James J. Ilewicz et al. v. Planning and Zoning Commission of the Town of Killingly et al. (2011)

MEMORANDUM OF DECISION

This case is an appeal from the August 16, 2010, decisions of the defendant, Planning and Zoning Commission of the Town of Killingly (“commission”), approving a special permit application and a subdivision application by the defendant, PSK Realty, LLC, for a 19–home flexible subdivision project on a 56.735–acre lot on Tucker District Road in Killingly, CT, owned by the defendants, John, Paul and Joanne Shekleton and Sally Winters.   The plaintiffs are neighboring property owners, James, Sheila and Robert Ilewicz.   The plaintiffs challenge the decision on four grounds, the first of which is that the project was approved without any fire hydrants or other approved fire suppression system, contrary to the requirements of the subdivision regulations.   The court sustains the appeal on that first ground only and therefore reverses the decision of the commission in part.   On all other points, the court affirms the decision of the commission.   Accordingly, judgment shall enter in favor of the plaintiffs on that first ground, and the matter is remanded to the commission for further proceedings consistent with this decision.

I

Jurisdiction

General Statutes § 8–8 governs appeals from decisions of planning and zoning commissions to the Superior Court.  “A statutory right of appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.”  (Citation omitted;  internal quotation marks omitted.)   Bridgeport Bowl–O–Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).

A

Aggrievement

“It is well settled that pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved.”  (Citations omitted;  internal quotation marks omitted.)  Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002).  “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  (Citations omitted.)  Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538–39, 833 A.2d 883 (2003).  “Two broad yet distinct categories of aggrievement exist, classical and statutory.”  (Citation omitted.)  Lewis v. Planning & Zoning Commission 62 Conn.App. 284, 288, 771 A.2d 167 (2001).  “[I]n cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.”  (Citation omitted;  internal quotation marks omitted.)   Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 129, 836 A.2d 144 (2003).  General Statutes § 8–8(a)(1), which sets forth the standard for statutory aggrievement in land use appeals, provides “a person who owns land that abuts or is within a radius of 100 feet of the land involved in the board's decision is considered automatically aggrieved.”  Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 189–90, 676 A.2d 831 (1996).

The evidence in this case showed that the plaintiffs are abutting landowners or are within 100 feet of the subject property.   Therefore, the plaintiffs are statutorily aggrieved.

B

Timeliness and Service of Process

General Statutes § 8–8(b) provides, in relevant part, 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 the notice of the decision was published as required by the general statutes.”   Subsection (f)(1) further provides that process “shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality.”

The plaintiffs allege, and the defendants admit, that notice of the commission's August 16, 2010 decision was published in the Norwich Bulletin, a newspaper of general circulation in Killingly, CT on August 24, 2010.   On September 3, 2010, the appeal was commenced by service of process in compliance with the statute.   Service was also made on the applicant and landowners.   Accordingly, the court finds that appeal was commenced timely by service on the proper parties.

II

Standard of Review

Ordinarily, in appeals from decisions of planning and zoning commissions, the court does not retry the case;  rather, it conducts a judicial review.   The review is ordinarily confined to the record.  General Statutes § 8–8(k).  Also, the “[r]eview of zoning commission decisions by the Superior Court is limited to a determination of whether the commission acted arbitrarily, illegally or unreasonably.”  (Citation omitted;  internal quotation marks omitted.)  Raczkowski v. Zoning Commission, 53 Conn.App. 636, 639, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999).  “The general phrase or test that is used with all appeals is whether the agency's action was illegal, arbitrary or in abuse of its discretion ․ The agency's findings of fact and discretionary determinations are given considerable weight by the courts, but the courts and not the administrative agencies decide questions of law.”   R. Fuller, 9A Connecticut Practice Series:  Land Use Law and Practice (3d Ed.2007) § 33:1, pp. 230–31.

“A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations ․ The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values ․ see also General Statutes § 8–2 ․ When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity ․ [Its] function ․ [is] to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply.”  (Citations omitted;  internal quotation marks omitted;  footnote omitted.)  Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 215–17, 779 A.2d 750 (2001).

