Garrison v. Planning Bd of City of Stamford

PATRICIA GARRISON v PLANNING BOARD OF THE CITY OF STAMFORD ET AL.

No. AC 20900

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued June 1, 2001

October 16, 2001

Counsel Brenden P. Leydon, for the appellant (plaintiff)

James V. Minor, assistant corporation counsel, for the appellees (defendants).

Lavery, C. J., and Schaller and Flynn, Js.

Opinion

Lavery, C. J.

The plaintiff, Patricia Garrison, appeals from the judgment of the trial court dismissing her appeal from the decision by the defendant planning board of the city of Stamford (board) denying her subdivision application. ¹ On appeal, the plaintiff claims that (1) the court improperly affirmed the board's denial of her application on the basis of an anticipated zoning use violation that was not inherent in the application as submitted, (2) the court improperly refused to consider her challenges to the validity of land use regulations because they were not brought in a declaratory judgment action, (3) the Stamford zoning regulations are void for vagueness and (4) the zoning regulations constitute an excessive fine. Because we agree with the plaintiff's first claim, we reverse the judgment of the trial court.

The following facts and procedural history are necessary for a proper consideration of the plaintiff's claims. The plaintiff is the owner of improved real property at 925 Long Ridge Road in Stamford. The building on the property has been leased to Coldwell Banker as a real estate office for a substantial period of time. On January 25, 1999, the plaintiff filed with the board an application for a subdivision of the subject property into three lots. The board held a public hearing on the application on May 25, 1999, and subsequently voted unanimously to deny the application on June 1, 1999. The reason given by the board in its letter notifying the plaintiff of the denial was ''existing flagrant and specific zoning violations which would be intensified'' by the subdivision.

The zoning use violation was that the real estate office expanded beyond the permitted accessory use of a real estate office to a residence. There has been a longstanding dispute with the city over that violation. The plaintiff had obtained a variance in 1982 to have not more than eight nonresident persons be employed as brokers. Evidence introduced at the public hearing showed that there were thirty-seven brokers who are nonresidents. That was a violation of § 19.2.2 of the zoning regulations, which provides that any grant of a variance is deemed to grant only the particular use and that any changes in the approved plan that materially affect an approved variance shall require further approval of the board.

The plaintiff thereafter appealed from that decision to the Superior Court. Following a one day trial, the court dismissed the appeal, finding that ''the planning board lacked the authority pursuant to General Statutes § 8-26 to approve the application because the subject property has outstanding zoning violations.'' The plaintiff thereafter applied to this court for certification to appeal, which was granted. This appeal followed.

The plaintiff claims that the trial court improperly upheld the planning board's denial of her subdivision application on the basis of a claimed or anticipated zoning use violation that was not inherent in the application as submitted, where no regulation authorized the denial of a subdivision application on such a basis. We agree and accordingly reverse the judgment of the trial court.

''At the outset, we note that the [board] acted in its administrative capacity. Reed v. Planning & Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988). As such, it has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance.'' (Emphasis added; internal quotation marks omitted.) Paige v. Town Plan &Zoning Commission, 35 Conn. App. 646, 657, 646 A.2d 277 (1994), rev'd on other grounds, 235 Conn. 448, 668 A.2d 340 (1995); see also RK Development Corp. v. Norwalk, 156 Conn. 369, 375-76, 242 A.2d 781 (1968); Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 674-75, 236 A.2d 917 (1967). ''In the context of review of subdivision applications, [p]roceedings before planning and zoning commissions are classified as administrative.'' (Internal quotation marks omitted.) Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 696-97, 628 A.2d 1277 (1993).

The principal issue in this appeal is whether the planning board acted within its authority when it denied the plaintiff's subdivision application on the basis of alleged, existing zoning use violations on that part of the property occupied by Coldwell Banker. The defendant claims that § 8-26 precludes the board from approving a proposed subdivision where the property proposed to be subdivided has existing zoning use violations. We disagree.

