35 Conn. App. 191 | Conn. App. Ct. | 1994
The defendant planning and zoning commission of the town of Avon (commission) appeals from the judgment of the trial court. That judgment sustained the appeal of the plaintiff, Gorman Construction Company, Inc. (Gorman), from the commission’s decision approving a subdivision application with conditions.
The commission claims that the trial court (1) abused its discretion in its construction and application of § 5.11.01 of the Avon subdivision regulations, (2) improperly placed on the commission the burden of proving that it was entitled to apply the express terms of its subdivision regulations, and (3) improperly struck the commission’s condition requiring public water service to the approved subdivision, while leaving the approval in force and effect in all other respects.
The facts are not in dispute. In June, 1990, Gorman, a developer, applied to the commission for approval of a residential subdivision. To assure that any proposed subdivision will be capable of providing an adequate
The commission, using the formula in the regulation, multiplied the number of lots by the constant (fifty feet), which yielded 1900 feet as the distance from a public water supply within which connection was required. An existing service line of the Avon Water Company is approximately 1600 feet from Gorman’s subdivision, bringing the subdivision within the purview of S 5.11.01.
Even though the service line of the Avon Water Company is within 1600 feet of the subdivision, it does not
The commission first claims that the trial court abused its discretion in its construction and application of the regulation and improperly placed the burden of proof on the agency.
The limited scope of review in subdivision appeals is well established. “It is axiomatic that a planning commission, in passing on a [subdivision] application, acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations. Reed v. Planning & Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988) . . . .” R. B. Kent & Son, Inc. v. Planning Commission, 21 Conn. App. 370, 373, 573 A.2d 760 (1990). The commission is entrusted with the function of interpreting and applying its zoning regulations. Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560, 236 A.2d 96 (1967); Krawski v. Planning & Zoning Commission, 21 Conn. App. 667, 670-71, 575 A.2d 1036, cert. denied, 215 Conn. 814, 576 A.2d 543 (1990). “The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 117, 186 A.2d 377 (1962). The plaintiffs have the burden of showing that the commission acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988). The trial court can sustain the [plaintiff’s] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal; Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988); McCrann v. Town Planning & Zoning Commission, 161 Conn. 65, 70-71, 282 A.2d 900 (1971). It must not substitute its judgment for that of
The commission conditionally approved Gorman’s subdivision application. In accordance with regulation § 5.11.01, which requires public water for any subdivision within a specified distance of existing public water service, the commission permitted the subdivision as long as the development was served by public water supply with the “installation of [a] booster pump by Avon Water Company . . . .” On appeal, the trial court agreed with Gorman that the regulation did not apply because a requirement that a measurement based on a connection with a public water supply outside of the franchise area was not an appropriate application of the regulation. The trial court found “[i]t is implicit in the language of the regulation that the existing public water service referred to is one which presently has the right and power to provide public water in the location in question and, in this case, is within 1,900 feet
“Nothing in the subdivision approval statute, § 8-26, allows for the imposition of conditions upon the planning and zoning commission’s approval of a subdivision plan; the statute merely provides for the commission to ‘approve, modify and approve, or disapprove’ a subdivision application. Neither are we confronted with any local regulation of the town of [Avon] which would authorize the imposition of conditions on a subdivision approval. We have held . . . that commission action which is dependent for its proper functioning on action by other agencies over which the zoning commission has no control cannot be sustained unless the necessary action appears to be a probability. Stiles v. Town Council, 159 Conn. 212, 221, 268 A.2d 395 (1970).” Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 592, 409 A.2d 1029 (1979).
We agree with the decision of the trial court. First, the finding of the trial court that the regulation does not apply will not be disturbed by this court unless the subordinate facts do not support the finding. Walls v. Planning & Zoning Commission, 176 Conn. 475, 476, 408 A.2d 252 (1979). The plain language of § 5.11.01 requires public water service if the subdivision is within the distance from “an existing water service” set out in the formula — ultimate number of lots times fifty feet equals distance of extension. While being urged by the commission to interpret “existing” as “available,” the trial court, in accordance with its obligation, determined that the natural and usual meaning of the word
Even if the regulation does apply, the commission’s approval of Gorman’s subdivision was subject to a condition over which neither Gorman nor the commission has control. An agreement between the Connecticut Water Company and the Avon Water Company to service the area in the application is not within the control of the parties. There was nothing in the record that the agreement between the two water companies would “appear to be a reasonable probability.” The evidence before the commission does not rise to that level of proof that would indicate the reasonable probability of the two public water suppliers’ arriving at an agreement and thus satisfying the condition imposed by the commission. Because the condition could not reasonably be fulfilled, it must fall. Stiles v. Town Council, supra, 159 Conn. 221.
The commission next argues that the trial court improperly placed the burden of proof on the commission to prove that the public water supply requirement could be met. Because we hold that the trial court was correct in not applying § 5.11.01, we need not address this issue.
“The applicable provisions of General Statutes § 4-183 (g)
The judgment is reversed in part and the case is remanded with direction to render judgment remanding the matter to the planning and zoning commission for farther proceedings in accordance with this opinion.
In this opinion the other judges concurred.
Avon subdivision regulations, § 5.11.01 provides in pertinent part: “Public Water Supply — shall be required to serve . . . (ii) Any subdivision within the required distance of an existing water service as determined by the following formula: ultimate number of lots times 50 feet equals distance of extension.
“The ultimate number of lots shall be determined by multiplying the total acreage of the tract by the appropriate density factor. Distance shall be measured from the end of the existing service line along existing or proposed streets or rights of way to the nearest point in the subdivision.”
The subject subdivision, section four, makes up the nineteen lots in this application for subdivision approval and nineteen lots in section five, a remaining portion of the lots. These account for thirty-eight lots that originally were part of a conceptual plan of eighty lots. Forty-two lots of the eighty lot subdivision were approved previously, and built on to date. Section three which was previously approved by the commission was not made subject to the public water supply.
Even if the regulation did apply, the trial court was correct. The commission cites, quite correctly, a string of cases that hold that the burden of proof to demonstrate that it acted improperly should be placed on the party seeking to overturn the commission’s decision. It maintains that, on an appeal from the decision of a land use agency, the trial court must review the record to determine whether there is factual support for the agency’s decision. We quarrel with neither proposition. The lines of cases, however,
General Statutes § 4-183 (g) provides: “Within thirty days after the service of the appeal, or within such further time as may be allowed by the court, the agency shall transcribe any portion of the record that has not been transcribed and transmit to the reviewing court the original or a certified copy of the entire record of the proceeding appealed from, which shall include the agency’s findings of fact and conclusions of law, separately stated. By stipulation of all parties to such appeal proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.”