Opinion
No. 09-4009623
June 28, 2011
MEMORANDUM OF DECISION
I.
Statement of the Appeal
By their complaint, Oliver L. Patrell and Katherine F. Patrell, trustees of the Oliver L. Patrell Connecticut Qualified Personal Residence Trust (hereinafter "plaintiffs") appealed from the decision of the Zoning Commission of the Town of Old Lyme (hereinafter "the Commission") to grant the application of Barbara Gaudio (hereinafter "defendant") for a special permit application together with a municipal coastal site plan review to allow substantial renovations to the structures on defendant's property including the filling of some 1,600 cubic yards of material.
II.
Jurisdiction
General Statutes § 8-8(b) governs appeals from decisions of zoning commissions to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82 (1989).
a. Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664 (2006). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39 (2003). A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703 (2001).
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . 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 . . ."
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665. The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8-8(a)(1), which provides in relevant part: "In the case of a decision by a . . . planning and zoning commission . . . `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
Although in paragraph 13 of the complaint, plaintiffs allege that they are both statutorily and classically aggrieved by the decision of the defendant Zoning Commission, no evidence of classical aggrievement has been presented. Plaintiffs are relying only on a claim of statutory aggrievement. In their brief, plaintiffs assert that their property directly abuts that of defendant's property. In their answers to the complaint, both defendant and the Commission state that they have insufficient evidence on the claims of aggrievement and leave plaintiffs to their proof.
This matter was reached for trial on April 26, 2011, at which time the action was dismissed for failure to establish aggrievement. On April 29, 2011, plaintiffs moved to reargue. This motion was denied by the court on May 13, 2011. By Memorandum of Decision dated May 18, 2011, the decision to dismiss was vacated and the court indicated that the question of aggrievement would be reconsidered on the record and the matters in evidence.
The only evidence of aggrievement or that plaintiffs have standing to prosecute this appeal was the submission into evidence of two deeds indicating that on June 25, 1979, Oliver L. Patrell and Katherine F. Patrell acquired title to real property in the Town of Old Lyme as described in such deeds. There was no evidence that such ownership had continued but, as plaintiffs have pointed out that pursuant to Quarry Knoll Corp. et al v. Planning Zoning Commission, 256 Conn. 674, 703 (2001), ownership of the property may be considered to have continued until it has been shown to have ceased.
The deeds in evidence indicate that the Patrells acquired the property in their individual capacity on June 25, 1979. This action was brought by Oliver L. Patrell and Katherine F. Patrell, trustees of the Oliver L. Patrell Connecticut Qualified Personal Residence Trust. There was no evidence as to how the Patrells acquired the property as trustees or what the terms of the trust may be.
Connecticut Appellate Courts have not decided whether trustees may be considered the owners of property held in trust for purposes of aggrievement under § 8-8(a)(1), Swiconek v. Zoning Board of Appeals, 51 Conn.Sup. 190, 195-96 [ 47 Conn. L. Rptr. 190] (2009). However, Appellate Courts have been liberal in their consideration of the term "owner" as found in the statute. The Appellate Court has held that the term "owner" is one of general application and "includes one having an interest other than a full legal and beneficial title." Smith v. Planning Zoning Board, 3 Conn.App. 550, 553 (1985), aff'd 203 Conn. 317 (1987).
There is no evidence concerning the trust or whether a conveyance of title was made to effectuate the trust. However, considering the type of trust and that the same persons who became owners in 1979 are the trustees and also considering the liberal interpretation of § 8-8(a)(1) found in Appellate decisions, it must be found that plaintiffs are "persons" owning land as set forth in the statute.
The deeds introduced into evidence by plaintiffs indicate that on June 25, 1979, they acquired title to real property in the Town of Old Lyme as described in the deeds. Plaintiffs introduced no testimony, maps, or other evidence to show the proximity of the property described in the deeds to the property which is the subject of this appeal.