“[T]he special permit process is, in fact, discretionary ․ [G]eneral considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit.”   (Citation omitted.)  Irwin v. Planning & Zoning Commission, 244 Conn. 619, 626, 711 A.2d 679 (1998).  “The ․ trial court ha[s] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts ․ In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal.”  (Citations omitted.)  Id., 627–28.   “[O]n factual questions ․ a reviewing court cannot substitute its judgment for that of the agency.”  (Internal quotation marks omitted.)  Id., 629.

“Although it is true that the zoning commission does not have discretion to deny a special permit when the proposal meets the standards, it does have discretion to determine whether the proposal meets the standards set forth in the regulations.   If, during the exercise of its discretion, the zoning commission decides that all of the standards enumerated in the special permit regulations are met, then it can no longer deny the application.   The converse is, however, equally true.   Thus, the zoning commission can exercise its discretion during the review of the proposed special exception, as it applies the regulations to the specific application before it.”  (Emphasis in original.)  Id., 628.

With regard to the approval of a subdivision, “[i]t is well established ․ that [i]n exercising its function of approving or disapproving a subdivision plan, the planning board acts in an administrative capacity.   In passing upon a plan, its action is controlled by the regulations adopted for its guidance.”   (Citation omitted;  internal quotation marks omitted.)  Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 380, 387, 610 A.2d 620 (1992).  “It has no discretion or choice but to approve a subdivision which conforms to the regulations.”(Citation omitted.)  Langbein v. Planning Board, 145 Conn. 674, 679, 146 A.2d 412 (1958).

“When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision.”  (Citation omitted.)  Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).   Cases in which an agency has “rendered such a formal, official, collective statement involve circumstances wherein the agency couples its communication of its ultimate decision with express reasons behind that decision” Id., 420–21.   In such circumstances, “the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations ․” (Citation omitted;  internal quotation marks omitted.)   Protect Hamden/North Haven From Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991).

“The principle that a court should confine its review to the reasons given by a zoning agency ․ applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action ․ It does not apply to mere utterances of individual members of the agency.”  (Citation omitted;  internal quotation marks omitted.)  Harris v. Zoning Commission, supra, 259 Conn. 420.

“Thus, in the absence of consistent statements of purpose by the zoning commission members, we note that [t]he principle that a court should confine its review to the reasons given by a zoning agency does not apply to any utterances, however incomplete, by the members of the agency subsequent to their vote ․ Nor is it appropriate for a reviewing court to attempt to glean such a formal, collective statement from the minutes of the discussion by [the agency] members prior to the [agency's] vote.”  (Internal quotation marks and citation omitted.)  Id., 422–23.

Where there is no “formal, collective, official statement of reasons,” the court is obligated to “search the record for a basis upon which to uphold the commission's decision.”  Protect Hamden/North Haven From Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. 545.   As the Appellate Court stated in Stankiewicz v. Zoning Board of Appeals, 15 Conn.App. 729, 732, 546 A.2d 919 (1988), aff'd, 211 Conn. 76, 556 A.2d 1024 (1989), “[i]f the board fails to give the reasons for its actions, or its reasons are inadequate, the trial court must search the record to determine whether a basis exists for the action taken.”   In so doing, the court “may rely on any reason culled from the record which demonstrates a real or reasonable relationship with the general welfare of the community in concluding that the board's decision should be upheld.”  Id., 733.

Our Supreme Court has cautioned that, “[i]n reviewing the actions of a land use commission, we must recognize that the commission is composed of laymen whose procedural expertise may not always comply with the multitudinous statutory mandates under which they operate.”  (Internal quotation marks omitted.)  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 730, 780 A.2d 1 (2001).  “The case law requiring the trial court on appeal to search the record for the agency's reason for its decision is a practical and fair reaction to this scenario.”  Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990).   Even where a reason given is, “merely a conclusory statement,” the reviewing court must search the record for reasons to support the decision.  Id., 609.

“The credibility of the witnesses and the determination of issues of fact are matters 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;  internal quotation marks omitted.)  Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 696, 628 A.2d 1277 (1993).

“[I]n appeals from administrative zoning decisions ․ the decisions will be invalidated even if they were reasonably supported by the record, if they were not supported by ‘substantial’ evidence in that record ․ In an appeal from the decision of a zoning [commission], we therefore review the record to determine whether there is factual support for the [commission's] decision ․ Should substantial evidence exist in the record to support any basis or stated reason for the zoning commission's decision, the court must sustain that decision.”  (Citations omitted;  internal quotation marks omitted and citations omitted.)  Heithaus v. Planning & Zoning Commission, supra, 258 Conn. 223–24.

