66 Conn. App. 317 | Conn. App. Ct. | 2001
Lead Opinion
Opinion
The plaintiff, Patricia Garrison, appeals from the judgment of the trial court dismissing her appeal from the decision by the defendant planning board of the city of Stamford (board) denying her subdivision application.
The zoning use violation was that the real estate office expanded beyond the permitted accessory use of a real estate office to a residence. There has been a longstanding dispute with the city over that violation. The plaintiff had obtained a variance in 1982 to have not more than eight nonresident persons be employed as brokers. Evidence introduced at the public hearing showed that there were thirty-seven brokers who are nonresidents. That was a violation of § 19.2.2 of the zoning regulations, which provides that any grant of a variance is deemed to grant only the particular use and that any changes in the approved plan that materially affect an approved variance shall require further approval of the board.
The plaintiff thereafter appealed from that decision to the Superior Court. Following a one day trial, the court dismissed the appeal, finding that “the planning board lacked the authority pursuant to General Statutes § 8-26 to approve the application because the subject property has outstanding zoning violations.” The plaintiff thereafter applied to this court for certification to appeal, which was granted. This appeal followed.
“At the outset, we note that the [board] acted in its administrative capacity. Reed v. Planning & Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988). As such, it has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance.” (Emphasis added; internal quotation marks omitted.) Paige v. Town Plan & Zoning Commission, 35 Conn. App. 646, 657, 646 A.2d 277 (1994), rev’d on other grounds, 235 Conn. 448, 668 A.2d 340 (1995); see also RK Development Corp. v. Norwalk, 156 Conn. 369, 375-76, 242 A.2d 781 (1968); Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 674-75, 236 A.2d 917 (1967). “In the context of review of subdivision applications, [proceedings before planning and zoning commissions are classified as administrative.” (Internal quotation marks omitted.) Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 696-97, 628 A.2d 1277 (1993).
The principal issue in this appeal is whether the planning board acted within its authority when it denied the plaintiffs subdivision application on the basis of alleged, existing zoning use violations on that part of the property occupied by Coldwell Banker. The defendant claims that § 8-26 precludes the board from approving a proposed subdivision where the property proposed to be subdivided has existing zoning use violations. We disagree.
General Statutes § 8-26 provides in relevant part: “[N]othing in this section shall be deemed to authorize
It is well settled that one of the primary guides for interpreting a statute, indeed the first guide to be consulted, is the language of the statute itself. See, e.g., Taravella v. Stanley, 52 Conn. App. 431, 439, 727 A.2d 727 (1999); Keeney v. Fairfield Resources, Inc., 41 Conn. App. 120, 131, 674 A.2d 1349 (1996). The interpretation of the language often has led our Supreme Court to choose between the interpretations of a statute contended for by the parties on the basis of rules of English grammar. See, e.g., Gonsalves v. West Haven, 232 Conn. 17, 22, 653 A.2d 156 (1995) (statutory definition must be read in light of “ordinary rules of English grammar and sentence structure”); Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852, 633 A.2d 305 (1993) (reading statute “in the light of ordinary rules of English grammar and sentence structure”).
Applying the ordinaiy rules of English grammar and sentence structure to § 8-26, the clause, “which conflicts with applicable zoning regulations,” has as its antecedent not “the property,” as the defendant would have it, but “any such subdivision or resubdivision.”
In addition, our courts have had occasion to interpret § 8-26, including the provision at issue here regarding a municipality’s authority to reject a subdivision plan that conflicts with applicable zoning regulations. In Krawski v. Planning & Zoning Commission, 21 Conn. App. 667, 672, 575 A.2d 1036, cert. denied, 215 Conn. 814, 576 A.2d 543 (1990), we noted that our function is “to decide whether the commission correctly determined that this subdivision application contains an existing violation of the town zoning regulations. . . . A commission may legally base subdivision application
In Federico v. Planning & Zoning Commission, 5 Conn. App. 509, 500 A.2d 576 (1985), we clearly stated the proper application of the provision of § 8-26 at issue here: “These regulatory and statutory requirements must be read to concern zoning violations inherent in the plan itself as submitted and not . . . use violations. Such requirements relate to subdivision plans which in and of themselves would violate zoning regulations. Examples of such conflicts include approval of a subdivision plan involving one-half acre lots in a one acre zone, or approval of a plan for a residential subdivision in an industrial area which prohibited such use.” (Emphasis added.) Id., 515.
