John Resnick et al. v. Planning and Zoning Commission of the Town of Westport (2011)

MEMORANDUM OF DECISION

I. Background

The plaintiffs John and Sandra Resnick appeal from a decision of the Westport Planning & Zoning Commission (Commission) denying the Resnicks' application to resubdivide a 3.12–acre piece of property on Twin Oaks Lane, in an AAA Residence Zone in Westport into two lots.   The subject property borders on the Merritt Parkway and is located in both Westport and Norwalk.   The proposed resubdivision would divide the property into an approximately two-acre lot (Lot A) containing the Resnicks' present house, and a second lot (Lot B) of approximately one acre in size the greater part of which is located on the Norwalk portion of the property.   ROR, Item 44 (Existing Conditions Subdivision Map).¹  The subdivision proposal envisioned a five-bedroom house on Lot B situated entirely within the municipal boundaries of Norwalk.  Id.;  ROR, Item 37.   Access to Lot B would be by means of Twin Oaks Lane, a private road, and other Westport streets and roads.   The Westport Zoning Board of Appeals issued a variance for Lot B's size (less than the two acres required in an AAA Zone).   ROR, Item 2. The City of Norwalk approved the creation of Lot B. ROR, Item 29.

Twin Oaks Lane extends in a generally northerly direction from Newtown Turnpike for about 750 feet.   It is largely unpaved, and although the original subdivision map creating the road and adjacent residential lots calls for a forty-foot-wide travel way and a cul-de-sac with a forty-foot radius at its end, the road was never so improved and varies in width between ten and thirteen feet.   ROR, Item 19 (1940 map) and Item 37 (showing present road).

The Resnicks' resubdivision application, as finally presented to the Commission sought three waivers of regulations applicable to subdivisions:  (1) a waiver of requirements for street widening and a turnaround area, (2) a waiver of regulations on street construction and design, and (3) an open space regulation.   There are presently five residential lots served by Twin Oaks Lane. The creation of Lot B out of the Resnicks' property would make a sixth lot.   The regulations of the Commission require that a turnaround area of a cul-de-sac serving six or more lots shall have a diameter of ninety feet, and the travel path of streets abutting a subdivision of that size must be at least twenty feet wide.   ROR, Item 70, Regs. 54–11 and 54–14.   The Regulations also require that all streets, including private streets shall be designed and meet storm drainage requirements in accordance with the “Requirement for Acceptance of Roads by the Town of Westport” adopted in Westport in 1964.   ROR, Item 70, Regs. 55–2, 55–3.   Finally, the regulations require subdivisions to provide area for open space as deemed necessary by the Commission, not to exceed 10% of the subdivision acreage.  Id., Reg. 54–21.

After several hearings and the submission of considerable additional information by the Resnicks and their consultants, the Commission met on September 4, 2008 and voted on a resolution concerning the requested waivers of subdivision regulations.   In accordance with the requirements of General Statutes § 8–26(a) the Westport Planning and Zoning Regulation Section 51–3 states that approval of a waiver request must receive the affirmative vote of three quarters of all members of the Commission.   There are seven members of the Commission, and none of the requested waivers received the necessary three quarters vote.²  ROR, Item 48, p. 3. Since the requested waivers were not granted, the Resnicks' resubdivision application was denied.  Id., p. 4.

II. Aggrievement

The plaintiff John Resnick testified that he and his wife Susan owned the real property which is the subject of the resubdivision application denied by the Commission.   A certified copy of a recorded deed was introduced into evidence as Exhibit 1. This uncontradicted evidence is a more than sufficient basis for the court to find the plaintiffs are aggrieved, and that this court has jurisdiction to hear and determine this appeal.  General Statutes § 8–8(a)(1).

III. Scope of Review

The parties agree that the Commission's review of a subdivision or resubdivision application is generally limited to determining whether the proposal complies with existing zoning regulations.  Reedy v. Planning & Zoning Commission, 208 Conn. 431, 433 (1988);  General Statutes § 8–26(a).   The Commission's function is administrative in nature and the same rules apply whether it is considering a subdivision or resubdivision application.  Id., LaPage Homes, Inc. v. Planning & Zoning Commission, 74 Conn.App. 340, 348 (2002) [quoting Pelliccione v. Planning & Zoning Commission, 64 Conn.App. 320, 3260327 cert. denied, 258 Conn. 915 (2001) ].

Judicial review by a Superior Court of a decision to deny a subdivision is also limited, and the court may not substitute its own opinion for that of the local planning body.   In cases of an appeal from the denial of a subdivision application, the court should determine if any of the reasons assigned by the local commission is reasonably supported by the record, and if so, the denial should be affirmed.  Pelliccione v. Planning & Zoning Commission, supra, 64 Conn.App. 327;  see generally Fuller, Connecticut Land Use Law and Practice, (3d.   Ed., 2007) 9A Connecticut Practice Series, § 33–8.

