Opinion
No. CV 05-4011677
November 30, 2006
MEMORANDUM OF DECISION
The plaintiffs, Lord Family of Windsor, LLC (Lord LLC), Robert Daddario (Daddario), and N. Philip Lord, Jr. (Lord), appeal from the decision of the defendant Windsor Planning and Zoning Commission to impose a series of conditions on its approval of the plaintiff's special permit application and subdivision applications on the ground that the commission exceeded its statutory and regulatory authority and improperly confused its zoning and planning functions.
Pleadings and proof of aggrievement are essential to establish subject matter jurisdiction over the appeal under the provisions of § 8-8. Based on the parties' stipulation of facts, and the facts as they appear as of record, the court finds each plaintiff to be aggrieved. To wit, Plaintiffs Lord, LLC and Daddario are aggrieved for purposes of this appeal by virtue of their respective status as owners and/or applicants. Goodridge v. Zoning Board of Appeals, 58 Conn.App. 760, 767, cert. denied, 254 Conn. 930 (2000). Plaintiff Lord is an `aggrieved person' as he owns land that abuts or is within a radius of one hundred feet of the land involved in the decision. General Statutes § 8-8.
The basic factual situation underlying this appeal is not in dispute and may be summarized as follows. In 2004, the plaintiffs filed several concurrent applications for the subdivision of 355T Prospect Hill Road located in Windsor, Connecticut. The plaintiffs submitted three subdivision applications, each involving a separate portion of the property and an application for a special use permit for a single-family residential development with more than 30 lots pursuant to Section 4.5.2 of the Town of Windsor Zoning Regulations. The applications submitted at that time included plans for roads that would connect the subdivision to two existing town roads located south of the property. During the public hearing on these applications, and the continuations thereof, commission members expressed concern that the subdivision roads did not connect to Prospect Hill Road, located to the north of the property. The plaintiffs withdrew these applications to accommodate the commission's concerns.
In order to gain access to Prospect Hill Road, the plaintiffs acquired from a member of the LLC a strip of land adjacent to the parcel that would allow access to the road. Subsequently, the plaintiffs submitted new applications to the commission. On April 12, 2005, the commission approved the subdivision plans and the special use permit subject to twenty-eight conditions.
The focus of this appeal is on the plaintiffs' objection to the following six conditions:
(A) The applicant and the applicant's members and principals shall quit claim all title and rights in Prospect Hill Road to the Town of Windsor by a legal instrument approved by the Town Attorney, but only to the extent necessary to create a 50-foot right-of-way for the future improvement of Prospect Hill Road so as to better handle the traffic generated by this subdivision;
(B) The plan shall note that adjoining owners are responsible for spraying of detention ponds and basins for mosquito control;
(C) All houses shall be constructed with full basements, central air conditioning and lawn irrigation in order to conform to the standards of current development;
(D) All houses in the development shall have a habitable floor area of no less than 2,700 square feet except one-story houses which may have no less than 2,400 square feet of habitable floor area in order to conform to the prevailing standards of the neighborhood;
(E) Final staff review and approval of the final architectural drawings and elevations;
(F) The applicant shall show on the final plans the limits of tree clearing, tree cutting on the site shall be minimized to the greatest extent reasonably practical and accordingly the applicant must mark trees in the field to be removed and then notify the Environmental Planner who shall approve the tree cutting plan before any removal commences.
On May 2, 2005, the plaintiffs commenced this appeal by service of process on the defendant to contest these conditions. The defendant argues that the plaintiffs cannot appeal the conditional approval of their application under § 4.5.2 and challenge the validity of that regulation in the same proceeding. This claim is without merit pursuant to the holding in Berlin Batting Cages, Inc. v. Planning Zoning Commission, 76 Conn.App. 199 (2003) citing Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551 (1998).
When acting on a special permit application, the Commission was acting in its administrative capacity. Sheridan v. The Planning and Zoning Board of the City of Stamford, 159 Conn. 1 (1969). "A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the `conditions necessary to protect the public health, safety, convenience and property values.' General Statutes § 8-2. Acting in this administrative capacity, the board's function is to determine whether the applicant's proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied." (Citations omitted.) Housatonic Terminal Corporation v. Zoning Board, 168 Conn. 304, 307 (1975).
THE CONTESTED ZONING REGULATION § 4.5.2
Section 4.5.2 of the Windsor Zoning Regulations which is included in "Single-Family Residential Zones" and which is entitled "Single-Family Residential Developments with More than 30 Lots," provides in pertinent part as follows:
Proposed single-family residential subdivisions with more than 30 lots, in accordance with the zone requirements and subject to the following conditions:
A. The applicant shall demonstrate and the Commission shall find that adequate community facilities, roads, schools, services and utilities exist in the area to adequately serve the proposed development.
