LLC v. Planning & Zoning Commission of the City of Ansonia (2013)

MEMORANDUM OF DECISION

The plaintiff, Castle Lane Developers, LLC (Castle Lane), appeals the decision of the defendant, the planning and zoning commission of the city of Ansonia (the commission), to deny Castle Lane's subdivision application.

Castle Lane owns a parcel of real property located at 26 Gardners Lane, Ansonia, Connecticut (subject property).  (Transcript of December 4, 2012 Hearing [Tr.], p. 3.) The subject property is 13.812 acres in size.  (Return of Record [ROR], item 2, drawing 02–01.)

On or about August 22, 2011, Castle Lane submitted an application for a proposed subdivision of the subject property to the commission.  (Plaintiff's Administrative Appeal, ¶ 4;  Defendant's Answer, ¶ 4;  ROR, item 1, subdivision application.)   This subdivision would have twenty-three lots containing single-family residences.  (ROR, item 1, subdivision application, p. s–1.)   Castle Lane requested two waivers in this application:  one allowing the road within the subdivision to be twenty-six feet wide instead of the required thirty, and a second allowing a dead-end street with a greater length than the regulations permitted.  (ROR, item 1, subdivision application, pp. s–1 & alternate standards & waivers.)

At the commission's regular meeting on August 29, 2011, Mark Romano, attorney Clifford Hoyle and engineer Brian Nesteriak appeared on behalf of Castle Lane to submit the site plan application and schedule the public hearing.  (ROR, item 3, p. 4.) Members of the commission asked a battery of questions touching upon a variety of issues, including, inter alia, the amount and location of open space, the length of the proposed cul-de-sac and the width of the road.   (ROR, item 3, pp. 5, 7–8, 10–11.)   Nesteriak stated that the cul-de-sac was 2300 feet long and the road leading into the subdivision began in the adjacent town of Seymour.  (ROR, item 3, p. 7.) The commission was particularly concerned, even from this early date, with the amount of open space in which younger children could play.   During this discussion, one commission member, Jared Heon, noted that “the history of this [c]ommission has always required usable open space” and that the regulations governing open space require that “it is to be usable, not even developed with nothing on the area.”  (ROR, item 3, pp. 10–11.)

The commission scheduled a site inspection for September 11, 2011.  (ROR, item 3, p. 12;  item 4.) The chairman of the commission, Bart Flaherty, and a nearby landowner raised questions and concerns regarding the removal of snow from the subdivision.  (ROR, item 4, pp. 7, 12.)   Clarifying his concerns, the same landowner stated that he thought the road as proposed “w[ould] be too long and too narrow.”  (ROR, item 4, p. 12.)

The public hearing was scheduled for and conducted on September 19, 2011.   (ROR, item 3, p. 12;  item 5.) The public hearing was subsequently extended three times:  to September 26, 2011;  to October 24, 2011;  and finally to November 14, 2011.  (ROR, item 6, pp. 112–13;  item 8, p. 59;  item 10, p. 71.)   Approximately forty-five members of the public who live near the proposed subdivision spoke at these meetings.  (ROR, item 5, p. 4;  item 7, p. 3;  item 9, p. 4;  item 11, p. 3.) Their concerns touched upon a variety of subjects, but focused primarily on the effect of the subdivision on nearby residents' wells;  (see, e.g., ROR, item 6, pp. 33–34, 40, 78);  the effect of any potential blasting on nearby residents and residences;  (see, e.g., ROR, item 6, pp. 43, 84–86);  and the increased burdens on local services, the road leading into the subdivision (both normal use and use during inclement weather) and related safety concerns.  (See, e.g., ROR, item 6, pp. 55, 62, 85;  item 8, pp. 47, 49.)

At the end of the first public hearing on September 19, 2011, Oswald Inglese, the planning and zoning consultant, discussed § 320.5 of the Ansonia zoning regulations, which excludes certain portions of a lot with a slope in excess of 25 percent from the calculation of the lot's size.  (ROR, item 6, p. 108.)   Noting that he was unable to verify if the proposed lots met this regulation, Inglese requested that Castle Lane submit a mapped evaluation demonstrating compliance.  (ROR, item 6, pp. 108–09.)

At the October 24, 2011 public hearing, Hoyle, speaking on behalf of Castle Lane, noted that Castle Lane was willing to use a thirty-foot-wide road if the commission was unwilling to accept the twenty-six-foot proposal.  (ROR, item 10, p. 9.) Additionally, attorney Dana Friedman argued that § 320.5 should not be applied against Castle Lane because it was not in the set of regulations that Castle Lane had purchased from the town and on which it had relied in submitting the application and seeking financing.  (ROR, item 10, pp. 22–26.) ¹

During these public hearings, the commission received numerous letters and documents from various agencies and interested parties.  (ROR, item 5, p. 3;  item 7, pp. 3–4;  item 9, p. 3;  item 11, pp. 4–5.)   Of particular importance, the commission at the September 19, 2011 public hearing entered into the record the September 16, 2011 memorandum by Inglese.  (ROR, item 5, pp. 1 & 3.) In it, Inglese raised various potential issues, including, inter alia, the effect on health and safety that granting the requested waivers could produce, the need for evidence showing that the lots would comply with § 320.5 (mislabeled as “[s]ection 320.4”) and the reduction of proposed open space caused by the location of the detention pond.  (ROR, item 25, pp. 2–3.)

