DocketNumber: No. CV 99-0423591
Judges: DOWNEY, JUDGE.
Filed Date: 8/1/2000
Status: Non-Precedential
Modified Date: 4/17/2021
Section 3.43 of the Town's Zoning Regulations ("Regulations") governs the creation of rear lots. Section 3.43 allows the Commission to "issue a special permit, with or without conditions, to allow on a rear lot any use otherwise permitted in the Zone if it finds that such lot provides for the best development of the land and that the public health and welfare are not adversely affected." S. 3.43 goes on to state, in pertinent part: "The approval of a rear lot shall be considered only in the following instances:
. . . . (b) In the case of a parcel to be divided into two or more lots: if the Commission determines that the use of a rear lot is made necessary by unusual features peculiar to the land in question, such as difficult drainage, difficult configuration, temporary flooding, steep topography, public utility lines or easements."
Finally, S. 3.43 states: "It is not the intent of these regulations to increase the density of land development by further division of existing house lots nor, in the case of a new subdivision, to encourage the creation of rear lots."
A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations, HousatonicTerminal Corporation v. Planning Zoning Board,
An administrative agency such as the [Commission] is called on to determine the applicability of the [zoning regulations] to a given set of facts presented to it, Pascale v. Zoning Board of Appeals,
Where the Commission states its reasons for a decision the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the Commission is required to apply under the zoning regulations, Irwin v. Planning Zoning Commission, supra, at 629 (citation, quotation marks omitted). Failure of an agency to make findings, even those required by statute or regulation, does not render its decision null and void: rather, the reviewing court must search the record of the hearing before that commission to determine if there is an adequate basis for its decision, Samperi v. Inland Wetlands Agency, CT Page 9395
As indicated, the Commission may authorize a special permit "to allow on a rear lot any use permitted in the Zone" providing that the Commission find (1) that such lot provides for the best development of the land and (2) that the public health and welfare are not adversely affected. The Commission made no such findings, nor was it required to do so unless it sought to authorize the issuance of the special permit applied for. Moreover, the application at issue sought, not permission for a use on an existing rear lot, but creation of a rear (and a front) lot from an existing lot.
In arguing their positions, both parties rightly focus on the application of Section 3.43(b), as well as the intent of the regulation with regard to density of land development, as expressed in said regulation. Pursuant to S. 3.43, the approval of a rear lot, in this instance, can be considered only "if the Commission determines that the use of a rear lot is made necessary by unusual features peculiar to the land in question, such as difficult drainage, difficult configuration, temporary flooding, steep topography, public utility lines or easements.
The plaintiff asserts that steep topography, difficult drainage and temporary flooding of the subject property make necessary the creation of a rear lot. It should be noted that two patches of wetlands, totaling some 12,000 square feet, are located in the front part of the existing lot, adjacent to Old Racebrook Road. Absent the wetlands, the plaintiff CT Page 9396 asserts, he could divide the lot at issue without the need for the special permit sought. There is ample evidence in the record that for the plaintiff to divide his property into two buildable lots creation of a rear lot is made necessary by unusual features peculiar to the land in question, the unusual features being the existence and location of the wetlands. The question arises: necessary for what? The Court answers: necessary to allow the plaintiff to divide his property into two building lots, conforming in size and all bulk requirements. The Court finds that the plaintiff established that approval of a rear lot was made necessary by unusual features peculiar to the land in question. The Court finds no evidence in the record to allow the defendant Commission to conclude that approval of a rear lot was not made necessary by unusual features peculiar to the land in question.
The remaining issue has to with the intent of the regulation. Section 3.43 states, in pertinent part: "It is not the intent of these Regulations to increase the density of land development by further division of existing house lots . . ." The defendant asserts that "[i]t is clear from the text of the regulation that the intent of the regulation is not to "encourage the creation of rear lots'." Equally clear, the intent of said regulation is not to bar the creation of rear lots. The defendant urges on the Court a reading of S. 3.43(b) that would apply its provisions to a situation where undeveloped land is being considered for division into two or more lots, but would leave the Commission free to reject an application such as that before the Court, where a lot is already developed, with the existing house located at the rear of the property, on what would become the rear lot, even when the standards of § 3.43(b) are met.
Thus, under this interpretation, absent the presence of the dwelling, the plaintiff would have been allowed to divide his land as proposed, creating two buildable lots. However, because of the existing dwelling, he will not be allowed to do so, because this would impermissibly "increase the density of land development by further division of existing house lots". Under this interpretation, creation of rear lots only on an undeveloped tract of land would be permitted. Left unexplained is how the approval of division of an undeveloped parcel would not lead to increase of the density of land development, while approval of the proposal at issue would increase said density of land development.
By clear implication, the defendant Commission asks the Court to find that S. 3.43 treats "house lots" differently from other, "undeveloped", lots, and bars "further division of existing house lots". The plaintiff suggests that the concluding sentence of S. 3.43 is no more than a general statement of intent, and neither an independent standard nor a prohibition against an appropriate division of house lots. "When two CT Page 9397 constructions are possible, courts will adopt the one which makes the [regulation] effective and workable, and not one which leads to difficult and bizarre results, Muller v. Town Plan Zoning Commission,
The defendant claims that the court's interpretation strips the Commission of discretion. Not so. First the Commission has the discretion to determine whether the applicant meets the standards of Regulations, § 3.43(b). The Commission could also conclude that the applicant's proposal does not provide for the best development of the land or that the public health and welfare are adversely affected. But either conclusion must be supported by substantial evidence in the records.
S. 3.43 requires that, in authorizing "issuance of a special permit to allow any use otherwise permitted in the Zone" the Commission must find that "such lot provides for the best development of the land" and that "the public health and welfare are not adversely affected". Because the Commission did not address these issues, the Court must review the record to determine if there is substantial evidence in the record to support refusal to make such findings, or either of them. The Court finds no substantial evidence in the record to support a refusal to make such findings, or either of them.
The court finds, however, that there is substantial evidence in the record to support both required findings, that "such lot provides for the best development of the land" and that "the public health and welfare are not adversely affected." CT Page 9398
The plaintiff, Thomas Sirowich, has established, by a fair preponderance of the evidence, that the defendant Town Plan Zoning Commission, in denying the plaintiffs application for special permit, acted illegally, arbitrarily and in abuse of the discretion vested in it. Accordingly, the plaintiffs appeal is sustained.
By the Court,
Downey, J.