“Substantial ․ evidence is that which carries conviction.   It is such evidence as a reasonable mind might accept as adequate to support a conclusion.   It means something more than a mere scintilla and must do more than create a suspicion of the existence of the fact to be established ․ Such evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.”  (Citations omitted;  internal quotation marks omitted.)  Raczkowski v. Zoning Commission, supra, 53 Conn.App. 641–42.

“[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence ․ The reviewing court must take into account [that there is] contradictory evidence in the record ․ but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence ․” (Internal quotation marks omitted.)  Newtown v. Keeney, 234 Conn. 312, 320, 661 A.2d 589 (1995).

“The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs.”  Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995).

III

Facts

The pertinent facts are as follows:  On or about April 12, 2010, the defendant, PSK Realty, LLC, submitted a Special Permit Application and a Subdivision Application to the defendant, Planning and Zoning Commission of the Town of Killingly, for a housing development at property known as 75 Tucker District Road in Killingly, CT. This was an approximately 56.735–acre property owned by John, Paul and Joanne Shekleton and Sally E. Winters.   These applications were resubmissions.   The applicant had earlier filed applications for a 23–lot subdivision at this same location.   A motion to approve the earlier special permit application failed to pass after a 2–3 vote by the commission on February 22, 2010, and the defendants then withdrew their earlier subdivision application.

In its April re-applications, PSK Realty proposed 19 single-family building lots in a “flexible subdivision,” which was designed as a low impact development to preserve open areas and preserve the rural character of the landscape.   An element of the flexible subdivision design is that the potential homeowner is given the ability to select whether they want a one-acre, three-acre, four-acre, or ten-acre lot.   Along with that choice comes the choice in the size of the home that they can build.

The applicant explained that its new applications contained significant changes from the earlier applications in light of some of the objections earlier expressed.   The new subdivision plans contained fewer lots and eliminate one proposed public road.   The previous application was for a 23–lot subdivision.   The new application was for a 19–lot subdivision.   In phase one of development, the number of lots was reduced from 7 to 4;  and in phase three, the number was reduced from 9 to 8. Changes were also made in configuration of the lots, changes in septic system designs, and configuration of the conservation land.   The road design was less intensive than in the prior design, resulting in less maintenance issues, and improvements in storm water management.   On four of the lots, the single-family homes were relocated farther from the roadway and on two lots home footprints were relocated to create better separation distance.   The commission discussed whether they could hear the special permit re-application within one year of hearing the previous application under the zoning regulations that required a one-year wait for resubmissions unless there were substantial changes.   At least one commissioner expressed that the changes were substantial, but no formal vote or findings were made as to whether the changes were substantial.

The local zoning regulations required that the plans be reviewed by fire authorities for either hydrants or other fire suppression plan to be approved by the commission.   The applications, which proposed a cistern, were referred to the local fire marshal and fire district.   There was no response from the fire marshal or fire chief.   The fire district board voted against the plan as it did not want responsibility for maintaining the cistern.   No plan was approved by the commission.

The plans contained no architectural plans.

On August 16, 2010, the commission granted a motion to approve the special permit application and subdivision application with certain modifications and conditions, unanimously.

IV

With the standards of review in mind, the court addresses the plaintiffs' issues seriatim:

A

The first issue is whether this subdivision application was improperly granted because the application did not comply with the Killingly subdivision regulations concerning fire protection.   On this point, the court agrees with the plaintiffs and finds that the commission erred in approving the application on this point.

Article Four, Section 9(a) of the subdivision regulations provides as follows:

a.  In order to assure that all new developments have an adequate water supply for the purposes of fire protection, the Commission shall require that all subdivision applications be reviewed by the Killingly Fire Marshal and the appropriate fire district.   The sub-divider shall take into account the need for adequate fire protection either by providing hydrants in the water supply system or a fire suppression system approved by the Commission within the subdivision, including necessary access easements to such system.

Subdivision Regs., Art. 4, § 9(a).

