200 ASSOCIATES, LLC v. TOWN OF THOMPSON, PLANNING AND ZONING COMMISSION ET AL.

2004 Ct. Sup. 13967
No. CV-02-0067123-SConnecticut Superior Court, Judicial District of Windham at Putnam
September 16, 2004

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON REMAND
FOLEY, JUDGE.

This matter is on remand from the Appellate Court to determine whether substantial evidence exists to support the denial of plaintiff’s subdivision application for “problems with the open space.” 200 Associates, LLC v. Planning and Zoning Commission, 83 Conn.App. 167
(2004).

This court first heard this administrative appeal seeking to overturn the denial of a thirty-one lot subdivision in Thompson, Connecticut on January 15, 2003. The Planning and Zoning Commission (“the commission”) denied the subdivision for six reasons, including “. . . the open space problem.” (RR CC, p. 21.) This court sustained the appeal. (See Memorandum of Decision, Foley, J. January 23, 2003). The Appellate Court accepted certification on issues related to two of the reasons for denial, the roadway design and open space problem. The Appellate Court upheld this court’s ruling on the principal issue before the trial court, whether a certain road design constituted a cul-de-sac, but remanded the matter to this court to undergo an evidentiary analysis on the second reason for denial, the open-space problem.[1]

The question on remand is solely whether there was sufficient evidence anywhere in the record for the commission to reject the subdivision application for the open space issue. A careful reading of the Appellate Court decision and the record indicates that there was substantial evidence to support the commission’s denial of the subdivision application.

In appeals from administrative zoning decisions, the commission’s conclusions will be invalidated only if they are not supported by substantial evidence in the record . . . The [Commission’s] decision must be sustained if an examination of the record discloses evidence that support any one of the reasons given. The evidence to support any such reason [however] must be substantial . . .” (Emphasis added; internal CT Page 13968 quotation marks omitted.) Evans v. Planning and Zoning Commission, 73 Conn.App. 647, 658 (2002); see also Property Group Inc. v. Planning and Zoning Commission, supra, 226 Conn. 697. In appeals from administrative zoning decisions, the decisions will be invalidated even if they are reasonably supported by the record, if they were not supported by substantial evidence in that record. Kaufman v. Zoning Commission, 232 Conn. 122, 151 (1995) (quotation marks omitted). “Substantial evidence is that which carries conviction, is such evidence as a reasonable mind might accept as adequate to support a conclusion. It means something more than a mere scintilla and must do more than create a suspicion of the existence of the fact to be established”. Raczkowski v. Zoning Commission, 53 Conn.App. 636, 641, cert. denied, 250 Conn. 921
(1999).

The regulations of the planning and zoning commission at § VII.2.A. indicate that the developer may employ, or the commission may require, that open spaces be provided by one of the following mechanisms, as the commission finds appropriate:

— dedication of land to the town of Thompson;

— dedication of land to the state;

— provision of a conservation easement with full limited or public prohibited access;
— provision of private open space such as common land held by an association of homeowners; and
— conveyance to a non-profit organization dedicated to conservation of natural open space.

Regardless of the method employed, the instruments used to permanently reserve the common space shall include provisions acceptable to the commission and the town counsel. (See § VII.2.B.)

Plaintiff proposed that the open space be dedicated to the town of Thompson, as authorized by the regulation. (RRA, p. 2.) Comments by commissioner’s during the course of the review process indicated some on the commission felt that the town would not benefit by owning the open space, particularly because of potential liability issues. (RRU, pp. 3-5). It was their position that the town would be better served if the open space land, including that on which the detention basin was proposed, were to be owned by an association of homeowners to be formed by the applicant.[2]
CT Page 13969

The commission is accorded the right to modify the open space location and mechanism for preservation but it is not obligated to do so. It can accept what is proposed or it can deny it for failing to meet its regulations. In this case, the commission elected to deny without specifically stating a reason. In such cases, this court is required to do the work of the commission by searching the entire record to find substantial evidence, if any, for the commission’s decision. Azzarito v. Planning Zoning Commission, 79 Conn. App 614, 618 (2003); 200 Associates, infra at 178.

The Appellate Court has assisted the trial court in it’s assigned task by highlighting certain language of commission member Charles Paquette that in the past the commission has urged others to assign the land to an association owned by the subdivision property owners to avoid insurance and maintenance problems. The court finds this is the only substantial reason mentioned to support denial of the application. While it is unclear from the cases whether the musings of one commission member during the public hearing without any other indications of consensus, constitutes substantial evidence, in this case, the commissioner’s statement references the collective action of the commission as a whole. The open space within the proposed development is unacceptable to the town and the open space should have been committed to 1) the state; or 2) a conservation easement with full, limited or public prohibited access; or 3) private open space such as common land held by an association of homeowners; or 4) conveyance to a nonprofit organization dedicated to conservation of natural open space.

Accordingly, the appeal is dismissed.

Foley, J.

[1] The transcript of the proceedings on the decision indicates the “open space problem” was the reason given in the motion to deny. The Appellate court says “[t]he commission merely stated that it did not accept the open space area . . .” (Internal quotations removed.) 200 Associates, LLC v. Planning and Zoning commission, 83 Conn.App. 167, 177 (2004).
[2] The following colloquy occurred at the December 17, 2001 hearing on the plaintiff’s subdivision application:

[Commission member John Rice]: Its going to be the town’s responsibility to maintain that, then? CT Page 13970 [Civil engineer Janet Blanchette]: That’s correct. Its part of the open space, and its part of the formal letter . . .

[Rice]: What’s part of the open space, this?

[Blanchette]: This one. This area here is part of the open space. This is an open space, and this is an open space.
[Commission member Charles Paquette]: Now, quite frankly . . . the town has not yet accepted any open space land . . . I think accepting any open space land would have to go through a town meeting, to do so . . . [I]n the past we’ve urged other people to assign this land to . . . an association owned by . . . people that buy lots in the subdivision and they would maintain it, as they do in other towns, not something that’s a burden to the town for insurance problems and maintenance problems, and so on and so forth.

(Italics provided by the Appellate court in foot note 9 p. 176.)

CT Page 13971

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