The commission also twice received revised plans from Castle Lane. (ROR, item 10, p. 10;  item 12, p. 5.) The first set of revised plans was received by the commission at the October 24, 2011 public hearing.  (ROR, item 10, p. 10;  item 43.)   These drawings addressed changes characterized as only “technical in nature,” such as the inclusion of a storm easement, underground filtration systems, driveway grades, a 30,000–gallon fire storage tank and reverse benching on some of the slopes.  (ROR, item 10, pp. 11, 16–22.)   The second set of revised plans were first discussed at the last public hearing on November 14, 2011, though the commission had received them during the prior week.  (ROR, item 12, p. 5.) Most of the changes in these drawings concerned the installation of a pump house, sidewalks, street lamps and water lines as well as drainage concerns.  (ROR, item 12, pp. 19–29.)   Castle Lane, however, also included “a preliminary ․ or an alternate subdivision plan.”  (ROR, item 12, p. 46.)   The drawing for this preliminary subdivision plan provides for a cut-through road instead of a cul-de-sac, widens the road to thirty feet, modifies to varying degrees the shapes and sizes of the lots and adds one lot.²  (ROR, item 12, pp. 46–47;  item 77, drawing 05–02.)

The public hearing was officially closed on November 14, 2011.  (ROR, item 12, pp. 114–15.)   At the November 28, 2011 regular meeting, the commission addressed Castle Lane's subdivision application for the final time.  (ROR, item 80, pp. 2–7.)   Flaherty noted the receipt of a posthearing memorandum from Inglese, dated November 23, 2011.  (ROR, item 80, p. 2.) In this memorandum, Inglese, evaluating the information before the commission, recounted numerous problems remaining with Castle Lane's application, including, inter alia, compliance with the subdivision regulations concerning road length and width, compliance with § 320.5 and issues with the open space proposed.  (ROR, item 79, p. 1.) Inglese also noted that Castle Lane had recently submitted revised drawings, that one of these drawings reflected a “substantial departure” from previous plans by proposing a cut-through street instead of the original cul-de-sac and that much of the public testimony and all of the comments by Seymour and relevant agencies had been based on the original plans.  (ROR, item 79, p. 2.) For these reasons, Inglese recommended that the waivers be denied and that the current subdivision plans be withdrawn or the application denied.  (ROR, item 79, p. 2.)

After the members had discussed their various concerns with the subdivision and the chairman had read significant portions of the new Inglese memorandum aloud (ROR, item 80, pp. 3–5);  the commission voted.   All members, save one abstention, voted to deny the waivers.  (ROR, item 80, pp. 5–6.)   Next, a motion was made to “deny the [s]ubdivision due to the lack of the waivers and other considerations.”  (ROR, item 80, pp. 6.) The chairman stated that “there are other considerations, [such as] the testimony from Seymour and the people that the road is inadequate, tremendous amount of problems it's down to 17 feet in one area, the plans are incomplete as far as that additional submittal [sic] there is an awful lot missing on there and the other things that [Inglese] noted.”  (ROR, item 80, p. 6.) A majority of the commission's members then voted to deny the subdivision plan and, subsequently, voted to deny the site plan.³  (ROR, item 80, pp. 6–7.)

Notice of the commission's decisions to deny the waivers, the subdivision plan and the site plan was published in the New Haven Register on December 6, 2011.  (ROR, item 82.)

Additional relevant facts will be discussed as needed.

“Appeals to the courts from administrative [agencies] exist only under statutory authority ․ Appellate jurisdiction is derived from the ․ statutory provisions by which it is created ․ and can be acquired and exercised only in the manner prescribed ․ In the absence of statutory authority, therefore, there is no right of appeal from [an agency's] decision.”  (Internal quotation marks omitted.)  New England Road, Inc. v. Planning & Zoning Commission, 308 Conn. 180, 183, 61 A.3d 505 (2013).   An appeal from a decision by a planning and zoning commission is taken pursuant to General Statutes §§ 8–8 and 8–9.⁴

“[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.”  (Citation omitted;  internal quotation marks omitted.)  Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537–38, 833 A.2d 883 (2003).  “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  Id., 537–38.

“Classical aggrievement requires a two part showing.   First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share ․ Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest ․ Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest.”  (Internal quotation marks omitted.)  Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 665, 899 A.2d 26 (2006).   A party's ownership of specific real property and an agency's ruling preventing the party's proposed use of the property demonstrates classical aggrievement.   See Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987).

