DocketNumber: No. CV91 032 13 48S
Citation Numbers: 1994 Conn. Super. Ct. 860
Judges: COPPETO, J.
Filed Date: 1/31/1994
Status: Non-Precedential
Modified Date: 4/17/2021
The facts forming the basis of the appeal are as follows. On or about February 11, 1991, Minor Farm filed an application with the Commission for approval to construct a sixty-one lot residential subdivision on land owned by the United Illuminating Company. (Return of Record [ROR], Item A). The land is zoned "R-3," or land zoned for residential construction. (Supplemental Return of Record [Supp. ROR], p. 54). Minor Farms did not include a request with the application for variances or a waiver of the subdivision requirements regarding any of the lots in the proposed subdivision. (ROR, Item A, pp. 5-6). On June 11, 1991, and July 9, 1991, the Commission held public hearings on the application. (Supp. ROR, pp. 1-65). By notice of decision dated August 14, 1991, (ROR, Item AA), the Commission approved the application, with certain conditions. (Supp. ROR, pp. 67-70).
The plaintiffs challenge the decision on the grounds that the Commission's decision violated Article XI, ch. 4, 114-3 of the West Haven Zoning Resolution providing that the lot size of any subdivision snail be not less than 100 feet along the front and shall contain at least 12,000 square feet and that the Commission's decision violated Article XI, ch. 4, 115-1 of the West Haven Zoning Resolution providing that the Planning and Zoning Commission may waive any requirement under the subdivision regulations only under certain circumstances. (Complaint, para. 8).
A. Aggrievement CT Page 862
Aggrievement is a jurisdictional question and a prerequisite to maintaining an appeal. Winchester Woods Associates v. Planning and Zoning Commission,
At the hearing before this court, testimony established that the plaintiffs, John Samperi, Carol Samperi, William Johnson, Hazel Johnson and Edward J. Nycek, Jr., are all landowners abutting the property upon which the Commission granted approval of Minor Farm's subdivision application, and this court finds that the plaintiffs are aggrieved by the Commission's decision.
B. Timeliness
"Any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located." General Statutes
"Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record." (Citations omitted.) Primerica v. Planning Zoning Commission,
In the context of review of subdivision applications, "[p]roceedings before planning and zoning commissions are classified as administrative." Red Hill Coalition, Inc. v. Town Planning Zoning Commission,
The plaintiffs claim that the proposed subdivision violates the minimum requirements under the subdivision regulations, and thus the Commission had no authority to approve a nonconforming subdivision plan without an appropriate waiver of the requirements. The defendants contend that the zoning regulations under Article I, ch. 3, 23-3.3 for the "R-3" district, within which the subject property is located, control and that the commission properly approved the subdivision application.
The subdivision regulations under Article XI, ch. 4, 114-3 of the West Haven Zoning Resolution provide in pertinent part: "[a]ll lots shall be not less than 100 feet along the front and shall contain at least 12,000 square feet." Article I, ch. 3, 23-3.3 of the West Haven Zoning Resolution provides that minimum street frontage for "R-3" districts be fifty feet and minimum square footage be 6,000 square feet per lot.
The plaintiffs rely on Krawski v. Planning and Zoning CT Page 864 Commission,
In Christofaro, supra, the planning commission enacted a subdivision regulation that established minimum lot size at variance with that designated by the zoning authority. The court held that "by enacting a regulation that effectively amends or alters an existing zoning regulation, the planning commission ha[d] exceeded its statutory mandate." Id., 107.
Christofaro, supra, is distinguishable from the present case. In Christofaro, the plaintiffs brought suit to test the validity of the regulation which was adopted pursuant to the commission's legislative process. In the present case, the plaintiffs appeal the decision granting approval of Minor Farm's subdivision application which was rendered pursuant to the commission's administrative capacity. Id., 106.
