Sowin Associates v. Planning & Zoning Commission

580 A.2d 91, 23 Conn. App. 370, 1990 Conn. App. LEXIS 337
CourtConnecticut Appellate Court
DecidedSeptember 25, 1990
Docket8279
StatusPublished
Cited by85 cases

This text of 580 A.2d 91 (Sowin Associates v. Planning & Zoning Commission) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sowin Associates v. Planning & Zoning Commission, 580 A.2d 91, 23 Conn. App. 370, 1990 Conn. App. LEXIS 337 (Colo. Ct. App. 1990).

Opinion

Foti, J.

The defendants1 appeal from the judgment of the trial court sustaining the plaintiff’s challenge to the denial of an application for the approval of a subdivision.

The plaintiff applied to the defendant planning and zoning commission (commission) for the approval of a proposed eleven lot subdivision. The land to be developed is a ten acre parcel that is located in an AA-30 [372]*372residential zone. The plaintiffs application proposed a one road subdivision that would end in a cul-de-sac and contain eleven single-family dwellings.

The commission held a public hearing on the plaintiffs application. The plaintiff presented a traffic engineer at the hearing who testified and submitted a written report. The engineer stated that the location of the proposed street conforms with state department of transportation standards, and that the proposed street would empty onto Foster Street approximately 350 feet from the intersection of Foster Street and Ellington Road to the west and 330 feet from another intersection that is controlled by a three way stop sign to the east. The engineer also stated that the traffic generated by eleven homes would be minimal. He further reported that in order to achieve the required line of sight distances to the closest intersections, it would be necessary to remove existing arborvitae shrubs on either side of the entrance to the proposed street. He did not believe, however, that it would be necessary to remove two large oak trees at the same location.

Members of the public also testified at the hearing. Those opposed to the subdivision plan voiced concern over traffic congestion on the surrounding streets at peak hours and speeding cars on Foster Street. A petition was presented to the commission bearing thirty-four signatures in opposition to the plaintiff’s application.

After all testimony was heard, the members of the commission discussed the plaintiff’s application. The record shows that the commission’s discussion focused on the following: the preservation of trees on the site; the status of an undeveloped strip of land abutting the plaintiff’s property to the west that is to be developed into Felt Road at some indefinite future date; the town [373]*373engineer’s approval of the subdivision; the possible loss of a specific tree; offsite traffic; and the possibility of having the plaintiff add a street stub out of the subdivision that could eventually connect with Felt Road if and when that street is developed.

The commission then rejected one member’s motion to approve the plaintiff’s application conditionally. After this motion was rejected, the commission members again discussed the effects of offsite traffic, access to Felt Road and drainage problems on Foster Street. A motion to deny the application was then presented, seconded and voted on. The commission members denied the plaintiffs application three votes to one vote.

The commission notified the plaintiff that its application had been denied because of “traffic congestion and safety concerns on Foster Street in the area of the proposed subdivision, and the increase in congestion expected from the proposed subdivision.”

The plaintiff appealed the commission’s denial of its application to the Superior Court. The trial court sustained the plaintiff’s appeal, finding that the application should have been approved because the record did not support the commission’s decision and because the proposed site conforms to all of the town subdivision regulations.

The defendants petitioned for certification to this court claiming that the trial court improperly concluded (1) that the record did not support the reasons cited by the commission for its denial, and (2) that the proposed subdivision met all of the applicable regulations.2 We granted certification and now affirm the judgment of the trial court.

[374]*374The defendants first claim that the trial court improperly .concluded that the record does not support the commission’s denial of the plaintiff’s application. The defendants specifically assert that the personal knowledge of the commission members, the testimony of area residents and three specific sections of the town subdivision regulations prove that offsite traffic concerns provide a sufficient basis for the denial of the plaintiff’s application.

When a municipal planning commission considers the approval or disapproval of a subdivision plan, it is acting in an administrative capacity rather than in a legislative capacity. Reed v. Planning & Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988). “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.” Id.

“ ‘The designation of a particular use of property as a permitted use establishes a conclusive presumption that such use does not adversely affect the district and precludes further inquiry into its effect on traffic, municipal services, property values, or the general harmony of the district.’ ” (Emphasis added.) TLC Development, Inc. v. Planning & Zoning Commission, 215 Conn. 527, 532-33, 577 A.2d 288 (1990).

The land in question in the present case was zoned AA-30, and thus designated for residential use. The subdivision plan that was submitted to the commission was for eleven single-family dwellings to be placed on eleven [375]*375lots that average nearly one acre each. Applying the conclusive presumption set forth in TLC Development, Inc. v. Planning & Zoning Commission, supra, we must conclude that because the plaintiffs land is located in a residential zone and its plan was to use the property for residential purposes, the commission could not weigh offsite traffic concerns, municipal services required by the development, property values, or the general harmony of the district when deciding whether to approve the plaintiffs subdivision application.

We distinguish this case from our recent decisions in Dram Associates v. Planning & Zoning Commission, 21 Conn. App. 538, 574 A.2d 1317, cert. denied, 215 Conn. 817, 576 A.2d 544 (1990), and Central Bank for Savings v. Planning & Zoning Commission, 13 Conn. App. 448, 537 A.2d 510 (1988), and the line of cases relied upon by the defendants, where offsite traffic considerations were permitted. Those cases deal with a change of zone rather than the approval or denial of a subdivision permit. When a local zoning authority enacts a zone change, it is acting in a legislative capacity. Wisniewski v. Zoning Board, 6 Conn. App. 666, 667, 506 A.2d 1092 (1986).

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Bluebook (online)
580 A.2d 91, 23 Conn. App. 370, 1990 Conn. App. LEXIS 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sowin-associates-v-planning-zoning-commission-connappct-1990.