The deeds in evidence do not recite a common boundary line with the defendant but do indicate that the Patrells acquired title to Lot 8 on a "subdivision plan of land of W.E.S, Jr. and Caroline Lang Griswold," and that the property was bounded on the west by land of Frank J. and Harriet N. Jones, 543.33 feet. The deed attached to the plaintiffs' application filed with the Commission indicates that the property acquired by defendant was Lot 9 in the same subdivision and that it was bounded on the east by Lot 8 as shown on the map, 593.33 feet.
Section 13.A.2.3e.(ii) of the zoning regulations requires that site plan applicants submit, as part of the application the names of all abutting owners as described in the records of the town assessor. In compliance with this regulation and as a part of the application filed, defendant submitted the names and addresses of all abutting property owners. The list included "Oliver L. Patrell Connecticut Qualified Personal Residential Trust."
At the public hearing held February 9, a member of the Commission read into the record the notice to abutters. Later in the meeting, Oliver L. Patrell informed the Commission that he had received notice of the public hearing.
The topographical survey, filed by defendant, notes that defendant's property is bounded by property "N/F Patrell, Oliver L. CT Qual Pers Res Trust."
The court has no duty to search the record to determine the issue of aggrievement, but evidence in the record cannot be ignored. This evidence necessitates a conclusion that at all times relevant plaintiffs were persons owning land abutting the land which is the subject of this appeal and therefore are statutorily aggrieved and have standing to prosecute this appeal.
b.
CT Page 14433
Timeliness and Service of Process
Pursuant to General Statutes § 8-8(b), "An appeal shall be commenced by service of process in accordance with sections (f) and (g) of this section within 15 days from the date that notice of the decision was published as required by the General Statutes . . ."Notice of the Commission's decision was published in the New London Day on May 15, 2009. This action was commenced by service of process on May 28, 2009. It is found then that service of process was properly made and this action was commenced within the time allowed by statute.
III. Scope of Review
In deciding the issues presented by this appeal, the court is limited in its scope of review by statute and applicable case law. Review of the decisions of local zoning authorities is limited to a determination, principally on the record before the Commission, whether the Commission abused the discretion vested in it. Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 444 (1979); Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 110, cert. denied, 239 Conn. 949 (1996). This court can sustain the appeal only upon a determination that the action taken by the Commission was unreasonable, arbitrary or illegal. It must not substitute its judgment for that of the local Commission and must not disturb the decision of the Commission as long as honest judgment has been reasonably and fairly exercised. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995); Raczkowski v. Zoning Commission, 53 Conn.App. 636, 644, 45 (1999). Conclusions reached by the Commission must be upheld by the court if they are reasonably supported by the record. Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 583 (1999). The question on review of the Commission's action is not whether the court would have reached the same conclusion, but whether the record before the Commission supports the decision reached. Id. Although the factual and discretionary determinations of the Commission must be given considerable weight, it is for the court to expound and apply governing principles of law. Domestic Violence Services of Greater New Haven, Inc. v. FOIC, 47 Conn.App. 466, 470 (1998). Plaintiffs bear the burden of proof to demonstrate that the Commission acted improperly. Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206; Raczkowski v. Zoning Commission, supra, 53 Conn.App. 640.
In this case, we are dealing primarily with the decision of the. Commission to approve a special permit. A special permit allows a property owner to put his property to a use which the regulations expressly permit under condition specified in the zoning regulations themselves. A.P.W. Holding Corporation v. Planning Zoning Board, 167 Conn. 182, 185 (1974).
