79 Conn. App. 614 | Conn. App. Ct. | 2003
Opinion
The defendants, the planning and zoning commission of the town of New Canaan (commission) and John A. Kessler, appeal from the judgment of the trial court sustaining the plaintiffs’
Chapter 55, article IV, §§ 55-4.1 to 55-4.24, of the New Canaan subdivision and street regulations sets forth the standards and requirements for a subdivision. Section 55-4.11 requires that the lot arrangement of the proposed subdivision comply with the regulations and ordinances of New Canaan.
“It is axiomatic that a planning commission, in passing on a resubdivision application, acts in an administra
Here, the commission stated that “the application generally meets the applicable subdivision regulations” but did not make specific factual findings to support its approval of the application, especially with regard to the width requirement. When a commission states its reasons in support of its decision on the record, the court goes no further, but if the commission has not articulated its reasons, “the court must search the entire record to find a basis for the [commission’s] decision.” (Internal quotation marks omitted.) Norwood v. Zoning Board of Appeals, 62 Conn. App. 528, 532, 772 A.2d 624 (2001). We, therefore, as did the trial court, search the record to determine if there was substantial evidence
I
The first exception to the width requirement provides in relevant part that “where a parcel of land is of sufficient area to afford a division thereof into not more than two (2) zone units, one (1) of which zone units does not have the required width on a public highway for the zone involved, zoning permits for both of said two (2) zone units may be issued, provided that the zone unit not having the required width on a public highway has access thereto by means of an accessway serving such zone unit and such accessway is not less than twenty-five (25) feet in horizontal width.” New Canaan Zoning Regs., c. 60, article XIV, § 60-14.5 (A). The defendants argue that both parcels qualify under that exception because they obtain access to a public highway by means of an accessway at least twenty-five feet in width. We are not persuaded.
The subdivision plan does not comply with § 60-14.5 (A) because neither parcel has the required 225 feet on a public highway. Section 60-14.5 (A) allows for a second zone unit that does not have the required width on a public highway if it is served by an accessway with a twenty-five foot width. That is only permitted, however, if the other zone unit has the required width along a public highway. Here, parcel 170 has its entire width on Wing Road, which is a private road. Parcel 171 has thirty feet of its width on Wing Road and the rest on an accessway that services the Walsh property. Neither Wing Road nor the Walsh accessway are public highways, and the defendants do not argue otherwise. We therefore conclude that the court properly deter
II
The second exception to the width requirement provides in relevant part that “where a parcel of land is of sufficient area to afford a division thereof into three (3) or more zone units, no zoning permits shall be issued for the third zone unit or any subsequent zone units located in the subject parcel of land until a subdivision thereof has been made in accordance with the Subdivision and Street Regulations of the Town of New Canaan and a map thereof has been filed for record on the land records of the Town of New Canaan.” New Canaan Zoning Regs., c. 60, article XIV, § 60-14.5 (B). The defendants argue that the Kessler subdivision would create “subsequent zone units” to the 1961 Glidden subdivision and that the commission’s approval of the Kessler subdivision caused § 60-14.5 (B) to be satisfied. We disagree. Even if we assume, without deciding, that the “parcel” referred to in § 60-14.5 (B) refers to the Glidden property that originally was subdivided, as opposed to simply Kessler’s parcel, that exception is not satisfied because there was no valid resubdivision approval for Kessler’s property.
The division of Kessler’s property is a resubdivision pursuant to General Statutes § 8-18 and § 55-2.1 of the New Canaan subdivision and street regulations because it constituted a further division of land that already had been subdivided.
Although the commission did approve Kessler’s subdivision, that approval was invalidated by the court on appeal because there was no substantial evidence that supported the commission’s determination that the subdivision met the width requirements or the exceptions to the regulation. The major flaw in the defendants’ argument is its failure to recognize that the required subdivision in § 60-14.5 (B) must, like all subdivisions, comply with the zoning regulations, including having adequate width on a public highway or meeting an exception to that rule. See Krawski v. Planning &
We conclude, therefore, that the court properly found that there was no substantial evidence to support the commission’s approval of the subdivision application under § 60-14.5 (B) of the New Canaan zoning regulations.
Ill
The third exception to the width requirement provides in relevant part that zoning permits may be issued for zone units “having the required width . . . upon roadways other than public highways, provided that such roadways have a width of at least fifty (50) feet and a traveled way to Town standards of at least twenty (20) feet of asphalt . . . .” New Canaan Zoning Regs., c. 60, article XIV, § 60-14.5 (C). The defendants argue that this exception was satisfied because parcel 170 has its entire width along Wing Road, which has a fifty-foot width, and parcel 171 has thirty feet of its width along Wing Road. We disagree.
Our interpretation of ordinances presents a question of law and, therefore, our review is plenary. See Witty v. Planning & Zoning Commission, 66 Conn. App. 387, 390-91, 784 A.2d 1011, cert. denied, 258 Conn. 950, 788 A.2d 100 (2001). “We interpret and construe local ordinances according to the principles of statutory construction.” Miller v. Zoning Board of Appeals, 36 Conn. App. 98, 102, 647 A.2d 1050 (1994). We are aware of
“A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance. . . . The words [employed] in zoning ordinances are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms. . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant.” (Citations omitted; internal quotation marks omitted.) Raymond v. Zoning Board of Appeals, 76 Conn. App. 222, 234, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003). “We construe words and phrases according to the commonly approved usage of the language. . . . Where an ordinance does not define a term, we look to the common understanding expressed in dictionaries.” (Citation omitted.) Miller v. Zoning Board of Appeals, supra, 36 Conn. App. 102.
