Laura Christina Laydon v. Woodbridge Town Plan and Zoning Commission et al. (2011)

I

FACTS

The defendant, the Woodbridge town plan and zoning commission (commission), approved a subdivision application submitted by the applicants, Michael Soufrine, Betty Soufrine and Sanford Soufrine.¹  The plaintiff, Laura Laydon, appeals from the commission's approval of that subdivision application.   Betty Soufrine and Sanford Soufrine own the parcel of land known as 118 Newton Road in Woodbridge (the subdivision), which is approximately 17.9 acres.  (Return of Record [ROR] # 43.)   The applicants filed a subdivision application on October 30, 2008, seeking to divide the property into five lots.  (ROR # 43.)   The application included a plan to extend Soundview Drive into the subdivision along its southern and eastern edges.  (ROR # 49, p. 7;  ROR # 48.)

The subdivision is abutted to the west and north by an oddly-shaped parcel owned by Michael Soufrine known as 19 Soundview Drive in Woodbridge (the Soundview Drive property), which is not part of the subdivision application.   The Soundview Drive property constitutes approximately four acres abutting the west side of the subdivision, and a single home is situated thereon.   Running the length of the entire northern border of the subdivision is a gravel driveway, approximately 1400 feet in length and 25 feet in width, which is part of the Soundview Drive property.  (ROR # 43;  # 48;  Pl.'s Mem. # 117.)

The use of this driveway constitutes the crux of the present dispute.   The plaintiff's property lies directly to the north of the subdivision and the driveway abuts the rear of her property.   She alleges that the commission's decision to approve the application was illegal, arbitrary and constituted an abuse of discretion because the commission did not condition its subdivision approval on the “discontinuance of a use of a strip of land bordering the plaintiff's property [the driveway], which discontinuance was [the plaintiff alleges] agreed to by the [applicants'] engineer at the public hearing.”   (Appeal, ¶ 8.)

In her amended appeal, filed on March 26, 2010, the plaintiff, in the alternative, challenges the propriety of the subdivision approval based on the conditions that the commission imposed with respect to “parcel C.” Parcel C constitutes approximately 1.86 acres on the west end of the subdivision property and is where certain drainage pipes and a detention basin will be located.   In relevant part, the commission required that the applicant's deed over parcel C to the owner of the Soundview Drive property, such that parcel C eventually would merge with that property.  (ROR # 47, Map 1.) The plaintiff argues that this condition makes the final approval “fatally defective ․ illegal and arbitrary” because any conditions imposed on parcel C affect land that is outside the subdivision.  (Pl's.Mem., # 128, p. 2.)

Additional facts will be set forth as necessary.   The court heard the parties' arguments on August 12, 2011, and requested and received post-trial memoranda.

II

JURISDICTION

The commission is the agency with the responsibility to regulate the subdivision of land within the town of Woodbridge under the provisions of Chapter 126 of the Connecticut General Statutes.  General Statutes §§ 8–28 and 8–28(2)(b) govern appeals from the decision of the commission 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.”   (Internal quotation omitted.)  Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1986).

a.

Aggrievement

“It is well settled that [p]leading 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 ․ Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399–400, 920 A.2d 1000 (2007).   A plaintiff may prove aggrievement by testimony at the time of trial.  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).   “Statutory aggrievement exists by legislative fiat ․ [I]n cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 487, 815 A.2d 1188 (2003).  General Statutes § 8–8(a)(1) provides, in relevant part, “[i]n 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 plaintiff pleaded aggrievement in her appeal and offered uncontroverted testimony at trial that she owns and resides at 16 Forest Glen Drive, in Woodbridge, which is within one hundred feet of the subdivision.   The court finds that the plaintiff is aggrieved by the commission's decision to approve the subdivision application.

b.

Timeliness and Service of Process

Section 8–8(b) provides that an appeal from the decision of the commission shall be commenced by service of process in accordance with subsections (f) and (g) of such section within 15 days from the date that notice of the decision was published.   Notice of the commission's decision was published in the New Haven Register on March 30, 2009.  (ROR # 3;  Appeal.)   This appeal was commenced by service of process on April 9, 2009.  (Marshal's return.)

It is found that service of process was made upon the proper party and this action was commenced within the time allowed by statute.

III

STANDARD OF REVIEW

“[A zoning] board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal.”  (Internal quotation marks omitted.)   Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).   In reviewing a subdivision application, the commission was acting in an administrative capacity.   See Pansy Road, LLC v. Town Plan & Zoning Commission, 283 Conn. 369, 374, 926 A.2d 1029 (2007).  “When acting in its administrative capacity, a planning commission has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance.”  (Internal quotation marks omitted.)  Id.

Additionally, “a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning] 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 matters solely within the province of the [commission] ․ If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board.”  (Citation omitted;  internal quotation marks omitted.)  Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004).

