bringing an appeal, and a plaintiff may prove aggrievement by testimony at the time of trial;  Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 308 (1991);  or ‘by the production of the original documents or certified copies from the record.’  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 703 (2001).”   Joseph A. Sullo v. Zoning Board of Appeals, Town of Old Lyme, Docket No. CV 08 4008685, Judicial District of New London at New London (May 4, 2010, Purtill, J.T.R.).   At the hearing on this matter, Nason provided testimony and documentary evidence demonstrating that it owned the affected property during all relevant periods, together with testimony that it applied for the subdivision approval at issue.   Based on the foregoing, the court finds that Nason is aggrieved and that 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 Commission published notice in the Middletown Press on October 22, 2008.   Nason's appeal was commenced by service on the Haddam Town Clerk on October 28, 2008.   Accordingly, the court finds that the action is timely and was served in a proper manner.

C. Was the Commission's Decision Illegal, Arbitrary or an Abuse of its Discretion?

The court's review of the Commission'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 (1994) (internal citations omitted).

The Commission cited thirteen reasons for its denial of Nason's application, including the following:  1) That the proposed road design did not comply with the Haddam Subdivision Regulations (“the Regulations”);  2) That plaintiff failed to apply for a conservation subdivision as required by the Regulations;  and 3) That the Haddam Inland Wetlands Commission had denied plaintiff's request for a Regulated Activities Permit.

1) Did the Proposed Road Design Comply With the Regulations?

a) Did Silver Spring Drive Comply With the Regulations?

As proposed, Silver Spring Drive is 6,500 feet long.   Pursuant to § 4.4.2(2.e) of the Regulations, cul-de-sacs “closed at one end by building lots shall not exceed 1000 feet in length.”   A review of the proposed subdivision plan reveals that while the terminus of Silver Spring Drive partially abuts two building lots, it also abuts an area designated as open space.   Certainly, it cannot be said that Silver Spring Drive is “closed at one end by a building lot.”   As a result, the cited Regulation does not apply to Silver Spring Drive and the Commission's rejection of Nason's application on the ground that Silver Spring Drive does not comply with the applicable Regulations did not constitute a reasonable interpretation of those Regulations.

b) Did Highland Ridge Road Comply With the Regulations?

Highland Ridge Road, which extends 3,700 feet and terminates at the property line, presents a different issue given the fact that Nason requested that the Commission treat it as a temporary dead-end road, which is governed by § 4.4.2(2)(f) of the Regulations.   Under § 4.4.2(2)(f), dead-end roads may exceed 1000 feet in length if the dead end is temporary and the road will eventually connect to an existing road.   Nason argues that Highland Ridge Road will eventually connect with Pytlik Road, which runs along the other side of the abutting property and, as a result, Highland Ridge Road complies with the Regulations.   However, Nason's argument is undercut by its position in the related Inland Wetlands appeal, of which the court takes judicial notice:  “At the present time it is unclear whether there will ever be a through road connection.”   Nason Group, LLC v. Haddam Inland Wetlands Commission, Judicial District of Middlesex, Docket No. CV 08-4009643, Nason's March 4, 2009 Brief, pg. 22.   The Commission argues that the mere possibility of such a connection at some unspecified time in the future does not serve to satisfy the Regulations and that the exception is only applicable when plans for an actual connection are in place.

The court finds the Commission's position more persuasive.   If one takes Nason's argument to its logical conclusion, all dead-end roads ending at property lines would have to be considered temporary as the possibility theoretically exists that every dead-end road would eventually connect to an existing road.   Such a result would improperly thwart the Town's prohibition on dead end roads in subdivisions.   See, Board of Education v. State Board of Labor Relations, 217 Conn. 110, 126-27 (1991).   As a result, the court finds that the Commission exercised reasonable discretion in finding that, as proposed, Highland Ridge Road did not comply with § 4.4.2(2)(f) of the Regulations and in denying Nason's application on that basis.

2) Was Nason Required to File for a Conservation Subdivision?

