Opinion
No. CV 002-0098041-S
July 17, 2003
MEMORANDUM OF DECISION
The plaintiff, Tuttle Road Associates (Tuttle), appeals from the decision of the Middletown Planning and Zoning Commission (the commission) which denied Tuttle's application to resubdivide its property comprising of 5.046 acres, more or less (the property), into three building lots and 3.459 acres of open space. For the reasons stated below, the court dismisses the appeal.
By way of background, Tuttle is a Connecticut partnership which owns the property at issue, located on the southwesterly side of the intersection of Tuttle Road and Morning Glory Drive in Middletown, Connecticut. (Appeal ¶ 1.) On October 29, 2001, Tuttle submitted an initial application with a subdivision application, requesting the commission's approval to resubdivide its property. (ROR, Items A-1, A-2.) The public hearing was held on February 27, 2002; on that date, following the meeting, the commission denied Tuttle's application. (ROR, Item T-2, p. 40.) Tuttle appealed to the Superior Court seeking an order reversing the commission's decision. The appeal was heard by the court (Rubinow J.) on April 2, 2003. Supplemental briefs were filed with the court on or before April 16, 2003 to address the potential implications of State v. Courchesne, 262 Conn. 537, 563, 816 A.2d 562 (2003), Munroe v. Zoning Board of Appeals, 75 Conn. App. 796, 804, 818 A.2d 72 (2003), and the other issues raised in this appeal.
General Statutes § 8-9 provides that an appeal may be taken from a decision of a planning and zoning commission to the Superior Court as established by General Statutes § 8-8. "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.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
I. JURISDICTION A. AGGRIEVEMENT
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). Aggrievement is a factual CT Page 8413-g issue, "and credibility is for the trier of the facts . . ." (Internal quotation marks omitted.) Quarry Knoll II Corporation v. Planning and Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001). An owner of property that is the subject of an application is aggrieved for the purpose of bringing an appeal, and Tuttle may prove aggrievement by testimony at the time of trial. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). Tuttle may also prove aggrievement "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corporation v. Planning Zoning Commission, supra, 703. "Unless the plaintiff alleges and proves aggrievement, [its] case must be dismissed." McNally v. Zoning Commission, 225 Conn. 1, 6, 621 A.2d 279 (1993).
In the present appeal, Tuttle alleges that it is the owner of the property, "which parcel appears on Middletown Tax Assessor's Map Number 9, Block 7-2 as Lot 2" (Appeal ¶ 1); and that it is aggrieved by the commission's decision "in that Tuttle is the owner of the property at issue and is the party whose application was denied by the commission." (Appeal, ¶ 7.) At the hearing, Tuttle offered sufficient testimonial and documentary evidence of its status as an aggrieved party. Based upon the evidence submitted, Tuttle has met its burden of proving aggrievement as contemplated by Harris v. Zoning, supra, 259 Conn. 409.
Robert Fusari, the president of Real Estate Service of Connecticut, the managing partner of Tuttle Road Associates, credibly testified that Tuttle Road Associates is the owner of the property which is the subject of this appeal. Additionally, a certified copy of the deed to the property establishing Tuttle's ownership was introduced into evidence. (Exhibit 1.)
B. TIMELINESS AND SERVICE OF PROCESS
Although jurisdiction is not contested, the court finds that the appeal is timely and that the proper parties were served within the limitation period established by General Statutes § 8-8.
General Statutes § 8-8 (b) provides, in relevant part, that an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." (Emphasis added.) General Statutes § 8-8 (f) further provides that service "shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."
Tuttle alleges in its appeal that legal notice of the commission's decision denying its application was duly published in The Hartford Courant on March 7, 2002. (Appeal, ¶ 5.) Although the record does not contain an affidavit of publication, the commission admits the allegation of publication through its answer. (Commission's Answer, ¶ 1.) Subsequently, on March 20, 2002, this appeal was commenced by service of process by leaving a true and attested copy of the original appeal, recognizance and citation with Sandra R. Hutton, town clerk for the town of Middletown and with Barbara Plum, chairwoman for the commission. (Marshal's Return.) Accordingly, the requirements of § 8-8 have been met in this matter.