"The basic rationale for the special permit . . . is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated . . . T. Tondro, [Connecticut Land Use Regulation (2d Ed. 1992)], p. 175; see also Barberino Realty Development Corp. v. Planning Zoning [Commission], 222 Conn. 607, 612-13 (1992). The requirements for a special permit are outlined in the zoning regulations of the [Town of East Lyme, § 25], and the commission may not impose additional conditions that are not within the regulations. See T. Tondro, supra, pp. 178-79; see also A. Aiudi Sons, LLC v. Planning Zoning Commission, 72 Conn.App. 502, 506, 806 A.2d 77 (although commission does not have discretion to deny special permit when proposal meets standards, it does have discretion to determine whether proposal meets standards in regulations), [aff'd, 267 Conn. 192, 837 A.2d 748 (2003)]. As a matter of law, general considerations enumerated in the zoning regulations are an adequate basis for denying an application for a special permit . . . A. Aiudi Sons, LLC v. Planning Zoning Commission, supra, 507." (Internal quotation marks omitted.) Smith-Groh, Inc. v. Planning Zoning Commission, supra, 78 Conn.App. 228-29." Yagermann v. Planning Zoning Commission, 92 Conn.App. 355, 361-62 (2005).
"When considering an application for a special [permit], a zoning authority acts in an administrative capacity, and its function is to determine whether the proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and statutes are satisfied . . . It has no discretion to deny the special [permit] if the regulations and statutes are satisfied . . ." Quality Sand Gravel, Inc. v. Planning Zoning Commission, 55 Conn.App. 533, 537 (1999).
"When (as here) 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 decisions . . . 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 zoning regulations." (Citations omitted; internal quotation omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420 (2002).
IV. Factual Background
The record indicates that by application dated January 2, 2009, defendant filed with the Commission an application for a special permit under the provisions of § 4.10.12 of the Old Lyme Zoning Regulations. The property for which the special permit was applied for was located at 7 Town Landing Road and was 3.46 acres, more or less, an area and was in the RU-40 zone.
Section 4.10.12 states that a special permit is required for the construction of residential structures having a combined total for an area in excess of 4,000 square feet. The purpose of this section as set forth in the regulations is to assure that large-scale residential structures and significant site modifications located within the Gateway Conservation Zone will not cause deterioration of the natural and traditional river scene.
The statement of use filed with the application indicated that the proposed residential structure would exceed 4,000 in floor area.
The application indicates that the site was within the Connecticut River Gateway Conservation Zone.
The site was also within the coastal boundary, which under the provisions of the Connecticut General Statutes and § 4.2 of the Old Lyme Zoning Regulations, required a coastal site plan application. A coastal site plan review application dated December 29, 2008 was also filed with the Commission.
The application was officially received by the Commission at its regular meeting of January 12, 2009. The Commission then set the matter for a public hearing on February 9, 2009.
At the public hearing, Attorney William A. Childress representing the defendant addressed the Commission concerning Gateway standards. He noted that the proposed construction met all of the requirements of the RU-40 Zone requirements. The attorney discussed the letter from senior planner Terrence Downes, of the Gateway Commission, dated January 22, 2009, containing comments for consideration of the Commission at the public hearing to be held February 9, 2009 meeting. Attorney Childress also introduced engineer Mike Harkin and architect Jill Cartegena.
Mr. Harkin discussed the location of the project and wetlands on the property. He stated that the existing residence with attached garage on the property would be demolished and a new driveway, four-bedroom home, rear patio, a detached garage, solar paneled fields and geothermal well locations. He also explained the grading plan. Engineer Harkin stated that the Downes letter was fairly favorable to the project and that requested items had been incorporated into the plan. He also reviewed the CAM application and stated that the fill to be brought in was the minimum amount needed. He noted that elevation of the first floor would be 16 feet.
The architect Jill Cartegena also discussed elevations of the structure and stated that the proposed house was in character with the neighborhood. The solar panels were also discussed.
A letter from plaintiff Oliver L. Patrell indicating that he had not had sufficient time to review the plans was read into the record. After discussion, it was voted to continue the public hearing to the meeting of March 9, 2009.
At the March 9, 2009 meeting, it was voted, at the request of the defendant's attorney, to continue the public hearing until the meeting of April 13, 2009.
At the public hearing continued to April 13, 2009, Attorney Childress addressed the Commission and stated that they were awaiting approval by the Wetlands Commission. They also stated that minor revisions had been made to the plans to address the concerns of the Wetlands Commission.
A number of exhibits were also accepted by the Commission.
