Pelliccione v. Planning & Zoning Commission

• Decision Date: 17 July 2001
• Docket Number: (AC 20361)
• Citation: 780 A.2d 185,64 Conn. App. 320
• Court: Connecticut Court of Appeals
• Parties: VINCENT PELLICCIONE v. PLANNING AND ZONING COMMISSION OF THE TOWN OF RIDGEFIELD

64 Conn. App. 320

780 A.2d 185

VINCENT PELLICCIONE v. PLANNING AND ZONING COMMISSION OF THE TOWN OF RIDGEFIELD

(AC 20361)

Appellate Court of Connecticut.

Argued February 20, 2001.

Officially released July 17, 2001.

Mihalakos, Flynn and Healey, Js.

Thomas W. Beecher, for the appellant (defendant).

Robert A. Fuller, for the appellee (plaintiff).

Opinion

HEALEY, J.

The defendant planning and zoning commission of the town of Ridgefield (commission) appeals from the judgment of the trial court sustaining the appeal by the plaintiff, Vincent Pelliccione, from the commission's denial of his resubdivision application.¹ On appeal, the commission contends that the court improperly (1) concluded that its denial of the plaintiffs resubdivision application was unsupported by the record and (2) substituted its judgment for that of the commission. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the commission's appeal. On August 26, 1998, the plaintiff, the owner of certain land on Ledges Road in Ridgefield, submitted a resubdivision application to the commission,² seeking approval for four building lots. Public hearings for the plaintiffs applications were conducted by the commission on September 22, 1998,³ and November 17, 1998.

At the September 22, 1998 hearing, the commission expressed concerns regarding the steep slope of the property⁴ and the preservation of the existing features of the land.⁵ The plaintiff acknowledged that the slope of certain land involved in the resubdivision application was an issue "in particular" that previously had been considered. At that hearing, a letter to the commission, regarding the plaintiffs application, from the Ridgefield conservation commission was read. In part, the letter stated: "[T]he applicant is attempting to put houses on land with grades running 35% to 70%." The letter advocated denial of the applications "unless more detail[s] ... are provided and satisfactorily address the many problems created by the extraordinarily steep grades." In the same letter, the conservation commission wrote about what it called the "very steep" condition on the property and stated that "extraordinary measures will be required to stabilize these slopes."

Dainius L. Virbickas, an engineer from Tyree Engineering, P.C., the firm that prepared the plans filed by the plaintiff, also spoke at the September 22, 1998 meeting. When asked by a commission member about the plans to stabilize the steep slopes on the property, Virbickas replied, "Right now, we have just shown one to one slopes to be stabilized with riprap, but as one of the letters had mentioned, we probably will encounter ledge and probably will have that to face as our slope." A commission member also questioned Virbickas about whether borings had been conducted to determine the extent of the ledge that might be encountered. Virbickas answered, "Not yet, not yet. The only machines that we have had out there were backhoes for septic system testing."

At the conclusion of the hearing, the commission directed the plaintiff to two sections of the subdivision regulations of the town of Ridgefield, appendix A, art. IV, §§ 4-18 and 4-31, which were read in full into the record. The commission decided to continue the hearing until a later date to enable the plaintiff to more fully address concerns raised with regard to the slope of the land, pursuant to § 4-18, and the preservation of existing features of the land, pursuant to § 4-31. The commission further instructed the plaintiff to provide more detailed information about the slope of the land and preserving the existing features, including the need for additional drawings, "at a minimum, twenty-scale drawings of each site, very detailed [including] landscaping necessary to stabilize the slopes." The hearing was then adjourned until November 17, 1998. At the November 17, 1998 hearing, the plaintiff presented Mark Kornhaus of Tyree Engineering, P.C., who had the "renderings" that the commission had requested earlier. The plaintiff also introduced additional counsel.⁶ The plaintiff, in discussing the maps and the property involved, as they were displayed before the commission, stated, "We are going to [explain] to you the grades on these lots. The driveway grades are actually fairly gentle, even though, of course, the slope of the property is fairly steep as it goes up from the road, as you know." (Emphasis added.)

