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Krawski v. Planning and Zoning Com'n of Town of South Windsor

Court of Appeals of Connecticut

May 4, 1990


Argued Dec. 20, 1989.

Page 1037

Richard M. Rittenband, Town Atty., with whom, on the brief were Ralph J. Alexander and Richard C. Willard, for appellant (defendant).

Scott R. Chadwick, for appellee (plaintiff).


[21 Conn.App. 668] SPALLONE, Judge.

The defendant commission appeals from the judgment of the trial court sustaining the plaintiff's appeal from the denial of his application for subdivision plan approval. The commission claims that the court erred in concluding that approval was unreasonably denied for reasons not based on subdivision regulations. We find error.

In April, 1987, the plaintiff sought the commission's approval for a five lot subdivision on property at Felt Road and Ridgefield Drive in South Windsor. At the public hearing, the commission noted that the slope of at least one lot exceeded town zoning limits. One lot had a slope of approximately 17 percent and was of such size that a house constructed on the lot would be in violation of § 5.1 of town zoning regulations requiring a 10,000 square foot contiguous building area with a slope [21 Conn.App. 669] of less than 15 percent. [1] The plaintiff expressed an interest in retaining the slope to build a solar home, but stated that he would regrade the property if requested to do so. His engineer stated that the lot

Page 1038

could be brought into compliance with the zoning regulations with relatively minor regrading. The town engineer stated that the slope could be stabilized and protected from water erosion, adding that the commission could address the issue of the lot gradient upon a subsequent application for a building permit.

The commission also noted that it had previously reviewed a "concept plan" for this parcel and had indicated that it would approve a subdivision of no more than three lots. Although the plaintiff was the owner of the parcel, he had not been involved in presenting the prior application or in submitting the concept plan. The commission indicated that, nevertheless, it expected the plaintiff's current application to reflect the prior limitation.

The commission disapproved the subdivision application on the grounds that it failed to conform with either the zoning regulations or the approved concept plan. On the plaintiff's appeal, the trial court concluded that the plaintiff was not bound by conditions set on a previous submission and that town subdivision regulations do not include zoning regulations. Moreover, the court concluded that such zoning regulations, even if applicable, did not justify the disapproval of any more than the one lot of excessive grade and so the disapproval of the entire subdivision was unreasonable and arbitrary. The court, therefore, sustained the plaintiff's appeal and this appeal followed.

[21 Conn.App. 670] The commission claims that it is empowered to consider applicable town zoning regulations in reviewing a subdivision application. We agree. Subdivision regulation is a planning function, and the defendant was sitting here as a planning commission. See Vose v. Planning & Zoning Commission, 171 Conn. 480, 483, 370 A.2d 1026 (1976); Camm v. Hart, 6 Conn.App. 284, 288, 504 A.2d 1388 (1986). Although planning and zoning are separate functions not to be interchanged; Vose v. Planning & Zoning Commission, supra; coordination between the functions is desirable and beneficial to the municipality. Ferndale Dairy, Inc. v. Zoning Commission, 148 Conn. 172, 176, 169 A.2d 268 (1961).

Town subdivision regulations incorporate zoning regulations by reference. Section 2.1 of the town's requirements for the subdivision of land states in pertinent part that "[a]ll portions of any subdivision shall conform to ... the Town Zoning Regulations...." The requirement that a subdivision plan comply with zoning regulations "is mirrored in an even more stringently drawn similar requirement in General Statutes § 8-26." Federico v. Planning & Zoning Commission, 5 Conn.App. 509, 514, 500 A.2d 576 (1985). Section 8-26, which concerns approval of subdivision applications, provides that "nothing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations." We conclude that the trial court erred in holding that town zoning regulations may not be the basis for subdivision planning decisions.

The commission, however, does not have unbridled discretion to use a violation of a zoning regulation as the basis for disapproving a subdivision application. "Generally, it is the function of a zoning board or commission to decide 'within prescribed limits and consistent[21 Conn.App. 671] with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply....' " Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). General Statutes § 8-26 bars subdivision plans that conflict with applicable regulations. Federico v. Planning & Zoning Commission, supra, 5 Conn.App. at 515, 500 A.2d 576.

A zoning commission is endowed with liberal discretion in applying the law to the facts of a case; id.; and we must be cautious about disturbing commission decisions on review. Gagnon v. Municipal Planning Commission, 10 Conn.App. 54, 56-57, 521 A.2d 589, cert. denied, 203 Conn. 807, 525 A.2d 521 (1987). The commission here has determined that the zoning regulation

Page 1039

governing slope limitations is applicable to its review of the plaintiff's plan and that the slope of one proposed lot exceeds those limitations. If the commission has reasonably and fairly exercised its honest judgment after a full hearing, we must uphold its decision unless ...

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