Mr. Harkin, the engineer, stated that revised plans which addressed the concern of engineer Thomas E. Metcalf had been submitted and that Mr. Metcalf had approved the revised plans.
Jill Cartegena, the architect, also reviewed the revised landscaping plans and submitted a photograph.
Attorney Thomas Cronan, representing plaintiffs, addressed the Commission. The attorney stated that there were two primary areas of concern. The first area of concern related to deed restrictions on the subject property. He submitted a copy of a deed to defendant's property which was referenced in the special permit application. Attorney Cronan stated that the revised plan would involve a violation of the deed restrictions by allowing construction in a prohibited area. He noted the impact of the violation on property values. A brief was submitted by the attorney.
Attorney Cronan's second concern was with the staggering amount of fill required to complete the project. He questioned as to why a second special permit was not required under § 15 of the zoning regulations for the fill.
There were further discussions on these issues. At the end of the discussion, the Commission voted to end the public hearing.
Through its zoning enforcement officer, Ann C. Brown, the Commission requested an opinion from the Town attorney, Eric Knapp, concerning some of the issues raised by Attorney Cronan. Attorney Knapp replied to the Commission by letter dated April 24, 2009.
At its regular meeting held May 11, 2009, the Commission voted to approve defendant's application stating on the record its reasons for the approval. Two conditions were attached to the plan as approved.
Notice of the Commission's decision was published in the New London Day on May 15, 2009. This appeal followed.
Additional facts will be stated as necessary.
V. Analysis
Briefs were filed by the parties at interest. The court is not bound to consider any claim of law not properly briefed. Shaw v. Planning Commission, 5 Conn.App. 520, 525 (1998).
Plaintiffs have set forth in their brief four claims of law and issues which must be reviewed.
(1) Did the defendant Commission consider and approve an application that was incomplete on its face by virtue of the fact that the applicant failed to meet the requirements of § 13A.2.3(e)(iv) of the regulations?
(2) Did the defendant Commission, in approving the application, ignore the substantial and uncontroverted evidence of the plaintiffs' deeded easement rights in violation of § 13A.3.1, § 13B.4.3 and § 13B.4.4 of the regulations?
(3) Did the defendant Commission, in approving the application, disregard the express requirements of § 15 of the regulations which prohibit the deposition of 1,600 cubic yards of material on any parcel in the absence of a separate special permit application?
(4) Did the defendant Commission, in approving the application, disregard the express requirements of § 4.4 of the regulations which apply to any application for property in a flood hazard zone and which, if properly considered, would have prohibited the approval of the application?
1.
Section 13A of the Old Lyme Zoning Regulations contains the Site Development Plans submission requirements. Subsection e. contains the property information requirements for the site plan and includes subsection (iv) as follows: "location, width and purpose of all existing and proposed Easements and other encumbrance lines."
Paragraph 2.d. of the application form asks the applicant to "describe any easements or deed restrictions relating to the site and attach a copy of each"; Defendant replied by stating on the application "Volume 100, Page 222 — plan approval and building location." Included with defendant's application was a copy of a quitclaim deed dated September 29, 2008 from Aqua Bella, LLC to defendant for property at 7 Town Landing Road. The conveyed property was more specifically described in a schedule attached and made a part of the deed. This schedule contained a description of the property for which the application had been submitted and the following covenants:
As part consideration for this deed the grantees agree that any building to be constructed on said land shall be located south of the line running parallel to and 170 feet north of the southerly property line of said Parcel 9. Further, that any building plans shall be accepted by the owners or their suitably designated agent prior to construction, which such acceptance shall not unreasonably be withheld. ("Building" is to be construed and integrated as a dwelling with accessory outbuildings thereto.) (Emphasis added.)
Further, that access to said Parcel 9 shall be available via Town Landing Road, an unimproved roadway.
It is agreed by the grantors herein that all other lots on the aforedescribed map will be restricted to single-family dwellings and accessory buildings thereto.