We stated in Federico that only zoning violations that are inherent in the plan as submitted may be a basis for denying the subdivision application. The defendant’s claim that the zoning violations in this case are inherent in the application as submitted is further undercut by the comments of the defendant’s own zoning enforcement officer on the plaintiffs application. After reviewing the subdivision application, he stated in a letter to the planning board: “This property has outstanding zoning violations upon it which should be corrected prior to the granting of any subdivision or building permits.” (Emphasis added.) That statement plainly indicates that the zoning enforcement officer’s concerns, mirrored by the planning board, were not about the subdivision plan itself, but were geared toward having the outstanding zoning violations corrected. That statement by the zoning enforcement offi
The defendant also points to an opinion of the city’s law department, the multiple listing service document concerning the property and evidence of traffic problems because of the use violation as further support for its decision to deny the plaintiffs subdivision application. Although the concerns raised by the city clearly are valid, and we do not here endorse the plaintiffs apparent continuing violation of the zoning regulations, they do not permit the city to use the separate subdivision plan approval process as a lever to get the plaintiff to abate her zoning violations.
In further support of its denial of the plaintiffs subdivision application, the defendant includes in its brief several quotations from the public hearing that took place to consider the subject subdivision application. Although those quotations are replete with references to the existing zoning violations on the property, the existence of which the plaintiff does not here contest, the defendant does not make reference to any testimony about zoning violations distinctly inherent in the subdivision application. The absence of any complaints about what would happen if the subdivision application were granted, which is proper to consider when deciding whether to approve such an application, combined with the multitude of complaints about the present situation, indicates that the city’s complaints are with the existing situation, not with the proposed subdivision plan.
The statute permitting a planning board to disapprove a subdivision application that conflicts with applicable zoning regulations cannot be used to justify a planning
Finally, we note that our decision here, that the city cannot reject a subdivision application on the basis of existing zoning violations, where the violations are not inherent in the application, does not leave the city without a remedy for the alleged flagrant zoning violations being committed by the plaintiff. General Statutes § 8-12
The judgment is reversed and the case is remanded with direction to sustain the plaintiffs appeal from the defendant’s denial of her application for a subdivision.
In this opinion FLYNN, J., concurred.
The plaintiffs complaint also named as individual defendants the town clerk and the chairman of the planning board, pursuant to General Statutes § 8-8. We will use “defendant” to refer only to the planning board.
General Statutes § 8-12 provides in relevant part: “If any building or structure ... or land has been used, in violation of any provision ... of any bylaw, ordinance, rule or regulation made under authority conferred [by this chapter], any official having jurisdiction, in addition to other remedies, may institute an action or proceeding ... to restrain, correct or abate such violation or to prevent the occupancy of such building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises. Such regulations shall be enforced by the officer . . . designated therein, who shall be authorized to cause any building, structure, place or premises to be inspected and examined and to order in writing the remedying of any condition found to exist therein or thereon in violation of any provision of the regulations made under authority of the provisions of this chapter or ... to issue, in writing, a cease and desist order to be effective immediately. The owner or agent of any building or premises where a violation of any provision of such regulations has been committed or exists, or the lessee or tenant of an entire building or entire premises where such violation has been committed or exists . . . shall be fined not less than ten nor more
Dissenting Opinion
dissenting. The majority reverses the judgment on the basis of its determination that the trial court incorrectly upheld the decision by the defendant planning board of the city of Stamford (board) that the subdivision application by the plaintiff, Patricia Garrison, contained an inherent violation of “applicable zoning regulations.” I conclude that the board’s determination was correct and that the trial court properly upheld the board’s denial of the application. I further conclude that the trial court’s disposition of the plaintiffs remaining claims is correct and would affirm the judgment of the trial court.
As a threshold matter, I reiterate our standard of review on appeals from the decisions of zoning boards on subdivision applications. “Conclusions reached by the [board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board].
