Opinion
MMXCV116004866S.
11-14-2012
Ronald S. PRISLEY v. PLANNING AND ZONING COMMISSION OF the TOWN OF DEEP RIVER.
UNPUBLISHED OPINION
DOMNARSKI, J.
This is an appeal from the decision of the defendant, the planning and zoning commission of the town of Deep River (commission), denying a subdivision application submitted by the plaintiff, Ronald S. Prisley. This matter was assigned to this court by order of the administrative judge on September 5, 2012, # 112. The court has carefully reviewed the record and the briefs filed by the parties, and has listened to the official recording of the oral argument of counsel.
Public hearings on the subdivision application were held on December 9, 2010, and January 20, 2011. The commission denied the application on February 17, 2011. The court finds that the plaintiff is the owner of the subject property and is aggrieved by the decision of the commission.
STANDARD OF REVIEW
" When reviewing a subdivision application, the function of a municipal planning commission is to approve or disapprove a proposed subdivision. This is an administrative function, neither legislative nor judicial. Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 674, 236 A.2d 917 (1967). A municipal commission must approve a subdivision proposal if it conforms to the regulations adopted and promulgated by the commission. The proposal must be denied if it does not meet the requirements of the regulations. Westport v. Norwalk, 167 Conn. 151, 157-58, 355 A.2d 25 (1974)." Gagnon v. Municipal Planning Commission, 10 Conn.App. 54, 57, 521 A.2d 589, cert. denied, 203 Conn. 807, 525 A.2d 521 (1987).
" It is within the province of the commission to interpret and apply its zoning regulations." Pelliccione v. Planning & Zoning Commission, 64 Conn.App. 320, 327, 780 A.2d 185, cert. denied, 258 Conn. 915, 782 A.2d 1245 (2001). " The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts ... The trial court can sustain the [plaintiff's] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal ..." (Internal quotation marks omitted.) Id., at 328.
" It is axiomatic that a planning commission, in passing on a resubdivision application, acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations ... It is equally axiomatic that the trial court, in reviewing the action of a planning commission regarding a resubdivision application, may not substitute its judgment on the facts for that of the planning commission ... The conclusions of the commission must stand if even one of the stated reasons is reasonably supported by the record." (Internal quotation marks omitted.) LePage Homes, Inc. v. Planning & Zoning Commission, 74 Conn.App. 340, 348, 812 A.2d 156 (2002).
" The evidence, however, to support any such reason must be substantial ..." (Internal quotation marks omitted.) Pelliccione v. Planning & Zoning Commission, supra, 64 Conn.App. at 327. " With respect to the commission's factual findings, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the commission] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] ... The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached ... If a trial court finds that there is substantial evidence to support a [commission's] findings, it cannot substitute its judgment for that of the [commission] ... If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court ... cannot substitute its judgment as to the weight of the evidence for that of the commission ... The [commission's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Gerlt v. Planning & Zoning Commission, 290 Conn. 313, 322-23, 963 A.2d 31 (2009).
REASONS FOR DENIAL
The commission notified the plaintiff of its action by letter dated February 25, 2011. (Return of Record [ROR], Item 33.) The following reasons for denial were stated:
1. The following items which were identified in correspondence dated November 29, 2010 from Joseph M. Dillon, P.E. of Nathan L. Jacobson & Associates, Inc.:
a. Section 2.3.9 of the Deep River Zoning Regulations requires that the Building Rectangle have one side of the rectangle be coincident with the street line. The building rectangles for the proposed lots do not have a side coincident with the street line along Cedar Lake Road.
b. Section 7.3.1(d) of the Deep River Subdivision Regulations states " Stacking or nesting of rear lots, one behind the other, is generally discouraged." Lot 2 of the proposed subdivision would be the third " stacked" lot to the east of the frontage lot along Cedar Lake Road.
c. Section 7.3.1(g) of the Deep River Subdivision Regulations states " The maximum number of rear lots shall, in general, not exceed 30% of the total number of lots in any subdivision." The proposed subdivision contains 50% rear lots.
2. A fire protection plan required for a subdivision which would include three or more lots was not presented.
DISCUSSION
In his brief, the plaintiff argues that this appeal should be sustained because the commission improperly relied on an opinion of Richard Leighton, the agent of the board of fire commissioners, who opined that the subdivision plan needed a fire protection plan. The plaintiff claims that Leighton provided no statutory or regulatory authority in support of this opinion. The plaintiff also claims that he was denied due process because a clarifying letter from Leighton was received after the public hearing was closed.
