Max Emilio Rocamora et al. v. Rocky Hill Planning and Zoning Commission (2013)

MEMORANDUM OF DECISION

The plaintiffs, Max Emilio and Joanne Rocamora, bring this timely appeal from a June 20, 2012 denial of their re-subdivision application of the defendant, Rocky Hill planning and zoning commission (the commission).   Notice of the denial, pursuant General Statutes § 8–26 was published on or about June 27, 2012.   In its denial, the defendant concluded that the application was “counter to the orderly development of the entire neighborhood” and was “not consistent with the original roadway approvals” considering their joint ownership.   (Return of Record,¹ ROR, no. 33.)   An additional reason for the denial was “neighborhood concerns.”  Id. The plaintiffs are aggrieved by the defendant's decision.²  They bring this appeal under General Statutes § 8–8(a).

The record shows as follows.   The plaintiffs own the property known as 11 Lakeview Avenue (the property) in Rocky Hill, Connecticut.   Plaintiffs' Complaint, ¶ 1.   The property is bordered by other lots except for approximately 24.33 feet of frontage bordering Hidden Valley Drive on the north and by 25 feet of frontage bordering Lakeview Avenue on the southeast.  (ROR, no. 35.)   Currently, the property can only be accessed through the Lakeview Avenue frontage.  Id. The defendant is the agency charged to review and grant applications for approval of subdivisions and re-subdivisions within the town of Rocky Hill. Id., ¶ 2.

The plaintiff, Max Emilio Rocamora, submitted an application to the defendant for a re-subdivision of the property into two residential building lots.   Id., ¶ 3.   The defendant first convened a public hearing on the plaintiffs' application request on May 16, 2012.  (ROR, no. 32.)   At the hearing, James Cassidy, a professional engineer, on behalf of the plaintiffs, presented evidence on the application.   Additionally, he sought two waivers from the commission's subdivision regulations:  (1) section 7C, which requires sidewalks along the frontage of any development;  and (2) section 12G, which requires the developer of any subdivision to provide land dedicated to public use.³  Id., 4.

Cassidy sought a sidewalk waiver on Lakeview Avenue because “there [are] no sidewalks in the area and it just didn't make sense to put sidewalks across this small piece of frontage.”  Id. Similarly, he sought a sidewalk waiver on Hidden Valley Drive.   In “the whole Hidden Valley Estates subdivision,” he said, “there [are] no sidewalks through the entire subdivision so all we'd be doing is putting in a 25 feet section of sidewalk and as part of that we have a driveway crossing about 12 feet of it so ․ [the] actual passable area [is] about 12 feet of sidewalk ․ it just didn't make sense ․ to put sidewalks [there].”  Id. Cassidy also sought a waiver of the public space requirement because the proposed northern subdivision would have consisted of less than 10 acres, specifically “about 1 1/4 acres.”  Id. “The overall property consisted of about 9.2 acres” and of that “4.7 acres [were] turned over as open space, so better than fifty percent of the property has already been turned over as open space.”  Id.

Cassidy also answered questions from the defendant and the plaintiffs' neighbors on a variety of subjects including water runoff, erosion, driveway construction, and property values.   Shortly after the questions were answered, the public hearing was closed by the defendant.  Id.

On June 20, 2012, the defendant met to discuss the plaintiffs' application on its agenda.  (ROR, no. 34.)   Present at the hearing were:  Alan Mordhorst, chair of the commission;  Henry Vasel, vice chair;  Ron Angelo, Sr., secretary;  Jeff Zepperi, commissioner, and Peter Arico, commissioner.   The following alternates were also present:  Victor Zarrilli, Carmelo D'Agostino, and Kevin Clements.   Additionally, Eileen Knapp, recording secretary, and Kimberley A. Ricci, assistant zoning enforcement officer, were present.

The following is a partial transcript (pages 2–3):

Mordhorst:  The first [agenda item] is A. resubdivision application, Max Emilio Rocamora, proposing two residential building lots ․

Vasel:  Mr. [Chair] ․ sorry, if I might recuse myself on this particular item.   I was approached by a relative of the applicant as well as contacted by a town official several times about this application.   So I feel I may have knowledge or information that others on the commission may not have and I will be in the hall if you need me.

Mordhorst:  Okay, thank you.  [Zarrilli], you'll be sitting in for [Vasel].   I just want to ask a question:  Has anyone else been contacted by a town official or spoken to anyone that would compromise your thoughts or decision?   Okay, great.   So we have [Zarrilli], [Zepperi], myself, [Angelo] and [Arico] as the voting members.   Okay, is there any additional discussion on that item?   Well we have to remove it from the table first and then ․

Angelo:  Motion.

Mordhorst:  Do we have a second?

Zepperi:  Second.

Mordhorst:  All those in favor?

(All commissioners voted in favor of the motion to take the application off the table.)

Mordhorst:  Okay, now any further comment before we take a vote?   I think everyone had a month to mull it over.   Okay, we'll take a vote.   All those in favor of the application say “aye.”   Aye ․ all those opposed ․ okay, motion ․

Ricci:  Okay and ․

Mordhorst:  So it failed 4–1.

Ricci:  4–1 and we do need reasons why people voted the way they did.

Mordhorst:  Okay.

Knapp:  Who made the original motion to approve ․ ?

Mordhorst:  Oh, did we ․

Zepperi:  There never was a motion made.

Knapp:  There was no motion.

Arico:  There wasn't any motion made.

Mordhorst:  You're right.   Okay, we'll have a motion to ․ on the application itself.   Do we have a motion at all?   Okay, so we can't even vote on it.

(A commissioner spoke but his comment was not heard on tape.)

Mordhorst:  No, it's rejected.   It's not ․

Ricci:  No, we ․ need a motion ․

Mordhorst:  To ․ ?