Kornhaus also addressed the issue of the slope of the lots on behalf of the plaintiff and stated that as to ledge, they were "anticipating" that "we are going to hit rock on this site. In fact, it is very evident that there is ledge; there are actual outcrops there [which could be handled by] shelving it off at one to one and creating a retaining wall."⁷ When asked by the commission how he could determine the nature of the ledge present on the lots so as to know to "do a one on one, and [whether] it is all just ledge, solid right through," Kornhaus replied, "When you are dealing with ledge, you never really know what you are going to get into until you actually uncover it. And what I am talking about is a fractured type of ledge [as distinguished from] something that is very solid, your granite type of bedrock." The commission then read to Kornhaus the last sentence of § 4-18 of the regulations and asked him whether "ledge rock and fractured rock" meant the same thing, to which Kornhaus answered, "Absolutely."

There appears to be no question that there were visible ledge outcroppings on the application site. The commission expressed concern, however, that the resubdivision application as presented apparently called for grading areas of a slope that exceeded the maximum provided in § 4-18. The commission also stressed to the plaintiff that it had reservations because there were locations on the new plans⁸ that indicated grades of a slope of two on one where a one on one slope was proposed. The commission observed that "there is quite a difference between one on one and two on one, and two on one is what we require unless ledge rock prevents [that]. And I am having a problem now with what you expect to find there." Kornhaus stated, however, that he was "very confident that we are going to hit rock there. It is going to be a rock slope."

After that exchange, a commission member asked Kornhaus, "Just for the record, did you not say that you might find either solid, almost like granite type ledge or highly fractured ledge," and Kornhaus replied, "Right, that is a possibility." (Emphasis added.) After some further questioning and discussion,⁹ the chairman closed the public hearing.

On December 22, 1998, the commission denied both applications and gave written reasons for its denial. One of the reasons given for denying the plaintiffs resubdivision application was that "[t]he applicant has not demonstrated that `cuts, fills and grades necessary to utilize the lots will not result in unsafe driveways or adversely affect adjacent properties, and that graded areas shall have a slope not exceeding one foot vertical in 2 feet horizontal, unless ledge rock prevents,' as required by Section 4-18 of the Subdivision Regulations. No empirical evidence was offered to support the applicant's assertion that grading to a 1:2 slope would be prevented by ledge rock. The nature of the ledge rock and soils of the slope is unknown since the applicant stated that no borings were taken at the depth proposed for excavation."

The plaintiff appealed to the trial court from the commission's denial of his resubdivision application. The court sustained the plaintiff's appeal. In sustaining the plaintiffs appeal on the resubdivision application, the court reasoned that the commission's conclusion "that no evidence was offered to support the assertion that ledge rock was present on the property or that ledge rock affected the grading ... is not supported by the record."¹⁰ This appeal followed.

The commission claims that the court improperly concluded that its decision to deny the plaintiff's subdivision application was unsupported by the record. Further, the commission contends that the court improperly substituted its judgment for that of the commission in reversing the denial of the plaintiffs application. We agree with the commission.

"It is axiomatic that a planning commission, in passing on a resubdivision application, acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations.... It is equally axiomatic that the trial court, in reviewing the action of a planning commission regarding a resubdivision application, may not substitute its judgment on the facts for that of the planning commission.... The conclusions of the commission must stand if even one of the stated reasons is reasonably supported by the record." (Citations omitted.) R. B. Kent & Sons, Inc. v. Planning Commission, 21 Conn. App. 370, 373, 573 A.2d 760 (1990). It is within the province of the commission to interpret and apply its zoning regulations. Gorman Construction Co. v. Planning & Zoning Commission, 35 Conn. App. 191, 195, 644 A.2d 964 (1994).

"The evidence, however, to support any such reason must be substantial .... This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred.... [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.... The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its...