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

Decision Date10 August 1993
Docket NumberNos. 14632,14633,s. 14632
Citation227 Conn. 71,629 A.2d 1089
CourtConnecticut Supreme Court
PartiesE. Don SMITH et al. v. ZONING BOARD OF APPEALS OF the TOWN OF GREENWICH et al.

Joyce H. Young, Asst. Town Atty., and Everett E. Newton, Hartford, with whom, on the brief, were William E. Hegarty, Greenwich, Russell L. Brenneman and John C. Yavis, Jr., Hartford, for appellants (defendants).

E. Don Smith, pro se.

Eileen Smith, pro se.

Robin Messier Pearson, Farmington, Michael J. Cacace, Stamford, and Mark K. Branse, Glastonbury, filed a brief for the Planning and Zoning Law Section of the Connecticut Bar Ass'n as amicus curiae.

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and KATZ, JJ.

KATZ, Associate Justice.

The dispositive issue in this appeal is whether the planning and zoning board of appeals for the town of Greenwich (board) is authorized, under the Greenwich town charter (charter) and the applicable subdivision regulations, to consider historical factors in determining whether to grant or deny an application to subdivide property located in a historic district. The defendants, the board, the Historical Society of the Town of Greenwich, Inc. (historical society), and Anita De Lesseps Keefe, a landowner within 100 feet of the property, appeal, upon our grant of certification, 1 from the judgment of the Appellate Court. The Appellate Court concluded that the board had not been authorized to consider historical factors in reviewing a subdivision application and reversed the judgment of the trial court. Smith v. Zoning Board of Appeals, 29 Conn.App. 28, 35, 614 A.2d 464 (1992). We disagree with the Appellate Court and, accordingly, reverse the judgment.

The following relevant facts are undisputed. The plaintiffs, E. Don Smith and Eileen Smith, own property located at 35 Strickland Road in Greenwich (property). The property is situated in the Mill Pond Historic District (district), which was established under article 5 of the charter and General Statutes § 7-147b. The property is also in an R-7 zone classification, which encompasses single homes.

In January, 1987, the plaintiffs submitted a preliminary subdivision application to the planning and zoning commission of the town of Greenwich (commission), seeking to subdivide the property into three lots. After a hearing, the commission preliminarily approved the plaintiffs' application, subject to the resolution of fourteen issues prior to the submission of the final application. 2 In particular, the commission required the plaintiffs to meet with the historic district commission "in order to determine an appropriate house location for lot 1." The commission further instructed that "[t]he preservation of significant trees shall be taken into consideration in determining house location, as well as conformity as nearby as possible to the existing setback/streetscape of house locations to the south."

Pursuant to the commission's requirement, the plaintiffs met with members of the historic district commission. Although, in the absence of a final, approved subdivision plan the historic district commission could not take any formal action concerning the appropriateness of the building on lot 1, the historic district commission did, nonetheless, express its opposition to the proposal.

The plaintiffs subsequently submitted a final subdivision application. On November 22, 1988, the commission denied the plaintiffs' final subdivision application because granting it would "permit construction of a house in the ... significant open space, thereby disrupting the essential characteristic of the historic district." 3

The plaintiffs appealed from the decision of the commission to the board pursuant to § 103(a) of the charter. 4 4] Pursuant to § 103(a), the board conducted a de novo review of the application and held a public hearing. The board found that the plaintiffs were seeking to subdivide the property into three lots. Lot 1 would contain the plaintiffs' residence; lot 2 would contain an existing barn; and lot 3, a presently unimproved area in front of the plaintiffs' residence, would contain a single family house. The proposed building on lot 3 is the focus of this dispute.

Following the public hearing, the board denied the plaintiffs' appeal. The board concluded that the proposed building on lot 3 would disrupt the "sweeping front lawn" and, therefore, would not be consistent with the district's historic streetscape. The board stated that "[t]he proposed subdivision did not meet the purposes of the Subdivision Regulations as provided in Section 6-260, 5 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." The board also concluded that the plaintiffs' application was subject to review under the Coastal Area Management Act (act), General Statutes § 22a-90 et seq. Applying the standards in the act, the board found that the subdivision proposal "would have an adverse impact on coastal resources because of the alteration of natural features of vistas."

The plaintiffs appealed from the decision of the board to the trial court pursuant to § 104 of the charter and General Statutes § 8-8(2)(b). 6 Although the trial court disagreed with the applicability of one of the statutes, the act, on which the board had relied, the court concluded that other statutes, as well as the town's own land use regulations, supported the board's action. The trial court therefore dismissed the plaintiffs' appeal.

The trial court concluded that the board had the authority to consider the historic streetscape for three reasons: the provisions of the town's subdivision regulations, the statutory and town policy in favor of historic preservation and a restriction contained in the plaintiffs' deed. Section 6-260 provides that the purpose of the subdivision regulations is to "[f]urther the orderly development of the Town in accordance with the Town Plan of Development." Because the town plan has "as one of its 'Basic Objectives' the preservation of historic resources," the trial court concluded that the board acted within its authority in considering the historic streetscape. Additionally, § 6-266(a)(20) of the Greenwich Land Use Regulations specifically permits an evaluation of historical factors, noted in § 6-266(a)(19), in subdivisions located "within the coastal zone." Furthermore, the town's subdivision regulations are consistent with public policy favoring historic preservation that is contained in General Statutes § 7-147a et seq. and § 6-307 of the Greenwich Land Use Regulations. Finally, a restriction in the plaintiffs' deed states that " '[s]aid premises are conveyed subject to ... [r]egulations imposed by reason of the fact that the premises are part of a historic district as established by the Town of Greenwich....' "

The trial court affirmed the board's conclusion that the plaintiffs' subdivision proposal would impair the historic streetscape. The trial court reasoned that "[t]he 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 the 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."

Finally, the trial court considered the plaintiffs' argument that "the denial of their plan constitutes a taking of property without due process of law." The court noted, however, that "[t]he Board rejected this claim, concluding that because other alternatives for development of the property exist, the plaintiffs were not deprived of their development rights. The defendant Board argues that [the] plaintiffs have failed to establish a diminution in the value of their property as a result of the decision, and further, only one proposal has been rejected, not all proposals."

Upon a grant of certification, the plaintiffs appealed to the Appellate Court, from the trial court's dismissal of their appeal. The Appellate Court reversed the judgment of the trial court, concluding that the board did not have the authority to consider historical factors in deciding whether to grant or deny a subdivision application because: "(1) the enabling statutes on subdivisions did not give the board the authority to include historical factors in its regulations; (2) the terms 'town plan of development,' 'historic factors' and 'historic streetscape' are not known and fixed standards required for subdivision regulations; (3) the Greenwich town charter forbids the board from denying a subdivision application based on the plan of development; and (4) it is the duty of the historic district commission, not the planning and zoning commission or the board of appeals, to decide whether a building should be erected in a historic district." Smith v. Zoning Board of Appeals, supra, 224 Conn. at 35, 617 A.2d 167. Having ourselves granted certification for the defendants to appeal, we now reverse the judgment of the Appellate Court.

I

In reviewing an appeal from an administrative agency, the trial court must determine whether " 'the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.' " Board of Education v. State Employees Retirement Commission, 210 Conn. 531, 541, 556 A.2d 572 (1989); Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 573, 538 A.2d 1039 (1988). " 'The trial court may not retry the case or substitute its judgment for that of the agency....' " Board of Education...

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