IV. Discussion

The basic reason for the Resnicks' decision to seek waivers of the subdivision regulations regarding street construction, width and turnaround area was to avoid unnecessary overdevelopment of a “heavily wooded ․ example of a quiet New England neighborhood” and lessen the “adverse impacts to the mature forest growth along the current travel way [of Twin Oaks Lane].” Plaintiff's Memorandum, March 9, 2010, Dkt. Entry 105.00, at p. 9. Further, the Resnicks were not eager to take on the “significant expenditure” of improving Twin Oaks Lane for the benefit of neighbors and Westport when the majority of the new lot and the proposed home itself would be located in Norwalk.  Id., 10.

As conceded by the plaintiffs' consultant, the initial application and waiver requests filed in late 2007 raised some issues, and a revised application was filed in February 2008.   ROR, Item 16.   The Westport Fire Marshal, in a memorandum dated February 4, 2008 stated that Twin Oaks Lane should be increased to 20 feet wide and a cul-de-sac with a radius of 50 feet should be required for fire department equipment.   ROR, Item 23 (found at p. 21 thereof).   This position was reiterated in an April 28, 2008 memorandum.   ROR, Item 27.   At a May 1, 2008 Commission meeting there was expressed opposition to granting the requested waivers based on comments of the Fire Marshal and Assistant Town Engineer, but the Commission continued the hearing to allow the Resnicks to provide additional information about widening the travel way with pervious material and satisfying the Fire Marshal's concern about a turnaround area for fire department equipment.   ROR, May 1, 2008 Transcript;  Item 31 (minutes of May 1, 2008 hearing).

On July 10 and 17, 2008 additional hearings before the Commission took place, and the Resnicks were able to present orally their revised plan in full.   ROR, Transcripts July 10 and 17, 2008.   Essentially, this consisted of two parts:  first, widening the travel portion of Twin Oaks Lane to twenty feet by use of “grass pavers” which are diamond or square shaped concrete forms with an open interior area available to be filled with soil and seeded for grass.   See ROR, Items 41 (picture) and 43 (description).   Second, the creation of a turnaround area on Lot A was proposed to meet the Fire Marshal's prior objection.   The Commission also had before it a memorandum from the Fire Marshal, dated June 17, 2008 to the effect that the revised plan of the roadway width of 20 feet and the turnaround area (with grass pavers) met the requirements of the Westport Fire Department.   ROR, Item 32.

There were also reports from the Assistant Town Engineer Peter Ratkiewich objecting to granting the requested waivers.   In late 2007 Mr. Ratkiewich had submitted comments to the Commission on the Resnicks' proposal which were generally neutral or supportive.   ROR, Item 9. Subsequently however, on April 21, 2008, realizing that the resubdivision proposal would create a sixth lot on Twin Oaks Lane, Mr. Ratkiewich wrote a memorandum opposing the granting of certain of the requested waivers.   Specifically, he objected to any waiver of the 20–foot–wide road regulation, the regulation governing the size of the cul-de-sac, and the road drainage regulation.   He also expressed concern about the road shoulders made of pervious material, (grass pavers) citing experience with Northside Lane in Westport which had less than a twenty-foot-wide road with paved shoulders and serious deterioration.   He pointed out that construction traffic for Lot B had the potential to damage the pavers.   The Resnicks' consultant conceded maintenance of the proposed pavers was a problem.   ROR, Item 22;  Transcript, July 17, 2008, 11.   Opposition was reiterated by Mr. Ratkiewich in a further memorandum to the Commission on April 28, 2008 that stated “[t]his office does not support the granting of [the requested] waivers.   There is also precedent for denying the waiver request.   At least two previous subdivisions have requested similar waivers and were ultimately denied.”   ROR, Item 26.   In support of requiring compliance with the 90–foot cul-de-sac diameter, 20–foot–wide paved road and the drainage requirement, the Ratkiewich memorandum stated,

“There is no reason to believe that this street will not eventually be built out like a typical private road in Westport.   Now is the only opportunity to bring it to the standards required for a six lot road.”

Id. This opposition to relaxing the road design standards was reiterated in a later memorandum of July 3, 2008.   ROR, Item 36.

Section 51–3 of the Commission's subdivision regulations provides:

That the Commission, upon written request of the applicant, may waive specific requirements of these regulations by a 3/4 vote of all Commission members, with respect to the subdivision where, owing to physical site conditions, especially affecting such subdivision, a literal application of these regulations would result in undesirable development, adverse impacts, practical difficulty or unusual hardship, so that substantial justice will be done.   No waiver shall be granted that would conflict with the Zoning Regulations, the Town Road Acceptance Ordinance in cases of subdivision of four (4) or more lots, or any other Town, State or Federal regulation, or that would reduce the paved travelpath of any roadway to less than eleven (11) feet in width, or that would have a significant adverse effect on adjacent property or on public health and safety.   In granting a waiver of a specific requirement of these regulations, the Commission shall state a reason for its action and may attach such conditions that it deems necessary to preserve the purpose and intent of these regulations.

