Timber Trails Assoc. v. Sherman PZC, No. CV04-0351308 S (CT 5/20/2005)

• Decision Date: 20 May 2005
• Docket Number: No. CV04-0351308 S,CV04-0351308 S
• Court: Connecticut Supreme Court
• Parties: Timber Trails Associates et al. v. The Planning and Zoning Commission of the Town of Sherman Opinion No.: 88980.

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Unpublished Opinion

Timber Trails Associates et al. v. The Planning and Zoning Commission of the Town of Sherman Opinion No.: 88980.

No. CV04-0351308 S

Superior Court of Connecticut

Judicial District of Danbury at Danbury

May 20, 2005

MEMORANDUM OF DECISION

DOUGLAS C. MINTZ, JUDGE.

The plaintiffs, Timber Trails Associates, Tessa Pascarella and The Timber Trails Community Service Corporation, appeal from amendments to zoning regulations adopted by the Sherman planning and zoning commission.

Timber Trails Associates, a partnership controlled by Jerald Greenberg and Henry W. Pascarella, and Tessa Pascarella, the wife of Henry W. Pascarella, own investment property within an area defined under Sherman's zoning regulations as residence zone B, where the minimum lot size is 80,000 square feet. (Exhibits 1, 2.) The Timber Trails Community Service Corporation owns and maintains private roads that service a development known as Timber Trails, which is adjacent to the land owned by Timber Trails Associates and Tessa Pascarella. (Exhibit 3.) The plaintiffs, who have previously appealed earlier amendments to Sherman's zoning and subdivision regulations,¹ plan to use the property for residential development. (Plaintiffs' Brief p. 1.)

Throughout 2003, approximately April through September, the planning and zoning commission held several study sessions, referred to as workshops; (Return of Record [ROR], Item 26, pp. 6-7, Items 61-86); to fulfill tenets written in the Sherman plan of conservation and development, labeled the "master plan," which, pursuant to General Statutes §8-23, the commission amended on August 4, 2001. (ROR, Item 96.) The plan of conservation and development prompts the commission, within a specified number of years, to reassess characteristics of the zoning regulations including the adequacy of minimum lot sizes, the slope of land unsuitable for development, and the requisite conditions to perpetually meet water supply and septic needs on site. (ROR, Item 96.) The commission decided that members of the public would not participate in the initial workshops. (ROR, Item 64.)

Along with an introduction and statement of purpose, the workshops resulted in proposed amendments, for which the commission issued legal notice on November 14, 2003, published on November 19, 2003 and November 26, 2003, and offered a public hearing on December 2, 2003.² (ROR, Items 5, 7, 8, 17.) The commission thereafter held meetings on December 3, 2003, December 10, 2003 and December 17, 2003, to review, revise and vote down versions of the proposed amendments. (ROR, Items 27, 28, 29.) Art Von Plachecki, first selectman (nonvoting, ex-officio), attended the public hearing and each subsequent meeting. (ROR, Items 26, 27, 28, 29.) D. Randall DiBella, attorney for Sherman, and Tom McGowan, planning consultant for Sherman, attended only the final two meetings. (ROR, Items 28, 29.) Though he did not concede any personal bias or conflict of interest, Thomas A. Joyner, the chairman of the commission during the relevant period, who allegedly owns a house within the Timber Trails development, participated in the initial workshops, but recused himself from the public hearing, the commission meetings, and the vote on the proposed amendments. (ROR, Item 26, pp. 5-6.)

On December 17, 2003, the commission amended the Sherman zoning regulations, including, inter alia, Sherman zoning regulation §331.3, pertaining to farm-residence zone A, and Sherman zoning regulation §332.3, pertaining to residence zone B, to exclude the following from the calculation of the minimum lot area requirement of 80,000 square feet:

i. Land reserved for or used as an existing road, right-of-way, accessway, and conservation and utility easements.

ii. Inland Wetlands and Watercourses as defined and delineated in accord with Sherman Inland Wetland and Watercourses Regulations and Map.

iii. Naturally occurring slope of 25% or more as measured using 2-foot contour intervals.

iv. 100 year Flood Hazard Areas as shown on maps prepared by FEMA which are on file with the office of the Town Clerk.