Furthermore, in Christofaro, supra, there were two separate sets of regulations that were directly in conflict with one another. In Smith v. Zoning Board of Appeals,
In the present case, two conflicting regulatory provisions are both contained in one comprehensive planning and zoning resolution adopted by one combined planning and zoning commission. Additionally, the resolution includes general provisions in Article CT Page 865 I which contain a separate section entitled "Interpretation of Provisions." Article I, ch. 2, 12.5 provides:
Whenever any provision of this resolution and any other provisions of law, whether set forth in this resolution or in any other law, ordinance, or resolution of any kind, impose overlapping of contradictory regulations over the use of the land, or over the use of bulk of buildings or other structures, or contain any restrictions covering any of the same subject matter, that provision which is more restrictive or imposes higher standards or requirements shall govern.
(Emphasis added.) The purpose of this section is to address overlapping or contradictory regulations and to provide a method by which a conflict between restrictions within the comprehensive resolution should be resolved.
"General Statutes
The defendants claim that the subdivision regulations are regulations of the planning commission and are merely advisory. The defendants claim further that where the application meets with the applicable zoning regulations, the Commission must approve it. The defendants cite Faubel v. Zoning Commission,
In the present case, the West Haven Zoning Resolution is a comprehensive plan of development and, as such, it is regulative and not merely advisory. See Levinsky v. Zoning Commission,
The plaintiffs claim that the Commission had no authority to approve a nonconforming subdivision plan without a waiver of the subdivision requirements. The Commission argues that traditionally the Commission has viewed the applicant's written application as a request for a waiver.
"The provision requiring a written application for waiver is a local regulation and is subject to the interpretation of the commission itself." Shailer v. Planning Zoning Commission,
The Commission's argument that an applicant's written application may be viewed as a request for a waiver violates both the directive of General Statutes
General Statutes
Article XI, ch. 5, 115-1 of the West Haven Zoning Resolution authorizes the Commission to waive any requirement contained in the resolution. That section sets forth the circumstances under which a waiver maybe granted: "[t]o secure such variance, the applicant shall make written request to the Commission explaining fully the reasons therefore and submit same with the preliminary plan. Action by the Commission on such request will be taken as a part of the general action on the preliminary plan." West Haven Zoning Resolution, Article XI, ch. 5, 115-1.
Thus, under General Statutes
There is evidence in the record which reveals that the application submitted by Minor Farm's did not conform to the subdivision regulations. Minor Farm's application lists each lot and its respective area and frontage dimensions. (ROR, Item A, pp. 5-6). The application shows that 46 of the 61 lots measure less than the 100 foot minimum lot size as required under Article XI, ch., 4, 113-3 and that 54 of the 61 lots contain less than the 12,000 square footage as required under that section. The record is devoid of any evidence requesting waivers of the subdivision requirements by Minor Farm. In fact, the record discloses that in its application, Minor Farm disclaimed the need for a variance regarding any lot in the proposed subdivision; (ROR, Item A, pp. 5-6). The record also includes testimony by the attorney for Minor Farm at the hearing: "we are not here requesting a change of zone; we are requesting that we be able to build in accordance with the regulations what is already allowed under the current zoning regulations." (Supp. ROR, p. 54).
The Commission had no authority pursuant to General Statutes
The plaintiffs raise several additional grounds in their appeal which are not briefed. (Complaint, para. 8). "Issues not briefed are considered abandoned." State v. Ramsundar,
The plaintiffs' appeal is sustained.
Coppeto, J.
Levinsky v. Zoning Commission , 144 Conn. 117 ( 1956 )
Town of Westport v. City of Norwalk , 167 Conn. 151 ( 1974 )
Pascale v. Board of Zoning Appeals , 150 Conn. 113 ( 1962 )
Faubel v. Zoning Commission , 154 Conn. 202 ( 1966 )
Connecticut Sand & Stone Corporation v. Zoning Board of ... , 150 Conn. 439 ( 1963 )