The Resnicks contend that the Commission did not give a reason for denying the requested waivers, and therefore the court should search the record before the Commission to ascertain whether a reason for the denial supported by substantial evidence exists.   They further contend that no such reason appears in the record.   The court disagrees with these arguments on several levels.

First, while Section 53–1 requires a stated reason for “granting” a waiver, the court finds no such requirement in the regulation or the authorizing statute, General Statutes § 8–26(a) when a waiver is denied.   This is not an oversight, because the existence of, and the rationale for, the regulation can be easily imputed as the reason for the waiver s denial.

Second, the Commission's resolution of denial of waiver and disapproval of the resubdivision application (ROR, Item 48) was quite detailed and stated the Resnicks “failed to prove the threshold requirements for granting a waiver” which were then set out by quoting Section 51–3 in full, including that portion establishing the requirement of “undesirable development, adverse impacts, practical difficulty or unusual hardship.”   The resolution is clear:  the Resnicks failed to carry the burden of establishing a basis under the regulation for the requested waivers of the subdivision regulations.

Nevertheless, the Resnicks argue that the Commission did not elucidate a viable reason for not accepting their rationale as why a waiver should be granted.   This court determines that the Resnicks' position incorrectly places the burden on the Commission to support its decision not to waive its own regulations.   The burden is on waiver applicant to persuade the Commission, not the other way around, and the record shows rather convincingly that the Resnicks failed to persuade the Commission, even after several revised submissions, and three separate hearings.   See ROR, item 31 (minutes of May 1, 2008 hearing “it was the sense of the Commission not in favor to grant the waiver for the roadway width at this time, but noted there was not enough information available to make a decision”);  Transcript July 10, 2008, 9–10, 26, 27, 29, 43, 44, 46;  Transcript July 17, 2008, 10–11.

Third, notwithstanding the above, an examination of the record reveals substantial evidence to support the Commissioner's decision to not grant the requested waivers.   Primarily, this evidence consists of the arguments propounded by the Westport Assistant Town Engineer, Mr. Rathiewich which were set forth in memoranda to the Commission (ROR, Items 22 and 26) and reports of conversations which were presented during the hearings.   See ROR, Transcript July 17, 2008, 10–11 (concern about maintenance of grass pavers and damage to them caused by snow plowing).   The court determines that Mr. Rathiewich's consistent and reasonable opposition provides the substantial evidence in the administrative record to support the Commission's decisions.   See Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 697–98 (1993).³

V. Conclusion

For the reasons stated herein, the appeal from the Commission's actions is denied.

Taggart D. Adams

Judge Trial Referee

FOOTNOTES

FN1. References to “ROR” is to the Return of Record filed January 20, 2010 and containing 135 pages of transcripts of hearings and seventy other items..  FN1. References to “ROR” is to the Return of Record filed January 20, 2010 and containing 135 pages of transcripts of hearings and seventy other items.

FN2. The Commission actually voted on waiving each of four separate subdivision regulations:  §§ 54–11, 54–14, 55–2 and 55–3.   There was no vote taken on the waiver of the open space regulation, § 54–21..  FN2. The Commission actually voted on waiving each of four separate subdivision regulations:  §§ 54–11, 54–14, 55–2 and 55–3.   There was no vote taken on the waiver of the open space regulation, § 54–21.

FN3. Although the subject was only briefly raised at the trial of this matter, the court notes that the Commission regulation 51–3 regarding waiver specifically states that “no waiver shall be granted that would conflict with the Zoning Regulations, the Town Road Acceptance Ordinance in cases of subdivision of four (4) or more lots ․” While the restriction on waivers that conflict with regulations is very ambiguous, the restriction on waivers that conflict with the Town Road Acceptance Ordinance is not, and would seem to preclude granting the waiver of Regulation 55–2 and 55–3..  FN3. Although the subject was only briefly raised at the trial of this matter, the court notes that the Commission regulation 51–3 regarding waiver specifically states that “no waiver shall be granted that would conflict with the Zoning Regulations, the Town Road Acceptance Ordinance in cases of subdivision of four (4) or more lots ․” While the restriction on waivers that conflict with regulations is very ambiguous, the restriction on waivers that conflict with the Town Road Acceptance Ordinance is not, and would seem to preclude granting the waiver of Regulation 55–2 and 55–3.

Adams, Taggart D., J.