Here, Castle Lane pleaded that it had applied on or about August 22, 2011, for a twenty-three-lot subdivision and that this application included a request for approval of waivers.  (Plaintiff's Administrative Appeal, ¶¶ 4, 6.) It also pleaded that the commission voted to deny both the waivers and the subdivision application at the November 28, 2011 meeting.  (Plaintiff's Administrative Appeal, ¶ 18.)   The commission has admitted these allegations.  (Defendant's Answer, ¶¶ 4, 6, 18.)   Therefore, this court finds that Castle Lane is aggrieved.

An appeal from a planning and zoning commission “shall be commenced by service of process in accordance with subsections (f) and (g) of [§ 8–8] within fifteen days from the date that notice of the decision was published as required by the general statutes.”  General Statutes § 8–8(b).  Section 8–8(f) provides in relevant part:  “Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows ․ (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with [General Statutes § 52–57(b)(5) ].”  Section 52–57(b) provides in relevant part:  “Process in civil actions against the following-described classes of defendants shall be served as follows ․ (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency ․”

In the present case, notice of the commission's decisions to deny the subdivision application was published in the New Haven Register on December 6, 2011.  (Plaintiff's Administrative Appeal, ¶ 19;  Defendant's Answer, ¶ 19;  ROR, item 82.)   Castle Lane commenced this appeal on December 20, 2011, by delivering two copies of the citation and administrative appeal on the town and city clerk.  (Marshal's Return.)   This court finds that service was proper and timely.

“It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.”  (Internal quotation marks omitted.)  Wood v. Zoning Board of Appeals, 258 Conn. 691, 708, 784 A.2d 354 (2001).  “[A] local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it.”  (Internal quotation marks omitted.)  Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn.App. 17, 29, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006).

“Judicial review of an administrative agency's decision differs depending on whether the court is reviewing a factual or a legal determination.”  (Citation omitted;  internal quotation marks omitted.)  Rapoport v. Zoning Board of Appeals, 301 Conn. 22, 32, 19 A.3d 622 (2011).  “When the administrative agency has made a factual determination, the scope of review ordinarily is expressed in such terms as substantial evidence or sufficient evidence ․ Under this standard, the [c]onclusions reached by [the board] must be upheld by the [reviewing] 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 [board] ․ The question is not whether the [reviewing] court would have reached the same conclusion ․ but whether the record before the [board] supports the decision reached ․ If a [reviewing] court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board ․ If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court ․ cannot substitute its judgment as to the weight of the evidence for that of the commission ․ The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.”  (Citation omitted;  internal quotation marks omitted.)  Id., 32–33.  “The substantial evidence standard requires enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.”  (Internal quotation marks omitted.)  Kaufman v. Zoning Commission, 232 Conn. 122, 151, 653 A.2d 798 (1995).⁵  When making a factual determination, “members of the board are entitled to take into consideration whatever knowledge they acquire by personal observation.”  Burnham v. Planning & Zoning Commission, 189 Conn. 261, 267, 455 A.2d 339 (1983).

“When the administrative agency has made a legal determination, however, the scope of review is ordinarily plenary ․ Generally, it is the function of a zoning board ․ 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.  [In turn] [t]he trial court ha[s] to decide whether the board correctly interpreted the [applicable regulations] and applied [them to the facts] with reasonable discretion ․ In applying the law to the facts of a particular case, the board is endowed with ․ liberal discretion, and its action is subject to review ․ only to determine whether it was unreasonable, arbitrary or illegal ․ [T]he plaintiffs bear the burden of establishing that the board acted improperly.”  (Citation omitted;  internal quotation marks omitted.)   Rapoport v. Zoning Board of Appeals, supra, 301 Conn. 33.

“[W]hen 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 ․ Rather, 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 ․ regulations.”  (Internal quotation marks omitted.)  Clifford v. Planning & Zoning Commission, 280 Conn. 434, 439–40 n.6, 908 A.2d 1049 (2006).

In voting to deny the subdivision, the commission did so due explicitly based on the denial of the waivers and “other considerations,” which appears to include concerns about the adequacy of the roads, the incompleteness of the alternate plans submitted and various issues raised within Inglese's posthearing memorandum.  (ROR, item 80, p. 6.) Castle Lane's asserted grounds for this appeal ⁶ will be considered in light of these reasons, starting with the justification most clearly articulated:  the denial of the waivers.

Castle Lane asserts that the commission should have approved its subdivision application because it had submitted alternate plans obviating the need for the waivers.   It points to a revised drawing submitted to the commission at the final public hearing on November 14, 2011, which provides for a cut-through street that is thirty feet wide.   The commission, in response, argues that this alternative drawing, by providing for a cut-through road instead of the dead-end street and expanding the proposed number of lots from twenty-three to twenty-four, was a substantial deviation from the application before it and would essentially act as a new application.

