LLC v. City of Bridgeport—Planning and Zoning Commission (2011)

MEMORANDUM OF DECISION

The plaintiff, Columbus Place Associates, LLC has appealed from the defendant, City of Bridgeport, Planning and Zoning Commission's decision denying its application for a nine lot resubdivision.   The property is located at 866–908 Hart Street;  101–171 Quarry Street and 140–142 Higgins Avenue in an R–A Zone in the City of Bridgeport.

Standing

The plaintiff pursuant to the testimony of Janet D'Addario who is a member of the plaintiff, LLC testified on the issue for standing and the Court finds that the plaintiff has standing.   There has been no change in ownership since the date of filing of this appeal.

STATEMENT OF THE CASE

The Plaintiff has appealed the Bridgeport Planning and Zoning Commission's decision denying its application for a nine lot re-subdivision.   The property is located at 866–908 Hart Street;  101–171 Quarry Street and 140–142 Higgins Avenue in an R–A Zone in the City of Bridgeport, Connecticut (hereinafter referred to as “The Property”).   The Planning and Zoning Commission (hereinafter referred to as P & Z) unanimously denied the application.

THE FACTS

The Return of Record includes the following information:  In 1971 the P & Z approved a two lot subdivision and then on April 28, 2008 approved a nine lot re-subdivision.   The applicant allowed the April 28, 2008 re-subdivision approval to expire due to the applicants' failing to file a re-subdivision map on the Bridgeport land records as required by C.G.S. 8–25.

Due to increased flooding conditions in Bridgeport, the Department of Public Facilities adopted its first Storm Water Management Manual on April 6, 2009.   This manual established design criteria for storm drainage systems, flow control requirements and general storm water management policies, all of which did not exist at the time the prior applications were approved.   On October 19, 2009, a new re-subdivision application for nine lots was filed with P & Z. The Engineering Department submitted a report dated November 30, 2009.   P & Z held a public hearing on November 30, 2009, which was continued until January 25, 2010.   The Engineering Department submitted a revised report dated January 6, 2010, which added the requirement that curbing should be installed on the new sections of Hart Street to avoid storm water runoff flowing from the street onto private property.

The Water Pollution Control Authority report dated January 22, 2010, noted that “there are existing flooding problems on Greenwood Street and requested analysis of existing and proposed conditions for 50 year storm.”   On January 25, 2010, P & Z tabled the application until February 22, 2010 for “input from the City Engineer.”   The applicant by memorandum dated January 25, 2010, proposed several modifications to “help ameliorate the drainage conditions in the south and southeast portions of the Quarry–Hart Development.”   These included additional topsoil and grading at 181–171 Quarry Street;  and installation of concrete curbing on the east side of Greenwood Ave. southward toward Quarry Street.   On January 25, 2010, the applicant's representative reported that a Memorandum of Understanding had been agreed upon with the adjacent property owners.   At the P & Z public hearing a serious concerns were voiced about storm water runoff affecting wetlands;  a need to decide who would be responsible for maintaining catch basins;  the need for percolation tests to determine if the proposed underground storm water structures would function;  and the need to run a video camera to determine any drainage concerns.   There was substantial testimony during the public hearing that several neighbors had flooded basements and mud in their basements and they did not want to see the flooding problems get worse.   The Applicant's representative stated that if “we had known about this a year and a half ago, when we originally submitted the plans we would have worked with the neighbors ․” During the January 25, 2010 public hearing the applicant admitted that they were asking P & Z to approve the application “even though the engineer disagreed.”   It was noted that as of January 25, 2010 P & Z “had not received the engineers complete responses back yet.”   The City Engineer wanted concrete curbing and a road 32 feet wide.   The applicant's representative favored less concrete curbing and a more narrow 30 foot wide road.   The overwhelming testimony during the public hearing was that basements were being flooded and that there were serious storm water problems in the neighborhood.   P & Z decided that the application had to be tabled until February 22, 2010 for additional input from City Engineer.