A second ground for the Commission's denial of Nason's application was that Nason failed to first file an application for a conservation subdivision as required by § 4A.3 of the Regulations:  “All applications for a subdivision or resubdivision that would cause any Original Parcel to be divided ․ into six (6) or more lots shall be in the form of an application for a Conservation Subdivision.”   While Nason does not argue the applicability of § 4A.3 to the proposed subdivision, it maintains that the requirement itself is illegal and, in the alternative, that Commission's waiver of the conservation subdivision requirement for Phase I of the subdivision constituted a waiver of the requirement for Phase II.

a) Is the Conservation Subdivision Requirement Illegal?

The Haddam subdivision regulation at issue in this case was recently upheld against a challenge to its legality in Aiuda v. Haddam Planning and Zoning Commission, Docket No. 06-4004620, Judicial District of Middlesex at Middletown (March 19, 2007, Iannotti, J.):  “The court finds that the Haddam subdivision regulation requiring an applicant for a subdivision of a parcel of six or more lots to submit a conservation subdivision is a legitimate use of the authority granted to the planning commission under the General Statutes.”   However, subsequent to the Aiuda decision, the Connecticut Supreme Court issued its decision in Lord Family of Windsor v. Planning and Zoning Commission, 288 Conn. 730 (2008), which Nason maintains is applicable to this case and renders the conservation subdivision requirement illegal.   This court rejects Nason's argument as being based on an overly broad reading of the Lord Family case, where the Supreme Court found that the Commission illegally exercised its zoning powers pursuant to General Statutes § 8-2 as opposed to its authority to regulate the subdivision of land pursuant to § 8-25, a distinction that the Lord Family decision explores in great detail.   Id., 734-37.   As a result, the court adopts the court's reasoning in Aiuda in finding the conservation subdivision requirement “legal and enforceable.”  Aiuda, supra.

b) Did the Commission Waive the Conservation Subdivision Requirement?

Nason argues that the Commission's express waiver of the conservation subdivision requirement for Phase I in 2004 constituted an implied waiver of the requirement for Phase II.³ To put it another way, Nason is arguing that the Commission is estopped from using the conservation subdivision requirement as a reason for denying Nason's Application.  “[I]mplied waivers and estoppels by conduct are so similar that they are nearly indistinguishable.”  O'Hara v. State, 218 Conn. 628, 641 (1991).

Nason cites no authority for its argument.   However, a similar situation confronted the court in Watt v. Planning and Zoning Commission, Judicial District of Litchfield, Docket No. CV 99-0080594 (September 5, 2000, Frazinni, J.), where the court rejected an appellant's claim that a planning commission had waived its open space requirements and was, as a result, estopped from using the appellant's failure to comply as a reason for denying appellant's subdivision application.   Essentially, the court in Watt found no evidence in the record that the commission had “affirmatively misled the plaintiff into believing that open space would not be required” or “ever expressly waive[d] the open space requirement.”  “The court finds no merit in the plaintiff's claim of waiver or estoppel ․ ‘Waiver is the voluntary relinquishment of a known right.   It involves the idea of assent, and assent is an act of understanding ․ Intention to relinquish must appear, but acts and conduct inconsistent with intention [not] to [relinquish] ․ are sufficient.’   Southbridge Assoc. v. Garofalo, 53 Conn.App. 11, 20, 728 A.2d 1114 (1999), cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).   Equitable estoppel, similarly, ‘is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, ․ as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse ․ Its two essential elements are that one party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act on that belief, and that the other party, influenced thereby, must change his position or do some act to his injury which he otherwise would not have done.’  (Internal quotation marks omitted;  citations omitted.)  Emerick v. Emerick, 28 Conn.App. 794, 802, 613 A.2d 1351 (1992), cert. denied, 224 Conn. 915 (1992).”  Id. The record in this case is similarly bereft of any evidence that the Commission indicated that it would not require Nason to file a conservation subdivision application for Phase II. As a result, the court finds that the Commission reasonably interpreted and applied its Regulations in denying Nason's application on this basis.

3) Did the Commission Improperly Rely on the Inland Wetlands Commission's Denial of Nason's Application for a Regulated Activities Permit?