C. SCOPE OF REVIEW
"An adverse decision by the board may be appealed to the Superior Court CT Page 8413-h under General Statutes § 8-8 (b). The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own . . ." (Citations omitted; internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 469-70, 778 A.2d 62 (2001). "[T]he appealing aggrieved party [must] marshal the evidence in the record, and . . . establish that the decision was not reasonably supported by the record." (Emphasis in original; internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 716. "The agency'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.) Irwin v. Planning Zoning Commission, 244 Conn. 619, 629, 711 A.2d 675 (1998).
"[T]he Commission has no independent discretion to deny a [subdivision] plan which satisfies the standards contained in the . . . regulations. Although it is true that the zoning commission does not have discretion to deny a [subdivision plan] when the proposal meets the standards, it does have discretion to determine whether the proposal meets the standards set forth in the regulations. If, during the exercise of its discretion, the zoning commission decides that all of the standards enumerated in the [subdivision] regulations are met, then it can no longer deny the application. The converse is . . . equally true." (Emphasis in original; internal quotation marks omitted.) Irwin v. Planning Zoning Commission, supra, 244 Conn. 628.
General Statutes § 8-18 provides in relevant part:
[A] "subdivision" means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of CT Page 8413-q 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; "resubdivision" means a change in a map of an approved or recorded subdivision or resubdivision if such change (a) affects any street layout shown on such map, (b) affects any area reserved thereon for public use or (c) diminishes the size of any lot shown thereon and creates an additional building lot, if any of the lots shown thereon have been conveyed after the approval or recording of such map . . .
II. TUTTLE'S CLAIMS
In its appeal, Tuttle alleges that the commission's denial of its application was arbitrary, unreasonable and an abuse of its discretion. Specifically, Tuttle alleges that the commission failed to state on the record its reasons for denying its application; that the commission's denial was contrary to and unsupported by the evidence in the record; that the commission's application of the zoning regulations in Tuttle's case was inconsistent with its actions in other matters; and that the commission's decision is based upon errors of law and fact in the record. In opposition, the commission argues that Tuttle has failed to meet its burden of proving that it acted improperly by denying the application for the proposed resubdivision plan. The commission further argues that its decision to deny Tuttle's application is supported by the record in this case. CT Page 8413-i
A. COMMISSION'S FAILURE TO STATE REASONS ON THE RECORD DOES NOT RENDER ITS DECISION VOID
Tuttle argues that the commission's failure to state on the record its reasons for denying its application was arbitrary, unreasonable and an abuse of its discretion. The commission counters that Tuttle has failed to meet its burden of demonstrating that the commission acted in an arbitrary or unreasonable manner, or that it abused discretion in denying the application. The court finds this issue in favor of the commission.
In considering this aspect of Tuttle's appeal, the court has acknowledged the statutory scheme anticipating that a planning and zoning commission will specify the grounds for its decision regarding matters presented by the public. However, § 8-26 serves as a guide for a commission charged with the responsibility of rendering a decision; the legislation does not compel the commission to state upon the record its reasons for acting. Explicating the effect of § 8-26, our Supreme Court has held: "This provision is directory only, and failure to comply with it does not make the action of the commission void." (Emphasis added.) Corsino v. Grover, 148 Conn. 299, 310, 170 A.2d 267 (1961) (language applicable to zoning commissions). Applying this rule to Tuttle's appeal, although the commission has not specified its grounds for denying the application, a failure to do so on the record does not render the denial void as a matter of law. Id.
General Statutes § 8-26 provides that the grounds for the commission's action on a resubdivision application "shall be stated in the records of the commission."
