William Latham et al. v. Town of Stonington Planning and Zoning Commission (2011)

MEMORANDUM OF DECISION

This is an appeal by the plaintiffs, William Latham and Carol Latham, from a decision of the Town of Stonington Planning and Zoning Commission amending the Town of Stonington Zoning Map to change approximately 160 acres of land in Zones RA–80, RA–40 and RA–15 to Zone RA–20. The plaintiffs' property, which is located in Zone RA–80, was included in an application filed by the Commission for zone change, but was not included by the Commission in the property which was rezoned.   The plaintiffs claim that the decision of the Commission to exclude their property from the zone change was arbitrary, unreasonable and discriminatory in that their property is in the same general vicinity as the property included in the amendment.   The plaintiffs request that the court order the Commission to amend the zoning classification of the plaintiffs' property from Zone RA–80 to Zone RA–20.

The plaintiffs' property was originally included in the application for zone change and is located in the same vicinity as the property which was rezoned.   Accordingly, the plaintiffs are aggrieved by the action of the Commission.

On April 23, 2009, the Commission applied to amend the Stonington Zoning Map to rezone property in the Town of Stonington from RA–80, RA–40 and RA–15 zone to RA–20 zone.   Three categories of properties were included in the application.   The first two categories consisted of properties located in two subdivisions which were built out on small building lots.   The other category, which included the plaintiffs' property and other properties, consisted of properties which were basically undeveloped lots.   The Commission changed the zone of the two subdivisions to RA–20 zone, but did not change the zone of the remaining properties.

This case involves a decision upon an application for a change in zone by the Commission acting in its legislative capacity.  Burham v. Planning and Zoning Commission, 189 Conn. 201, 265 (1983).   The principles governing appeals from such zoning decisions are set forth in Burham id., as follows:

In such circumstance, it is not the function of the court to retry the case.   Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record.   The credibility of the witnesses and the determination of issues of fact are solely within the province of the agency.   The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached.  (Citation omitted.)

A zoning agency is endowed with liberal discretion and its decisions are subject to review by a court only to determine whether the agency acted arbitrarily, illegally or unreasonably.  Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991).   The burden of demonstrating that the agency acted improperly is upon the party seeking to overturn the agency's decision.  Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988).

The courts apply a two-fold test to the action of a zoning commission acting upon a zone change:  (1) The zone change must be in accordance with a comprehensive plan;  (2) it must be reasonably related to the normal police power purpose enumerated in General Statutes § 8–2.  Ghent v. Zoning Commission, 220 Conn. 584, 600 (1991).

In the present case, the Commission excluded the properties of the plaintiffs and others in the vicinity from the zone changes which it adopted.   Such properties remain in the zones in which they were established and, accordingly, are consistent with the comprehensive plan for the Town of Stonington.   Also, the action of the Commission was within its powers under § 8–2.

The Commission decided to change the zoning of properties located in two subdivisions which had undergone extensive development.   The Commission excluded from the zone changes properties which had not experienced such development.   Such action was clearly within the authority of the Commission.

Based upon the foregoing, the court finds that the Commission's action was not arbitrary, unreasonable or discriminatory.

Accordingly, the court finds for the Commission and the plaintiffs' appeal is dismissed.

Seymour L. Hendel, JTR

Hendel, Seymour L., J.T.R.