Ricci:  For some sort of action.

Mordhorst:  Okay. So if no one wants to make the motion ․

Arico:  I'll make a motion.

Ricci:  Okay.

Arico:  I make a motion to deny.   I feel its counter to the orderly development of the entire neighborhood and it's not consistent with the original roadway approvals as consideration should be given to the joint owners, also, neighborhood concerns as outlined in the previous meeting.   That's my motion.

(Zarilli raised his hand to second the motion.)

Mordhorst:  Okay, now we will take a vote.   All those in favor of the motion to deny?   All those opposed?

(Mordhorst raised his hand.)

Mordhorst:  Myself.   So that ․ the motion passes, 4–1.   The application is denied.

Ricci:  Okay, then ․ my same comment would apply no matter what ․

Mordhorst:  Well, [Arico] has given us his reasons.

Angelo:  I agree with [Arico's].

Zapperi:  I concur with those also.

Zarrilli:  I concur also.

Mordhorst:  Okay. And I obviously don't, but that's the way ․ that's fine.   All right, thank you.

No vote was taken on the requested waivers.   An appeal followed, but the parties agreed to a remand to consider the waivers.   On November 14, 2012, a public hearing was held to decide the request for waivers.   At the hearing, the commission approved the waiver for sidewalks and denied the waiver for the open space requirement for the subdivision.  (Supplemental ROR, no. 39.)   The appeal was then returned to this court.

“In an appeal from the decision of a zoning board, [the court] review[s] the record to determine whether there is factual support for the board's decision, not for the contentions of the applicant.”  (Internal quotation marks omitted.)  Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).

“When a commission states its reasons in support of its decision on the record, the court goes no further, but if the commission has not articulated its reasons, the court must search the entire record to find a basis for the [commission's] decision.”  (Internal quotation marks omitted.)  Azzarito v. Planning & Zoning Commission, 79 Conn.App. 614, 618, 830 A.2d 827, cert. denied, 266 Conn. 924, 835 A.2d 471 (2003).   In the present appeal, the commission did not formally state its reasons for denying the application, but instead in the “verbatim note” of the June 20, 2012 meeting gave reasons both in the motion and in statements made in connection with the motion.   See Harris v. Zoning Commission, 259 Conn. 402, 422, 788 A.2d 1239 (2002) (there was no formal, official, collective statement given by the commission).   On the other hand, the court declines to search beyond the reasons stated in the commissioner's motion.

While the commission does have discretion to determine whether the general standards in the regulations have been met in the permit process, Irwin v. Planning and Zoning Commission, 244 Conn. 619, 627, 711 A.2d 675 (1998), “[i]n reviewing a decision of a zoning board, 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.”  (Internal quotation marks omitted.)  Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 427, 941 A.2d 868 (2008) (substantial evidence did not exist for certain of the reasons given by the commission for denial of a special permit, but did for other reasons).

The court therefore turns to the reasons given by the commission as contained in the motion for denial of the plaintiffs' application to determine whether they are supported by the record.   The articulated reasons (found in the commissioner's motion) are that the defendant felt the proposed subdivision was “counter to the orderly development of the entire neighborhood and it's not consistent with the original roadway approvals as consideration should be given to the joint owners, also, neighborhood concerns as outlined in the previous meeting.”  (ROR, no. 34.)

The subdivision regulations state that the “[t]he proposed subdivision shall conform to the Plan of Development and to the Zoning Regulation requirements.” § 12.A The commission relies on § 12.B because there was discussion at the May 16, 2012 meeting of drainage and this section discusses flooding.   But this section was not set forth in any way as a reason for denial in the commissioner's motion.   The commission raises no other regulation that supports the reasons for the denial.

The court concludes that the appeal must be again remanded to the commission for it to consider whether the plaintiffs' application should be approved or denied based on the zoning and subdivision regulations of the town.   See Garrison v. Planning Board, 66 Conn.App. 317, 320, 784 A.2d 951 (2001) (test is whether subdivision application conforms to the regulations adopted by the commission);  Amaning v. Planning and Zoning Commission, Superior Court, judicial district of New Britian, Docket No. CV 07–4012881 (March 26, 2008, Cohn, J.).⁴

Henry S. Cohn, Judge

FOOTNOTES

FN1. The court's citations are to the return of record summaries, court docket entry no. 104 and the supplemental return of record, court docket entry no. 108.   Both summaries list the enumerated contents of the return of record..  FN1. The court's citations are to the return of record summaries, court docket entry no. 104 and the supplemental return of record, court docket entry no. 108.   Both summaries list the enumerated contents of the return of record.

FN2. See deeds of February 22, 2012 and March 9, 2012 introduced at oral argument, March 20, 2013..  FN2. See deeds of February 22, 2012 and March 9, 2012 introduced at oral argument, March 20, 2013.

FN3. The regulations provide, in part:7C. Sidewalks shall be required except when waived by the Commission if in its opinion such improvements will not be necessary or desirable.12G. The developer of any subdivision shall provide land to be dedicated for public use, except that the Planning and Zoning Commission may at its discretion waive this requirement if fewer than ten (10) acres are involved ․.  FN3. The regulations provide, in part:7C. Sidewalks shall be required except when waived by the Commission if in its opinion such improvements will not be necessary or desirable.12G. The developer of any subdivision shall provide land to be dedicated for public use, except that the Planning and Zoning Commission may at its discretion waive this requirement if fewer than ten (10) acres are involved ․

FN4. This decision is the final decision in this matter.   The commission's ruling may be separately appealed from any subsequent adverse decision..  FN4. This decision is the final decision in this matter.   The commission's ruling may be separately appealed from any subsequent adverse decision.

Cohn, Henry S., J.