One of the reasons the Commission listed in support of its denial of Nason's application was the fact that several days prior, the Haddam Inland Wetlands Commission (“IWC”) had denied Nason's application for a Regulated Activities Permit for a portion of the affected property:  “[T]he denial of activities requiring a permit by the Haddam Inlands Wetlands Commission does not permit the construction of the plan referenced above.”

Nason argues that the Commission's unquestioning acquiescence to the IWC decision violates the statutory scheme regarding the interaction between the two bodies and that any action by the Commission “which gives the wetland agency veto power over any proposed subdivision application if the land to be subdivided contains inland wetlands, directly contradicts the division of authority mandated by Section 8-26.”  Thoma v. Planning and Zoning Commission, 31 Conn.App. 643, 651 (1993), affirmed, 229 Conn. 325 (1994).   Section 8-26(e) requires the Commission to give “due consideration to the report of the inland wetlands agency.”   This requirement has been held to constitute recognition that, “as practical matter, a wetlands agency's determination that the construction of a subdivision would have an adverse affect on the wetlands does not necessarily render the subdivision infeasible.”  Carr v. Planning and Zoning Commission, 273 Conn. 573, 597 (2006).

Defendant counters that in listing the adverse decision of the IWC as one of its reasons for denying Nason's subdivision application;  the Planning Commission was merely noting the decision's existence.   Even if this were the case, in view of the cited authority, it would not serve to make the Inland Wetlands Commission's decision, standing alone, a valid reason for denial of Nason's subdivision application.   Additionally, there is no evidence that the Planning Commission gave the IWC decision the “due consideration” required by § 8-26(e).   As a result, the IWC decision was not a valid reason to deny Nason's subdivision application.

III. Conclusion

The court having found that the Commission reasonably interpreted and applied its Regulations in denying Nason's subdivision application based on Highland Ridge Road's noncompliance with the Regulations and Nason's failure to apply for a conservation subdivision, Nason' s appeal is hereby dismissed.

James W. Abrams, J.

FOOTNOTES

FN1. The Commission approved a 73-lot subdivision on the property at issue in 1990 which it reapproved in 1994.   However, the Commission vacated its approval in 1997, after 14 lots had been developed..  FN1. The Commission approved a 73-lot subdivision on the property at issue in 1990 which it reapproved in 1994.   However, the Commission vacated its approval in 1997, after 14 lots had been developed.

FN2. On March 14, 2008, Nason filed an application with the Haddam Inland Wetlands commission (“IWC”) for a Regulated Activities Permit on a portion of the Phase II property.   On October 14, 2008, the IWC denied Nason's application.   Nason took an appeal of the IWC's decision:  Nason Group, LLC v. Haddam Inland Wetlands Commission, Judicial District of Middlesex, Docket No. CV 08-4009643..  FN2. On March 14, 2008, Nason filed an application with the Haddam Inland Wetlands commission (“IWC”) for a Regulated Activities Permit on a portion of the Phase II property.   On October 14, 2008, the IWC denied Nason's application.   Nason took an appeal of the IWC's decision:  Nason Group, LLC v. Haddam Inland Wetlands Commission, Judicial District of Middlesex, Docket No. CV 08-4009643.

FN3. Nason also argues that the Commission's failure to require a conservation subdivision as part of the 1990 and 1994 approvals supports its waiver claim.   While the Record indicates that the Haddam Subdivision Regulations were first enacted in 1956, it also indicates there have been significant amendments to the Regulations since the approvals cited by Nason.   The Record is unclear whether the conservation subdivision requirement existed in 1990 or 1994, but the court will assume that it did for the purposes of this inquiry..  FN3. Nason also argues that the Commission's failure to require a conservation subdivision as part of the 1990 and 1994 approvals supports its waiver claim.   While the Record indicates that the Haddam Subdivision Regulations were first enacted in 1956, it also indicates there have been significant amendments to the Regulations since the approvals cited by Nason.   The Record is unclear whether the conservation subdivision requirement existed in 1990 or 1994, but the court will assume that it did for the purposes of this inquiry.

Abrams, James W., J.