Irwin v. Planning and Zoning Com'n of Town of Litchfield

• Decision Date: 28 April 1998
• Docket Number: No. 15714,15714
• Citation: 711 A.2d 675,244 Conn. 619
• Court: Connecticut Supreme Court
• Parties: James B. IRWIN, Sr. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF LITCHFIELD.

Page 675

711 A.2d 675

244 Conn. 619

James B. IRWIN, Sr. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF LITCHFIELD.

No. 15714.

Supreme Court of Connecticut.

Argued Jan. 22, 1998.

Decided April 28, 1998.

Gail E. McTaggart, for appellant (defendant).

William C. Franklin, with whom, on the brief, was Robert L. Fisher, Jr., Litchfield, for appellant (intervening defendant).

Kenneth R. Slater, Jr., New Britain, for appellee (plaintiff).

Before BORDEN, BERDON, NORCOTT, KATZ and McDONALD, JJ.

NORCOTT, Associate Justice.

The plaintiff, James B. Irwin, Sr., sought approval of a four lot subdivision on approximately fifteen acres of property that he owns in Litchfield, with a lot configuration consisting of two interior lots, necessitating a special exception under article VI, § 5A, ¹ of the Litchfield zoning regulations. The dispositive issue in this certified appeal is whether the Appellate Court was correct in reversing the trial court's affirmance of the denial of the plaintiff's special exception application by the defendant, the planning and zoning commission of the town of Litchfield (zoning commission).

The defendants ² appeal from the judgment of the Appellate Court, claiming that it improperly concluded that the zoning commission cannot exercise any discretion in deciding a special exception application. The defendants also claim that the Appellate Court improperly substituted its own judgment for that of the trial court and the zoning commission, and improperly remanded the case with direction for the zoning commission to approve the special exception and subdivision applications. We agree and, accordingly, we reverse the judgment of the Appellate Court.

The following facts are undisputed. In connection with his plan to develop a residential subdivision, the plaintiff split off a 14.9 acre parcel of land from a larger eighty-three acre parcel of his real property adjacent to Hutchinson Parkway and Butternut Road in Litchfield. The property is located in an R-80 residential zoning district, which requires a two acre minimum lot size. Evidence in the record indicates that the property has steep slopes over 20 percent grade, a streambelt, ledge outcroppings and a watercourse through the property making it especially difficult to develop. The neighborhood is rural, contains historical farmhouses, and is generally characterized by large parcels of land used for farming.

The plaintiff, seeking to develop the 14.9 acre parcel of land, submitted applications for a five lot subdivision with the zoning commission and with the Litchfield conservation commission (conservation commission). The conservation commission approved a single wetlands crossing, but denied the application for the general subdivision plan. The plaintiff subsequently withdrew the application pending before the zoning commission.

In order to avoid a second wetlands crossing for an additional driveway, the plaintiff then submitted a second application for a four lot subdivision with two of the lots sharing a common driveway, which included a proposal to restrict permanently development on more than 40 percent of the property. The zoning commission denied the application, however, because the common driveway was intended to serve only two full frontage lots and the zoning regulations permit common driveways only to interior lots or to three or more full frontage lots. ³ Irwin v. Planning & Zoning Commission, 45 Conn.App. 89, 91-92, 694 A.2d 809 (1997).

On December 7, 1994, the plaintiff then submitted a third subdivision application to the zoning commission in which he reconfigured the four lot design so that the two lots with the common driveway would qualify as interior lots. Because interior lots are permitted only by special exception, ⁴ the plaintiff also submitted an application for special exception for the two proposed interior lots. This special exception application is the subject matter of this appeal.

