31 Conn. App. 643 | Conn. App. Ct. | 1993
The sole issue on appeal involves the validity of a town zoning regulation prohibiting the planning and zoning commission from approving an application for the subdivision of land containing inland wetlands if the town’s inland wetland agency fails to find that such subdivision will not adversely affect the wetlands area. The resolution of that issue turns on whether the regulation conflicts with General Statutes § 8-26, which requires the commission to give “due consideration” to any report or decision of the inland wetlands agency.
On February 29,1989, the developers applied to the commission for approval of a proposed subdivision of thirteen acres of land into five residential building lots. The undivided parcel contains inland wetlands areas, but the subdivision plan does not propose any regulated activities within the wetlands for which a permit from the local inland wetlands agency would be required under General Statutes §§ 22a-42 and 22a-42a. The developers, however, did submit their application to the inland wetlands agency as required by General Statutes § 8-26.
After reviewing the application, the inland wetlands agency concluded that, although no regulated activities were contemplated in the wetlands, the proposed subdivision would have an adverse effect on the wetlands and accordingly did not grant its approval to the proposed subdivision. The defendant commission, nevertheless, approved the developers’ application, precipitating this appeal.
At issue here is the interrelation between § 4.12.3 of the Canterbury zoning regulations
On appeal to the trial court, the plaintiffs contended that when subdivision approval is sought for any parcel containing wetlands, § 4.12.3 requires, as a condi
Even though we agree with the trial court’s interpretation of § 4.12.3, we must determine, as did the trial court, whether the regulation is an impermissible delegation of authority to the wetlands agency and is thus in conflict with § 8-26. General Statutes §§ 8-25 and 8-26 are all inclusive statutes regulating the subdivision of land and the procedures for seeking subdivision approval. Additionally, § 8-26 specifically addresses the procedures to be followed in applying for subdivision approval when the land to be subdivided contains wetlands areas. While it is true that local planning and zoning commissions and wetlands agencies have the authority to enact zoning, subdivision and wetlands regulations, such regulations must derive their authority from the General Statutes and may not conflict with such statutes. See Langer v. Planning & Zoning Commission, 163 Conn. 453, 457, 313 A.2d 44 (1972); Finn v. Planning & Zoning Commission, 156 Conn. 540, 543-46, 244 A.2d 391 (1968).
The regulation and approval of subdivisions fall within the purview of the town planning commission in accordance with the provisions of General Statutes
The trial court dismissed the developers’ argument by determining that § 4.12.3 is a zoning regulation rather than a subdivision regulation. The basis of that determination was that § 4.12.3 falls within a more general provision of the Canterbury zoning regulations entitled “Construction Adjacent to Bodies of Water and in Wetland Areas.”
Regardless of whether § 4.12.3 is a zoning or subdivision regulation, it was clearly intended to relate, and in fact does relate, to the situation specifically addressed by § 8-26, namely, the subdivision of land containing inland wetlands areas. The scope of both the commission’s and the agency’s authorities is specifically detailed in the statute.
“The final decision contained in the wetlands report is merely one of the many factors the zoning commission must consider in rendering its own decision . . . . The zoning commission must give the wetlands commission report due consideration. We do not read this as a statutory mandate that the zoning commission’s decision be based on the wetlands report. To afford due consideration is to ‘give such weight or significance to a particular factor as under the circumstances it seems to merit, and this involves discretion.’ ” Arway v.
Thus, § 4.12.3, which gives the wetlands agency veto power over any proposed subdivision application if the land to be subdivided contains inland wetlands, directly contradicts the division of authority mandated by § 8-26. In promulgating § 4.12.3, therefore, the commission impermissibly delegated authority over a subject matter that is solely within its province. See Caldrello v. Planning Board, 193 Conn. 387, 476 A.2d 1063 (1984) (holding that a regulation requiring planning board approval as a prerequisite to subdivision approval by the city council was invalid because it conflicted with the terms of the city charter providing that final subdivision approval rested with the council); cf. Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 236 A.2d 917 (1967) (holding that the planning and zoning commission did not impermissibly delegate its authority to the board of selectmen when it promulgated a regulation requiring that as a prerequisite to the filing of preliminary plan of subdivision that all proposed road specifications be approved by the selectmen as conforming with town road specifications because such delegation was ministerial in nature and the power over approval of the application remained with the commission); accord Baker v. Kerrigan, 149 Conn. 596, 183 A.2d 268 (1962). Ultimate authority over approval of a subdivision rests with the commission, and any regulation that abrogates this authority is invalid. See Beacon Falls v. Posick, 212 Conn. 570, 582, 563 A.2d 285 (1989); Dwyer v. Farrell, 193 Conn. 7, 14, 475 A.2d 257 (1984); Shelton v. Shelton, 111 Conn. 433, 447, 150 A. 811 (1930).