“Pursuant to [General Statutes § 8–26(d) ] a commission shall approve, modify and approve, or disapprove ․ application or maps and plans submitted ․ Once a zoning violation has been found on the face of a submitted plan, a commission may not approve the plan ․ A commission may, at its discretion, choose between disapproval or approval with conditions.”   (Citations omitted;  internal quotation marks omitted.)  Krawski v. Planning & Zoning Commission, 21 Conn.App. 667, 673, 575 A.2d 1036, cert. denied, 215 Conn. 814, 576 A.2d 543 (1990).   Section 2.5.2 of the Ansonia subdivision regulations codifies this requirement that the commission take one of these three actions when evaluating a subdivision application.⁷  (ROR, item 84, p. 2–6.)

It is uncontested that the subdivision road as originally proposed by Castle Lane did not meet the applicable regulations.   Schedule C, incorporated by § 3.6.2 of the Ansonia subdivision regulations, requires that most streets must be at a minimum thirty feet wide.  (ROR, item 84, pp.   3–4 & C–1.) Section 3.6.8 of the Ansonia subdivision regulations provides in relevant part that permanent dead-end streets “should, in general, not exceed 400 feet in length ․” (ROR, item 84, pp. 3–5–1.)   The proposed road, favored by Castle Lane through the final public hearing,⁸ would have been twenty-six feet wide and more than 1800 feet.  (ROR, item 79, p. 1.)

General Statutes § 8–26(a), however, provides that subdivision regulations may provide waivers of certain requirements.⁹  Section 5.3 of the Ansonia subdivision regulations, enacted pursuant to § 8–26(a), allows the commission to grant waivers if an applicant can show that certain conditions are met.¹⁰  (ROR, item 84, pp. 5–1 to 5–2.)   Specifically, under this regulation, a waiver can only be granted if “there will be no significant adverse effect ․ on the public health, safety and welfare ․” (ROR, item 84, p. 5–2.)

The commission's vote on the waivers did not meet the required three-quarters threshold.  (ROR, item 80, pp. 5–6.)   There was also substantial evidence that waiving these regulations could have a significant adverse effect on public health, safety and welfare.   In his September 16, 2011 memorandum, Inglese noted the following:  “With respect to roadway width, I am of the opinion that waiving the required pavement width would affect the ability for snow shelving, emergency on-street parking, etc.   With respect to the road length the request is excessive particularly in the case of a permanent dead-end road and [there are] issues related to fire and police protection, school bus services and general maintenance.”  (ROR, item 25, p. 2.) In his post-hearing memorandum, Inglese's opinion had not changed:  “In my opinion, these [two] waivers are substantive.”  (ROR, item 79, p. 1.)

Finally, despite Castle Lane's argument that its submission of the alternate drawing at the November 14, 2011 hearing proves that the waivers were not necessary, it is important to note that this alternate drawing differs in several substantive ways from Castle Lane's prior submissions to the commission.   It provides for a cut-through street that is thirty-feet wide instead of a road that is twenty-six feet wide and ends in a cul-de-sac.  (ROR, item 77, drawings 05–01 & 05–02.)   It increases the number of lots from the original application and prior drawings by providing for twenty-four lots and alters the dimensions of these lots to varying degrees.  (ROR, item 77, drawings 05–01 & 05–02.)   All of the other drawings submitted at the November 14, 2011 public hearing address issues such as the proposed site development, grading, drainage, the installation of utilities, soil erosion and sediment control and roadway planning in the context of the subdivision's originally proposed twenty-three lots and cul-de-sac.  (ROR, item 77, drawings 05–01, 11–01, 12–01, 13–01, 13–02, 15–01 & 15–02.)   Further, as Inglese noted in his posthearing memorandum, substantial public participation and all of the commentary provided by Seymour and various agencies were based on the original set of plans.  (ROR, item 79, p. 2.)

Therefore, it was not an abuse of discretion for the commission to disapprove Castle Lane's subdivision application rather than approve it on the basis of one drawing submitted at the last public hearing when that drawing deviated substantially from prior submissions that had been evaluated for over two months.   Further, the commission did not act unreasonably, arbitrarily or illegally by denying the subdivision application after it had denied the two requested waivers.

Castle Lane also challenges the commission's reliance on § 320.5 ¹¹ in denying its subdivision application.   Caste Lane's position is that the commission could not reasonably apply § 320.5 against its application because that regulation was not in the set of zoning regulations that it had purchased from the town and was not mentioned until the end of the first night of the public hearing.   The commission responds, in part, by noting that Castle Lane has not provided any written evidence showing that its copy of the regulations lacked § 320.5 and that Castle Lane had been notified prior to its purchase of the property or submission of its application that there was a regulation concerning slopes that might be applicable to the subject property.

There is very little evidence in the record that could support Castle Lane's contention that it received a defective set of regulations.   Although representatives of Castle Lane argued during the public hearing that § 320.5 was not within the copy of the zoning regulations purchased from the town clerk;  (ROR, item 10, pp. 23–24);  Castle Lane did not enter its copy of the regulations into the record either during the hearing or at any point thereafter.   Indeed, the only copy of the zoning regulations within the record contains § 320.5. (ROR, item 83, p. 38.)   At the December 4, 2012 hearing before this court, Castle Lane could neither provide the date on which these allegedly defective regulations were purchased nor a receipt demonstrating that date, and it does not appear that it made any attempt to acquire the regulations from its engineer to support its claim before the court.  (Tr., pp. 32–33.)