The record in the instant case shows that there were no fire hydrants planned for this subdivision.   Instead, the applicant proposed a cistern to be maintained by the Killingly Fire District.   The proposal was duly circulated for review, but the proposal was rejected by the East Killingly Fire District on the grounds that it would not accept responsibility for maintaining the cistern.   That circumstance was reported to the commission.   Rather than require the applicant to put together an approvable plan, the commission accepted the applicant's excuse that “we tried.”   The result was that this subdivision plan was approved without fire hydrants and without any fire suppression system of any kind whatsoever.   In this regard, the commission disregarded the clear requirements of the subdivision regulations.   The application was, therefore, not properly granted, and the appeal must be sustained on this ground.   See Gross v. Planning & Zoning Board of Appeals of the Town of Greenwich, 171 Conn. 326, 328, 370 A.2d 944 (1976).

Defendants argue that this regulation was satisfied by referral for review by the fire authorities, and that any other requirements are advisory, not mandatory.   The court does not agree.  “The test to be applied in determining whether a [rule] is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience ․ If it is a matter of substance, the statutory provision is mandatory.   If, however, the ․ provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words ․ A ․ provision of this type directs what is to be done but does not invalidate any action taken for failure to comply.”  (Citations omitted;  internal quotation marks omitted.)  Kindal v. Dept. of Social Services, 69 Conn.App. 563, 568, 795 A.2d 622 (2002);  see also Teresa T. v. Ragaglia, 272 Conn. 734, 744, 865 A.2d 734 (2005).

The court does not agree that the particular subdivision rule in question is merely a matter of convenience or procedure.   To the contrary, it is a matter of substance.   Indeed, it is hard to imagine a matter more serious and substantial than a requirement that plans for new housing developments include an approved plan for fire suppression.   The rule is, therefore, mandatory.   It was not complied with in this instance.   Therefore, the application was not properly granted.

Defendants also argue that their regulation cannot and should not be read as containing fire safety mandates because that duty is outside of the commission's authority, and it was delegated to the fire marshal and fire district by the regulation.   The court can find no justification for that construction either in the language of the regulation or in the law of zoning.   Consequently, it cannot be accepted.   See King's Highway Assocs. v. Planning and Zoning Commission of North Haven, 114 Conn.App. 509, 969 A.2d 841 (2009).   To the contrary, the regulation clearly requires, inter alia, a plan for water access for fire suppression, and action on it by the commission.   The regulation is within the authority of the commission.   Indeed, the enabling statute requires that subdivision regulations “shall provide that the land to be subdivided shall be of such a character that it can be used for building purposes without danger to health or the public safety, that proper provision shall be made for water (etc.)  ․” General Statutes § 8–25(a).   Accordingly, a water for fire suppression requirement may be enforced.   See, e.g., Avalonbay Communities, Inc. v. Milford Planning and Zoning Board, Superior Court, judicial district of New Britain, Doc. No. CV 02 514399 S (January 14, 2004, Pickard, J.) [36 Conn. L. Rptr. 383].

B

The second issue is whether the board illegally approved the applicant's special permit application in violation of the one-year wait rule.   On this point, the court finds no error.

The one-year rule is contained in Section 780 of the Zoning Regulations.   The pertinent provision reads as follows:

Section 780.  Resubmissions

No special permit application for which a public hearing has been held and the permit denied by the Commission may be resubmitted for a period of one year unless the Commission finds that substantial change has taken place in the proposed use or other circumstances which were the basis for the denial.

Zoning Regs. § 780.

The facts of record, and other undisputed supplemental facts supplied by the parties without objection, show that the applicant earlier filed an application for special permit and a subdivision application for this same project.   After public hearing, a motion to approve the special permit application failed to pass on February 22, 2010 in a 2–3 vote.   That failure to pass constitutes a denial.   See Steiner v. Town Planning and Zoning Commission of Fairfield, 149 Conn. 74, 75, 175 A.2d 559 (1961);  89 Am.Jur.2d, Zoning and Planning § 729 (2003).   The record further reflects that the companion subdivision application was withdrawn at that time.   The instant applications were resubmitted on April 12, 2010.

