Joshua L. Milrad et al. v. Hamden Planning & Zoning Commission (2011)

MEMORANDUM OF DECISION

I

STATEMENT OF APPEAL

The plaintiffs, Joshua L. Milrad and Kimberly Patton, appeal from the decision of the defendant, Hamden planning & zoning commission (“commission”), to approve amendments to the town of Hamden's plan of conservation and development (“POCD”).

II

BACKGROUND

The return of record and pleadings reveal the following relevant facts and procedural history.   The plaintiffs are the owners of real property located at 1743 Whitney Avenue in Hamden, Connecticut.  (Pl.Exh, 1.) The defendant is the agency which voted to approve and adopt the amendments to the POCD for the Town of Hamden.¹  (Return of Record [ROR], Exhibit [Exh.] 22.)

The Town of Hamden's POCD was originally adopted by the commission in 2004.   (Id.) On or around June 11, 2009, the commission began the process of submitting a formal application proposing to amend its POCD.² (ROR, Exh. 1.)

The POCD included, among other proposed amendments, the addition of “Goal # 16,” which states:  “Support changes in roadway configuration where desirable to meet community needs and desires for form, function, and other purposes.”   (ROR, Exh. 21, pg.9.) Various objectives are also listed under Goal # 16 such as “encourage street trees” and “engineer streets to make pedestrians feel safe.”  (Id.) Goal # 16 also includes “possible thoroughfare refinements” related specifically to “Whitney Avenue (south of SR40).”  (Id.) Four drawings were included under this section depicting Whitney Avenue as it currently exists, along with three alternate renderings (Id.) Included among the alternatives are “Possibility # 2” and “Possibility # 3,” which both envisioned the road with, inter alia, a “new curb line” and “on-street parking.”  (Id.) Below each of these larger drawings was a smaller surface view drawing of the street with smaller text detailing the proposed width of each element of these possibilities.  (Id.)

The commission held a public hearing on the application to amend the POCD on September 22, 2009.  (ROR, Exh. 22.)   At the public hearing, the commission heard testimony from Hamden town planner Leslie Creane and assistant town planner Dan Kops, as well as one member of the public speaking in support of the amended POCD. (ROR, Exh. 24.)   Letters in support of the amended POCD were submitted from the regional planning commission of the South Central Regional Council of Governments, the State of Connecticut Department of Public Health, and the Regional Water Authority.  (ROR, Exh. 10, 17, 18.)   There were no speakers in opposition to the amendment.  (ROR, Exh. 24.)   At the close of the public hearing, the commission voted unanimously to approve the application to amend the POCD. (ROR, Exh. 22.)   The plaintiffs now appeal the commission's decision to approve the amendments to the POCD. The plaintiffs served the defendant on October 13, 2009.   The defendant filed its return of record containing twenty-four exhibits on December 18, 2009.   The appeal was heard by this court on November 10, 2010.

The plaintiffs claim on appeal that the commission's action in approving Possibility # 2 and Possibility # 3 in Goal # 16 of the amended POCD was “unreasonable, arbitrary, and illegal” because:(1) the “text and font size of Possibility # 2 and Possibility # 3” was excessively small so as to be inconsistent with state guidelines, thereby depriving the public of a meaningful opportunity to participate in the public hearing;  (2) there is “no evidence in the record to establish that Possibility 2 or Possibility 3 and the widening of Whitney Avenue would calm traffic or achieve any of the objectives stated in Goal # 16;” (3) Possibilities # 2 and # 3 are ambiguous and do not properly set forth the goals of a municipality as required by General Statutes § 8–23;  (4) the commission's action in approving Possibilities # 2 and # 3 “ignores applicable government guidelines for traffic assessment and responsive measures,” and;  (5) the approval of the amendment to the POCD was “an ultra vires act ․ because the Town of Hamden does not control or own Whitney Avenue south of SR–40 to the Hamden town line.”