The restrictions above referred to shall be binding upon the grantees, their heirs and assigns, for a period of fifty years from the date of this conveyance.
Subject to the Planning and Zoning Regulations of the Town of Old Lyme.
Plaintiffs' attorney also brought this issue up at the public hearing held April 13, 2009 and submitted a copy of the deed mentioned in paragraph 2.d. of defendant's application recorded in Volume 100 at page 222 of the Land Records. This deed contains the same language as the deed recorded in Volume 355, Page 429 of the Land Records included in the application.
Attorney Cronan pointed out the discrepancy in deed references. The attorney also pointed out to the Commission that the plans submitted by defendant do not show the location of the 170 foot line mentioned in the deeds. Without this information, it is claimed that plaintiffs' application is incomplete and does not comply with § 13A.3.2. This section requires that an application for review of a Site Development Plan must contain all information required by § 13A should be presented with adequate clarity so as to permit the Commission to understand and determine compliance with the regulations. Failure to meet this criteria could be grounds for denial of the application without prejudice to complete the application.
Plaintiffs argue that the application is incomplete and that this is significant because failure to comply with the boundary line restriction set forth in the deeds could have a material adverse effect on nearby properties.
The defendant and the Commission argued to the contrary and state that all of the information required for a decision was properly before the Commission.
The fact that the application referred to a deed in defendant's chain of title but actually contained the deed conveying title to plaintiff is of no consequence. Both deeds contain the same boundary line restriction. The deed to defendant contained in the application was more significant than the referenced deed. From the application itself then, as well as Attorney Cronan's letter and his testimony, the Commission was made aware of the existence of the boundary line restriction in the deed.
The map submitted with the application did not depict the location of the boundary line restriction in relation to the proposed construction. However, at the April 13, 2009 public hearing, Attorney Cronan pointed out the approximate location of the boundary line restriction on a subdivision map. He also indicated that the revised plan showed that the proposed detached garage was beyond the line of restriction. The Commission was then made aware of the location of the line on plaintiffs' property and that the detached garage was beyond the line.
The restriction was the subject of considerable discussion by the Commission. Under the provisions of § 13A, the Commission could have required defendant to submit revised plans showing the location of the line on the property. The Commission took no action to do so. In approving the application, the Commission specifically found that the applicant had submitted sufficient evidence to demonstrate compliance with the standards of the regulations and that additional information was not necessary to decide on the application.
All of the information required by the regulations was disclosed to the Commission before the application was approved. To reverse the decision on the basis of an incomplete application would be exalting form over substance.
It cannot be found that the Commission abused its discretion in taking action with the application as presented and the information it had.
2.
Plaintiffs claim that in approving the application the Commission ignored the substantial and uncontroverted evidence of the plaintiffs' deeded easement rights in violation of § 13A.3.1, § 13B.4.3 and § 13B.4.4 of the regulations.
The "deeded easement rights" claimed by plaintiffs are based upon the language in the deed by which defendant acquired title to the property for which the permit was issued, which states: "As a part consideration for this deed the grantees agree that any building to be constructed on said land shall be located south of the line running parallel to and 170 feet north of the southerly property line of said Parcel 9."
Section 13A.3.1 contains the general standards for the review of site development plans. This section provides, among other things, that any proposed building shall conform to the regulations and be designed to protect and enhance public health, safety and property values as well as being in harmony with the character of the surrounding area. Section 13B.4.3 requires that standards for special permits shall conform to the general standards for site development. Section 13B.4.4 requires that the location, type, character and extent of the use of any building or structure in site development be in harmony with and conform to the appropriate and orderly development of the town and neighborhood and not hinder or discourage the use of adjacent property or impair the value thereof.
It is plaintiffs' position that in approving the special permit the Commission ignored the deed restriction in violation of the above sections of the regulations.
The record indicates that the location of the dwelling structure was altered so as to conform to the deed restriction, but that the location of the garage on the property was not in compliance with the restriction set forth in the deed.
Plaintiffs claim that the property in question is subject to the deed restriction.