Additionally, Castle Lane cannot claim that it was unjustifiably blindsided by the effect of this regulation as, prior to purchasing the property, Romano was alerted to the fact that there was a regulation regarding slopes at the commission's October 25, 2010 regular meeting.  (ROR, item 85, pp. 9–10.)   At this meeting, Romano informed the commission that he was thinking about buying the subject property to install a subdivision similar to one that had been approved in the early 1990s.  (ROR, item 85, p. 9.) Inglese inquired if the property was steep;  Romano responded that it was “very steep.”  (ROR, item 85, pp. 9–10.)   Flaherty then stated that Romano would have to verify what is allowed by the current zoning regulations as that prior approval had occurred twenty years ago, the zoning regulations had changed since then, and that “[t]here is a regulation on cut and fill and slopes [which] may or may not be the same as it was 20 years ago.”  (ROR, item 85, p. 10.)   Flaherty repeated his concerns about the “slopes and density issues” twice more before the end of the meeting.  (ROR, item 85, p. 10.)

Lacking a basis for questioning the propriety of the commission's enforcement of § 320.5 against Castle Lane, the record reveals that there was significant evidence that the proposed lots on the subject property might have been effected by this regulation.   Inglese noted in his post-hearing memorandum that “[i]t is questionable if the lots meet the existing topography maximum slope limitations prescribed in the [z]oning [r]egulations” and that Castle Lane had not submitted a map demonstrating that its application complied with the requirements.  (ROR, item 79, p. 1.) Other evidence in the record supports the commission's decision to deny the subdivision application for Castle Lane's failure to submit additional proof that its application complied with § 320.5. A 1988 environmental report entered into the record listed particular problems that any developer would have to address due to the subject property's “steep slopes” and “[t]he very steeply sloping areas ․” (ROR, item 30, p. 13.)   A nearby landowner testified that the subject property's slope is “horrific.”   (ROR, item 10, p. 38.)   Finally, several members of the commission had personally visited the subject property on September 11, 2011;  (ROR, item 4);  and could have incorporated their personal knowledge concerning its characteristics.

Therefore, Castle Lane has not demonstrated a sufficiently compelling reason to hold its subdivision application beyond the ambit of § 320.5. Further, it was not unreasonable, arbitrary or illegal for the commission to deny the subdivision application for Castle Lane's failure to supply proof of compliance with § 320.5.

Castle Lane argues next that its application had sufficient open space to meet the maximum requirements of the subdivision regulations, noting that its application provided 13 percent whereas the subdivision regulations can require 10 percent at most.   Castle Lane also points out that the regulation only applies when the commission deems the open space “essential” and that the commission has not made a statement to this effect.   Finally, at the December 4, 2012 hearing, Castle Lane argued that the provision does not explicitly require “usable open space,” just “open space.”  (Tr., p. 27.)   In response, the commission argues that the commission has some discretion under the applicable regulation's enabling statute, General Statutes § 8–25,¹² to select suitable land on which to situate the open space and points to the fact that over half of Castle Lane's proposed open space would be occupied by a detention basin.

“Cases that present pure questions of law ․ invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.”  (Internal quotation marks omitted.)  Rapoport v. Zoning Board of Appeals, supra, 301 Conn. 33–34.  “[Z]oning regulations are local legislative enactments ․ and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes ․ Whenever possible, the language of zoning regulations will be construed so that no clause is deemed superfluous, void or insignificant ․ The regulations must be interpreted so as to reconcile their provisions and make them operative so far as possible ․ When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results.”  (Internal quotation marks omitted.)  Heim v. Zoning Board of Appeals, 289 Conn. 709, 715–16, 960 A.2d 1018 (2008).

“When construing a statute, [the court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, [the court] seek[s] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning ․ [General Statutes] § 1–2z directs [the courts] first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ Furthermore, General Statutes § 1–1(a) provides:  In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language ․” (Citations omitted;  internal quotation marks omitted.)  Moon v. Zoning Board of Appeals, 291 Conn. 16, 21, 966 A.2d 722 (2009).

“[A]lthough this court is not bound by a zoning board's interpretation of its regulations, a board's reasonable, time-tested interpretation is given great weight.”  Jalowiec Realty Associates, L.P. v. Planning & Zoning Commission, 278 Conn. 408, 414, 898 A.2d 157 (2006).  “A court that is faced with two equally plausible interpretations of regulatory language ․ properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation.”  Wood v. Zoning Board of Appeals, supra, 258 Conn. 699.  “[Courts] always must construe a regulation in light of its purpose.”  Heim v. Zoning Board of Appeals, supra, 289 Conn. 718, 960 A.2d 1018 (2008).

