Elie Romano et al. v. Easton Planning & Zoning Commission et al. (2013)

MEMORANDUM OF DECISION

FACTS

The Defendants, Jeffrey and Helder Bento, are the owners of a 7.23–acre tract of land known as 71 North Park Avenue, Easton.   The property, located approximately 100 yards south of the intersection of Adams Road and North Park Avenue, is located in a “B” Zone, where residential lots are subject to a three-acre minimum.

On May 1, 2012 (ROR 1), the Defendants applied to the Easton Planning and Zoning Commission for permission to subdivide their property into two building lots.   One of the lots would contain an existing dwelling and a pool, while the other would be a vacant parcel, suitable for residential development.

The proposed subdivision envisioned a “flag lot” as defined in S.2.1.16 ¹ of the Zoning Regulations of the Town of Easton.   The new flag lot would consist of 3.8 acres, of which 0.3 acres represents the access way from North Park Avenue.

The Easton Planning and Zoning Commission devoted portions of two meetings, August 13, 2012 and August 27, 2012, to a public hearing on the Defendant's application.

At the August 13 public hearing (ROR 64), the Defendant's proposal was explained to the commission.   The commission was told that both of the proposed lots conformed to the Easton Zoning Regulations (ROR 64, p. 1–3), in that the conditions required by S.5.13.1 of the regulations had been satisfied.   Those requirements are:

A.  Use of each interior or flag lot shall be limited to one single-family residence.

B. Each easement and access way shall be not less than twenty-five (25) feet nor greater than sixty-five (65) feet wide at all points.

C. Within the boundaries of each easement and access way shall be a graveled or paved driveway which satisfies the requirements of Article 5.14.

D. Each flag lot shall include an access way in the same ownership as the lot, suitable for a driveway and utilities, which extends to and provides the lot with frontage on a public street or highway, as provided by Sections 2.1.16 and 2.1.18.   No flag lot access way shall be located closer to another flag lot access way than a straight-line distance equal to twice (two times) the requisite width of lot square or rectangle as specified in Section 5.2 (300 feet), except that the Commission may permit not more than two (2) flag lot access ways, in one location, to adjoin for the purpose of a shared or common driveway as provided in Section 5. 1 5.

E.  Each interior lot and each flag lot and the use thereof shall otherwise comply with all other requirements of the Zoning Regulations including, but not limited to, lot slope and minimum front, rear and side yard requirements for the District in which such lot is located.

F. If the easement or access way providing access to an interior or flag lot terminates at a location where two boundaries of the main portion of the lot intersect, the angle included by said boundaries when projected shall be not less than sixty (60) degrees.

The Plaintiffs, Elie Romano and Ethel Romano, are the owners of 69 North Park Avenue, property which abuts 71 North Park Avenue.   The Romano property is an interior lot, which is accessed via an easement running through 71 North Park Avenue (ROR 64, p. 3–4).

During the public hearing process, the Plaintiffs opposed the requested subdivision.   They argued that a conforming lot could be created, with frontage on North Park Avenue, without the necessity of using the flag lot design (ROR 64, p. 10–12).   The relative merits of that approach was the subject of testimony during both evenings of the public hearing (ROR 64, p. 15–21;  ROR 65, p. 7–10).

On October 22, 2012, the commission voted, unanimously (5–0), to approve the subdivision application.   After determining that the application meets the requirements for a flag lot, the commission voted several conditions of approval.   A twenty-five (25) foot buffer was ordered adjacent to neighboring properties, which required moving the proposed driveway twenty-five (25) feet to the north.   A “planting plan” was also ordered, to provide screening for neighboring Properties (ROR 55, p. 5).

From that approval, Elie and Ethel Romano brought this appeal.

AGGRIEVEMENT

The Plaintiffs, Elie Romano and Ethel Romano, are the owners of real property known as 69 North Park Avenue, Easton.   They have owned the property continuously, while this appeal has been pending.

Pleading and proof of aggrievement are a prerequisite to a trial court's jurisdiction over the subject matter of an appeal.  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307 (1991).   The party claiming to be aggrieved must sustain an interest in the property throughout the course of an appeal.  Craig v. Maher, 174 Conn. 8, 9 (1977).   The question of aggrievement is one of fact.  Hughes v. Town Planning Zoning Commission, 156 Conn. 505, 508 (1968).

Aggrievement falls into two basic categories—statutory aggrievement, and classical aggrievement.

Statutory aggrievement exists by virtue of legislative fiat, which grants standing to appeal by virtue of a particular statute, rather than through an analysis of the facts of a particular case.  Weill v. Lieberman, 185 Conn. 123, 124–25 (1986);  Pierce v. Zoning Board of Appeals, 7 Conn.App. 632, 635–36 (1986).

Classical aggrievement, on the other hand, requires a party satisfy a well-established two-fold test:  1) the party claiming to be aggrieved must demonstrate a specific personal and legal interest in the decision appealed from as distinguished from a general interest such as the concern of all members of the community as a whole, and 2) the party must show that the specific personal and legal interest has been specifically and injuriously affected by the action which generated the appeal.  Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47 (1984).  Section 8–8(1) of the General Statutes defines “Aggrieved person” to include:  “․ 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.”

As the record owners of 69 North Park Avenue, Easton, which abuts 71 North Park Avenue, Easton, the Plaintiffs have met the test for statutory aggrievement.

It is therefore found that Elie and Ethel Romano are aggrieved by the decision of the Easton Planning and Zoning Commission, which prompted this appeal.