In opposition, the defendant contends that the plaintiffs are not aggrieved because the plaintiffs “do not own property which is affected by the amendments to the POCD because the POCD does not actually authorize any particular development and any particular property.”   Further, the defendant counters that it did not abuse its discretion in approving the amendments to the POCD. In particular, the defendant argues the POCD amendments are not in violation of any state guidelines regarding font size, because “there is no specific font or type size requirement for proposed regulations.”   The defendant also argues that the amendments were not contrary to government traffic guidelines because the organization which provides those guidelines reviewed and approved the amendments, and the commission's adoption was not an ultra vires act because the POCD is merely advisory and does not implement development on any property over which it does not control.

III

JURISDICTIONAAggrievement

“[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ [I]n order to have standing to bring an administrative appeal, a person must be aggrieved ․ Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  (Internal quotations marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399–400, 920 A.2d 1000 (2007).

“Aggrievement exists in two forms:  statutory and classical aggrievement.   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 ․ Classical aggrievement, in contrast, requires an analysis of the particular facts of the case in order to ascertain whether a party has been aggrieved and, therefore, has standing to appeal.”  (Internal quotation marks omitted.)  Shockley v. Okeke, 92 Conn.App. 76, 80, 882 A.2d 1244 (2005), appeal dismissed, 280 Conn. 777, 912 A.2d 991 (2007).

The plaintiffs claim statutory aggrievement under § 8–8(a)(1) which provides, in relevant part:  “In the case of a decision by a ․ combined planning and zoning commission ․'aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”   The plaintiffs specifically allege “ownership of property that abuts or is within 100 feet of Whitney Avenue.”   At trial, the plaintiffs provided the following evidence of statutory aggrievement:  a certified copy of a warranty deed, (Pl.Ex. 1);  property survey of Whitney Avenue, (Pl.Ex. 2);  a town of Hamden Assessment Parcel Map, (Pl.Ex. 3);  and testimony of such ownership.

The evidence shows that the plaintiffs are aggrieved by the decision of the commission.   The defendant's argument that the plaintiffs are not aggrieved because the commission's action to approve the POCD does not actually authorize development on any particular property is unavailing.  “Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  (Emphasis added;  internal quotation marks omitted.)  Pomazi v. Conservation Commission, 220 Conn. 476, 483, 600 A.2d 320 (1991).   The commission approved the addition to the POCD of “possible thoroughfare refinements” to Whitney Avenue in Goal # 16.   The plaintiffs have provided evidence they are located within the statutory radius of a portion of Whitney Avenue encompassed within the commission s decision to approve those possible thoroughfare refinements.   The court, mindful that “in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged,” will presume for the purposes of this appeal, that the commission's decision to approve the amended POCD will adversely affect the plaintiffs if Possibility # 2 or Possibility # 3 were to ever be pursued by the town.  (Internal quotation marks omitted.)  Massey v. Branford, 119 Conn.App. 453, 458, 988 A.2d 370, cert. denied, 295 Conn. 921, 991 A.2d 565 (2010).   Thus, the plaintiffs have established standing for its appeal by pleading and proving it has been statutorily aggrieved by the decision of the commission.

B

Service of Process and Timeliness

The defendant published notice of its decision in the New Haven Register on September 29, 2009.   The plaintiffs include a marshal's return of service indicating that the action was commenced by service of two copies of the process upon the clerk of the municipality on October 13, 2009.   Thus, the plaintiff's service of process is proper, and its appeal to this court is timely as it was within the statutorily allowed time after publication of the commission's decision.  General Statutes §§ 52–57(b)(5) and 8–8(a)(2)(b).³

IV

STANDARD OF REVIEW

“[T]he scope of judicial review depends on whether the zoning commission has acted in its legislative or administrative capacity.”  Cottle v. Planning and Zoning Commission, 100 Conn.App. 291, 293–94, 917 A.2d 1030 (2007).   In this appeal, it is not disputed by the parties that when the defendant approved the proposed amendments to the town POCD, it was acting in its legislative capacity.