General Statutes § 8-26 provides in relevant part: ''[N]othing in this section shall be deemed to authorize the commission to approve any such subdivision or resubdivision which conflicts with applicable zoning regulations. . . .'' (Emphasis added.)

It is well settled that one of the primary guides for interpreting a statute, indeed the first guide to be consulted, is the language of the statute itself. See, e.g., Taravella v. Stanley, 52 Conn. App. 431, 439, 727 A.2d 727 (1999), Keeney v. Fairfield Resources, Inc., 41 Conn. App. 120, 131, 674 A.2d 1349 (1996). The interpretation of the language often has led our Supreme Court to choose between the interpretations of a statute contended for by the parties on the basis of rules of English grammar. See, e.g., Gonsalves v. West Haven, 232 Conn. 17, 22, 653 A.2d 156 (1995) (statutory definition must be read in light of ''ordinary rules of English grammar and sentence structure''); Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852, 633 A.2d 305 (1993) (reading statute ''in the light of ordinary rules of English grammar and sentence structure'').

Applying the ordinary rules of English grammar and sentence structure to § 8-26, the clause, ''which conflicts with applicable zoning regulations,'' has as its antecedent not ''the property,'' as the defendant would have it, but ''any such subdivision or resubdivision.''

In addition, our courts have had occasion to interpret § 8-26, including the provision at issue here regarding a municipality's authority to reject a subdivision plan that conflicts with applicable zoning regulations. In Krawski v. Planning & Zoning Commission, 21 Conn. App. 667, 672, 575 A.2d 1036, cert. denied, 215 Conn. 814, 576 A.2d 543 (1990), we noted that our function is ''to decide whether the commission correctly determined that this subdivision application contains an existing violation of the town zoning regulations. . . . A commission may legally base subdivision application denials on zoning violations 'inherent in the plan itself as submitted' . . . .'' (Citations omitted; emphasis added.) Accordingly, we reversed the trial court's judgment sustaining the plaintiff's appeal in Krawski because the ''violations are apparent on the face of the submitted subdivision plan.'' (Emphasis added.) Id., 673.

In Federico v. Planning & Zoning Commission, 5 Conn. App. 509, 500 A.2d 576 (1985), we clearly stated the proper application of the provision of § 8-26 at issue here: ''These regulatory and statutory requirements must be read to concern zoning violations inherent in the plan itself as submitted and not . . . use violations. Such requirements relate to subdivisions plan which in and of themselves would violate zoning regulations. Examples of such conflicts include approval of a subdivision plan involving one-half acre lots in a one acre zone, or approval of a plan for a residential subdivision in an industrial area which prohibited such use.'' (Emphasis added.) Id., 515.

We stated in Federico that only zoning violations that are inherent in the plan as submitted may be a basis for denying the subdivision application. The defendant's claim that the zoning violations in this case are inherent in the application as submitted is further undercut by the comments of the defendant's own zoning enforcement officer on the plaintiff's application. After reviewing the subdivision application, he stated in a letter to the planning board: ''This property has outstanding zoning violations upon it which should be corrected prior to the granting of any subdivision or building permits.'' (Emphasis added.) That statement plainly indicates that the zoning enforcement officer's concerns, mirrored by the planning board, were not about the subdivision plan itself, but were geared toward having the outstanding zoning violations corrected. That statement by the zoning enforcement officer, who is charged with ensuring that the city's zoning regulations are adhered to by property owners, demonstrates that the city's concerns were not with the actual subdivision, but with remedying a previously existing zoning use violation in a portion of the property that was sought to be subdivided.

The defendant also points to an opinion of the city's law department, the multiple listing service document concerning the property and evidence of traffic problems because of the use violation as further support for its decision to deny the plaintiff's subdivision application. Although the concerns raised by the city clearly are valid, and we do not here endorse the plaintiff's apparent continuing violation of the zoning regulations, they do not permit the city to use the separate subdivision plan approval process as a lever to get the plaintiff to abate her zoning violations.

In further support of its denial of the plaintiff's subdivision application, the defendant includes in its brief several quotations from the public hearing that took place to consider the subject subdivision application....