DocketNumber: No. CV 950545987S
Citation Numbers: 1995 Conn. Super. Ct. 12314
Judges: HOLZBERG, JUDGE.
Filed Date: 10/16/1995
Status: Non-Precedential
Modified Date: 7/5/2016
The basic facts giving rise to this appeal are not disputed. The plaintiff is the owner of a tract of land in Simsbury whose borders are 1200 to 2400 feet from the Farmington River. The site is at the foot of a mountain and is surrounded on its western border by wetlands. The rear of the property slopes downward toward the Farmington River.
The plaintiff's original application, which was filed in September, 1994, requested approval for a six lot subdivision. After two hearings, in which concerns about possible flooding and septic problems were raised, the plaintiff resubmitted its application and requested a five lot subdivision. The principal dispute before the defendant Commission and the subject of this appeal is the potential septic and on and off site flooding problems caused by the proposed subdivision, and whether those problems, if established, justify the reduction in the number of lots from five to three.
The plaintiff presented three experts who addressed the septic and flooding concerns. The first expert, Wilson Alvord, who is a licensed engineer and surveyor, testified that the neighbors' septic and flooding problems were the result of their properties being located within the floodplain and in a wetlands area. By contrast, the proposed subdivision would be located above the 100-year flood plain. Based on this difference in location he concluded that plaintiff's proposal would not affect CT Page 12315 the septic or drainage systems of the off site neighbors. He did indicate, however that due to the high water table on the plaintiff's property, there was an increased risk of wet basements. He proposed to address that possibility through the installation of footing drains.
The Simsbury Town Engineer testified that the increased run off of storm water from the proposed site would not be significant enough to affect the neighbors' property. Finally, a representative of the Farmington Valley Health District testified that the site was suitable for the proposed septic systems.
In addition to the plaintiff's expert testimony, the Commission also received testimony from adjacent property owners. They indicated that in the spring the subject property so overflows with water that it resembles a skating rink and that one neighbor could not put a basement in her house, but instead built her house on a slab. Other neighbors testified that there is substantial runoff in the area and that the subject property cannot adequately hold the water. Others spoke of drainage problems that arose after the construction of another development on the mountain and of substantial drainage from the mountain and the absence of adequate drainage systems. The Commission also received a report from the Simsbury Conservation Commission that expressed its concern that "the increased runoff from land surfaces could produce flooding conditions under less than a 23-year flood plain." The Conservation Commission recommemded [recommended] changes in the design criteria to avoid that potential problem.
The defendant voted to approve the plaintiff's application, but with a number of modifications including the merger of the two rear lots, having a lower elevation, with the lots adjacent to them to create a three lot subdivision. In its statement of reasons, the Commission referred to the high watertable, drainage problems, and the potential flooding hazard. This appeal followed.
I. Aggrievement
As the record owner of the property in question, the plaintiff is aggrieved by the decision of the Commission to limit its approval of plaintiff's application to three lots. BossertCorp. v. Norwalk,
II. Standard of Review CT Page 12316
"It is axiomatic that a planning commission, in passing on a [s]ubdivision 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 the action of a planning commission regarding a resubdivision application, may not substitute its judgment for that of the planning commission." R.B. Kent Sonv. Planning Commission,
III. DISCUSSION
There are two basic issues in this appeal. The first is whether the defendant has the authority to approve the subdivision with fewer lots than requested by the plaintiff. The second is, assuming such modification was authorized, whether there was a substantial basis for the defendant ordering such modification.
The plaintiff first asserts that, having filed an application for a five lot subdivision, the Commission, if it were to approve the application at all, was required to authorize construction on all five lots. This argument is not supported by the relevant statutory or caselaw provisions. First, General Statutes §
The plaintiff's remaining argument alleges that there was not a substantial basis for the Commission's decision to reduce the number of approved lots. The essence of the plaintiff's argument is that the Commission was required to accept what the plaintiff claims was its unrefuted expert testimony indicating that the five lot subdivision would not create either drainage or septic problems. Evaluation of that claim first requires consideration of the applicable regulations and the standards the Commission was required to apply in considering the plaintiff's application.
The defendant was required to render its decision in accordance with Section III of the Subdivision Regulations. In particular, Subsection 3 of Section III provides that "any land to be subdivided shall be of such character that it can be used for building purposes without danger to health and safety. No land subject to flooding shall be subdivided for residential purposes or for any other use which will aggravate the flood hazard. No land shall be subdivided without water supply, means of drainange and sanitary sewerage disposal adequate in the opinion of the Commission to protect the public health, safety and welfare." Subsection 4 requires the Commission to consider the adequacy of storm and surface water drainage.
The applicable regulations, in short, required the defendant to evaluate the proposal in terms of the danger it might pose, generally, to the health and safety of the community, and specifically, the risk it creates with respect to flooding. The defendant received conflicting testimony on these questions. As previously noted, the plaintiff presented expert testimony indicating that the proposed five lot subdivision would not create a flood hazard, and that any flooding that occurs off site is a function of the proximity of the properties to the flood plain. Even one of its experts, however, Wilson Alford, Jr., acknowledged that there was a potential for on site flooding which required the use of a special drainage system. The defendant also heard testimony from neighbors who described the flooding that occurs at various times during the year, and the problems they have encountered as a result of recent construction in the mountain area above them.
The question raised by the conflicting testimony is whether the defendant's decision was supported by substantial evidence. "[T]he substantial evidence rule does not call for a roll call of qualified experts, merely that [a]n agency decision must be based CT Page 12318 on reliable evidence made public and the applicant must have an opportunity to respond to agency concerns." Kaeser v.Conservation Commission,
The defendant was "presented with a debatable question of fact which [was] within the commission's province to resolve."Westport v. Norwalk, supra, 161. Because the defendant fully dislcosed [disclosed] its concerns about the flooding to the plaintiff and its experts and provided the plaintiff with an opportunity to respond to those concerns, this matter is not governed by Feinsonv. Conservation Commission,
SO ORDERED.
Robert L. Holzberg, J.