In the present case, § 3.11.2 of the Ansonia subdivision regulations, entitled “Parks and Playgrounds not shown on City Plan,” provides in relevant part:  “Where deemed essential by the [c]ommission, upon consideration of the particular type of development proposed in the subdivision, and especially in large-scale developments not anticipated in the plan of development, the [c]ommission may require the dedication or reservation of sites of a character, extent and location suitable to the needs created by such development for playgrounds or parks.   In no case shall the [c]ommission require that more than 10% of the gross area of the subdivision be so dedicated or reserved.   The [c]ommission may give due credit for the provision of open spaces reserved for the common use of all property owners within the proposed subdivision by covenants in the deeds.”  (Emphasis added.)  (ROR, item 84, p. 3–10.)

Although Castle Lane is correct that § 3.11.2 does not explicitly require usable open space, the regulation contains a comparable phrase, “for the common use of all property owners.”   Further, according to an uncontested statement by one member of the commission at the August 29, 2011 regular meeting, the commission has historically interpreted this section as requiring usable open space.  (ROR, item 3, p. 11.)   Finally, the word “may” in the phrase “the commission may give due credit for the provision of open spaces” grants the commission discretion to determine whether to count the proposed land in considering whether to credit the proposed open space.¹³  As the regulations grant the authority to determine the “character, extent and location suitable to the needs created by such development” of the land against which the commission would credit the open space and the board's time-tested interpretation mandates usable open space, the commission could reasonably require that the proposed open space be usable.

Evidence within the record supports the commission's contention that the amount of usable open space as proposed by Castle Lane was below what the commission could legally require.   Castle Lane's original proposal of reserving 1.82 acres constituted approximately 13 percent of the total area of the subdivision.  (ROR, item 25, p. 3.) Nesteriak admitted, however, that about 60 percent of this open space would be altered by the construction of the detention basin and other intended alterations to the land, though he claimed that “the majority of that will be vegetative and put back in a natural state.”  (ROR, item 12, p. 34.)   Construing this admission in the light most favorable to the commission, as the court is required to do, would leave 0.728 acres, or slightly more than 5 percent of the total subdivision, as usable open space.

There is also evidence from which the commission could have deemed the provision of open space to be essential to this development.   At the August 29, 2011 meeting, after Flaherty commented that the application made no provision for a playground, Nesteriak noted that no playground was provided due to the subdivision's proximity to Abe Stone Park, which contains a playground.  (ROR, item 3, p. 8.) In the discussion that followed, “it was noted that there is no access to Abe Stone Park from this area without going down a very steep hill and woods.”  (ROR, item 3, p. 8.) Although Castle Lane's engineer suggested that they could upgrade a path past the detention basin to the park, Flaherty was unconvinced, saying that there was no place in the subdivision for small children to play and that they would not be able to play in their yards because the yards are sloped.  (ROR, item 3, p. 10.)   He also rejected the notion proposed by Romano that the cul-de-sac could provide a suitable place for the children to play in the subdivision.  (ROR, item 3, p. 11.)   The commission's concerns remained unaddressed at the time of the November 14, 2011 hearing, as Flaherty noted that no play areas had been added to the subdivision and suggested that having the detention basin within the communal open space where younger children could play would be dangerous.  (ROR, item 12, pp. 44–45.)

This Court concludes that the commission did not act unreasonably, arbitrarily or illegally by requiring usable open space, that there was substantial evidence to support findings that the open space requested was essential and that the amount of usable open space proposed by Castle Lane was insufficient and that the commission did not act unreasonably, arbitrarily or illegally by denying the subdivision application on this ground.

As each of the three issues discussed above provides a separate basis for dismissing Castle Lane's appeal, the court does not address Castle Lane's remaining contentions.

For the foregoing reasons, Castle Lane's appeal is dismissed.

JOHN W. MORAN, JUDGE TRIAL REFEREE

FOOTNOTES

FN1. Friedman posed a second argument why Castle Lane should not be bound by § 320.5:  specifically, that the regulation had not been properly enacted.  (ROR, item 10, pp. 22–23.)   This argument has not been pursued on appeal.  (Tr., pp. 31–32.).  FN1. Friedman posed a second argument why Castle Lane should not be bound by § 320.5:  specifically, that the regulation had not been properly enacted.  (ROR, item 10, pp. 22–23.)   This argument has not been pursued on appeal.  (Tr., pp. 31–32.)

FN2. Due to an error, there is no lot 16 on the plan.   Thus, although it initially appears as if two new lots have been added from past plans, only one in fact has been added.  (ROR, item 10, pp. 46–47;  item 77, drawing 05–02.).  FN2. Due to an error, there is no lot 16 on the plan.   Thus, although it initially appears as if two new lots have been added from past plans, only one in fact has been added.  (ROR, item 10, pp. 46–47;  item 77, drawing 05–02.)