On February 3, 2010, the City Engineering Department submitted another report requiring the applicant to submit additional information.   The report stated that;  “if there is inadequate drainage for the new section of Hart Street it should be installed at the developer's expense and should be controlled on the street not on private property.”   The applicant had proposed that the catch basins be located on private property and require the private property owners to maintain these catch basins.   The City Engineer wanted the catch basins located where they could be reached in a flooding emergency.   The Engineering Department report also disagreed with applicant's proposal concerning Hart Street.   The City Engineer recommended that the travel way for the road extension should be 32 feet wide to be consistent with the existing Hart Street, which is 32 feet wide.   On February 19, 2010, the City Engineering Department reiterated its position that the applicant could not be simply ignore their requirements that the extension of Hart Street have a consistent 32' width for access by emergency vehicles.   The City Engineer also insisted that curbs be installed to discourage vehicles from parking on lawns, vehicles rutting along the pavement edge leading to deterioration of the pavement.

By letter dated February 22, 2010, the applicant accepted “all of the requested site plans changes noted in response letters dated 3 Feb10, and 19, February 10 as a condition of approval.”   The applicant did not submit revised plans for P & Z to approve that would reflect these required modifications to their re-subdivision application.   Nothing was submitted for review by P & Z. P & Z on February 22, 2011, voted unanimously to leave this matter on the table while applicant prepared a memorandum of understanding concerning conditions of approval.   By letter dated March 25, 2010, the applicant stated that they “will not comply with the terms of the new proposed Agreement ․” By doing so the applicant withdrew its acceptance of all the changes to the re-subdivision required by the City Engineers' response letters dated February 3 and 19, 2010, as conditions of approval.

P  & Z at their meeting of March 31, 2010, confirmed that the applicant had refused to finalize a Memorandum of Understanding concerning modifications required by the City Engineering Department.   The transcript states that P & Z unanimously denied the application because:  (1) the applicant reneged on agreeing to a Memorandum of Understanding;  and (2) applicant revoked their agreement to comply with the public safety requirements set forth in the Engineering Department letters dated February 3 and 19, 2010.

STANDARD OF REVIEW

The Commission's denial of the application should be sustained if even one of the stated reasons is sufficient to support it.  Frito–Lay, Inc. v. Killingly Planning and Zoning Commission, 206 Conn. 554, 576 (1988) and Friedman v. Rocky Hill Planning & Zoning Commission, 222 Conn. 262, 268, (1992).   Only if the court finds that none of the stated reasons are valid, and no other apparent problems of noncompliance exist, may a court sustain an appeal.  D'Andrea Brothers Realty v. Greenwich Planning & Zoning Commission, 1994 WL 75826 (Conn.Super.) The administrative record documents that the Commission's action was not “arbitrary, illegal or an abuse of discretion.”   See Bloom v. Zoning Board of Appeals, 233 Conn. 198, 2005 (1995).

It is well settled that the trial court will not substitute its judgment for that of the P & Z. Municipal Funding LLC v. Waterbury Zoning Board of Appeals, 270, 447, 453 (2004).

THE APPLICANT REFUSED TO MODIFY THEIR APPLICATION AS REQUESTED BY CITY ENGINEER

The P & Z unanimously denied the re-subdivision application for two reasons.   P & Z found that:  (1) the applicant reneged on agreeing to a Memorandum of Understanding containing conditions intended to protect the neighbors from an increase in storm water runoff from the site and to ensure that emergency vehicles could timely respond to these new residences;  and (2) applicant on March 25, 2010 revoked their agreement to comply with the public safety requirements set forth in the Engineering Department letters dated February 3 and 19, 2010.   The re-subdivision where the application did not comply with regulations.   See Le–Page Homes, Inc. v. Planning and Zoning Commission of Town of Stonington, 74 Conn.App. 340 (2002).

THERE IS SUBSTANTIAL EVIDENCE IN THE ADMINISTRATIVE RECORD TOSUPPORT THE P & Z DENIAL OF THE RE–SUBDIVISION

P  & Z denied the re-subdivision because the applicant withdrew its agreement to comply with conditions relating to storm water drainage and to make the width of Hart Street consistent with the 32' wide existing Hart Street requested by the City Engineering Department as well as conditions previously agreed to in a Memorandum of Understanding.

