Smith v. Zoning Bd. of Appeals of Town of Greenwich

• Court: Connecticut Court of Appeals
• Writing for the Court: LAVERY
• Citation: Smith v. Zoning Bd. of Appeals of Town of Greenwich, 614 A.2d 464, 29 Conn.App. 28 (Conn. App. 1992)
• Decision Date: 30 October 1992
• Docket Number: No. 10431,10431
• Parties: E. Don SMITH et al. v. ZONING BOARD OF APPEALS OF the TOWN OF GREENWICH.

Page 464

614 A.2d 464

29 Conn.App. 28

E. Don SMITH et al. v. ZONING BOARD OF APPEALS OF the TOWN OF GREENWICH.

No. 10431.

Appellate Court of Connecticut.

Argued May 1, 1992.

Decided Sept. 8, 1992.

Certification Granted for limited

question Oct. 30, 1992.

E. Don Smith, pro se, and Eileen Smith, pro se, appellants (plaintiffs).

James W. Macauley, Bridgeport, for appellee (named defendant).

William E. Hegarty, Greenwich, for appellees (defendant, the Historical Soc. of Town of Greenwich, Inc., et al.).

Before DALY, NORCOTT and LAVERY, JJ.

LAVERY, Judge.

The plaintiffs, E. Don Smith and Eileen Smith, appeal from the trial court's decision affirming the denial of their subdivision application by the zoning board of appeals of the town of Greenwich.

The dispositive issue in this appeal is whether the trial court correctly upheld the denial of the plaintiffs' subdivision application. The trial court found that the application conformed to all the stated subdivision regulations, but that it "did not meet the purposes of the subdivision regulations.... It does not conform to the town of Greenwich plan of development in that it does not meet the basic objectives of preservation of historic and architectural resources. Furthermore, it does not preserve the natural features of the landscape: namely the historic streetscape." We reverse the judgment of the trial court.

The relevant facts are as follows. The plaintiffs reside at and are owners of property located at 35 Strickland Road in Greenwich. The property is located in an R-7 zone and contains 33,032 square feet. The minimum lot size for this zone is 7500 square feet. The property is also located in an historic district. In January, 1987, the plaintiffs submitted a subdivision application to the planning and zoning commission of the town of Greenwich (commission), seeking to subdivide the property into three lots. In April, 1987, the commission conducted a hearing on the plaintiffs' application and advised them to proceed to a final subdivision plan, subject to the resolution of a number of specified issues prior to the final application submission. ¹

The plaintiffs subsequently proposed a final subdivision plan. On November 22, 1988, the commission denied the subdivision application by the following resolution: "WHEREAS, the Town of Greenwich Plan of Development, 1984 states as a basic development objective the preservation of historic and architectural resources; and

"WHEREAS, the subject lot is contained within the duly established Mill Pond Historic District, and

"WHEREAS, the Commission recognizes that the existing streetscape, which is defined by the open space of the subject tract in relation to adjoining historical properties, structures, and open spaces is a significant element of the historic district in terms of visual appearance as well as historic use and occupancy of the land; and

"WHEREAS the subdivision would permit construction of a house in the previously defined, significant open space, thereby disrupting an essential characteristic of the historic district; and

"WHEREAS a stated purpose of the Subdivision Regulations of the Town is to 'Further the orderly development of the Town in accordance with the Town Plan of Development'; and

"WHEREAS, the Commission finds that there are other zoning options for development of the property which would provide for the same or greater number of dwelling units while preserving the site's open space and natural features which are significant components of the historic streetscape;

"THEREFORE, BE IT RESOLVED that final Subdivision # 1066 of E. Don Smith and Eileen Smith owners of property located on Strickland Road consisting of a record sheet prepared by J.A. Kirby Company dated March 17, 1988, revised September 26, 1988, is hereby denied."