Thus, the record is clear that the instant special permit application was resubmitted before expiration of the one-year waiting period.   The rule required the commission to find whether there had been a substantial change in the circumstances or in the application.   The record is also clear that the board failed to make any such findings.   There were certainly sufficient facts in the record for the board to make a determination.   It simply failed to make an express decision.   The need for a finding and decision is more than a procedural error of no significance.   Generally, an agency cannot reverse itself absent a material change in circumstance.  Hoffman v. Kelly, 138 Conn. 614, 616–17, 88 A.2d 382 (1952).   The rule protects the community from being repeatedly harassed and called upon to contest repeated and frequently recurring applications on the same subject matter.   See Bright v. Zoning Board of Appeals, 149 Conn. 698, 705, 183 A.2d 603 (1962).

The commission argues that the first special permit application was not denied;  rather, it was denied “without prejudice.”   That designation denotes that the matter was resolved without affecting rights.  “Without prejudice” means “without loss of any rights;  in a way that does not harm or cancel the legal rights or privileges of a party.”   Black's Law Dictionary (Ninth Ed., 2009).   Similarly, it argues that certain fees were waived for the second subdivision application because the first application was not acted upon and staff had already done much of the review after the first application.   The court is not persuaded.   While one commissioner at the public hearing indicated that the first application was denied without prejudice, the undisputed facts do not support that assertion.   To the contrary, the motion to approve the first application failed to pass.   Moreover, even if it had been denied “without prejudice,” that practice has been criticized and discouraged because it similarly offends the rule that prohibits the commission from reversing itself without a change in circumstances, and it offends the rule against exposing the public to repeat applications on the same subject without a showing of a change in circumstances.  Bright v. Zoning Board of Appeals, Id.

The failure to make an explicit finding on the record using the exact language of the regulation, however, is not fatal.   The record reveals that the second application in this case contained substantial changes.   Among other things, the second application eliminated one public road, reduced the number of lots by 4, the average sizes of the lots in the April application were generally larger than in the previous application, and conservation areas were recalculated.   Also, at least one commissioner remarked that the resubmission was a substantial change.   Thereafter, the commission unanimously approved the project.

“It was not necessary for the [commission] to make [a] finding in the exact language of the regulations.”  Malafronte v. Planning & Zoning Board, 155 Conn. 205, 213, 230 A.2d 606 (1967).  “Courts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search of technical infirmities in their actions.”  (Citations omitted;  internal quotation marks omitted.)  Samperi v. Inland Wetlands Agency, 226 Conn. 579, 596, 628 A.2d 1286 (1993).   In this case, there was a thorough discussion on the record as to whether there were significant changes made in the second submission since the commission's first decision, and there was substantial evidence in the record supporting the fact that there were substantial changes in the second application.   The commission's unanimous decision to approve the project under these circumstances should be considered as constituting an “implicit finding” that substantial changes had been made in the second application qualifying the applicant to re-apply in less than one year from the previous action by the commission, as required the regulation.   Accord, Van Dine v. Bolton Planning & Zoning Commission, Superior Court, judicial district of Tolland, Doc. No. CV 99–70271 S (August 18, 2000, Klaczak, J.) (required findings implicit in ultimate decision).

C

The third issue is whether the board illegally approved the special permit application without requiring the applicant to provide architectural plans.   The court finds no error on this point.

The architectural plans requirement appears in Section 720.1.2 of the Zoning Regulations.   The rule provides that special permit applications shall include:

Preliminary architectural plans of all proposed buildings, structures and signs, including:

general exterior elevations

generalized floor plans, illustrating at least proposed entrances and exits.

Zoning Regs., § 720.1.2.

The record in this case shows that no architectural plans were supplied with the application.   Plaintiffs argue that this circumstance constitutes a violation of the rule, and therefore, the special permit application should not have been approved.

The court is not persuaded.   The record reflects that this was a special permit application for a “flexible subdivision.”   See Subdivision Regs., Art. 2, § 1(w).  Under this type of development, the potential home owners are given the freedom to select whether they want a one-acre, three-acre, four-acre or ten-acre lot.   Along with that choice comes the freedom to choose the size and type of home to be build.   Thus, no architectural plans were supplied because none existed yet under the type of project under consideration.   The rule was clearly not applicable in this instance.