B. COMMISSION'S DENIAL OF TUTTLE'S APPLICATION IS SUPPORTED BY THE RECORD
Tuttle further argues that the record presents an insufficient basis for discerning the reasons for its denial of the resubdivision application. The commission counters that its denial of Tuttle's application is clearly supported by the record. It is fundamental that "[w]here a zoning [commission] does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the [commission's] decision." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995). In the present case, because the commission did not state on the record its reasons for denying Tuttle's application, the trial has searched the record to determine whether the commission acted arbitrarily, illegally or in abuse of its discretion, or whether a sufficient basis exists for the decision. RR Pool Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 469-70. Using the applicable legal standards for its search and review, the court finds this issue in favor of the commission.
Tuttle argues that the record offers no credible evidence that its CT Page 8413-j proposed resubdivision plan did not comply with the subdivision regulations. Tuttle offers the following five possible reasons for the commission's denial, contending that each of these reasons lacks merit: the commission is imposing a "usable" frontage restriction on Lot 365 not contained in the regulations for lots located in an R-1 zoning district; the suggestions of the fire department to widen and reinforce the lengths of the three proposed driveways or install sprinklers are not requirements contained in the regulations; the police department's comments regarding the possibility of an unsafe left turn from Lot 364 is an insufficient reason to deny its application; the commission improperly relied on the comments of Michael Anderson, a professional engineer, as an expert, whose opinion was allegedly prejudiced by his bias as an abutting landowner; and the commission improperly considered extraneous testimony offered by the public.
Tuttle argues that Lot 365 meets the minimum frontage requirements set forth in the Middletown zoning code (the code) for lots located in an R-1 zone, that the commission failed to identify any section of the regulations to support its decision, and that the commission arbitrarily denied its application because the frontage on Tuttle Road is not "usable" frontage for purposes of providing access to the lot. Tuttle contends that the term "usable frontage" is not a requirement or a standard contained in the regulations. (Tuttle's Brief, p. 6.) However, Section 5.09 of the code provides, in part, that "where residential subdivisions abut higher-order streets (collectors and arterials), adjacent lots shall front on lower-order streets." At trial, Tuttle and the commission stipulated to the fact that Tuttle Road is an arterial street. Tuttle acknowledges that it planned to provide access to Lot 365 using the twenty-five foot access strip off Morning Glory Drive, a lower order street, because the driveway could not be placed to allow direct access to and from Tuttle Road, an arterial street, without violating § 5.09. Tuttle admits the problematic nature of any proposed ingress from or egress to Tuttle Road by way of Lot 365, as such a proposal would require the driveway to be placed across and/or "within the regulated abutting wetlands." (Tuttle's Brief p. 10; ROR, Zoning Map.) Tuttle further acknowledges that if it had proposed placement of a driveway connecting with Tuttle Road, it may well have been asked to provide an alternative route by the Middletown Inland Wetlands and Watercourses Agency. (Tuttle's Brief, p. 10.)
Tuttle further claims that the access strip complies with § 5.14 of the regulations establishing specific safety standards for rear lots. Tuttle acknowledges, however, that Lot 365 is not a rear lot because of the one hundred feet of frontage located on Tuttle Road. Moreover, § 48.08.27 of the code provides that rear lots are special exception uses. The record does not provide a sufficient basis for determining whether Tuttle applied for a special exception use for a rear lot.
The commission has responded that the term "frontage" as used in the code and regulations is "intended to be useable land . . . [which] guarantees access to the public street from the property." (Commission's Brief, p. 17.) The commission argues that "[a]s a matter of common sense, if the proposed frontage is all wetlands, it does not provide CT Page 8413-k access to the property." (Commission's Brief, p. 17.)
An objective review of the record reveals the insufficiency of this feature of Tuttle's argument. The regulations provide that "lots [in a subdivision] should be determined by consideration of the . . . protection of public health and safety . . ." (ROR, Subdivision Regulations, § 5.02.02a., p. 44) and should "provide adequate access to lots . . ." (ROR, Subdivision Regulations, § 5.02.02b., p. 45.) As proposed, Lot 365 consists of one hundred feet on Tuttle Road and twenty-five feet on Morning Glory Drive. (ROR, Zoning Map.) Section 21.03A of the code provides, in part, that the minimum frontage requirements for lots with city water and sewer located in an R-1 zoning district are: lot width (one hundred feet) and front yard (twenty-five feet). (ROR, Code, p. 42.) The code defines frontage as "[a]ll the property abutting one side of a street between intersecting or intercepting streets, or between a street and a right-of-way, water-way end of a dead-end street, or city street shall determine only the boundary or the frontage on the side of the street which it intercepts." (ROR, Code, § 16.06.02, p. 30.) The regulations define "lot frontage" as "[t]hat portion of a lot extending along and parallel to a street line." (ROR, Subdivision Regulations, § 1.03, p. 5.)