The following summary is derived from the record. Section 4.7.9 of the subdivision regulations of Deep River, Connecticut, entitled " Fire Protection, " provides: " The applicant shall provide a written report describing measures to be taken to provide fire protection to the subdivision, including fire access and water supply, in accordance with Section 5.9. The applicant shall supply written confirmation that the report has been reviewed by the Fire Commission, either in the form of a letter from the Fire Commission or an endorsement of the written report by a designated representative of the Fire Commission." It is clear that a fire protection plan must be provided with an application for a subdivision. Section 2.33 of the subdivision regulations defines " subdivision" as follows: " As set forth in the Connecticut General Statutes, 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 applicant does not dispute that a fire protection plan was not submitted with the application.
On November 1, 2010, prior to the first public hearing, Leighton, the designee of the fire commission, notified the commission that he had reviewed the application but could not approve it because it did not provide adequate fire protection water sources acceptable to his office. (ROR, Item 4.) In his memorandum, Leighton also made the statement that the current proposed subdivision " will make a total for four (4) individual lots ..." (ROR, Item 4.) This statement was not accurate because the subdivision consisted of an existing lot and two proposed lots.
By letter of November 21, 2010, in response to a letter from the plaintiff's attorney, Leighton stated that the subdivision application would create a fourth lot. He thereafter stated, " Under current requirements, subdivisions greater than three (3) lots must provide a fire protection plan for the subdivision." (ROR, Item 8.) This was an incorrect statement, since a fire protection plan is required for any subdivision, and by definition, a subdivision is comprised of three or more lots.
At the second public hearing, held on January 20, 2011, the number of lots being created and a fire protection plan were discussed. (ROR, Item 22, pp. 2-3.) The public hearing was then closed. At its regular meeting of January 20, 2011, held immediately after the public hearing, the commission noted in its minutes that " clarification will be obtained from the Code Official pertaining to the question of the three or four lots and the possible requirement for a fire protection water source prior to action being considered on this application." (ROR, Item 23, p. 1.) On January 22, 2011, Leighton sent a clarification to the commission and stated that " subdivisions which include THREE OR MORE LOTS are required to have some type of fire protection plan presented to the Deep River Fire Department for review and consideration." (ROR, Item 27.) At a regular meeting held on February 17, 2011, the commission denied the subject application for the reasons previously stated. (ROR, Item 30, p. 2; Item 31, pp. 10-11; Item 33.)
As noted above, the plaintiff claims that Leighton's determination that the subdivision application required a fire protection plan is without authority. The court acknowledges that the January 22, 2011, clarification letter does not reference the subdivision regulations. The clarification is, however, an accurate statement of the subdivision regulations.
The plaintiff acknowledges that the commission may receive information from its technical or professional experts. See Norooz v. Inland Wetlands Agency, 26 Conn.App. 564, 569, 602 A.2d 613 (1992). The plaintiff argues, in this case, that Leighton's clarification was not technical information, but rather a legal interpretation. Furthermore, the plaintiff maintains that he had no opportunity to challenge the interpretation. " The proper inquiry for a reviewing court, when confronted with an administrative agency's reliance on nonrecord information provided by its technical or professional experts, is a determination of whether the challenged material includes or is based on any fact or evidence that was not previously presented at the public hearing in the matter." Id., at 573-74.
In this case, the court concludes that the clarification letter from Leighton did not include evidence that was not previously presented at the public hearing. The lack of a fire protection plan, and Leighton's statements, were before the commission at two prior public hearings. The effect of Leighton's clarification was to restate the commission's own subdivisions regulations. This was hardly new information. Nothing in Leighton's letter changed the essential facts; the regulations required a fire protection plan, and the plaintiff's application did not contain a fire protection plan.
The plaintiff's claim that he was denied an opportunity to challenge Leighton's interpretation is also not persuasive. At the January 20, 2011 hearing, the plaintiff knew the commission would receive clarification from Leighton as to his position. (See ROR, Item 24, pp. 30-31, Transcript of Public Hearing of January 20, 2011 .) At the January 20, 2011 hearing, the plaintiff could have requested that the public hearing be continued to allow him to comment on the anticipated clarification from Leighton; however he made no such request.
As noted above, the commission is obligated to approve a plan which conforms to the regulations. The corresponding requirement is that the applicant must submit an application that conforms to the regulations. Because it did not have a fire protection plan, the plaintiff's application did not conform to the regulations. The lack of a fire protection plan was one of the reasons stated by the commission for its denial of the application. This reason for denial is supported by the record.
In addition to the lack of a fire protection plan, the commission gave three other reasons for denying the subject application. The plaintiff has not challenged those reasons for denial. The court has reviewed the record and finds that those reasons are supported by the record.
The plaintiff has failed to establish that the commission's decision to deny the plaintiff's application was unreasonable, arbitrary, or illegal. The commission's decision is affirmed and, accordingly, the appeal is dismissed.