We therefore conclude that the regulation constitutes an impermissible delegation of authority by the commission and thus conflicts with the statute and must give way to it.
In this opinion the other judges concurred.
General Statutes § 8-26 provides in pertinent part: “All plans for subdivisions and resubdivisions . . . shall be submitted to the [planning] commission with an application in the form to be prescribed by it. The commission shall have the authority to determine whether the existing division of any land constitutes a subdivision or resubdivision under the provisions of this chapter, provided nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations. . . . The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application or maps and plans submitted therewith . . . within the period of time permitted under section 8-26d. . . . If an application involves land regulated as an inland wetland or watercourse under the provisions of chapter 440, the applicant shall submit an application to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for the subdivision or resubdivision. The commission shall not render a decision until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the commission shall give due consideration to the report of the inland wetlands agency. ...”
The plaintiffs, Barbara Thoma and her father, Theodore W. Dean, jointly own property that is, at one point, 99.59 feet from the proposed subdivision. The plaintiffs thus have standing to challenge the commission’s approval of the subdivision because they are “aggrieved persons” as defined by General Statutes § 8-8 (a) (1). Zoning Board of Appeals v. Planning & Zoning Commission, 27 Conn. App. 297, 301-302, 605 A.2d 885 (1992); see General Statutes § 8-8 (b). It should also be noted that the defendant Theodore G. Dean is the son of the plaintiff Theodore W. Dean, and the brother of the plaintiff Thoma.
Section 4.12.3 of the Canterbury zoning regulations provides: “No lot or parcel on which inland wetland areas, as defined in Section 22a-39-2 of
The trial court determined that § 4.12.3 erroneously denominates § 22a-39-2 as a state statute, when, in fact, it is a regulation promulgated by the commissioner of environmental protection pursuant to authority vested in him by General Statutes § 22a-39. We agree with this determination.
Alternatively, subdivisions may be regulated by a town’s combined planning and zoning commission if the planning function has been vested in that body pursuant to General Statutes § 8-4a.
The commission also filed a brief and argued on this appeal. Although denominated as an appellee, the commission occupies a unique position in this appeal; it argues that its approval of the subdivision was proper, while concurrently arguing that the regulation is valid but that the trial court did not correctly interpret it. The commission argues that the regulation should be interpreted to require that if the inland wetlands agency approves the subdivision because it finds no adverse impact on the wetlands, the commission may then approve the subdivision without regard to any wetland problem. On the other hand, should the wetlands agency determine that the subdivision would have an adverse effect on the wetlands, such a determination would not necessarily preclude the commission from approving the subdivision, but that the commission could make its own determination, on the basis of evidence presented to it, to determine whether the subdivision would have an adverse impact on the wetlands.
The commission argues that such an interpretation would avoid the problem of effectively giving the agency veto power over applications for approval of subdivisions that contain wetlands. We cannot agree with this
The trial court noted that the various subsections within § 4.12 require certain minimum distances from wetlands for building construction; § 4.12.1; prohibit sewage disposal within a minimum distance from wetlands; § 4.12.2; prohibit the subdivision of land containing wetlands unless the inland wetlands agency finds no adverse impact on the wetlands; § 4.12.3; and prohibit the issuance of special permits, exceptions and site plan approvals unless the inland wetlands agency finds no adverse impact on the wetlands.
General Statutes § 8-2 provides in pertinent part: “(a) The zoning commission of each city, town or borough is authorized to regulate . . . the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. . . . Such regulations shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. . . . Zoning regulations shall be made with reasonable consideration for their impact on agriculture. Zoning regulations may be made with reasonable consideration for the protection of historic factors and shall be made with reasonable consideration for the protection of existing and potential public surface and ground drinking water supplies. On and after July 1,1985, the regulations shall provide that proper provision be made for soil erosion and sediment control pursuant to section 22a-329. . . .”