In addressing the issues presented, the court has heeded the axiom that "[g]enerally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court [has] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 697, 784 A.2d 354 (2001). The court has further honored the maxim that "[a] local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances . . . In interpreting a zoning ordinance, the question is the intention of the legislative body as found from the words employed in the ordinance . . . The words [employed] are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their express terms . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant . . . Common sense must be used in construing the regulation, and [the court] assume[s] that a rational and reasonable result was intended by the local legislative body." (Emphasis added; citation omitted; internal quotation marks omitted.) Munroe v. Zoning Board of Appeals, supra, 75 Conn. App. 804. CT Page 8413-l
On March 11, 2003, our Supreme Court adopted a new approach to statutory interpretation by rejecting the traditional "plain meaning" rule and directing the courts to consider not only the actual words of the statute at issue, but to contemplate applicable extratextual sources as well. State v. Courchesne, supra. Courchesne emphasizes that the language of a statute remains the most important factor in statutory analysis, and should always be "the starting point of the interpretive inquiry [but] . . . we do not end the process with the language." Id., 564. "Thus, this process [of statutory interpretation] requires [the court] to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity." (Emphasis added.) Id., 577. Our legislature recently addressed the implications of Courchesne through its enactment of P.A. 03-154. Effective October 1, 2003, the act provides that "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." In considering the issues raised by Tuttle's appeal and in utilizing a common-sense approach to the matter, the court CT Page 8413-r has considered and accommodated all applicable rules of statutory construction.
Under this scrutiny, the court finds that, as proposed, Lot 365 meets the minimum frontage requirements as established in § 21.03A of the code. The critical issue is whether the commission intended for all of a lot's frontage to be usable land for purposes of providing access to a lot. The term "usable," as an adjective, is defined as "capable of being used . . . [and] convenient and practicable for use." Merriam Webster's Collegiate Dictionary (10th Ed. 1995). Common sense dictates that a lot proposed for residential purposes would require a means of ingress and egress that is adequate for vehicular access. So long as that access is reasonably sufficient, however, a restriction requiring that all lot frontage must be capable and practicable for use, however, would be unreasonable and unduly burdensome to applicants.
Under these circumstances, a fair application of the regulations at issue leads to the conclusion that, in Middletown, at least a portion of a lot's frontage, but not necessarily all of the lot frontage, must be capable of being used for access. Using this measure, as it is required to do, the court is constrained to find that the lot frontage off Tuttle Road is not capable of being used for access, due to the aforementioned operation of § 5.09 of the regulations, further due to the fact that such driveway placement would encroach upon the protected wetlands area within Lot 365. (Tuttle's Brief, p. 10; ROR, Zoning Map; ROR, Subdivision Regulations, § 5.09, p. 47.)
