Cunningham v. PLANNING AND ZONING COM'N

• Decision Date: 19 July 2005
• Docket Number: No. 25739.,25739.
• Citation: Cunningham v. PLANNING AND ZONING COM'N, 876 A.2d 1257, 90 Conn.App. 273 (Conn. App. 2005)
• Court: Connecticut Court of Appeals
• Parties: William E. CUNNINGHAM et al. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF PLAINVILLE et al.

876 A.2d 1257

90 Conn.App. 273

William E. CUNNINGHAM et al. v.PLANNING AND ZONING COMMISSION OF THE TOWN OF PLAINVILLE et al.

No. 25739.

Appellate Court of Connecticut.

Argued April 21, 2005.

Decided July 19, 2005.

William T. Barrante, for the appellants(named plaintiff et al.).

Richard M. Seguljic, Plainville, for the appellee(named defendant).

Robert A. Ziegler, with whom, on the brief, was Jeffrey M. Knickerbocker, Plainville, for the appellees(defendantDurkin Construction, LLC, et al.).

DRANGINIS, FLYNN and HENNESSY, Js.

FLYNN, J.

The plaintiffs, abutting landowners,¹ appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant planning and zoning commission of the town of Plainville(the commission) approving a site plan application filed by the defendantDurkin Construction, LLC, with respect to property owned by the defendantDurkin Village Plainville, LLC(collectively, Durkin).As initial matters, the defendants, without filing a cross appeal, raise issues concerning the plaintiffs' alleged failure to establish aggrievement before the trial court, their alleged abandonment of claims before the trial court and their alleged improper references to the Plainville plan of conservation and development.²On appeal, the plaintiffs claim that the court improperly (1) interpreted the term "open space" set forth in the Plainville zoning regulations and (2) concluded that the commission had acted within its discretion in requiring Durkin to include a paved walkway when the regulations required a natural vegetation buffer.We affirm the judgment of the trial court.

The record reveals the following facts.Durkin submitted a site plan to the commission in June, 2003.The plan called for the construction of seven stand-alone condominium units in an R-11 zone.Each unit had a lot size of at least 11,000 square feet, with the total square footage of the property measuring 82,299 square feet.On September 9, 2003, the commission conducted a public hearing on the site plan, at which many of the plaintiffs testified.On September 16, 2003, the commission published its decision approving the site plan in the Herald.On September 20, 2003, the plaintiffs timely filed an appeal from the commission's decision approving the site plan, which the court, Robinson, J., upheld in an April 6, 2004 written decision.The plaintiffs filed a motion to reargue, which was granted by the court, but the relief they requested was denied.This appeal followed.Initially, we will address the matters raised by the defendants and then proceed to consider the merits of the plaintiffs' appeal.

I

A

Although the defendants did not file a cross appeal, they raise an issue concerning the plaintiffs' alleged failure to prove aggrievement before the trial court, arguing that matters concerning subject matter jurisdiction must be addressed before this appeal can be considered.Although generally correct in their assertion, the defendants do not challenge our subject matter jurisdiction to hear this appeal; rather, they challenge the trial court's jurisdiction because they claim that the plaintiffs failed to prove aggrievement to the trial court.This issue distinctly was raised before the trial court, and, in the court's memorandum of decision, it specifically found that the record established that all of the plaintiffs were aggrieved by virtue of their status as abutting property owners.The defendants did not file a cross appeal from that aspect of the trial court's judgment and, therefore, because the issue does not directly challenge our jurisdiction, it is not before us in the present appeal.SeeB.I.B. Associates v. Zoning Board of Appeals,163 Conn. 615, 617, 316 A.2d 414(1972)(declining to consider defendant nonappellant's assertion that plaintiff failed to establish aggrievement before trial court).