Parcel 170 complies with the exception because it has its entire width, which is longer than the requisite 225 feet, on Wing Road, which has a width of fifty feet. We therefore must determine whether the third exception to the width requirement mandates that 225 feet of the width of parcel 171 border Wing Road or whether it requires only that a portion of its width be on that roadway.
Subsection (a) of that definition is not applicable here because the width is not supported “by the top surface of’ Wing Road. Similarly, subsection (b) of that definition is not relevant because Wing Road is not an “outer surface” with which the width of lot 171 is in contact. Rather, the definitions found in subsections (c) and (d) are relevant and applicable to the third exception to the frontage width requirement. In the context of the regulation, “upon” means that the width be located near or in close proximity with Wing Road.
We conclude that the third exception requires that the required 225 foot width be on Wing Road. The definition of “width” mandates that 225 feet be on a roadway other than a public highway, specifically, Wing Road. Utilizing the dictionary definition of “upon,” we conclude that the exception requires that 225 feet be near, in close proximity with or border Wing Road. Here,
IV
The defendants also claim that the commission properly approved the subdivision plan because any noncompliance with the regulations constituted a variance or a waiver.
The defendants raise that claim for the first time on appeal. The commission was not asked to issue a variance, nor was it asked to waive the width requirement of the zoning regulations. That issue also was never raised before the court. Rather, the commission was confronted only with a subdivision plan application. On appeal to the court, the issue was whether the plan complied with the width requirement or any of the exceptions to that regulation. Never was the issue of waiver or variance raised. “Our Supreme Court has
The judgment is affirmed.
In this opinion the other judges concurred.
The plaintiffs are James Azzarito, Susan W. Azzarito, George B. Harvey, Elizabeth V. Harvey, Edward T. Walsh and Patricia A. Walsh. Kessler filed a motion to dismiss the administrative appeal as to James Azzarito, Susan Azzarito, George Harvey and Elizabeth Harvey on the ground that they were not statutorily or classically aggrieved. The court denied the motion and concluded that those plaintiffs were statutorily aggrieved pursuant to General Statutes § 8-8 because they own land that abuts or is within 100 feet of Wing Road in its entirety, which is the land involved in the decision of the commission. Edward Walsh and Patricia Walsh owned property that abutted Kessler’s property.
Although there is no map that depicts the fact that Kessler’s property was located within a two acre residential zone, the parties agreed that it was so situated.
Chapter 55, article IV, §55-4.11, of the New Canaan subdivision and street regulations provides in relevant part: “The lot arrangement shall be such that there will be no foreseeable difficulties ... in securing building permits to build on all lots in compliance with the regulations and ordinances of the town and in providing driveway access to buildings on such lots from an existing street or a street approved by the Commission.”
General Statutes § 8-26 provides in relevant part that “nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations. . . .”
Chapter 60, article XXV, § 60-25.1, of the New Canaan zoning regulations defines “zone unit” as “a plot of land having the minimum width and area required by the schedule for a conforming use in any zone.”
Chapter 60, article XXV, § 60-25.1, of the New Canaan zoning regulations defines “width” in relevant part as “the dimension of the plot generally parallel to the street front . . . .”
The defendants do not claim that the fourth exception to the width requirement set forth in chapter 60, article XIV, § 60-14.5 (D), of the New Canaan zoning regulations was met by their subdivision plan.
If we construed the “parcel” to refer to Kessler’s property alone, that exception would not be implicated because there is no subdivision application for the creation of three or more zone units from Kessler’s parcel. Rather, the application sought the creation of only two lots.
General Statutes § 8-18 defines “subdivision” as “the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the purpose, whether immediate or future, of sale or building development . . . and includes resubdivision . . . .”
General Statutes § 8-18 defines “resubdivision” as “a change in a map of
Although parcel 171 has the majority of its required width along the Walsh accessway, the parcel is still noncompliant because the accessway does not have a width of fifty feet, which is required by chapter 60, § 60-14.5 (C), of the New Canaan zoning regulations.
Chapter 55, article XI, § 55-11.2, of the New Canaan subdivision and street regulations provides in relevant part: “Where the Commission finds that because of special circumstances in any particular case, extraordinary hardships may result from strict compliance with these regulations, it may permit a variation from the regulations for such particular case so that substantial justice may be done and the public interest be secured .... In granting any such variation, the Commission shall attach such conditions as are, in its judgment, necessary to fulfill substantially the purposes of the standards or requirements and shall state on its records the reasons for the granting of any such deviation.”
Chapter 55, article XI, § 55-11.3, of the New Canaan subdivision and street regulations provides in relevant part: “The Commission may waive, for such period as it may determine, the provision of any or all such improvements, or parts thereof, as, in its judgment, are not immediately necessary in the interests of public health, safety and general welfare. In the case of each waiver granted, the commission shall enter upon its records the reason or reasons why the particular improvement is not immediately necessary and it shall attach appropriate conditions, or require such guarantees as may be necessary to protect the public interest.”