“Acting in such a legislative capacity, the [planning and zoning authority] has wide and liberal discretion ․ and is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change.”  (Internal quotation marks omitted.)  Dutko v. Planning and Zoning Board, 110 Conn.App. 228, 230–31, 954 A.2d 866 (2008).  “These well established principles are reflected in the evidentiary rules governing appeals from zoning decisions.   Appeals from legislative zoning decisions require a showing that the commission has acted arbitrarily ․ illegally ․ or in abuse of discretion ․ Legislative decisions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record ․” (Citations omitted;  internal quotation marks omitted.)  Kaufman v. Zoning Commission, 232 Conn. 122, 151, 653 A.2d 798 (1995).   Where, as in the present case, the commission fails to state formal reasons for its decision, the court must search the complete record to determine if there is an adequate basis to support the decision.   Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988).

V

DISCUSSIONAText Size of Proposed Amendments to the POCD

The plaintiffs first argue that the commission abused its discretion because the “text and font size of Possibility # 2 and Possibility # 3” did not meet state guidelines, and was “too small for any informed debate by the public, thereby rendering public hearings on the amendments to the POCD meaningless.”   In support of this contention, the plaintiffs cite the Connecticut Manual for Drafting Regulations (Part B, Rev. December 2009), as setting forth the requisite guidelines, which states, in relevant part:  “There is no specific font or type size requirement for proposed regulations but many agencies use a standard font and size such as 12–point Times New Roman.”

The plaintiffs' reliance on this manual to show that the commission exceeded its discretion is misplaced.   By its own unambiguous language, the manual states that there is no minimum required font size, so the commission could not possibly have violated any supposed requirements.   Further, the plaintiffs cite no Connecticut case law or statute supporting their proposition that the manual's stylistic suggestions are mandatory upon any agency in drafting regulations, much less in drafting a non-binding POCD. See AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 575–76, 775 A.2d 284 (2001) (“the overall objectives contained in the town plan must be implemented by the enactment of specific regulations”).   Moreover, in the court's review of the record, each of the challenged possibilities is accompanied by larger drawings detailing what the proposed street would look like if each possibility were to be enacted, complete with depictions of possible on-street parking and a new turning lane.  (ROR, Ex. 21, p. 9.) Further, directly below the heading of each possibility is larger text providing a written description of the changes proposed such as “new curb line” and “diagonal on-street parking.”   A review of the record, including the duly published legal notice, make it clear that a member of the public would be put on notice that distinct changes to Whitney Avenue could occur if Possibility # 2 or # 3 were ultimately undertaken.   Thus, the plaintiffs have not satisfied their burden under this claimed basis for appeal to show that the commission acted arbitrarily or in abuse of its discretion.

B

Record Evidence that Possibilities will Achieve Objectives of Goal # 16

The plaintiffs also assert that there is “no evidence in the record to establish that Possibility # 2 or Possibility # 3 and the widening of Whitney Avenue would calm traffic or achieve any of the objectives stated in Goal # 16.”   A review of the record shows there is an adequate basis of evidence in the record to reasonably support the commission's decision to amend the POCD to include Goal # 16 so as to achieve those objectives.

One of the stated objectives listed under Goal # 16 is to “use street design for ‘calming’ traffic and making neighborhoods safer.”   The record shows that the commission received testimony at the September 22, 2009 public hearing from Hamden Town Planner Leslie Creane stating that the POCD covers “traffic issues, which came up time and again in our public meetings, ways to address traffic issues, traffic calming [alternatives] to traffic patterns ․” (ROR, Exh. 24.)   The commission also heard further testimony at the hearing by Assistant Town Planner Daniel Kops. In reference to the POCD chapter which contains Goal # 16, Kops testified that the amended POCD “contains new text promoting improved accessibility for pedestrians as well as traffic calming, in a manner consistent with SmartCode.”  (ROR, Exh. 19.)