As the frontage off Tuttle Road is not usable under Middletown's rubric, the court next addresses the issue of whether the twenty-five-foot access strip off Morning Glory Drive is usable lot frontage, that is, whether this frontage can provide safe and adequate access to Lot 365. (ROR, Subdivision Regulations, § 5.02.02 a., p. 44 and § 5.02.02 b., p. 45.) As the record reveals, significant safety concerns were presented through the memoranda from the fire and police departments, filed with Tuttle's application. (ROR, Items S-3, S-4.) The Middletown Fire Department expressed notable concern over the limited firefighting access to Lot 365 that would be available in the event of an emergency, due to the lengthy stats of the proposed driveway (160 feet). (ROR, Item S-3.) The Middletown Police Department expressed reasonable concern regarding the means of ingress to and egress from the proposed driveways within the resubdivision plan, including the driveway to Lot 365 as located on Morning Glory Drive, as entering or exiting drivers would too quickly confront Tuttle Road, an arterial street in Middletown. (ROR, Item S-4.) At the February 2002 public hearing, Commissioners Stephen Gadomski and Carl Bolz specifically remarked that they could not support Tuttle's proposed resubdivision plan due to the safety concerns raised by the fire CT Page 8413-m and police departments. (ROR, Item T-2, pp. 39-40.) These remarks served to empirically inform Tuttle that the commission had heeded the memoranda from the fire and police departments that were submitted with its application; that the commission members acknowledged that the driveway for Lot 365 was too long for firefighting purposes; and, further, that the subdivision's driveway plan did not provide a safe means of access to Morning Glory Drive negatively impacting the safety and general welfare of the community. (ROR, Items S-3, S-4.)
The fire department suggested that the width of the planned driveway should be increased and that the surface should be capable of supporting a 40,000 lb. vehicle. Alternatively, the department suggested the installation of a sprinkler system. (ROR, Item S-3.)
See footnote 8. The police department's concern extended to all three lots in the proposed resubdivision plan, as noted in its memorandum: "The Traffic Bureau has reviewed the proposal and we have a concern regarding the distance from the intersection to the driveways, especially to the driveway of proposed house #364 (lot #1). The distance appears insufficient to permit safe left turns from the driveway." (Emphasis added.) (ROR, Item S-4.)
"A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it." (Internal quotation marks omitted.) Doyen v. Zoning Board of Appeals, 67 Conn. App. 597, 603, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002). "A court that is faced with two equally plausible interpretations of regulatory language properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation." Wood v. Zoning Board of Appeals, supra, 258 Conn. 699. "The commission [is] entitled to take into account its own knowledge of the local conditions . . ." (Internal quotation marks omitted.) Holt-Lock, Inc. v. Zoning Planning Commission, 161 Conn. 182, 191, 286 A.2d 299 (1971). "The [commission] should consider the statements at the public hearing and the documents filed with it on the application." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 21.5, p. 455. "In making such determinations . . . a zoning commission may rely heavily upon general considerations such as public health, safety and welfare." (Internal quotation marks omitted.) Torrington v. Zoning Commission, 261 Conn. 759, 770, 806 A.2d 1020 (2002). When a commission denies a subdivision application based on general public, health and safety concerns, however, the reasons given must be specific enough to inform an applicant as to why its plan failed to satisfy the requirements of the regulations. See RK Development Corp. v. Norwalk, 156 Conn. 369, 377, 242 A.2d 781 (1968).
As discussed above, the record reveals the specific public health and safety concerns that were brought to the commission's attention; those concerns serve as an adequate and sufficient basis for denying Tuttle's application. Accordingly, Tuttle cannot prevail on its claim that the commission acted in an arbitrary and unreasonable manner, abusing its discretion in such matters with regard to the proposed resubdivision plan at issue in this case.
C. INSUFFICIENT EVIDENCE THAT THE COMMISSION APPLIED THE REGULATIONS IN A MANNER INCONSISTENT WITH ITS ACTIONS IN OTHER MATTERS. CT Page 8413-n
Tuttle next argues that the commission "not only applied its own arbitrary standards not found in the regulations, but also that these were new standards not previously applied to other subdivisions," and contrary to established case law. (Tuttle's Brief, p. 8.) Tuttle further claims that the "arbitrary nature of the commission's denial is clearly evident when Commissioner Gadomski stated that regardless of similar applications the commission has approved, he will not approve this application for safety reasons." (Tuttle's Brief, p. 8.)