Defendant's attorney, before the Commission, refused to concede that the deed restriction was valid and enforceable. Plaintiffs argue that the Commission must accept the deed restrictions as valid and enforceable until substantial evidence to the contrary is presented. This presents an issue of law for the Commission to decide.
"`[A municipal planning commission] is not a court of law, its authority is stringently limited. It can only apply its regulations to the proposals which appear before it. It cannot make law." Gagnon v. Municipal Planning Commission, 10 Conn.App. 54, 57, cert. denied, 203 Conn. 807 (1987). In light of this principal, the Gagnon court held that the municipal planning commission did not have authority to determine whether a claimed right of way was a legally protected and enforceable prescriptive easement, since that conclusion could "only be made by judicial authority in a quiet title action governed by General Statutes § 47-31." Id., 58. As a result, the court reasoned that "[t]he trial court's conclusion that the plaintiffs had `some right to use the driveway' was beyond its proper scope of review. The commission properly limited its inquiry to whether the defendant's subdivision proposal complied with the regulations. It was correct in not addressing the question of whether the plaintiffs had an easement. The trial court's inquiry should have been limited to whether the commission properly applied the regulations to the subdivision proposal." Id., 59.
Later, in Moscowitz v. Planning Zoning Commission, 16 Conn.App. 303, 311-12 n. 8 (1988), the Appellate Court noted: "[A] planning commission cannot base its denial of subdivision approval on the existence of a deed restriction if the application otherwise meets the regulations . . . The responsibility of enforcing restrictive covenants in deeds is allocated to neighboring landowners, not to a municipal commission." (Citations omitted.)
Subsequently, a decision of the Superior Court stated: "When a land use agency reviews applications to it, it cannot properly consider private property interests and deed restrictions." Lunn v. Darien Zoning Board of Appeals, Superior Court, judicial district of Fairfield, Docket No. 299972 (February 25, 1994, Fuller, J.). "Thus, [t]he law is well established that restrictive covenants in a deed as to the use of property are distinct and separate from provisions of zoning law and have no influence or part in the administration of zoning law." (Internal quotation marks omitted.) Anniello v. Vernon Planning and Zoning Commission, Superior Court, judicial district of Tolland, Docket No. CV 93 52916 (August 14, 1995, Klaczak, J.).
In sum, "[r]estrictive covenants and zoning regulations are two entirely separate and unrelated limitations on the use of property . . . Zoning ordinances regulate the use of land through the exercise of the police power in accordance with a comprehensive plan for the entire community . . . [and are] entirely divorced in concept, creation, enforcement and administration from restrictions arising out of agreements between private parties . . . Restrictive covenants have no influence or part in the administration of a zoning law . . . and thus, a zoning board may not deny a special permit on the ground that the use will violate a restrictive covenant . . . [I]f a property owner is otherwise entitled to a . . . special [permit], it should be granted, notwithstanding private covenants which would prohibit the proposed use." (Citations omitted; internal quotation marks omitted.) Schieffelin v. Westport Planning Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV 92 29 94 89 (October 4, 1993, McKeever, J.).
Plaintiffs cite Florian v. Town of Cheshire Planning Zoning Commission, 2003 WL21384237 (2003) [ 35 Conn. L. Rptr. 74], in support of their position. This position, however, is not well taken. The Florian case stands for the accepted rule that an applicant must meet the applicable regulations and that the zoning commission can determine whether such regulations have been met.
It has not been established that in approving defendant's application, the Commission abused its discretion or violated the zoning regulations as claimed. The Commission had no legal authority to adjudicate property rights.
3.
It is plaintiffs' position that in approving the application, the Commission disregarded the express requirements of § 15 of the regulations, which prohibits the deposit of 1,600 cubic yards of material on any parcel in the absence of a separate special permit application. Section 15 of the zoning regulations covers excavation and filling of earth products.