C.G.S. 8–25(2) allows P & Z to consider whether the applicant has proposed appropriate storm water drainage systems for the proposed subdivision.   Bridgeport Subdivision Regulations require an applicant to submit detailed plans for all proposed drainage facilities, storm sewers, culverts and catch basins.   The record clearly establishes that there are overwhelming storm water problems in this neighborhood.   Nine additional homes would greatly increase the impervious surface of this land and could increase storm water flooding if appropriate storm drainage measures are not provided.

C.G.S. 8–25(5) allows P & Z to require that roads be of sufficient width to meet-present-and future traffic needs.   The City Engineer noted that the width of the road extension has a direct impact on access by emergency and city vehicles.   The applicant's final decision was to reject the City Engineer's condition that the road extension also be 32' wide.

Bridgeport's Storm Water Management Manual's stated purpose was to provide standards to be used to prepare plans that will be reviewed with the Subdivision Regulations.   Prior to 2009 these decisions were made on a case-by-case basis.   Since 2009 the standards established in Bridgeport's new Storm Water Management Manual are being applied.   The transcripts demonstrate that the applicant's 2009 re-subdivision is substantially different from their 2008 application.   In 2008 there was little discussion about storm water problems and during the 2009 application both the applicant's representatives, the City Engineer and the neighbors focused extensively on storm water flooding problems on this site and adjoining homes.

Contrary to the applicant's claim, the issue of storm water drainage and the width of a road extension are not “beyond those contained in its regulations.”   There was substantial testimony that several residents had flooded basements and mud in their basements.   Even the applicant's representative stated that if “we had known about this a year and a half ago, when we originally submitted the plans we would have worked with the neighbors ․” The City Engineer concluded that the plans as submitted did not adequately address the problem of more storm water being discharged from this nine lot re-subdivision due to the increase in impervious surface.

DUE TO RECENT STORMS, BRIDGEPORT AND OTHER MUNICIPALITIES HAVE IMPROVED THEIR STORM WATER DRAINAGE REQUIREMENTS

P  & Z did not approve a change to a prior commission's decision as claimed by applicant.   First, because the applicant failed to file a map as required by C.G.S 8–25, the prior decision is void and therefore can not be amended.   Second, in this case the re-subdivision application was denied because the City Engineer found that the application did not adequately deal with the storm water that falls on the applicant's property which is then discharged onto neighboring properties.   Third, the application did not comply with the City's subdivision regulations because Bridgeport's subdivision regulations require proper drainage.

Moreover, the decisions cited by Plaintiff are not germane to this case.   This case does not involve an approval with conditions requiring off-site road improvements.   See, Pansy Road, LLC v. Town Planning and Zoning Commission of the Town of Fairfield, 283 Conn. 369 (2007).   Nor does this case involve a denial because of prior zoning violations.   See Garrison v. Planning Board of the City of Stamford, 66 Conn.App. 317 (2001).   This case does not involve an approval with unreasonable conditions.   The decisions cited by plaintiff are inapplicable.

Finally, the Plaintiffs have cited Carlson v. Fisher, 18 Conn.App 488, 497 (1989) for the proposition that without a substantial change in circumstance's, if P & Z had previously approved a plan it would not be justified in subsequently denying the same or substantially the same application.”   Instead, this case clearly states that P & Z can amend a prior decision “if they have justification for doing so.”   In this case, P & Z received notice from the City's Engineering Department that identified both the proposed storm water drainage plan and the proposed width of the road to be inadequate for public safety reasons.   This information was not part of the administrative record in 2008, but several letters from the City Engineer brought these public safety deficiencies to the attention of P & Z during several public hearings in 2009 and 2010.

P  & Z's decision to deny the re-subdivision is supported by the administrative record.   The P & Z decision is upheld.

OWENS, J.T.R.

Owens, Howard T., J.T.R.