"The subdivision regulations upon which the commission, acting administratively, should rule must contain known and fixed standards applying to all cases of a like nature . . ." (Internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 429. "[T]he purpose of the uniformity requirement is to ensure that subdivision applicants are treated equally." Id., 430. "Vague regulations which contain meaningless standards lead to ambiguous interpretations in determining the approval or disapproval of different subdivisions. Adequate, fixed, and sufficient standards of guidance for the commission must be delineated in its regulations so as to avoid decisions, affecting the right of property owners, which would otherwise be a purely arbitrary choice of the commission; such a delegation of arbitrary power is invalid." Id., 428-29.
Tuttle's position appears to be based upon a broad statement voiced by Commissioner Gadomski. "I do have some safety concerns about this thing . . . I feel there are safety issues which both the fire department and the police department have raised . . . So I probably feel that we should not approve it at this time . . . Whatever we may have elsewhere of this type . . . I would vote to not support this motion." (ROR, T-2, pp. 39-40.) Tuttle has provided no evidence beyond Gadomski's statement, however, to show that the commission's application of its regulations in Tuttle's case is inconsistent with its actions in other matters. As noted above, the court has concluded that the term lot "frontage" was reasonably interpreted and applied by the commission in the present case. Moreover, the court observes that the commission's concerns regarding the safety issues raised by the fire and police departments were reasonably supported by the record. The commission reasonably acted to enforce the principle that lots designed for residential purposes must provide for adequate and safe vehicular access. (ROR, Subdivision Regulations, § 5.02.02a., p. 44 and § 5.02.02b., p. 45.) This is not a vague and meaningless standard arbitrarily applied to Tuttle's application, nor is it an ambiguous interpretation of §§ 5.02.02a. and b. of the regulations, but a straightforward, common sense application of the regulations at issue. CT Page 8413-o
D. OTHER EVIDENTIARY ISSUES
Tuttle argues that the commission improperly relied upon the comments and testimony of Michael Anderson, a professional engineer, as an expert, whose opinion was allegedly prejudiced by his bias as an abutting landowner. (Tuttle's Brief, p. 15.) Tuttle also argues that the commission inappropriately considered extraneous testimony from the public regarding the development of the open space. (Tuttle's Brief, p. 16.)
"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." West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 513, 636 A.2d 1342 (1994). "An administrative agency is not required to believe any witness, even an expert." Manor Development Corp. v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980). "A zoning [commission], like any other administrative board or agency, may determine for itself the weight it will give to the evidence it receives in the form of oral testimony or any materials or statistical data that are presented on any particular issue . . . and, although it may have heard evidence to the contrary, it is not required to explain why it valued one witness or statistic over another." Brennick v. Planning Zoning Commission, 41 Conn. Sup. 593, 602, 597 A.2d 346 (1991).
A commission should properly consider comments made at the public hearing. 9 R. Fuller, supra, § 21.5, p. 455. There is no indication in the record that any member of the commission improperly relied upon Anderson's testimony as an expert. Anderson is a licensed engineer with sixteen years of professional experience, who addressed the commission at both public hearings, and then presented the commission with a letter of opinion regarding Tuttle's application. (ROR, P-11.) Anderson's letter supports the public health and safety concerns that were independently raised by the fife and police departments. The fact that Anderson is an abutting landowner, whose professional opinion contradicts statements made by Tuttle's engineer in his report (ROR, A-7) does not undermine his credibility as a witness, nor does it prove that the commission gave greater weight to his testimony over that of Tuttle's engineer, or over any other person who gave testimony at the hearing. See Kaufman v. Zoning Commission, 232 Conn. 122, 157, 653 A.2d 798 (1995). Tuttle has failed to identify any representations in the record to support its claim that the commission inappropriately relied upon extraneous testimony from the public in making its decision. As the record otherwise provides ample CT Page 8413-p basis for the commission's action, Tuttle cannot prevail on this evidentiary issue. Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 716.
III. CONCLUSION
For the foregoing reasons, the court finds that the commission's decision to deny Tuttle's resubdivision application was not arbitrary, illegal or an abuse of its discretion. The record offers credible evidence that Tuttle's application fails to comply with §§ 5.02.02a. and b. of the regulations. Accordingly, Tuttle's appeal is dismissed.
BY THE COURT,
N. Rubinow, J.