The plaintiffs appealed the decision of the commission to the defendant zoning board of appeals of the town of Greenwich (board). The board then conducted a de novo public hearing on the plaintiffs' final subdivision plan pursuant to § 103 of the Greenwich Municipal Code. The proposed subdivision called for three lots, the first containing the plaintiffs' residence, the second containing the plaintiffs' barn, and the third the presently unimproved area in front of the plaintiffs' residence. At the public hearing, the chairman of the historic district commission urged the board of appeals to reject the subdivision, stating that the historic district commission would not allow any structure to be built on the third lot. After a lengthy hearing, the board denied the plaintiffs' appeal on the following grounds: "The proposed subdivision did not meet the purposes of the Subdivision Regulations as provided in Section 6-260, thereof. It does not conform to the Town of Greenwich Plan of Development in that it does not meet the basic objectives of preservation of historic and architectural resources. Furthermore, it does not preserve the natural features of the landscape; namely, the historic streetscape.

"Applicants' plan proposed in an Historic District was opposed in testimony and in writing by the Historic District Commission which among other things, oversees erection and alteration of buildings in said district. Such plan was also opposed by residents in the District. The Board finds that the integrity of the Historic District would be violated and the appearance and historic character of the Historic District would be impaired by this plan. The residents who voted to form an Historic District were given assurances of preservation of their historic neighborhood even though they knew certain freedoms of future development would be regulated and restricted.

"The applicants were aware of the property's location in the Historic District since that fact is stated in their deed and they formerly resided in this District at another address. The Board concluded that the applicants' development rights were not deprived because other alternatives for development are available.

"The property is located in the Coastal Zone of the Town. Therefore, it is subject to the requirements of the Coastal Area Management Act. The Board finds that the proposed subdivision plan would have an adverse impact on coastal resources because of the alteration of natural features of vistas." (Emphasis in original.)

The plaintiffs appealed the board's decision to the Superior Court, pursuant to General Statutes § 8-8(a)(2), (b). The trial court upheld the board's decision, ruling against the plaintiffs' claims that the proposal met the requirements of the subdivision regulations as written and that the town plan of development is not a regulation. The trial court further found, however, that the board's conclusion, based on the Coastal Area Management Act, was not based on substantial evidence and was not a sufficient reason to deny the subdivision application.

The court found in relevant part as follows. "Section 6-260 of the Greenwich Municipal Code provides that one of the purposes of the subdivision regulations is to 'further the orderly development of the town in accordance with the town plan of development.' The town plan of development has as one of its 'Basic Objectives' the preservation of historic resources. The town plan of development also provides that 'Greenwich has a rich ... historical heritage that should be protected for the benefit and enlightenment of future generations,' and that 'conserving the Town's ... historical resources is a notably effective land use tool for preserving the essential character and spirit of the community.' Other references to the importance of historic factors appear in the town plan of development. An evaluation of historical factors is specifically mentioned in the Greenwich Subdivision Regulations, § 6-266(a) 19, governing subdivisions in the coastal zone.

"It is the opinion of the court that the plaintiffs' position is without merit. Not only do the subdivision regulations mention historic factors, but they state as a purpose the development of the town in accordance with the town plan of development, which has preservation of historic resources as a basic objective. Further, given the established public policy favoring historic preservation, see General Statutes § 7-147a et seq. and Greenwich Municipal Code § 6-307, and the plaintiffs' deed restriction, it is found that the board did apply standards contained in the regulations to the subdivision, and plaintiffs had notice that historic factors would be considered.

"The board's finding that the proposal would impair the historic streetscape is supported by the record. The Smiths' side of Strickland Road is characterized by homes on lots with sweeping front lawns. The plaintiffs plan to convert their front lawn into a building lot and construct thereon a house with a thirty feet by forty feet footprint, and setbacks of twenty-five feet from the front property line, twenty feet from the south property line, and fifteen feet from a line of trees. These exhibits show that construction of a house on the front lawn would drastically alter the streetscape, and support the board's conclusion in that regard.

"The board also cited the opposition of the historic district commission, which, among other things, oversees erection and alteration of buildings in the historic district."

The trial court ultimately concluded that the board's consideration of and decision based on historic factors was proper and that the evidence on the record was sufficient to support the board's decision that the proposed subdivision would impair the appearance of the historic streetscape. The plaintiffs appealed from the trial court's dismissal of their appeal after we granted certification.

We disagree with the trial court for the following reasons: (1) the enabling statutes on subdivisions did not give the defendant the authority to include historical factors in its regulations; (2) the terms "town...