B. The lots shall comply with applicable standards set forth in relevant sections of this and the Subdivision Regulations.
The plaintiffs argue that because zoning regulation § 4.5.2 intrudes on subdivision regulations and attempts to control the division of land, it is unlawful as an improper commingling of the zoning and planning functions of the commission.
Section 4.5.2 of the town's zoning regulations states in pertinent part, that "[t]he lots shall comply with applicable standards set forth in relevant sections of this and the Subdivision Regulations." "Town subdivision regulations incorporate zoning regulations by reference." Krawski v. Planning Zoning Commission, 21 Conn.App. 667, 670, cert. denied, 215 Conn. 814 (1990). "Although planning and zoning are separate functions not to be interchanged . . . coordination between the functions is desirable and beneficial to the municipality." Id.
The commission operates as both a planning and a zoning commission. See General Statutes § 8-4a. "Its duties in each category are separate yet related. As a planning commission its duty is to prepare and adopt a plan of development for the town based on studies of physical, social, economic and governmental conditions and trends, and the plan should be designed to promote the coordinated development of the town and the general welfare and prosperity of its people . . . Such a plan is controlling only as to municipal improvements and the regulation of subdivisions of land . . . Zoning, on the other hand, is concerned with the use of property. The zoning commission is authorized to adopt regulations governing the use of property, and they should be made in accordance with a comprehensive plan for the most appropriate use of land throughout the town." (Internal quotation marks omitted.) Lewis v. Planning Zoning Commission, 76 Conn.App. 280, 284 (2003).
"Subdivision regulation is a planning function . . ." Krawski v. Planning Zoning Commission, supra, 21 Conn.App. 670. Section 8-25 provides the planning commission with the authority to establish subdivision regulations. "The enabling statute for the planning commission, however, does not permit what amounts to de facto amendment of zoning ordinances. A planning commission has no power to make, amend or repeal existing zoning regulations or zone boundaries." (Internal quotation marks omitted.) Lewis v. Planning Zoning Commission, supra 76 Conn.App. 285. Section § 8-2 authorizes the zoning commission to regulate the use of land and may provide that certain "uses of land are permitted only after obtaining a special permit or special exception from a zoning commission [or] planning commission . . . subject to standards set forth in the regulations and to conditions necessary to protect public health, safety, convenience and property values." To the extent that a special permit request for subdivision of a parcel in excess of thirty lots is concerned with the use of the land, the zoning commission was authorized to subject such application to a special permitting process. Further, the planning commission was bound to apply § 4.5.2 when reviewing the plaintiffs' application because § 8-26 prohibits a planning commission from approving any subdivision that conflicts with applicable zoning regulations. Thus, the commission was statutorily required to maintain cohesion between the decisions rendered in its planning and zoning functions.
General Statutes § 8-26 provides, in relevant part, that "The commission shall have the authority to determine whether the existing division of any land constitutes a subdivision or resubdivision under the provisions of this chapter, provided nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations."
The plaintiffs further argue that their intention at this stage in the development process was merely to subdivide the land. They argue that the commission's application of the town zoning regulation to control a future project that might materialize was speculative in nature. However, the definition of `subdivision' under General Statutes § 8-18 encompasses future development upon the subdivided parcel. In the present case, the plaintiffs' intent to build more than thirty homes on the subdivided property is implicit in the request to subdivide. Kobyluck v. Planning Zoning Commission, 84 Conn.App. 160, 171 (2004) (implicit in the applicant's request to excavate in excess of 500 cubic yards of material is the intent to process that material on-site). Moreover, the plaintiffs' intent to build more than thirty homes on the subdivided property is expressed by them throughout the record.
General Statutes § 8-18 provides, in relevant part, that "`subdivision' means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the purpose, whether immediate or future, of sale or building development expressly excluding development for municipal, conservation or agricultural purposes, and includes resubdivision . . ."
The plaintiffs also argue that the regulation, § 4.5.2, as well as the contested conditions violate the uniformity requirement set forth in General Statutes § 8-2. The uniformity requirement states, in pertinent part, that "regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values." General Statutes § 8-2. Special permits do not violate the uniformity requirement of § 8-2 of the General Statutes. See R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 5.1, p. 135, citing Summ v. Zoning Commission, 150 Conn. 79, 86 (1962).