Nor are such plans required by the regulations in all circumstances.   The rule is not in the list of mandatory requirements under the regulatory scheme.   See Subdivision Regs., Art 2 § 720.1 (“[T]he requirements as prescribed below (Sections 720.2 to 790) shall be complied with”).   Therefore, satisfaction of the rule was not mandatory.

It is the function of the board to decide whether a particular section of the subdivision regulations applies to a given situation.  Quality Sand & Gravel, Inc. v. Planning and Zoning Commission of Torrington, 55 Conn.App. 533, 538, 738 A.2d 1157 (1999).   In a zoning appeal, it is the function of the court to decide whether the board correctly interpreted the section and applied it with reasonable discretion to the facts.  Id. In the instant case, since there were no architectural plans involved in this project, the board did not err in failing to require architectural plans.

D

The fourth issue is whether the decision granting the subdivision application was so vague as to render it unenforceable.   The finds no error here, either.

In particular, plaintiffs argue that the decision granting the application was subject to certain modifications and conditions.   However, those modifications and conditions were not clear, they argue.   The specific parts of the decision in question provide as follows:

At its August 16, 2010 regular meeting, the Killingly Planning & Zoning Commission approved, with modifications, your Subdivision Application # 10–459 of PSK Realty, LLC for 19–lot flexible subdivision;  75 Tucker District Road (John, Paul & Joanne Shekleton & Salley E. Winter Owners);  56.735 acres;  Rural Development Zone.

The modifications are:

A detailed cost estimate of the roads and also of the public improvements;  (Staff note:  this would also include posting necessary bonds).

The applicant will comply with all requirements and conditions that have been addressed at the previous public hearings regarding this application.

In addition to the modifications specifically listed in the motion, staff reminds you that the testimony and representations made during the public hearing are part of the record and approval, and also need to be incorporated into the plans and/or provided to staff for review and approval.   For reference, the applicant's responses are in the July 19, 2010 letter from Killingly Engineering Associates to Linda Walden, 3 pages submitted at the July 19 meeting, as well as in the minutes of the July 19, 2010 meeting.

Decision Letter, p. 1.

“Conditions imposed by a zoning board ․ must be expressed with sufficient clarity to inform the applicant of the limitations upon the use of the land, and to protect nearby owners.   Thus, conditions have been held to be ineffectively expressed where they limited use in terms of the applicant's verbal statements to the board.   Conditions that are too vague, or not clearly articulated, are found to be void.   To be enforceable, conditions must be expressed in sufficiently definite terms to enable the permit holder, adjacent landowners, and all interested parties to know what is required of the permit holder.”  (Citation omitted;  internal quotation marks omitted.)  Anatra v. Zoning Board of Appeals of Madison, 127 Conn.App. 125, 135–36, 14 A.3d 386, cert. granted, 301 Conn. 902, 17 A.3d 1043 (2011).

While the decision letter itself does not articulate the modifications and conditions, it refers to the record.   A review of the record discloses that numerous modifications and conditions requested by the board and its staff were expressly and clearly articulated during the public hearing on July 19, 2010.   The decision also references a letter dated July 19, 2010 which is also part of the record.   The applicant expressly and clearly accepted those modifications and conditions and indicated that they already had been, or would be, incorporated into its plans and would be complied with if the applications were approved.   That those modifications and conditions were incorporated by reference rather than repeated is not error.   Generally, language in a document that intentionally incorporates other existing documents by reference creates a single document which includes the contents of the incorporated documents.   See Smithfield Associates, LLC v. Tolland Bank, 86 Conn.App. 14, 20, 860 A.2d 738 (2004), cert. denied, 273 Conn. 901, 867 A.2d 839 (2005).

V

For all of the foregoing reasons, the plaintiffs' appeal is sustained on the first ground of their appeal, i.e., that the project was approved without any fire hydrants or other approved fire suppression system, contrary to the requirements of the subdivision regulations.   The court sustains the appeal on that first ground only and therefore reverses the decision of the commission in part.   On all other points, the court affirms the decision of the commission.   Accordingly, judgment shall enter in favor of the plaintiffs on that first ground, and the matter is remanded to the commission for further proceedings consistent with this decision.

THE COURT

Robert F. Vacchelli Judge,

Superior Court

Vacchelli, Robert F., J.