2008 Ct. Sup. 5650
No. CV 06 4004614 SConnecticut Superior Court Judicial District of Windham at Windham
January 31, 2008
MEMORANDUM OF DECISION
KEVIN E. BOOTH, JUDGE.
I. Nature of Proceedings
This is an appeal from a denial by the defendant, Brooklyn Planning and Zoning Commission, of a subdivision application proposed by the plaintiff, Meehan Builders, LLC. The plaintiff is the owner of approximately 221 acres of land within the town of Brooklyn, which he unsuccessfully proposed to develop into 73 different lots.
On November 30, 2005, the plaintiff submitted an application for a re-subdivision pursuant to the Brooklyn subdivision regulations. A public hearing on several nights, commencing on February 1, 2006, and concluding on May 3, 2006, was held regarding the merits of the plaintiff’s application. At a meeting on June 7, 2006, the commission denied the plaintiff’s application.
II. Aggrievement
The plaintiff has the burden of proving aggrievement under General Statutes § 8-8.[1] The plaintiff Meehan Builders, LLC was the unsuccessful applicant and owner of the subject property The court finds it aggrieved.
III. Discussion
The plaintiff argues that the planning and zoning commission, acting in an administrative capacity, exceeded its authority in denying the plaintiff’s application. The plaintiff also argues that its application complied with the applicable subdivision regulations, the zoning regulations and the Brooklyn public improvement specifications and, therefore, the commission was required to approve the application. The plaintiff further argues that one of the conditions from the commission’s draft motion[2] for approval was beyond the jurisdiction of the commission and must be removed. Finally, the plaintiff argues CT Page 5651 that the commission improperly took into account the adequacy of the surrounding roads when making its decision.
The defendant argues that the subdivision application was properly denied because it did not believe that the proposed road system provided safe and convenient access to the subdivision lots. The defendant argues that it was primarily concerned with emergency vehicles being unable to gain access to the development. The defendant finally argues that the poor condition of the sole public road that provided access to the proposed subdivision was an additional reason for its denial.
At its public hearing on June 7, 2006, the commission denied the plaintiff’s subdivision application. (Return of Record [ROR], Exhibit [Exh.] 113, p. 5-6.) The commission denied the application based on offsite conditions and the failure to build the emergency access road to town standards.
A. Old Tatnic Hill Road
The plaintiff contends that the commission improperly considered the condition of the public access road when making its decision. “The commission also recognizes that the present public access road to the development is a designated safe road for which significant restrictions to improvements [already] exist . . . The commission views the limitations of the existing roadways which has been designated by town ordinance as scenic road as a significant impediment to making a safe and convenient system for traffic.” (ROR, Exh. 113, p. 6-7.) “This court previously has considered the authority of a planning commission, when acting in a limited, administrative capacity, to weigh off-site traffic conditions. In Reed v. Planning Zoning Commission . . . this court concluded that the inadequacy of an existing town road was not a permissible basis for denying a subdivision application . . . [I Reed], the defendant planning and zoning commission had denied the plaintiff’s application, noting that the road was inadequate to provide safe access and egress to the proposed lots for either residents or emergency vehicles. This court affirmed the judgment of the trial court and the Appellate Court, both of which had determined that the defendant had exceeded its authority in denying the plaintiff’s subdivision application on the basis of the inadequacy of the existing town road, where the defendant had not found that the application did not conform with its regulations.” (Citations omitted; internal quotation marks omitted.) Pansy Road, LLC v. Town Plan Zoning Commission supra, 283 Conn. 369, 375-76 (2007).
B. The Emergency Access Road
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“When reviewing a site plan application, a planning commission similarly acts in an administrative capacity and may not reject an application that complies with the relevant regulations.” Pansy Road, LLC v. Town Plan Zoning Commission, 283 Conn. 369, 375, 926 A.2d 1029
(2007). The plaintiff argues that the application complies with all applicable subdivision regulations. More specifically, the plaintiff argues that the commission cannot deny the application based on its refusal to build an emergency access road within the development to town standards. There are no specific sections of the Brooklyn planning and zoning commission’s subdivision regulations that allow the town to compel a subdivision builder to build emergency access roads from within the subdivision to town standards.[3] After reviewing the record, the court finds that the application complies with all of the applicable Brooklyn subdivision regulations.