"A special exception allows a property owner to put his property to a use which the regulations expressly permit under the conditions specified in the zoning regulations themselves." WATR, Inc. v. Zoning Board of Appeals, 158 Conn. 196, 200 (1969). "Section 8-2 explicitly provides that zoning commissions may, despite the uniformity requirement, provide that certain classes or kinds of structures may be built only after special exception permits are issued. It further provides that commissions may issue special exception permits subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values." (Internal quotation marks omitted.) Michel v. Planning Zoning Commission, 28 Conn.App. 314, 321 (1992). "Acting in this administrative capacity, the board's function is to determine whether the applicant's proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied." (Internal quotation marks omitted.) Housatonic Terminal Corporation v. Planning Zoning Board, 168 Conn. 304, 307 (1975). "This concept should be given a narrow interpretation, and the agency should be limited to a condition which specifically implements the condition mandated by the statute." R. Fuller, supra § 22.17, p. 508. "[C]onditions attached to a special permit are not per se invalid. Rather, their validity must be determined on a case-by-case basis. A key determinant in whether a condition to a special permit is valid is that condition's relationship to the action sought by the application." Kobyluck v. Planning Zoning Commission, supra, 84 Conn.App. 171. "[I]n exercising their zoning powers, the local authorities must act for the benefit of the community as a whole following a calm and deliberate consideration of the alternatives, and not because of the whims of either an articulate minority or even majority of the community." Ike, Inc. v. East Windsor, Superior Court, judicial district of Hartford-New Britain at Hartford, CV 96 0563997 (December 18, 1997, Levine, J.) ( 21 Conn. L. Rptr. 457).
Section 2.4.4 of the regulations states, in pertinent part, that "Special uses shall be granted only where the Commission finds that the proposed use . . . is in accord with the public health, safety and welfare . . ." Further, § 2.4.5 provides, in relevant part, that "In granting any Special Use, the Commission may attach additional or more stringent standards than are required for permitted uses in order to protect the public health, safety, and welfare and the surrounding area . . ." These standards include landscaping and screening requirements greater than the minimum required by the zoning regulations, requirements with respect to buildings constructed smaller than the allowable maximum, and limitations on the exterior features of buildings to maintain property value.
THE CHALLENGED CONDITIONS:
A. The applicant and the applicant's members and principals shall quitclaim all title and rights in Prospect Hill Road to the Town of Windsor by a legal instrument approved by the Town Attorney, but only to the extent necessary to create a 50-foot right-of-way for the future improvement of Prospect Hill Road so as to better handle the traffic generated by this subdivision.
This condition fails on several grounds. The commission could not condition approval on the dedication by a non-applicant and of land not owned by the applicant and along portions of a street that do not abut the subdivision. Moreover, the commission's stated reason — "to better handle the traffic generated by this subdivision" — for requiring a grant of a right of way for "future improvement" is internally inconsistent, is not supported by the evidence and exceeds the authority granted in the regulations. "When a zoning commission states the reasons for its action, `the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and pertinent to the considerations which must be applied under the applicable zoning regulations." DeMaria v. Planning Zoning Commission, 159 Conn. 534, 540 (1970). During the public hearings there was discussion that the condition of Prospect Hill Road requires improvements, with or without approval of the subject subdivision, and that the town had budgeted for design of such improvements at an undetermined time in the future. The traffic generated by this subdivision was not the genesis or a cause of the need to improve Prospect Hill Road. Either Prospect Hill Road could handle the traffic generated by the proposed subdivision or it could not. In approving the special permit and the subdivision applications, the commission, based on the evidence in the record, decided that it could. In such a case, the regulations do not authorize a requirement that land be deeded in furtherance of future off-site improvements. See Sowin Associates v. Planning Zoning Commission, 23 Conn.App. 370 (1990).
C. All houses shall be constructed with full basements, central air conditioning and lawn irrigation in order to conform to the standards of current development.
The commission violated the regulations by requiring the plaintiffs to construct homes with central air conditioning, lawn irrigation systems and full basements. "It is within the scope of the zoning regulations for the commission to impose conditions related to aesthetics and property values on the granting of the special [permit]." (Internal quotation marks omitted.) Kobyluck v. Planning Zoning Commission, supra, 84 Conn.App. 170. Section 2.4.5C authorizes, "Modifications of the exterior features or appearance of buildings or structure where necessary to be in harmony with the surrounding area and not detract from property values." The conditions imposed on the plaintiffs do not affect the exterior features or appearance of the buildings to be constructed as residences on the subdivided parcel and, therefore, constitute an unauthorized exercise of the commission's authority. Moreover the reason stated, "in order to conform to the standards of current development," is not a standard set forth in either the statutes or the regulations, and it was not supported by evidence in the record.