STANDARD OF REVIEW—SUBDIVISION APPROVAL

In determining whether to approve or to disapprove a subdivision application, a planning and zoning commission sits in an administrative capacity, rather than in a legislative or quasi-judicial capacity.  Reed v. Planning & Zoning Commission, 208 Conn. 431, 433 (1988);  Kings Highway Associates v. Planning & Zoning Commission, 114 Conn.App. 509, 514 (2009).   When acting in an administrative capacity, a commission has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance.  Pansy Road, LLC v. Town Plan & Zoning Commission, 283 Conn. 369, 374–75 (2007).   Acting administratively, a commission may not reject an application that complies with the relevant regulations.  Kosinski v. Lawlor, 177 Conn. 420, 427 (1979).

In passing on a proposed subdivision plan, a commission is bound by its regulations.  RK Development Corporation v. Norwalk, 156 Conn. 369, 375 (1968).   Since the commission is not acting legislatively, it cannot make law.  Gagnon v. Municipal Planning Commission, 10 Conn.App. 54, 57 (1987).   Its authority is limited to determining whether the plan before it complies with its regulations.  Blakeman v. Planning Commission, 152 Conn. 303, 306 (1965).

Subdivision regulations must contain known and fixed standards applying to all cases in a like manner.  Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109, 115–16 (1976);  Sowin Associates v. Planning & Zoning Commission, 23 Conn.App. 370, 376 (1990).   This requirement is designed to ensure that a land use agency does not act in a capricious manner in the exercise of its authority.  Sonn v. Planning Commission, 172 Conn. 156, 161 (1976).

The burden is on the party appealing to demonstrate that the commission acted arbitrarily or unreasonably.  Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988).   A reviewing court is bound by the substantial evidence rule.   The Plaintiff must establish that substantial evidence in the record does not support the decision of the commission.  Paul v. Town Plan & Zoning Commission, 130 Conn.App. 847, 852–53 (2011).   Substantial evidence is enough evidence to justify, if the trial were to a jury, the refusal to direct a verdict when the conclusion sought to be drawn is one of fact.  Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).   On factual questions, a reviewing court cannot substitute its judgment for that of the municipal land use body.  Timber Trail Corp. v. Planning & Zoning Commission, 222 Conn. 380 400 (1992).

Where a commission has failed or neglected to give collective reasons for its decision, a court should search the entire record, in order to determine whether there is a basis for the decision.  Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544 (1991);  Parks v. Planning & Zoning Commission, 178 Conn. 657, 662 (1979).

THE DECISION OF THE COMMISSION IS SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD

The Plaintiffs are compelled to acknowledge that the subdivision plan approved by the Easton Planning and Zoning Commission complies with the specific requirements of S.5.13.1 of the Easton Zoning Regulations.

The flag lot will serve a single residence, and the access way complies with the mandates concerning width, in S.5.13.1(B).  The Criteria contained In S.5.13.1(C) through 5.13.1(F) where applicable, have been satisfied.

The Plaintiffs insist, however, that the approved subdivision fails to comply with Section IIIs(1) of the Easton Subdivision Regulations.

This claim is not well taken.

At its October 22, 2012 meeting (ROR 55), the Commission found that the proposed subdivision complies with the regulations for a flag lot.   It further determined, that screening should be provided for the protection of neighboring property owners, and the proposed driveway was moved, in order to accommodate the buffer (ROE 55, p. 5).

The fact that the Commission, in its deliberations, did not make an explicit finding to the effect that approval of the subdivision will “․ minimize construction impacts on the environment of the site or result in preservation of desirable natural features” is not fatal to the decision.

Substantial evidence exists in the record, compiled over two evenings of public hearings, to demonstrate that the Commission considered and evaluated multiple factors on the site, including alternate designs, before approving the Defendants' application.

Nothing in the record undercuts the Commission's specific finding that the proposal, as approved, meets the criteria specified in the subdivision regulations.   The town's Land Use Director, after reviewing the application, concurred with that assessment.

The provisions of the Subdivision Regulations, S. IIIs(1), concerning “construction impacts on the environment,” and “preservation of desirable natural features,” do not provide clear, definite and meaningful guidance to the Commission.   However, notwithstanding any lack of clarity, substantial evidence in the record supports a finding that the Commission demonstrated a concern for both the impact on the environment, and the impact of the subdivision on neighbors.²  It determined that privacy screening was appropriate, in a zone in which the minimum lot requirement is three (3) acres.

CONCLUSION

The appeal of the Plaintiffs, Elie Romano and Ethel Romano, is DISMISSED.

RADCLIFFE, J.

FOOTNOTES

FN1. Section 2.1.16 LOT (FLAG):  A lot having frontage on a public street or highway by means of an unobstructed access way held in the same ownership.   Such access way shall be not less than twenty-five (25) nor more than sixty-five (65) feet wide at all points.   A flag lot shall otherwise meet the requirements of Article 5 pertaining thereto..  FN1. Section 2.1.16 LOT (FLAG):  A lot having frontage on a public street or highway by means of an unobstructed access way held in the same ownership.   Such access way shall be not less than twenty-five (25) nor more than sixty-five (65) feet wide at all points.   A flag lot shall otherwise meet the requirements of Article 5 pertaining thereto.

FN2. It should also be noted, that at no time did the Plaintiffs or other concerned residents file a notice of intervention, pursuant to S.22a–19 of the General Statutes.   That statute permits intervention, through the filing of a verified pleading, if the decision “․ involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”.  FN2. It should also be noted, that at no time did the Plaintiffs or other concerned residents file a notice of intervention, pursuant to S.22a–19 of the General Statutes.   That statute permits intervention, through the filing of a verified pleading, if the decision “․ involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

Radcliffe, Dale W., J.