FN3. Two members abstained from the vote to deny the subdivision plan;  one member abstained from the vote to deny the site plan.  (ROR, item 80, p. 7.).  FN3. Two members abstained from the vote to deny the subdivision plan;  one member abstained from the vote to deny the site plan.  (ROR, item 80, p. 7.)

FN4. Section 8–9 provides in relevant part:  “Appeals from ․ planning and zoning commissions may be taken to the Superior Court ․ in the manner provided in [§ ]8–8.”.  FN4. Section 8–9 provides in relevant part:  “Appeals from ․ planning and zoning commissions may be taken to the Superior Court ․ in the manner provided in [§ ]8–8.”

FN5. “The standards for appellate review of a directed verdict are well settled.   Directed verdicts are not favored ․ A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion ․ In reviewing the trial court's decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff ․ Although it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven ․ it may not resort to mere conjecture and speculation ․ A directed verdict is justified if ․ the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.”  (Internal quotation marks omitted.)  Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007)..  FN5. “The standards for appellate review of a directed verdict are well settled.   Directed verdicts are not favored ․ A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion ․ In reviewing the trial court's decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff ․ Although it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven ․ it may not resort to mere conjecture and speculation ․ A directed verdict is justified if ․ the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.”  (Internal quotation marks omitted.)  Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007).

FN6. Castle Lane raises two primary arguments in support of its appeal.   First, it claims that the commission acted illegally, arbitrarily and in abuse of its discretion by denying a subdivision application which complied with the regulations.   Second, Castle Lane contends argues that the commission acted illegally, arbitrarily and in abuse of its discretion by denying the subdivision application on the basis of off-site traffic conditions.   In their administrative appeal, however, Castle Lane also alleged that the commission had acted illegally, arbitrarily and in abuse of its discretion by not granting the waivers, not recording the regular meeting in which the commission denied the subdivision application, and by illegally receiving evidence after the close of the public hearing.   (Plaintiff's Administrative Appeal, ¶ 22(b), (f) and (g).)  The court does not have to consider these arguments as they have been inadequately briefed by counsel.  Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 444, 35 A.3d 188 (2012)..  FN6. Castle Lane raises two primary arguments in support of its appeal.   First, it claims that the commission acted illegally, arbitrarily and in abuse of its discretion by denying a subdivision application which complied with the regulations.   Second, Castle Lane contends argues that the commission acted illegally, arbitrarily and in abuse of its discretion by denying the subdivision application on the basis of off-site traffic conditions.   In their administrative appeal, however, Castle Lane also alleged that the commission had acted illegally, arbitrarily and in abuse of its discretion by not granting the waivers, not recording the regular meeting in which the commission denied the subdivision application, and by illegally receiving evidence after the close of the public hearing.   (Plaintiff's Administrative Appeal, ¶ 22(b), (f) and (g).)  The court does not have to consider these arguments as they have been inadequately briefed by counsel.  Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 444, 35 A.3d 188 (2012).

FN7. Section 2.5.2 provides in relevant part:  “After the public hearing if any ․ the [c]ommission shall take one of the following actions ․ a. approve the application and plan of subdivision ․ if conforming to the requirements of these [r]egulations;  b. approve the application and plan of subdivision ․ subject to the modifications to be made by the applicant, if conforming to the requirements of these [r]egulations after modification;  or c. disapprove the application and plan of subdivision ․ for failure to conform to one or more requirements of these [r]egulations.”  (ROR, item 84, p. 2–6.).  FN7. Section 2.5.2 provides in relevant part:  “After the public hearing if any ․ the [c]ommission shall take one of the following actions ․ a. approve the application and plan of subdivision ․ if conforming to the requirements of these [r]egulations;  b. approve the application and plan of subdivision ․ subject to the modifications to be made by the applicant, if conforming to the requirements of these [r]egulations after modification;  or c. disapprove the application and plan of subdivision ․ for failure to conform to one or more requirements of these [r]egulations.”  (ROR, item 84, p. 2–6.)

FN8. At the final public hearing on November 14, 2011, Romano testified as to “another reason [Castle Lane] want[s] to stick with a cul-de-sac and not a cut-through [street] ․” (ROR, item 12, p. 61.).  FN8. At the final public hearing on November 14, 2011, Romano testified as to “another reason [Castle Lane] want[s] to stick with a cul-de-sac and not a cut-through [street] ․” (ROR, item 12, p. 61.)

FN9. Section 8–26(a) provides in relevant part:  “Such regulations may contain provisions whereby the commission may waive certain requirements under the regulations by a three-quarters vote of all the members of the commission in cases where conditions exist which affect the subject land and are not generally applicable to other land in the area, provided that the regulations shall specify the conditions under which a waiver may be considered and shall provide that no waiver shall be granted that would have a significant adverse effect on adjacent property or on public health and safety.”.  FN9. Section 8–26(a) provides in relevant part:  “Such regulations may contain provisions whereby the commission may waive certain requirements under the regulations by a three-quarters vote of all the members of the commission in cases where conditions exist which affect the subject land and are not generally applicable to other land in the area, provided that the regulations shall specify the conditions under which a waiver may be considered and shall provide that no waiver shall be granted that would have a significant adverse effect on adjacent property or on public health and safety.”

