Forest Const. Co. v. Planning and Zoning Commission of Town of Bethany

• Decision Date: 19 December 1967
• Citation: 236 A.2d 917,155 Conn. 669
• Court: Connecticut Supreme Court
• Parties: FOREST CONSTRUCTION COMPANY v. PLANNING AND ZONING COMMISSION OF the TOWN OF BETHANY.

Page 917

236 A.2d 917

155 Conn. 669

FOREST CONSTRUCTION COMPANY v. PLANNING AND ZONING COMMISSION OF the TOWN OF BETHANY.

Supreme Court of Connecticut.

Dec. 19, 1967.

Robert J. Engelman, New Haven, with whom were Robert A. Smith, West Haven, and, on the brief, Max H. Schwartz, New Haven, for appellant (defendant).

Jerrold H. Barnett, New Haven, for appellee (plaintiff).

Before Associate Justices ALCORN, HOUSE, COTTER, THIM and RYAN of the Supreme Court.

COTTER, Associate Justice.

The plaintiff appealed to the Court of Common Pleas from a refusal of the defendant, the town planning and zoning commission of Bethany, for preliminary approval of its plan for a subdivision of its property. The court rendered judgment sustaining the appeal, and from that judgment the present appeal has been taken.

The plaintiff owns approximately 275.4 acres of land in the towns of Bethany and Woodbridge. The Bethany land is an R-65,000 zone. On August 3, 1965, it filed an application with the defendant commission, seeking preliminary approval of a 113-lot subdivision of a large parcel of interior, essentially landlocked property lying to the east of Bethmour Road in the town of Ethany. The proposed subdivision encompasses most of the acreage referred to above. The subdivision plan shows only one road which provides access to and egress from the subdivision over a fifty-foot wide strip of land known as Druid Hills Road. Part of this road traverses a bridge, and the westerly terminus of Druid Hills Road, as proposed, ends at its intersection with Bethmour Road, the only public highway which borders the subdivision. The subdivision plan provides for an interior network of roads extending into cul-de-sacs. Druid Hills Road, however, affords the only access to the public highway from the interior roads.

For a period of approximately two months before filing the formal subdivision application, the commission met or communicated with officers of the plaintiff, the plaintiff's attorney and other of its representatives on many occasions concerning the proposed subdivision. These meetings and communications continued after the filing and dealt with several areas of controversy, particularly the commission's objections to the layout of roads and the proposed single access with the public highway.

On September 8, 1965, Jerrold H. Barnett, the plaintiff's attorney, wrote to the commission enclosing a study by the plaintiff's traffic engineer, Harvey B. Boutwell, which was considered by the commission. Barnett stated in his letter to the commission that the plaintiff would be pleased to have Boutwell present to answer any questios which the commission might have, and again in September 17, 1965, in a letter to the commission, Barnett requested information as to a date of appearance and asked if Boutwell's presence was desired. Barnett and other representatives of the plafintiff met again with the commission on October 4, 1965, and they were then advised of the commission's decision that no development could be approved without satisfactory provision for a second access road. In earldy November, 1965, the plaintiff submitted a revised map improving the internal road layout but still providing for a single way for access to the public highway. The plaintiff and its representatives again met with the commission on November 15, 1965, and all previous objections were reviewed and many of these were found to have been remedied. The plaifntiff reported that, although all possibilities had been explored, no second access was possible. Thereafter, the plaintiff's attorney submitted a memorandum regarding access to the Druid Hills subdivision and a sight-distance study of the intersection of the proposed Druid Hills Road and Bethmour Road prepared by Boutwell.

On January 6, 1966, the commission met with a group of people to discuss the subdivision plan. At this meeting a traffic report by Earl Flynn, a traffic engineer, was submitted, and opposition was expressed to the plaintiff's plan on the grounds that the single access was unsafe and that the intersection of Druid Hills Road and Bethmour Road was dangerous owing to poor visibility and traffic congestion. Notice of this meeting was not given to the plaintiff, nor was any notice published by the commission.