IV

DISCUSSIONA

The first issue presented by the plaintiff's appeal is whether the commission abused its discretion when it did not expressly condition its approval of the subdivision on the discontinuance of the use of the driveway.   The commission argues that it would have been improper for it to do so, because the driveway is not on land that is within the proposed subdivision.  (Def.'s Mem, # 118, pp. 12–14.)   The plaintiff counters that the commission could have required restricted access to the driveway because it imposed other conditions on the Soundview Drive property, and further argues that the applicants' engineer agreed to such a restriction at the public hearing.  (Pl.'s Br. # 117, pp. 4–7.)

In Buttermilk Farms v. Planning & Zoning Commission, 292 Conn. 317, 328, 973 A.2d 64 (2009), at issue was whether “[General Statutes] § 8–25, which authorizes [a planning and zoning] commission to adopt regulations concerning the subdivision of land ․ includes the ability to require [the developer to construct] off-site sidewalks ․” Id., 328.   The court concluded that the “grant of authority under [the statute] however, clearly and unambiguously is restricted to ‘the land to be subdivided’ ․ a limitation that we have stated reasonably cannot be interpreted to include abutting streets or other areas outside the boundaries of the proposed subdivision.”  (Emphasis in original.)   Id., 330.   The court noted that there “may be other circumstances in which the statute does authorize a commission to adopt regulations requiring off site improvements, including ․ the creation of drainage problems to downstream culverts caused by the proposed subdivision, when such improvements are necessary to create harmony between proposed roads and existing thoroughfares ․” (Emphasis in original.)   Id., 332 n.11. While the statute may permit commission to adopt regulations requiring off-site improvements, depending on the circumstances, it does not require it to do so.   See id.

In the present case, the plaintiff alleges that she requested that the commission condition its approval of the subdivision on the discontinuance of the use of the driveway, which is part of the Soundview Drive property and not the subdivision property.   She maintains that the plaintiff's engineer agreed to this condition at one of the public hearings.   The court finds, based on its review of the record and testimony before the commission, that there was no agreement to place any restrictions on the land record for the Soundview Drive property that would restrict the owner's use of the driveway.  (Sup.ROR, Tr. pp. 2, 5–6.)   Assuming, arguendo, that the commission could have required the applicants to place a restriction concerning the use of the driveway on the land records when that driveway is outside the subdivision property, it did not abuse its broad discretion by declining to do so.   Nothing in Buttermilk Farms mandates that the commission so act.   Accordingly, the commission's decision to approve the subdivision application without including an express condition requiring the discontinuance of the use of a strip of land on an abutting parcel that was not part of the subdivision application was not illegal, arbitrary or unreasonable.

The record before the commission reveals that the plaintiff's expressed concern was that the owners of the new houses in the subdivision would use the driveway and that the proposed extension of Soundview Drive would not happen.   (ROR # 49, pp. 12–15, 24.)   What the commission could do, and did do, in response to this concern was impose conditions on the subdivision property that would prevent the new homes from expanding the use of the driveway.   Specifically, in its approval of the subdivision application, the commission imposed a restriction that states “record subdivision mylar shall be revised to include a note which states ‘Vehicular access to lots 2, 3, 4 and 5 [into the subdivision] shall only be from where those lots individually and directly front onto the subdivision extension of Soundview Drive.’  “ (ROR # 2, p. 2.) Moreover, the relevant revised map, which eventually will be recorded as part of the subdivision mylar, states “Lots 2, 3, 4 & 5 are not to have access and are not to have future access to the existing access way for property of Michael J. Soufrine, 19 Soundview Dr.” (ROR # 47, Map 1.)

The plaintiff maintains that this restriction is inadequate to address her concerns about noise and traffic on the driveway during the development phase because there is no way to enforce the restriction.  (Pl.'s Mem. # 117, pp. 4, 10–11.)   The commission replies that the restriction is enforceable.   The restriction is on the mylar, which the applicant must comply with as a condition of final subdivision approval pursuant to § 8–25.   If vehicles use the driveway in contravention of the approved subdivision plan, the zoning enforcement officer may issue cease and desist orders pursuant to the zoning regulations.  (Commission's Mem. dated 8/23/11, pp. 6–10.)   The plaintiff replies that this assurance is inadequate because the fine for such violation is insufficient and it is unclear against whom it would lie.  (Pl.'s Reply Mem. dated 9/22/11 [Pl.'s Reply], p. 7.)