The issue decided by the majority turns on the meaning of an “inherent” violation. The majority relies on our decision in Federico v. Planning & Zoning Commission, 5 Conn. App. 509, 500 A.2d 576 (1985), to support its position that the zoning violations in this case do not constitute “inherent” violations in the subdivision for which the plaintiff applies. The majority claims, in fact, that, to provide a basis for rejecting a subdivision application, the violations must appear on the face of the subdivision application. Neither the applicable statute nor Federico supports that interpretation. A planning board is authorized to deny a subdivision on that ground as long as such application violates any applicable zoning regulation. Such a violation involves virtually any applicable zoning regulation because the zoning regulations are incorporated in the subdivision regulations. See Krawski v. Planning & Zoning Commission, 21 Conn. App. 667, 670-71, 575 A.2d 1036 (upholding denial of subdivision application on ground of applicable existing zoning violation incorporated by reference in subdivision regulations), cert. denied, 215 Conn. 814, 576 A.2d 543 (1990). Our Supreme Court has stated that “[w]e also must look to the overall intent of the applicable regulations in considering subdivision applications. . . . Regulations, like statutes, do not exist in a vacuum.” (Citation omitted; internal quotation marks omitted.) Smith v.
Although in Federico we upheld a planning and zoning commission’s granting of approval for a subdivision, and rejected the trial court’s determination that the subdivision at issue in that appeal violated zoning regulations, the reasoning of Federico supports my conclusion. The Federico court stated that “[a]t the time of the trial, any claimed violations of zoning regulations were entirely speculative. Zoning concerns use . . . and until residential use of the lot is attempted it cannot ordinarily be known what yard or frontage requirements might be violated.” (Citation omitted.) Federico v. Planning & Zoning Commission, 5 Conn. App. 514-15.
In Federico, the potential use in question would have been the residential use of the lot. If existing, the residential use would have triggered and, presumably, violated the applicable yard and frontage regulations. The court stated that “[u]ntil a building permit application is filed in the future, there are no ‘applicable’ yard and frontage requirements.” Id., 515. The court indicated that if a use implicates zoning issues properly considered for a subdivision application, and if that use is an existing and not merely a potential use, that would be a proper ground for denial of the application. The court stated “[e]xamples of such conflicts include . . . approval of a plan for a residential subdivision in an industrial area which prohibited such use. ” Id. The court rejected only “[i]nchoate violations involving the use of the lot in question, which may never occur . . . .” Id.
In the present case, an actual, existing use (a commercial real estate office that had expanded beyond the
In its statement of facts in its brief, the board cites statements of a resident at the public hearing describing “traffic problems in the area, and the intensive traffic caused by the real estate broker’s office.” Also at the hearing, the city’s land use bureau chief “noted that if the subdivision was granted, then the zoning violation would be exacerbated, since the addition of two single-family houses would increase traffic . . . .” The decision by the board to reject the application stated that it was “based on existing flagrant and specific zoning violations which would be intensified due to the reduced size of the existing parcel and the addition of two new lots.”
In seeking to uphold the board’s disapproval of the application, the defendant argues in its brief: “Instead of having 1.5 acres with a large, flagrant zoning violation, the planning board was being asked to condone or ignore the zoning violation in order to allow two more lots, with the increase in traffic from adding two single-family residences, and with the reduction of the size of lot with the zoning violation by 50 percent (from over 1.5 acres to over one acre). Therefore, [General Statutes § 8-26] required that the planning board deny the subdivision application. The trial court properly upheld the decision of the planning board, and properly rejected the claim that the violation didn’t exist, or was beyond the control of the plaintiff.”
The majority also supports its position by describing the role of the zoning board in reviewing a subdivision application as “purely ministerial.” This characterization misapprehends the role of the board in the application process and elevates the applicant’s expectation of approval to a virtual entitlement. As our Supreme Court has stated, in the context of reviewing such a claim of entitlement, a “subdivision application [is] subject to the [board’s] discretion and . . . [town] land use regulations . . . [may] not clearly entitle [one] to approval.” Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 323, 627 A.2d 909 (1993). It is true that “[t]he planning [board], acting in its administrative capacity herein, has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance. ... If it does not conform as required, the plan may be disapproved.” (Citation omitted.) Forest Construction Co. v. Planning & Zon
As to the remaining issues the plaintiff raised on appeal, I agree with the trial court’s dispositions. The board’s denial of the application was expressly provided for in § 3.6.3 of the subdivision regulations. The plaintiff, moreover, may not in the same proceeding contest the denial of her application and the constitutional validity of the same zoning regulations. See Bierman v. Westport Planning & Zoning Commission, 185 Conn. 135, 139, 440 A.2d 882 (1981).
Accordingly, I would affirm the judgment of the trial court.