Section 15 of the regulations covers excavation and filling of earth products. Section 15.1 contains the following language:
15.1 General Definitions. Except as provided in this Section, there shall be no excavation, removal or deposit of Material, as defined herein, from or on any Site, as defined herein, in any District of the Town. Special definitions applicable under this Section are as follows:
"Material," as used in this section, is defined by § 15.1.1 as:
15.1.1 Material. Earth, topsoil, loam, peat, sand, gravel, clay, stone or other earth or mineral material.
The special permit granted to defendant would involve the deposit of 1,600 cubic yards of fill, which would fall within the definition of material as used in the above sections of the regulations.
The deposit of such material may be allowed by special permit in accordance with § 15.3. But as plaintiffs point out § 15.3.1, such permit shall not be granted for the deposit of material in categories including: a. the Affected Area is located in the Conservation Zone . . . b. the affected area is located a distance of 1,500 feet or less from the nearest boundary line of:
I. A lot situated outside the applicant's property containing a dwelling which is: a) occupied or fit for occupancy, . . .
Plaintiffs argue that a separate application under § 15 is required before the Commission could consider the deposit of 1,600 cubic yards of fill and that such application could not be approved because of the provisions of § 15.3.1.
Defendant and the Commission argue to the contrary and state that the deposit of fill authorized under the special permit granted to defendant falls within the provisions of § 15.2 and § 15.2.1 which provide:
15.2. Exemptions. The following activities are exempt from the provisions of this Section.
15.2.1 excavation, removal or deposit of Material reasonably necessary in connection with the bona fide construction, alteration or repair of a Building, other Structure, a paved area or site development for which a ZONING PERMIT shall have been issued by the Zoning Enforcement Officer.
It is plaintiffs' position that the special permit in consideration here was not exempt under the provisions of § 15.2.1 for two reasons: (a) there is no evidence that the 1,600 cubic yards of fill was reasonably necessary for the construction contemplated, and (b) a zoning permit has not been issued for the construction by the zoning enforcement officer.
a.
The application was reviewed by a number of outside agencies including the Connecticut River Gateway Commission, the Connecticut Department of Environmental Protection, Office of Long Island Sound Programs and the Connecticut River Coastal Conservation District. All of these agencies express concern over the amount of fill to be added to the property, which would raise the level of the house approximately five to six feet above existing grade. The agency urged the Commission to confirm the necessity for the volume of fill and to require the applicant to clearly demonstrate the necessity for the amount of fill. It was also suggested that alternatives to reduce the amount of fill should be evaluated.
It was pointed out that the elevation of the first floor of the contemplated building on the property would be well above the minimum FEMA requirements.
Plaintiffs contend that in approving the special permit the Commission failed to adequately consider the concerns of the agencies and that the reasonable necessity requirement of § 15.2.1 was not satisfied.
In approving the special permit the Commission stated it considered the evidence presented as well as the input of staff and professional consultants. The Commission also stated that it had received comments from the Office of Long Island Sound Programs of the Department of Environmental Protection after it had submitted the application materials to that agency for review. The Commission determined that the application and plans as revised were consistent with the goals and policies of the Coastal Management Act.
At the public hearing held February 9, 2009, Michael Harkin, a professional engineer retained by defendant, explained the necessity for the 1,600 cubic yards of fill. In response to a question by a member of the Commission, he stated that because of the increase in the number of bedrooms in the proposed residence, the existing septic system would not meet the public health code. Mr. Harkin testified as to using test pits to determine the water level under the ground. The water level was determined to be 16 inches under ground level. In detail, Mr. Harkin testified as to how the requirements of the public health code made the 1,600 cubic yards of fill the minimum necessary for the installation of an acceptable septic system.
The fill would also facilitate completion of the FEMA requirements.
No evidence to contradict Mr. Harkin's calculations was presented and, at the public hearing held April 13, 2009, plaintiffs' attorney stated that he was not in the position to challenge Mr. Harkin's testimony.
It must then be found that there is substantial evidence in the record that the deposit of material was reasonably necessary in connection with the construction of the proposed building.
b.