Pursuant to General Statutes § 8-3c (b), ⁵ the zoning commission held public hearings on the plaintiff's application on March 6, and April 3, 1995. On May 15, 1995, the zoning commission held its next meeting when it denied the special exception application by a five to two vote. The zoning commission then sent a letter to the plaintiff stating that "the Subdivision application with the proposed interior lots [is] too intensive for this limited and fragile piece of land and it does not comply with the following standards and requirements of the Zoning Regulations relating to a Special Exception for an Interior Lot(s) in a subdivision.... The Commission finds that the application does not meet the requirement that '[t]he applicant shall show that the design and layout of the subdivision with the proposed interior lots will be in keeping with the Town Plan of Development.' ... The Commission finds that the application does not meet the requirement that '[t]he applicant shall show that the subdivision with the proposed interior lots will preserve important natural resource features as identified on the Town Plan of Development maps and other studies adopted by the Commission, including, but not limited to streambelt lands, farmlands (especially active farmland), land on ridge lines, and will result in the preservation of the natural landscape along a Town road or the view from a Town road or proposed subdivision road.' ... The Commission finds that the proposed subdivision with the interior lots does not comply with 'the existing and probable future character of the neighborhood in which the use is located.' ... The Commission finds that the proposed subdivision with the interior lots does not comply with '[t]he provision for creation of a harmonious relationship between proposed and existing buildings in the vicinity; specifically with regard to the visual relationship of said buildings in terms of their terrain, use, scale proportions and, particularly, the historic significance of the existing buildings.' " ⁶

Pursuant to General Statutes § 8-8(b), ⁷ the plaintiff appealed from this denial to the Superior Court,which granted Karen A. Grimes, an abutting property owner, permission to intervene in the appeal. The trial court subsequently dismissed the plaintiff's appeal and affirmed the decision of the zoning commission, on the basis that the zoning commission's decision was adequately supported by the record.

The trial court found that all four reasons offered by the zoning commission for denial of the special exception were pertinent considerations that were adequately supported by the record before it. Specifically, the trial court found that the zoning commission's finding "that the land is fragile is supported by the testimony of the experts as to the small buildable area, the streambelt concerns, the soil erosion concerns relating to steep slopes, [and] the septic system issues relating to steep slopes and soil types." The court also found that the zoning commission's denial for inconsistency with the town plan, which "specifically designates properties along Beach Street as 'prime and important farmlands' for preservation and advises that all 'private and public options shall be utilized for preservation,' " was adequately supported by the record. Furthermore, the trial court found that denial based on intensity was warranted because "the creation of the interior lots increases by one the number of lots possible on the property...."

The plaintiff sought and was granted certification to appeal to the Appellate Court. The Appellate Court reversed the judgment of the trial court and remanded the case with direction for the zoning commission to approve the special exception and subdivision applications. The Appellate Court concluded that because the plaintiff's plan satisfied all relevant requirements of the zoning regulations, the trial court had improperly upheld the zoning commission's decision because the commission had no discretion to deny the special exception. Irwin v. Planning & Zoning Commission, supra, 45 Conn.App. at 101, 694 A.2d 809. This appeal followed. ⁸

The defendants claim that the Appellate Court improperly concluded that the zoning commission cannot exercise any discretion in deciding a special exception application, and that the Appellate Court substituted its own judgment for that of the trial court and the zoning commission, resulting in an improper remand of the case. We agree.

In its decision, the Appellate Court stated: " 'Since the special permit is an administrative device, the formal rule is that the granting agency cannot exercise any discretion in deciding whether to approve an application. Its role is to carry out the policy established by ... the zoning commission that wrote the regulations. If the standards for issuance of the special permit have been met by the application, a permit must be issued.' T. Tondro, Connecticut Land Use Regulation (2d Ed.1992) pp. 178-79." Irwin v. Planning & Zoning Commission, supra, 45 Conn.App. at 95, 694 A.2d 809. This is an incorrect statement of the law with regard to special permits.

We previously have recognized that the special permit process is, in fact, discretionary. In Whisper Wind Development Corp. v. Planning & Zoning Commission, 229 Conn. 176, 177, 640 A.2d 100 (1994), we concluded that general considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit. Also, we have stated that "before the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood." Barberino Realty & Development Corp. v. Planning & Zoning Commission, 222 Conn. 607, 613, 610 A.2d 1205 (1992). The Appellate Court has acknowledged that "...