Further, the objective of calming traffic was but one of seven objectives listed under Goal # 16.   Goal # 16 also includes objectives to, inter alia, “encourage street trees,” and “encourage on-street parking where appropriate and use these parking areas to buffer sidewalks, making pedestrians feel safer.”   A review of the challenged Possibilities # 2 and # 3 clearly shows that they both include “new planting” and on-street parking.   Moreover, the POCD was submitted for review to the State of Connecticut Department of Health.  (ROR, Exh. 16.)   The record includes a return letter from the Department of Health stating that:  “[T]he proposed amendments to the POCD contain several concepts that are considered proactive approaches to source water protection such as the addition of planting areas along established streets.   Implementation of this concept, as found in Goal # 16 Possible Thoroughfare Refinements, will provide areas for stormwater infiltration and renovation as well as being attractive for residents and travelers along the streets.”  (ROR, Exh. # 17.)   Based on the evidence, the commission's action was not arbitrary or an abuse of discretion in approving Goal # 16 among the amendments to the POCD, and was reasonably supported by the record.

C

Consistency of Possibilities # 2 and # 3 with Government Guidelines

The plaintiffs next argue that the commission's action in approving Possibility # 2 and # 3 was an abuse of discretion because it “ignores applicable government guidelines for traffic assessment and responsive measures” encompassed within a traffic calming resource guide (“resource guide”) prepared by the South Central Regional Council of Governments (“SCRCG”).  Specifically, the plaintiffs argue that “there was no evidence presented that would have allowed the commissioners to assess whether the possibilities would have achieved the purported goal of traffic calming.”   This argument is without merit.   The return of record includes evidence that the proposed amendments to the POCD were submitted to the SCRCG for its review on June 11, 2009.⁴  (ROR, Exh. 2.) In a letter dated July 10, 2009, the chairman of the South Central Connecticut Regional Planning Commission confirmed that the proposed amendments to the PCOD were reviewed during its meeting and “by resolution, the RPC has determined that the proposed amendments to the Town of Hamden's Plan of Conservation and Development are consistent with both the policies of the State and Regional Plan of Conservation and Development.”  (ROR, Exh. 10.)   Thus, the record shows that the proposed amendments to the POCD were submitted and reviewed by the same association that prepared the government guide, and was found to be consistent with state and regional planning policies.   The commission could have reasonably relied on this evidence of consistency with government guidelines in its approval of the amendments to the POCD. The plaintiffs have not shown that the commission abused its discretion or acted arbitrarily in this regard as the commission's decision was reasonably supported by the evidence in the record.

D

Possibilities # 2 and # 3 are Ambiguous and Inconsistent with Statutory Requirements and the Adoption of the Possibility of Widening Whitney Avenue is an Ultra Vires Act

The plaintiffs finally argue that Possibilities # 2 and # 3 in Goal # 16 “are too ambiguous and do not properly set forth the ‘goals' of a municipality as required by C.G.S. § 8–23.”   Further, the plaintiffs claim that the commission's approval of the POCD amendments was “an ultra vires act ․ because the Town of Hamden does not control or own Whitney Avenue south of SR–40 to the Hamden town line.”   These arguments are without merit as the plaintiffs seemingly misconstrue the purpose of a POCD.

A community's POCD is prepared, amended and adopted by a planning and zoning commission pursuant to § 8–23.  Section 8–23(e)(1) provides in relevant part:  “Such plan of conservation and development shall (A) be a statement of policies, goals and standards for the physical and economic development of the municipality ․ (D) recommend the most desirable use of land within the municipality for residential, recreational, commercial, industrial, conservation and other purposes and include a map showing such proposed land uses ․” ⁵ (Emphasis added.)   In reflection of this statutory language, our Supreme Court “repeatedly has recognized that a [POCD] is to set forth the most desirable use of land and overall plan for the town ․ Because the overall objectives contained in the town plan must be implemented by the enactment of specific regulations, the plan itself can operate only as an interpretive tool.”  (Citations omitted;  internal quotation marks omitted.)   AvalonBay Communities, Inc. v. Orange, supra, 256 Conn. 574–76;  see also R. Fuller, 9A Connecticut Practice Series:  Land Use Law and Practice (3d.   Ed.2007) § 21:15, p. 641 (“The recommendations in the plan of conservation and development designating appropriate uses for various areas in the municipality is merely advisory to and does not bind the zoning commission”).

