Azzarito v. Planning & Zoning Commission

• Decision Date: 23 September 2003
• Docket Number: (AC 22566)
• Citation: Azzarito v. Planning & Zoning Commission, 79 Conn. App. 614, 830 A.2d 827 (Conn. App. 2003)
• Court: Connecticut Court of Appeals
• Parties: JAMES AZZARITO ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF NEW CANAAN ET AL.

79 Conn. App. 614

830 A.2d 827

JAMES AZZARITO ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF NEW CANAAN ET AL.

(AC 22566)

Appellate Court of Connecticut.

Argued October 15, 2002.

Officially released September 23, 2003.

Lavery, C. J., and Bishop and West, Js.

Robert A. Fuller, with whom was Louis S. Ciccarello, for the appellants (defendants).

Robert F. Maslan, Jr., for the appellees (plaintiffs).

Opinion

LAVERY, C. J.

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'¹ administrative appeal from the commission's granting of Kessler's subdivision application. On appeal, the defendants claim that the court improperly concluded that the subdivision plan did not meet any of the exceptions to the commission's regulations governing adequate width frontage on a public highway. We affirm the judgment of the trial court. In 1961, the commission approved a three lot subdivision of an 18.872 acre parcel owned by Jane B. Glidden. One of those lots was parcel B, containing 6.959 acres. Kessler became the owner of the 6.959 acres in 1985, which is situated in a two acre residential zone.² On January 24, 2000, Kessler submitted a subdivision application to the commission seeking to divide his land into two parcels. Parcel 170 would have its entire width on Wing Road, a private road. Parcel 171 would have thirty feet of width on Wing Road and 227 feet along an accessway that serviced the property of Edward T. Walsh and Patricia A. Walsh. The commission unanimously approved Kessler's subdivision application with modifications on April 25, 2000. In doing so, the commission found that Wing Road was a private road with a right of way of fifty feet. The plaintiffs filed in the trial court an administrative appeal, which the court sustained because there was no substantial evidence that supported the commission's determination that Kessler's subdivision plan conformed with the New Canaan zoning regulations concerning width on a public highway or met any of the four exceptions to that requirement as set forth in § 60-14.5 of the New Canaan zoning regulations. This appeal followed.

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.³ See also New Canaan Zoning Regs., c. 60, article XIV, § 60-14.3 (no land shall be divided resulting in noncompliance with zoning regulations). Furthermore, General Statutes § 8-26 prohibits a commission from approving a subdivision that conflicts with applicable zoning regulations.⁴ One of the zoning regulations that must be satisfied is that each proposed zone unit have a width of 225 feet on a public highway.⁵ New Canaan Zoning Regs., c. 60, article XIV, §§ 60-14.2, 60-14.5; schedule of residential zoning requirements of the zoning regulations of the New Canaan. Specifically, § 60-14.5 of the New Canaan zoning regulations provides in relevant part: "In residential zones, no zoning permit will be issued for the construction of a residence. . . unless the required minimum width for the zone involved, as set forth in § 60-14.2 of these regulations, shall be upon a public highway. . . ." There exist four exceptions to the width requirement. Although neither parcel satisfies the width requirement, the defendants argue that the first three exceptions are met by the subdivision plan, and, therefore, there was substantial evidence to support the commission's approval of the subdivision.⁶ The defendants further argue that the court improperly sustained the plaintiffs' appeal because the court was not allowed to substitute its own judgment for that of the commission. We disagree.

"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 evidence, however, to support any [reason stated by the planning commission for its action] must be substantial. . . . [E]vidence 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.. . . The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts.. . . The trial court can sustain the [plaintiffs'] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal. . . . In reviewing the action of the trial court, we have to decide whether it could in logic and in law reach the conclusion that the [commission] should be overruled." (Citations omitted; internal quotation marks omitted.) Pelliccione v. Planning & Zoning Commission, 64 Conn. App. 320, 326-28, 780 A.2d 185, cert. denied, 258 Conn. 915, 782 A.2d 1245 (2001).

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 to support the commission's conclusion that the zoning regulation or the exceptions pertaining to the width on a public highway were satisfied. We will consider in turn each exception that the defendants claim is applicable.

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 determined that the subdivision application did not meet the requirements for the exception set forth in § 60-14.5 (A).

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.⁷

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.⁸ The defendants, therefore, are correct that Kessler's subdivision application would create "subsequent zone units" to the Glidden parcel because the Glidden parcel already had been divided into three lots in 1961. Before there could be further division of the property into subsequent zone units, § 60-14.5 (B) of the zoning regulations requires that a subdivision be approved. That subdivision must comply with the zoning regulations, including having its width on a public highway or meeting one of the exceptions to that rule. "Once a zoning violation has been found on the face of a submitted plan, a commission may not approve the...