FN10. Section 5.3 provides:  “The [c]ommission, upon written request by the applicant and after due notice and public hearing as required for hearings on plans of subdivision, may, upon the vote of three quarters of all the members of the [c]ommission, waive particular requirements of these [r]egulations in cases where conditions exist which especially affect the land to be subdivided and which are not generally applicable to other land in the area when the [c]ommission finds that the following conditions are met:  a. the requirement waived is not requisite in the interest of public health, safety and general welfare or is inappropriate because of inadequacy or lack of connecting facilities adjacent to or in proximity to the proposed subdivision;  or b. an exceptional difficultly or unusual hardship may result from literal compliance of these [r]egulations, and c. in either case i) substantial justice will be done, ii) there will be no significant adverse effect on adjacent property or on the public health, safety and welfare, iii) the waiver will be in harmony with the purpose and intent of these [r]egulations, iv) the requirement is waived only to the extent sufficient to relieve the difficulty or hardship and v) there is no modification of zoning laws or other laws, ordinances or regulations of the [c]ity of Ansonia unless authorized by the [c]ity official or agency having responsibility therefore.   The [c]ommission shall state in the action on the request, or other records of the [c]ommission, the reasons for which a waiver is granted in each case.  [Sec. 8–26, CGS.]” (ROR, item 84, pp. 5–1 to 5–2.).  FN10. Section 5.3 provides:  “The [c]ommission, upon written request by the applicant and after due notice and public hearing as required for hearings on plans of subdivision, may, upon the vote of three quarters of all the members of the [c]ommission, waive particular requirements of these [r]egulations in cases where conditions exist which especially affect the land to be subdivided and which are not generally applicable to other land in the area when the [c]ommission finds that the following conditions are met:  a. the requirement waived is not requisite in the interest of public health, safety and general welfare or is inappropriate because of inadequacy or lack of connecting facilities adjacent to or in proximity to the proposed subdivision;  or b. an exceptional difficultly or unusual hardship may result from literal compliance of these [r]egulations, and c. in either case i) substantial justice will be done, ii) there will be no significant adverse effect on adjacent property or on the public health, safety and welfare, iii) the waiver will be in harmony with the purpose and intent of these [r]egulations, iv) the requirement is waived only to the extent sufficient to relieve the difficulty or hardship and v) there is no modification of zoning laws or other laws, ordinances or regulations of the [c]ity of Ansonia unless authorized by the [c]ity official or agency having responsibility therefore.   The [c]ommission shall state in the action on the request, or other records of the [c]ommission, the reasons for which a waiver is granted in each case.  [Sec. 8–26, CGS.]” (ROR, item 84, pp. 5–1 to 5–2.)

FN11. Section 320.5 provides in relevant part:  “Lot Area Not Counted Toward Requirements.   For any lot created by subdivision subsequent to the effective date of this [s]ection ․ [no] portion of the lot having slopes greater than twenty-five (25) percent and consisting of contiguous areas totaling three thousand (3,000) square feet or more be counted as part of the required lot area ․” (ROR, item 83, p. 38.).  FN11. Section 320.5 provides in relevant part:  “Lot Area Not Counted Toward Requirements.   For any lot created by subdivision subsequent to the effective date of this [s]ection ․ [no] portion of the lot having slopes greater than twenty-five (25) percent and consisting of contiguous areas totaling three thousand (3,000) square feet or more be counted as part of the required lot area ․” (ROR, item 83, p. 38.)

FN12. Section 8–25(a) provides in relevant part:  “Before exercising the powers granted in this section, the commission shall adopt regulations covering the subdivision of land ․ Such regulations shall also provide that the commission may require the provision of open spaces, parks and playgrounds when, and in places, deemed proper by the planning commission, which open spaces, parks and playgrounds shall be shown on the subdivision plan.”.  FN12. Section 8–25(a) provides in relevant part:  “Before exercising the powers granted in this section, the commission shall adopt regulations covering the subdivision of land ․ Such regulations shall also provide that the commission may require the provision of open spaces, parks and playgrounds when, and in places, deemed proper by the planning commission, which open spaces, parks and playgrounds shall be shown on the subdivision plan.”

FN13. “The word ‘may,’ unless the context in which it is employed requires otherwise, ordinarily does not connote a command.   Rather, the word generally imports permissive conduct and the conferral of discretion.”   Commission on Human Rights and Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996)..  FN13. “The word ‘may,’ unless the context in which it is employed requires otherwise, ordinarily does not connote a command.   Rather, the word generally imports permissive conduct and the conferral of discretion.”   Commission on Human Rights and Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 349, 680 A.2d 1261 (1996).

Moran, John W., J.T.R.