D. All houses in the development shall have a habitable floor area of no less than 2,700 square feet except one-story houses which may have no less than 2,400 square feet of habitable floor area in order to conform to the prevailing standards of the neighborhood.
The minimum square footage requirement for residences in the subdivision lacks support in the regulations. Section 2.4.5B of the town zoning regulations authorizes the commission to require applicants to construct residences that are smaller than the maximum size allowable under the regulations. There is no explicit language in the regulations, however, authorizing the commission to impose a condition that mandates a habitable floor area "of no less than" a particular square footage area. This condition was discussed at length during the public hearings. The commission approved the condition for the following reason: "in order to conform to the prevailing standards of the neighborhood." Without support from the regulations, the rationale for this condition is illegal. Here, the reason stated by the board for the imposition of this condition, "in order to conform to the prevailing standards of the neighborhood," is not a standard set forth in either the statutes or the regulations. Although the record contained evidence as to the size of the neighboring residences, it is devoid of evidence relating to the relationship, if any, of minimum habitable floor area to conservation of the value of buildings, a relationship that might, at first blush, seem evident, but may not hold true under given circumstances, such as rising energy costs, conservation concerns and goals and changing modes and tastes. The Supreme Court in Builders Service Corporation v. Planning and Zoning Commission, 208 Conn. 267, 289-90, 545 A.2d 530 (1988) held that although there is sufficient authority in the zoning enabling act for a local zoning commission to regulate the size of building, a 1,300 square foot minimum floor area requirement in a particular residential zone was not rationally related to any purpose of zoning as expressed in General Statutes § 8-2, without "an occupancy based component." Id., 281. The court expressed "no view whether a different minimum floor area regulation, even without an occupancy based component, might conserve the value of buildings . . ." Id., 306. The court, however also stated, that the suggestion that "what is bigger and costlier is compatible with conserving the value of buildings . . . implicitly suggests two justifications for this regulation, both of which are questionable. First, more expensive single-family houses are more desirable and, second, more such houses generate more taxes from persons better able to pay more taxes with perhaps less demand upon municipal services." Id., 291.
Because the commission acted beyond the powers granted in the regulations, the conditions related to the size of the buildings, air conditioning, basement, and lawn irrigation, as well as the condition requiring the grant of a right of way for the future improvement of Prospect Hill Road are stricken. The court has the authority to strike those conditions it considers to be beyond the commission's authority to impose without ordering that the permit be revoked. This was the holding in Parish of St. Andrew's Church v. Zoning Board of Appeals, 155 Conn. 350, 232 A.2d 916 (1967), in which the commission issued special permit subject to an illegal condition. The court held that even though condition was illegal, the illegal action did not invalidate the remainder of the commission's decision. "[T]he condition, [as are these challenged conditions], was not an integral part of the determination and can be separated from the grant as awarded." Id., 355.
The following conditions, albeit contested, are within the regulatory authority of the commission and shall stand.
B. The plan shall note that lot owners are responsible for spraying of detention ponds and basins for mosquito control.
E. Final staff review and approval of the final architectural drawings and elevations;
F. The applicant shall show on the final plans the limits of tree clearing, tree cutting on the site shall be minimized to the greatest extent reasonably practical and accordingly the applicant must mark trees in the field to be removed and then notify the Environmental Planner who shall approve the tree cutting plan before any removal commences.
Condition B is within the regulatory authority of the commission as it relates to the public health, safety and welfare. The plaintiffs contest conditions E and F on the ground that they require action by an agency other then the commission or the applicant. These conditions are directly related to the landscaping and exterior appearance of the buildings which are specific areas over which the commission has authority based on the zoning regulations. As to the requirement for "staff approval" of architectural drawings, there is no indication in the record that the approval or oversight required is that of an outside agency. The plaintiffs do not appear to contest the substance of the condition as to minimizing the cutting of trees, rather they contest the requirement that there be approval by the Environmental Planner. Zoning authorities have been allowed to approve a proposed development project on the condition that the applicant take other action even when the other action required another agency's approval, and even when there was no evidence that the other agency will act favorably on the future request. See Blaker v. Planning and Zoning Commission, 212 Conn. 471, 482 (1989); Lurie v. Planning and Zoning Commission, 160 Conn. 295 (1971). Conditions E and F are authorized and reasonable under Lurie.
Conclusion
For the foregoing reasons, conditions A, C, and D are stricken, and conditions B, E and F are not stricken.