In an executive session, that evening, the commission denied the plaintiff's application for the following reasons: The proposed single access to the existing public highway could create a hazardous concentration of traffic at the west end of Ddruid Hills Road; in the case of blockage of this access, the occupants of the subdivision could not be assured of reasonable protection from fire, panic, and other dangers; the problem of single access was accentuated by the fact that a portion of it would be over a bridge; the plaintiff's proposal to divide the road over the bridge into two lanes still essentially provided a single access; the provision for transportation for future residents was inadequate and the transportation of school children over more than three miles of cul-de-sac would be inconvenient and hazardous; and, as all the traffic from the subdivision would depend on the Druid Hills Road exit, this road would create a dangerous intersection with Bethmour Road.

The plaintiff's appeal to the Court of Common Pleas from the commission's denial alleged various grounds of illegality. In summary, these allegations were as follows: The commission heard opponents of the application on January 6, 1966, without giving the plaintiff notice to attend and an opportunity to be heard; the commission failed to schedule an appearance for an expert witness of the plaintiff 'although it had been requiested to so do'; the commission had failed to adopt a town plan of development in accordance with the General Statutes; the commission had improperly delegated its authority to other town agencies; its action was special legislation since there were no adequate regulatory standards to guide the commission's discretion.

Reference to the memorandum of decision filed in the present case shows that the judgment of the trial court was based on the commission's failure to give the plaintiff notice of and an opportunity to be heard at the meeting of January 6, 1966, which it concluded constituted illegal action on the part of the commission.

The commission, pursuant to General Statutes § 8-26, is not required to hold a public hearing in every case regarding a subdivision proposal presented to it. The statutory requirement provides that the commission may hold such a hearing if, in its judgment, the specific circumstances require such action. The Bethany subdivision regulations include a similar provision and in addition provide that the commission shall hold a public hearing regarding any subdivision proposal 'if specifically requested in writing by 5 electors of the Town of Bethany.' Bethany Subdivision Regs. § 4.1 (1963). A public hearing is not therefore mandatory either by statute or regulation. A municipal planning commission, in exercising its function of approving or disapproving any particular subdivision plan, is acting in an administrative capacity and does not function as a legislative, judicial or quasi-judicial agency, which would require it to observe the safeguards, ordinarily guaranteed to the applicants and the public, of a fair opportunity to cross-examine witnesses, to inspect documents presented, and to offer evidence in explanation or rebuttal and of the right to be fully apprised of the facts upon which action is to be taken, as exemplified in such cases as Parish of St. Andrew's Ptotestant Episcopal Church v. Zoning Board of Appeals, 155 Conn. 350, 232 A.2d 916, and Wadell v. Board of Zoning Appeals, 136 Conn. 1, 68 A.2d 152. See 2 Am.Jur.2d, Administrative Law, § 403. The planning commission, acting in its administrative capacity herein, has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance. Langbein v. Planning Board, 145 Conn. 674, 679, 146 A.2d 412. If it does not conform as required, the plan may be disapproved.

The reasons stated by the commission in disapproving the preliminary subdivision plan are reasonably supported by the facts shown in the record before the commission. The members of the commission were entitled to consider any facts, concerning the area, traffic, intersection and surrounding circumstances, which they had learned by personal observation, and their conclusions as to the effect of the use of the network of roads in the subdivision as shown on the proposed plan on traffic safety and hazard to the public are ones which they could reach without the aid of experts. Gulf Oil Corporation v. Board of Selectmen, 144 Conn. 61, 65, 66, 127 A.2d 48.

Section 6.2 of the Bethany subdivision regulations provides as follows: The Commission reserves the right to reject applications for the development of land when such development might be hazardous to the health and welfare of the community.' Crowding all the traffic from this subdivision of 110 lots (the original plan of 113 lots was reduced after...