B

The defendants next assert that the plaintiffs waived all of their issues on appeal by failing to brief those issues adequately before the trial court.The defendants raise no claim of inadequate briefing as to the plaintiffs' appellate brief; they contend only that the trial court brief contained no legal authority and was, therefore, inadequate.As with the defendants' prior claim, this issue distinctly was raised before the trial court.The defendants, having not filed a cross appeal in this matter, may not raise this issue for review on appeal.SeePractice Book§ 61-8;Farmers & Mechanics Savings Bank v. First Federal Savings & Loan Assn. of Meriden,167 Conn. 294, 303 n. 4, 355 A.2d 260(1974);Rizzo v. Price,162 Conn. 504, 512, 294 A.2d 541(1972);see alsoB.I.B. Associates v. Zoning Board of Appeals,supra, 163 Conn. at 617, 316 A.2d 414;Akin v. Norwalk,163 Conn. 68, 70, 301 A.2d 258(1972).

C

The final issue raised by the defendants concerns their motion to this court to strike from the plaintiffs' brief and appendix any reference to the Plainville plan of conservation and development (conservation plan) on the ground that it was not part of the trial record.We grant the defendants' motion to strike.

After the trial court had dismissed the plaintiffs' appeal, they filed a motion to reargue, attaching several pages of the conservation plan, which was not part of the trial record, to their motion.The court granted the plaintiffs' motion to reargue, denied their oral motion to supplement the record with the conservation plan and denied the relief requested in the motion to reargue, thereby reaffirming its decision dismissing the appeal.The court, however, did mark for identification the excerpts attached to the plaintiffs' motion to reargue.

The defendants' argue that, pursuant to Practice Book§ 60-2(3),³we may not take into account these portions of the conservation plan in considering the merits of the plaintiffs' appeal because they were not part of the trial record and the court denied the motion to supplement the record.Although the trial court marked the excerpts as an exhibit for identification at the hearing on the motion to reargue, there is no dispute that the conservation plan was not before the court when it rendered its judgment dismissing the plaintiffs' appeal.Further, there is no indication that the court relied on the excerpts when denying the plaintiffs the relief requested in their motion to reargue.In addition, the plaintiffs make no claim that the court improperly denied their oral motion to supplement the record after trial.Because the conservation plan was not in evidence before the trial court when it rendered its judgment dismissing the appeal, and we do not take new evidence at this level of appeal;seeState v. Dillard,66 Conn.App. 238, 248 n. 11, 784 A.2d 387, cert. denied, 258 Conn. 943, 786 A.2d 431(2001);we grant the defendants' motion to strike.

II

On appeal, the plaintiffs claim that the trial court improperly interpreted the term "open space" set forth in § 540(4) of the Plainville zoning regulations.The plaintiffs argue that this section mandates that the land designated for use as open space be "suitable" for that purpose and that it be set aside and not part of the building lots.The defendants argue that the site plan provides sufficient open space, as that term is used in § 540(4) of the regulations.We agree with the defendants.

"Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes....[A]n agency's factual and discretionary determinations are to be accorded considerable weight ....Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion....Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny... the agency is not entitled to special deference....[I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law....These principles apply equally to regulations as well as to statutes....[However, a]court that is faced with two equally plausible interpretations of regulatory language... properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation....[Z]oning regulations are local legislative enactments ... and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes....Thus, in construing regulations, our function is to determine the expressed legislative intent....Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended ... and the words employed therein are to be given their commonly approved meaning."(Citations omitted; internal quotation marks omitted.)Wood v. Zoning Board of Appeals,258 Conn. 691, 698-99, 784 A.2d 354(2001).Because the interpretation of Plainville zoning regulations presents a question of law, our review of the plaintiffs' claim is plenary.

The specific phrase that we are called on to interpret in this appeal is "open space" as that phrase is used in § 540(4) of the zoning regulations.Section 540(4) provides: "Each development shall be required to provide a minimum of open space equaling 20% of the total land area exclusive of driveways, parking and loading areas.The site plan shall designate land suitable for use as open space."Plainville ZoningRegs., art. 5, § 540(4).A review of the regulations as a whole, however, reveals no definition of the phrase "open space."

Despite the lack of a definition of "open space," that phrase, or one very similar thereto, is used elsewhere in the regulations, including the definition of rear yard as "an open space on the same lot with a main...