The planning and zoning commission required the plaintiff to build an emergency access road within the development to town standards based on Sections 1.5, 10.4.2 and 10.6.2. (ROR, Exh. 113.) The commission subsequently denied the plaintiff’s application based on these sections. (ROR, Exh. 113.) “General policy statements regarding compliance with health and safety regulations do not supply a sufficient basis for rejecting a subdivision plan. TLC Development, Inc. v. Planning Zoning Commission, 215 Conn. 527, 530 n. 2 (1990).” Tallman v. Newton Planning Zoning Commission, Superior Court, judicial district of Danbury, Docket No. CV 02 0344618 (October 15, 2002, Radcliffe, J.) (33 Conn. L. Rptr. 262).
The commission first cited Section 1.5 of the Brooklyn planning and zoning subdivision regulations as a reason for requiring the plaintiff to build the emergency access road to town standards.[4] (ROR, Exh. 113, p. 6.) The commission came to this conclusion “based on the testimony provided at the public hearing by the town’s consulting engineer, the information provided by the public safety committee and the testimony of various witnesses at the public hearing.” (ROR, Exh. 113, p. 6.) Section 1.5 of the subdivision regulations is a general introductory policy statement and not a specific regulation, therefore, under TLC Development it does not provide a sufficient basis for denial of an application.
The commission next cited Section 10.4.2 of the subdivision regulations as a second reason for the required modification.[5] (ROR, Exh. 113, p. 7.) The commission stated that “the proposed access to the development areas does not provide a safe and convenient system for perspective traffic in the neighborhood around the subdivision.” The CT Page 5653 proposed emergency access road is not intended to carry prospective traffic in the neighborhood around the subdivision. (ROR, Exh. 113, p. 6-7.) Moreover, Section 10.4.2 is more analogous to a general policy statement then it is to a specific regulation. Under TLC Development, it does not provide a sufficient basis for denial of an application.
Finally, the commission decided that Section 10.6(2) of the subdivision regulations provided sufficient reason to require the modification.[6] (ROR, Exh. 113, p. 7.) The commission reasoned that “the proposed subdivision traffic demands will compel the improvement of the existing public road single point of access to provide safe access and emergency vehicle access resulting in a significant increase in the town’s obligation for road upgrade, maintenance, and repair.” (ROR, Exh. 113, p. 7.) Section 10.6(2) is similar to section 104.2 and section 1.5 in that it is more analogous with the general policy statements discussed in aforementioned TLC Development case. These sections do not provide sufficient basis on their own to deny an application. Furthermore, in relying on Section 10.6(2) the town appears to be using offsite traffic and the adequacy concerns of Old Tatnic Hill Road as a basis for the denial. As already discussed, offsite traffic concerns and the concerns over the adequacy of Old Tatnic Hill Road do not provide sufficient basis to deny the application.
Since there is no section of the subdivision regulations that allows the town to compel a subdivision builder to build an emergency access road within the subdivision to town standards, the commission exceeded its authority by denying the application based on the plaintiff’s refusal to comply with the requested modification.
CONCLUSION
The court finds that the commission should not consider the adequacy of Old Tatnic Hill Road as a legitimate basis for denying the application. The court further finds that under the Brooklyn planning and zoning subdivision regulations the planning and zoning commission cannot compel the plaintiff to build an emergency access road within the subdivision to town standards. The planning and zoning commission exceeded its authority when it denied the plaintiff’s application based on Sections 1.5, 10.4.2 and 10.6(2) of the subdivision regulations. These regulations are either general statements of health and safety policy or not applicable. They do not provide a sufficient basis for denial of a subdivision application.
The appeal of the plaintiff is sustained and the matter is remanded to CT Page 5654 the Brooklyn planning and zoning commission, which is directed to conduct further proceedings in accordance with this opinion.
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