DocketNumber: No. CV98 035 0801
Citation Numbers: 2001 Conn. Super. Ct. 6214
Judges: RODRIGUEZ, JUDGE.
Filed Date: 5/14/2001
Status: Non-Precedential
Modified Date: 4/18/2021
By application dated November 13, 1997,2 the defendant, Richter, applied to the commission for approval of a resubdivision of the subject premises. (Return of Record [ROR], Item 5: Application for Approval of Subdivision.) Richter applied for a resubdivision to create two lots, the larger lot consisted of 1.49 acres and the smaller lot would contain 1.02 acres. (ROR, Item 15: January 13, 1998 Verbatim Transcript of Public Hearing (Transcript), p. 2.)
The commission conducted a public hearing on the application on January 13, 1998. (ROR, Item 13: Notice of 1/13/98 Public Hearing.) At the hearing, the commission afforded interested parties an opportunity to be heard. (ROR, Item 15: Transcript.)
John Fallon, an attorney representing Richter, spoke on behalf of the application, and Dave Huntington, a Fairfield engineer/surveyor, explained the difference between a previous application concerning the same parcel and the present application. (ROR, Item 15: Transcript, pp. 1-5.) Several commissioners questioned Fallon and Huntington concerning bonding, the availability of sewers and easements. (ROR, Item 15: Transcript, pp. 5-6.)
An attorney, Austin Wolfe, as well as a partner from his law firm, appeared on behalf of the plaintiffs. Wolfe discussed an "opinion of title" which had been prepared by his partner, Michael Rosten.3 (ROR, Item 15: Transcript, p. 8; Item 10: Opinion of Title.) Rosten maintained that there were certain deed restrictions affecting the subject parcel, although he remarked that, "the last reference [to these restrictions] was in 1986 due to a [scrivener's] error . . . and that the "restriction disappeared in the most recent deed, but . . . we believe that these restrictions still exist and still [a]ffect these premises." (ROR, Item 15: Transcript, pp. 9.) Wolfe also referenced a "proposed amendment" that the commission purportedly was to consider later that evening and, if it was adopted, he doubted "that this application could ever be approved." (ROR, Item 15: Transcript, pp. 11-12.)
In addition, several other individuals spoke in opposition to the application. (ROR, Item 15: Transcript, pp. 15-22.) The chairperson then gave Fallon an opportunity to rebut the presentation of the plaintiffs. (ROR, Item 15: Transcript, pp. 22-28.) Subsequently, on January 27, 1998, the commission voted to approve Richter's resubdivision CT Page 6216 application, attaching several conditions to its approval.4 (ROR, Item 11: 1/30/98 Notification Letter.)
The plaintiffs challenge the commission's decision on the ground that the commission acted illegally, arbitrarily and in abuse of its discretion in approving the application. The plaintiffs allege that the application was in violation of Fairfield's subdivision regulations by failing to indicate existing deed restrictions that affected the premises, and that the commission wrongfully concluded that it was not obligated to enforce the restrictions. (Complaint, ¶ (a)(b).)5 The plaintiffs request the court to sustain their appeal, set aside the commission's decision, enter "an order, both temporary and permanent" to prohibit the defendants from implementing the approval of the application, and further seek "such other relief as may in law or equity appertain." (Complaint, Prayer for Relief)
General Statutes §
General Statutes §
The plaintiffs allege that the commission published notice of its "approval in a newspaper having a circulation in the Town of Fairfield on January 30, 1998." (Complaint, ¶ 5.)
With respect to service of process, this appeal was commenced on February 11, 1998, by service upon the clerk of the commission, the town clerk, Paul Richter and upon the Rissolos. (Sheriffs Return.)