In this appeal, the record shows that Possibilities # 2 and # 3 envision “possible thoroughfare refinements” to Whitney Avenue in support of Goal # 16, which states:  “Support changes in roadway configuration where desirable to meet community needs and desires for form, function, and other purposes.”   The record shows that both Possibilities # 2 and # 3 include specific recommendations to the configuration, form and function of Whitney Avenue, including:  “new planting,” a “center turn lane,” and “on-street parking.”   These terms are not ambiguous and the commission could have reasonably found that they sufficiently articulate “goals and standards for the physical and economic development of the municipality.” § 8–23(e)(1)(A).   The record reasonably supports a finding that Possibilities # 2 and # 3 are specific articulations of form and functional changes for the physical development of the municipality in accordance with the broad visionary requirements of § 8–23.   This is especially so where the plaintiffs challenge a POCD which merely serves as a broad interpretive tool to set forth goals and recommendations for the most desirable use of land, but does not put into force any specific regulations.   Thus, the plaintiffs have not sustained their burden to show that the commission abused its discretion or acted arbitrarily on this basis for appeal.

Further, the adoption of the POCD by the commission was not an ultra vires act simply because the town may not control all of the land that is encompassed within the recommendations set forth in the amended POCD. “The development plan is the planning commission's recommendation on the most desirable uses of all land within the community, including all public and private uses from street layouts to industrial sites.”  (Emphasis added.)  AvalonBay Communities, Inc. v. Orange, supra, 256 Conn. 575, quoting T. Tondro, Connecticut Land Use Regulation (2d Ed.1992) pp. 203–04.   Moreover, the statutory requisite that a POCD “provide for a system of principal thoroughfares” and be “designed to promote ․ the coordinated development of the municipality” would be thwarted if a commission were required to set forth visionary goals for only the land in which the municipality owned or had control of at any particular moment in time. § 8–23(e)(1)(B)–(C).  The plaintiffs have not sustained their burden to show that the commission acted illegally in adopting the amendments to the POCD on the basis that the municipality does not own or control the challenged portion.

CONCLUSION

For the foregoing reasons, the appeal of the plaintiffs is dismissed.

Woods, J.

FOOTNOTES

FN1. The defendant argues that the appeal should be dismissed due to the plaintiffs naming the wrong party as a defendant.  “The agency that made the decision is the proper and essential party to an administrative appeal.”   R. Fuller, 9A, Connecticut Practice Series:  Land Use Law and Practices (3d Ed.2007) § 27.1(D), p. 56.   The defendant's own briefing states that the “Defendant Hamden Planning and Zoning Commission ․ is the agency designated to approve and adopt the [POCD] pursuant to CGS 8–23.”   The plaintiffs here appeal the September 22, 2009 unanimous decision of the commission to approve the amended POCD. Because the commission is the “agency that took the action by which the plaintiff[s] claims to be aggrieved,” it is a proper party defendant.  Nanavati v. Department of Health Services, 6 Conn.App. 473, 475, 506 A.2d 152 (1986)..  FN1. The defendant argues that the appeal should be dismissed due to the plaintiffs naming the wrong party as a defendant.  “The agency that made the decision is the proper and essential party to an administrative appeal.”   R. Fuller, 9A, Connecticut Practice Series:  Land Use Law and Practices (3d Ed.2007) § 27.1(D), p. 56.   The defendant's own briefing states that the “Defendant Hamden Planning and Zoning Commission ․ is the agency designated to approve and adopt the [POCD] pursuant to CGS 8–23.”   The plaintiffs here appeal the September 22, 2009 unanimous decision of the commission to approve the amended POCD. Because the commission is the “agency that took the action by which the plaintiff[s] claims to be aggrieved,” it is a proper party defendant.  Nanavati v. Department of Health Services, 6 Conn.App. 473, 475, 506 A.2d 152 (1986).