(ROR, Item 25.)

The adopted amendments also include a revision to Sherman zoning regulation §321.4, providing that the principal building on a lot in zones A and B "shall not be located within land areas defined under 331.3 and 332.3 subsections i, ii, iii, and iv." (ROR, Item 25.)

The plaintiffs, on January 27, 2004, pursuant to General Statutes §8-8, filed an appeal challenging the adopted amendments in the form of a single-count complaint. The overarching basis for the appeal is that the most recent amendments represent the latest example of what the plaintiffs assert is the commission's plan to target their property and adopt wholesale changes to the zoning regulations in an effort to inhibit development on their land. (Complaint, ¶¶17-18.) In the present appeal, the plaintiffs allege specifically, inter alia, that (1) the recused chairman tainted the commission's proceedings by presiding over a series of preliminary workshops that resulted in versions of proposed amendments voted upon by the commission; (2) the commission's action was illegal, arbitrary and an abuse of discretion; and (3) the commission confined the plaintiffs to a three-minute time limitation at the public hearing and denied the plaintiffs an opportunity to review documents, question commissioners and cross-examine expert witnesses.

Pursuant to General Statutes §8-8(b), an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date the notice of the decision was published as required by the General Statutes." Subsection (f) provides that service of process "shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and leaving a true and attested copy with the clerk of the municipality."

Notice was published in the New Fairfield Citizen News on January 14, 2004. (ROR, Item 24.) The appeal was commenced by service of process on the proper parties on January 23, 2004. (Marshal's Return.) Accordingly, the appeal was properly commenced in a timely manner.

[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised." (Internal quotation marks omitted.) Stauton v. Planning & Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004).

"In the context of zoning, [our Supreme Court has] recognized that diminution of property value may establish aggrievement. See Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 380, 394, 610 A.2d 620 (1992) (depreciation in property values of real property owned by members of association in amount of 5 percent to 10 percent sufficient to support aggrievement); see also Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 381, 311 A.2d 77 (1972); Berlani v. Zoning Board of Appeals, 160 Conn. 166, 168-69, 276 A.2d 780 (1970)." Bongiorno Supermarket v. Zoning Board of Appeals, 266 Conn. 531, 540 n.12, 833 A.2d 883 (2003). "Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 374, 378, 610 A.2d 617 (1992)] involved our zoning laws, which . . . provide a comprehensive remedial scheme that gives rise to specific legal rights . . . A change of zone necessarily alters one of the bundles of rights possessed by a landowner—the use of the property—such that a legal interest is affected." (Citation omitted.) Edgewood Village, Inc. v. Housing Authority, 265 Conn. 280, 297, 828 A.2d 52 (2003).

The plaintiffs plead that they own property within the area affected by the commission's decision and that the amendments adversely affect their interest in the property. They rely on maps, which, they argue, demonstrate a significant percentage of their property containing slopes of 25 percent or more, and an informal appraisal by Henry W. Pascarella, who is an experienced real estate lawyer, stating that the amendments would reduce the value of his property by millions of dollars. (Exhibits 4, 5, ROR, Item 44.) At the trial, the plaintiffs presented the court with copies of the deeds supporting their allegation. (Exhibits 1, 2, 3.)

"As owners of land in zone B, the plaintiffs are aggrieved parties. See General Statutes §8-8(b); Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 502-03, 264 A.2d 566 (1969)." Timber Trails Corp. v. Planning & Zoning Commission, supra, 222 Conn. 376 n.3. The court concludes accordingly that it properly has jurisdiction over the appeal.

"The proper, limited scope of judicial review of a decision of a local zoning commission when it acts in a legislative capacity by amending zoning regulations is well established. [T]he commission, acting in a legislative capacity, [has] broad authority to adopt . . . amendments . . . In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would . . . [reach] the same conclusion but whether the record before the agency supports the decision reached . . . Acting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change . . . The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function . . . This legislative discretion is wide and liberal, and must not be...