In reviewing an application for a subdivision, "[proceedings before planning and zoning commissions are classified as administrative. . . ." (Brackets in original; citation omitted; internal quotation marks omitted. Property Group, Inc. v. Planning Commission,
"Conclusions 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 agency. The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached. . . . The action of the commission should be sustained if even one of the stated reasons is CT Page 6218 sufficient to support it. . . . The evidence, however, to support any such reason must be substantial." (Citations omitted; internal quotation marks omitted.) Property Group, Inc. v. Planning Zoning Commission, supra,
The commission counters that it is unclear whether the claimed restrictive covenant is a deed restriction and, moreover, that such restriction was not noted on the most recent deed. The commission maintains that whether or not an enforceable restrictive covenant attaches to the property is a legal question that neither it, nor the court in the present procedural context, has authority to consider. The commission concludes that Richter "fully complied with the Subdivision Regulations when he failed to mention a restrictive covenant, the applicability of which he disputes, since there is no conclusive evidence that such a restriction exists." (Commission's Brief, p. 5.) It argues that, even if the restriction existed, the commission was not authorized to deny the application on that basis because "[t]he responsibility for enforcing restrictive covenants resides in neighboring landowners, not in the [commission]." (Commission's Brief, p. 5.) In addition, the commission argues that whether the word "shall" is mandatory or precatory depends upon the context. Here, it maintains, "[i]f an item required to be listed on a subdivision application does not exist, then the use of the word `shall' cannot mandate its inclusion." (Commission's Brief, p. 6.) CT Page 6219
Richter argues that his application conformed to the subdivision regulations because the regulation requires a statement of "existing" deed restrictions, and the alleged restrictive covenant was not referenced in the most recent deed of conveyance of the parcel. He further responds that whether or not an enforceable restrictive covenant exists is beyond the commission s scope of authority and is not a matter which the commission may consider when reviewing a subdivision application. Finally, Richter observes that when the validity of a restrictive covenant is in dispute, "it is clearly not within the purview of the regulations nor the authority of case law or statute that the dispute be addressed in the context of an administrative review" of a resubdivision by a commission. (Richter's Brief, p. 9.)
In their reply brief, the plaintiffs respond that the regulations require disclosure of an existing deed restriction' affecting title to the subject premises." (Plaintiffs' Reply Brief, p. 1.) The plaintiffs contend that restrictions in the chain of title affecting the applicant's property are disclosable even if not referenced in the applicant's deed, and that the regulation intends the commission to be made aware of all information relating to a parcel sought to be subdivided. They observe that the applicant and the commission were informed that there was a restriction with respect to this property. In addition, the plaintiffs emphasize that they are not requesting the commission to enforce any restrictions, rather, "[t]he issue is whether the knowing failure to disclose the existence of a restriction affecting title in violation of an applicable regulation causes an application to be defective, and mandates its rejection." (Plaintiffs' Reply Brief, pp. 3-4.)
In the present case, the subdivision regulations provide, in pertinent part: "Application:
A written application shall be made to the Commission by the applicant. If the applicant is not the owner of the land to be subdivided, the application shall also be signed by the owner. The application shall state the following: . . . (I) Existing deed restrictions and easements affecting the property to be subdivided." (ROR, Item 12: Subdivision Regulations.)
"The commission does not have to turn down the application for insignificant deficiencies." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 33.8, p. 174. For example, in Paige v. Town Plan Zoning Commission,
Similarly, in the present case, although the application did not disclose any deed restriction, the record reveals that the commission was aware of the possible existence of a restriction. At the public hearing, Wolfe and Rosten informed the commission of a deed restriction, and the chairperson replied: "You're 100% right, there is an easement, restriction in effect here. If Mr. Fallon withdraws the application and next week he sends it in here, puts a little note on the back, there is an existing deed restriction which he doesn't agree with, what difference does it make." (ROR, Item 15: Transcript, p. 14.) Therefore, that the commission, in approving the application despite the possible existence of a restriction, appears to have interpreted § 1.1.1(1) as an "insignificant deficiency."
In addition, a finding that this particular requirement is relatively "insignificant" is bolstered by a review of the law in the area of deed encumbrances. For example. "it has been said that 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.) Moscowitz v. Planning Zoning Commission,
In Gagnon v. Municipal Planning Commission,
In the present case, the record reveals that the commission was aware of the possible existence of a deed restriction and that the application had failed to note any restriction, but treated the deficiency as "insignificant." Further, the commission had no authority to "make law" by determining whether a deed restriction existed with respect to the subject premises, nor was the commission empowered to deny an application that otherwise conformed to the regulations on the basis of a deed restriction. Because a commission is proscribed from considering a deed restriction when rendering a final decision on an application, it follows that a failure to note such a restriction in the first instance would not be a valid basis for denying the application.
For the foregoing reasons, the plaintiff's appeal is dismissed.
___________________ RODRIGUEZ, JUDGE