FN2. General Statutes § 8–23(a)(1) provides, in relevant part:  “At least once every ten years, the commission shall prepare or amend and shall adopt a plan of conservation and development for the municipality ․ The commission may adopt such geographical, functional or other amendments to the plan or parts of the plan, in accordance with the provisions of this section, as it deems necessary.”.  FN2. General Statutes § 8–23(a)(1) provides, in relevant part:  “At least once every ten years, the commission shall prepare or amend and shall adopt a plan of conservation and development for the municipality ․ The commission may adopt such geographical, functional or other amendments to the plan or parts of the plan, in accordance with the provisions of this section, as it deems necessary.”

FN3. Section 52–57(b) provides, in relevant part:  “process in civil actions against the following-described classes of defendants shall be served ․ (5) against a board, commission, department or agency of a town ․ 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 board, commission, department or agency.”Section 8–8(a)(2)(b) provides:  “The appeal shall be commenced by service of process ․ within fifteen days from the date that notice of the decision was published as required by the general statutes.”.  FN3. Section 52–57(b) provides, in relevant part:  “process in civil actions against the following-described classes of defendants shall be served ․ (5) against a board, commission, department or agency of a town ․ 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 board, commission, department or agency.”Section 8–8(a)(2)(b) provides:  “The appeal shall be commenced by service of process ․ within fifteen days from the date that notice of the decision was published as required by the general statutes.”

FN4. The plaintiffs make much of the fact that portions of the POCD were edited during the application to amend process, making it unclear as to what version of the proposed amendments the SCRCG reviewed.   This is immaterial.   The plaintiffs focus their appeal on Possibilities # 2 and # 3 of Goal # 16, which, on review, appear to have remained materially unchanged from the June 2, 2009 version to the September 22, 2009 adopted version of the POCD..  FN4. The plaintiffs make much of the fact that portions of the POCD were edited during the application to amend process, making it unclear as to what version of the proposed amendments the SCRCG reviewed.   This is immaterial.   The plaintiffs focus their appeal on Possibilities # 2 and # 3 of Goal # 16, which, on review, appear to have remained materially unchanged from the June 2, 2009 version to the September 22, 2009 adopted version of the POCD.

FN5. Section 8–23(e)(1) provides more fully:  “Such plan of conservation and development shall (A) be a statement of policies, goals and standards for the physical and economic development of the municipality, (B) provide for a system of principal thoroughfares, parkways, bridges, streets, sidewalks, multipurpose trails and other public ways as appropriate, (C) be designed to promote, with the greatest efficiency and economy, the coordinated development of the municipality and the general welfare and prosperity of its people and identify areas where it is feasible and prudent (i) to have compact, transit accessible, pedestrian-oriented mixed use development patterns and land reuse, and (ii) to promote such development patterns and land reuse, (D) recommend the most desirable use of land within the municipality for residential, recreational, commercial, industrial, conservation and other purposes and include a map showing such proposed land uses, (E) recommend the most desirable density of population in the several parts of the municipality, (F) note any inconsistencies with the following growth management principles ․ (iii) concentration of development around transportation nodes and along major transportation corridors to support the viability of transportation options and land reuse ․”.  FN5. Section 8–23(e)(1) provides more fully:  “Such plan of conservation and development shall (A) be a statement of policies, goals and standards for the physical and economic development of the municipality, (B) provide for a system of principal thoroughfares, parkways, bridges, streets, sidewalks, multipurpose trails and other public ways as appropriate, (C) be designed to promote, with the greatest efficiency and economy, the coordinated development of the municipality and the general welfare and prosperity of its people and identify areas where it is feasible and prudent (i) to have compact, transit accessible, pedestrian-oriented mixed use development patterns and land reuse, and (ii) to promote such development patterns and land reuse, (D) recommend the most desirable use of land within the municipality for residential, recreational, commercial, industrial, conservation and other purposes and include a map showing such proposed land uses, (E) recommend the most desirable density of population in the several parts of the municipality, (F) note any inconsistencies with the following growth management principles ․ (iii) concentration of development around transportation nodes and along major transportation corridors to support the viability of transportation options and land reuse ․”

Woods, Glenn A., J.