The plaintiff's concern, as articulated in her brief, is that she has insufficient recourse against various persons, from drivers of delivery trucks and construction vehicles to future homeowners, who may access the subdivision by using the driveway.  (See Pl.'s Br # 117, pp. 2, 8–10;  Pl.'s Reply.)   This concern amounts to mere speculation as to what might occur in the future;  cf.  River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 70–71, 848 A.2d 395 (2004) (commission's decision must be supported by substantial evidence, and “general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence”);  and is insufficient to overturn the commission's approval of the subdivision application because it does not render the approval illegal, arbitrary or unreasonable.   Moreover, absent evidence to the contrary, the court must presume that the zoning enforcement officer will act according to law if there are violations of any of the restrictions that the commission imposed.   Cf. Waterbury v. Washington, 260 Conn. 506, 571, 800 A.2d 1102 (2002) (“[i]n the absence of clear indication to the contrary, public officials are presumed to act according to governing law”).   Accordingly, the plaintiff's first claim on appeal must fail.

B

The plaintiff also claims that the commission's approval of the subdivision is “fatally defective ․ illegal and arbitrary” because the commission imposed certain conditions pertaining to parcel C, which she maintains is land that is outside the subdivision.  (Pl's.Mem.# 128.)

The following additional facts are relevant.   The commission imposed a number of conditions on its approval of the subdivision application, most of which addressed concerns about drainage.   Parcel C constitutes approximately 1.86 acres on the west end of the subdivision property and abuts the Soundview Drive property belonging to Michael Soufrine.  (ROR # 47, Map 1.) During public hearings, the applicants' engineer described the proposed creation of detention area A, which would be located on parcel C. (See, e.g., Sup. ROR Tr., pp. 7–9;  ROR # 50, pp. 19–22.)   There is evidence on the record that commissioners expressed concerns about future enforcement of certain restrictions related to detention areas and drain pipes.  (See ROR # 50, pp. 7–8, 21–22;  ROR # 51, pp. 15–17.)   For example, they wanted the land owners periodically to clear the detention basin outlet of debris, to refrain from dumping yard waste including lawn clippings into the detention areas and to maintain the detention basin berm free of trees and brush on their lots.  (See ROR # 47, Map 1, ¶¶ 19–23.)   The applicants submitted a revised subdivision plan with the enumerated responsibilities and restrictions with respect to parcel C as applying to the owners of “19 Soundview Dr.” (ROR # 47, Map 1, ¶¶ 19–23.)   Parcel C is to be deeded over to the owner the Soundview Drive property with a drainage easement in favor of the town.  (ROR # 50, pp. 19–22;  ROR # 47, Map 1.) The deed over was requested so that the restrictions attendant to the drainage system abutting the Soundview Drive property eventually would be in the chain of title for the Soundview Drive property in order to put future owners of that property on proper notice.  (See ROR # 50, pp. 7–8, 21–22;  ROR # 51, pp. 15–17.)

The commission argues that parcel C currently is and at all relevant times was part of the land subject to the subdivision application, and, consequently, is subject to the commission's authority, regardless of the fact that eventually it will merge with the Soundview Drive property.  (Mem. dated 8/23/11, pp. 4–5.)   The plaintiff argues in response that parcel C must be deeded over to the owner of the Soundview Drive property as a condition of subdivision approval, such that the obligations and restrictions pertaining to that parcel really apply to the Soundview Drive property, which is land that is outside the subdivision and beyond the authority of the commission.  (Pl.'s Reply, p. 4–5.)   She argues that because the present owners must keep the property to perform the required drainage work, the condition of the deed over cannot happen until sometime later, which means that any obligations and restrictions imposed on the owner of the Soundview Drive property are imposed on property that is not within the subdivision application.  (Pl.'s Reply, p. 5.)

Unlike the driveway at the center of this dispute, parcel C was, and is, part of the land included in the application for subdivision approval.   Accordingly, the commission did not impose restrictions on land that was outside the scope of its authority.   The restrictions are listed on the map as pertaining to parcel C, and apply to parcel C regardless of who presently owns it.   The restrictions are phrased on the map as eventually imposing obligations on the owner of the Soundview Drive property, but this does not alter the commission's authority to impose the restrictions on parcel C in the first instance.   Nor does the fact that parcel C eventually will merge with the Soundview Drive property render the approval of the subdivision application fatally defective because it was within the authority of the commission to impose restrictions on parcel C. Despite the plaintiff's arguments to the contrary concerning the propriety and timing of the deed over requirement, the restrictions on parcel C do not raise issues that conflict with the holding of Buttermilk Farms, supra, 292 Conn. 317.   The court finds neither that requirement nor the decision to approve the subdivision application, with the conditions imposed, was arbitrary, illegal or an abuse of discretion under these facts.   Once the subdivision application conformed to the regulations, the commission had no discretion or choice but to approve the subdivision.  Pansy Road, LLC v. Town Plan & Zoning Commission, supra, 283 Conn. 374.   Thus, the plaintiff's alternate ground for appeal also fails.

CONCLUSION

The plaintiff's appeal is dismissed.

Frechette, J.

FOOTNOTES

FN1. Betty and Sanford Soufrine are Michael Soufrine's parents..  FN1. Betty and Sanford Soufrine are Michael Soufrine's parents.

Frechette, Matthew E., J.