Plaintiffs contend that § 15 of the regulations required defendant to file a separate application to deposit the fill on the property because no zoning permit had been issued in connection with the project. This argument is based upon the language in § 15.2.1 which exempts from the requirements of § 15 the necessity of a special permit for the deposit of material reasonably necessary in connection with the construction of a building for which a zoning permit has been issued by the zoning enforcement officer. No permit has been issued for the construction of the building which defendant seeks to erect. A zoning permit could not be issued until a special permit applied for has been granted.
It is plaintiffs' position that the exemption provided by § 15.2.1 was intended to apply only to situations where a routine zoning permit has been issued and then an excavation or deposit of fill was requested. It is argued by plaintiffs that this would only involve small amounts of fill. There is, however, nothing to demonstrate that plaintiffs' interpretation would involve only small excavations or amounts of fill.
Both defendant and the Commission argue that plaintiffs' interpretation of § 15.2.1 is not correct. It is their position that the exemption applies to situations, such as here, where the deposit of fill is in connection with the construction of a building. This interpretation was expressed by members of the Commission at a public hearing and is implicit in the vote to approve the special permit.
The Commission and defendant both argue that § 15 was designed to apply to situations where excavation and the deposit of fill were the principal activities contemplated. A review of § 15 tends to confirm this interpretation. For example, § 15.3 provides that special permits under § 15 could not be issued if the affected area was in the Commercial Zone, a Residence or a Multi-Family Residence (MFR) District. This section also requires that the affected area be at least 1,500 feet from certain boundary lines indicating that large areas of land were contemplated. Section 15.4.2 requires the applicant to submit a re-use plan which would not be applicable to a situation such as in the case at bar. Other sections of § 15 tend to confirm the interpretation of the Commission. The interpretation of the Commission must be afforded considerable weight. Wood v. Zoning Board of Appeals, 258 Conn. 691, 699 (2000). The regulations also must be interpreted in accordance with the principal that a reasonable and rational result was intended. Fullerton v. Department of Revenue Services, 245 Conn. 601, 612 (1998). The decision by the Commission that the exemption afforded by § 15.2.1 applied to plaintiffs' application and that a separate application under § 15 was not required produced a more rational result. It cannot be found that the Commission acted illegally or abused its discretion in so determining.
4.
Plaintiffs contend that in approving defendant's application the Commission disregarded the requirements of § 4.4 of the regulations which applied to property in a flood hazard zone and which, if properly considered, would have prohibited the approval of the special permit. Section 4.4 contains regulations applicable within the flood plain zone.
Defendant's property for which the special permit has been approved lies within the Special Flood Hazard Area and the requirements of § 4.4 are applicable.
Section 4.4.6.4d. state that accessory buildings may have the lowest floor below the base flood elevation. Subsections (i) through (x) set forth the requirements for such structures. The detached garage described in defendant's application does not comply with many of the subparagraphs. For example, it is more than 400 square feet in area and will not be a low cost structure. Plaintiffs claim that the Commission should have applied the requirements of the above section and that such requirements preclude the approval of the special permit.
Section 4.4.6.4b. requires that nonresidential structures, such as the proposed detached garage, have the lowest floor one foot above base flood elevation. An exception is provided in § 4.4.6.4d. which allows small inexpensive accessory buildings to have the lowest floor below the base flood elevation. There is no question but that the garage described in defendant's application does not comply with many of the provisions of subparagraphs (i) through (x).
The lowest floor of defendant's proposed detached garage, however, is above the base flood elevation and is in compliance with § 4.4.6.4b. The provisions of § 4.4.6.4d. are therefore not applicable. Under such circumstances, it was not an abuse of discretion for the Commission to approve the special permit application as claimed by plaintiffs.
VI.
Conclusion
There is substantial evidence in the record to support the decision of the Commission. For reasons above stated, it cannot be found that in approving the application for a special permit the Commission acted unreasonably, arbitrarily or illegally.
Accordingly, the action of the Commission is upheld and the appeal is dismissed.