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HomeMy WebLinkAboutOPEN SPACE, SUBDIVISION 1245 (DENIED) TOWN OF SOUTH WINDSOR# CONNECTICUT PLANNING .AND ZONING COMMISSION APPLICATION FORM — 5 App. No. Date Received: IMPORTANT! Action or Public H aring By: Planning and Engineering Department staff oc-�7 any 10, -7 require 14 days to determine application Receipt No. completeness. To ensure receipt of a complete application by PZC, it is strongly recommended that the application be submitted 14 days prior to the Regular Meeting at which it will be received. l APPLICANT: \ L ADDRESS: © 1 R CQo TELE HONE: OWNER OF RECORD ON LAND RECORDS: - ADDRESS:— ca-)' COMPLETE LOCATION OF PROPERTY: A ZONE: AA NAME, ADDRESS & TELEPHONE NUMBER OF PERSON TO WHOM INQUIRIES SHOULD BE DIRECTED: LL Zq- TELEPHONE: THIS APPLICATION IS FOR: (Check one of the following) 1. Zone Change to (public hearing required) 2. Subdivision 3. Open Space Subdivision (public hearing required) 4. Resubdivision (public hearing required) 5. Special Exception to Article (public hearing required) 6. Site Plan of Development 7 . Earth Filling (Section 10) and/or Earth Removal (Section 9) (public hearing required) 8 . General Plan of Development 9 . Regulation Amendment: Zoning Subdivision 10 . Other (-explain in detail) THIS APPLICATION MUST BE SIGNED BY THE APPLICANT AND OWNE F THE PROPERTY AND SUBMITTED I T LICATE WITH SIX SETS OF THE MAPS (7 if blic hearing ESN OTHE DOCU NTS (see page 2 � icant Owner 114/87 (see reverse side) TOWN OF SOUTH WINDSOR, CONNECTICUT PLANNING AND ZONING COMMISSION APPLICATION FORM This application is complete and ready for Planning & Zoning Commission receipt only upon submission of all required documentation, including, but not necessarily limited to, the following items. Not all items are required with every application. See applicable sections of the South Windsor zoning and subdivision regulations for specific requirements. APPLICATION CHECKLIST 1. Key Map 2. Architectural Elevations/Floor Plans ' 3. Completed application form (in triplicate) 4 . Required fees 5. Zone Change, Site Plan, Subdivision, Open Space Improve- ment, and/or General Plan of Development maps , in accordance with regulations. (Six sets - seven if public hearing required) 6. Plans & Profiles/Drainage Calculations 7. Conservation Plan 8 . Landscaping Plan 9 . Traffic Engineering Report 10 . Narrative Statement 11. Sanitary Report 12. Copy of agreement to purchase land (if not the owner) 13. Other ALL PROSPECTIVE APPLICANTS ARE URGED TO CONFER WITH TOWN PLANNING DEPARTMENT AND ENGINEERING BUREAU STAFF PRIOR TO SUBMISSION OF ANY APPLICATION TO THE COMMISSION. CONSULT PLANNING DEPARTMENT FOR FEE SCHEDULE. 1/14/87 U 9 v 1540 SULLIVAN AVENUE - SOUTH WINDSOR. CONN. 06074 R-co AREA CODE 203/644-2511 TO BE PUBLISHED IN THE JOURNAL INQUIRER THURSDAY, MAY 281, 1987 THURSDAY, JUNE 49 1987 LEGAL NOTICE TOWN OF SOUTH WINDSOR PLANNING AND ZONING COMMISSION Notice is hereby given that there will be a public hearing of the Planning and Zoning Commission on Tuesday, June 9, 1987, at 8:00 PM in the Council Chambers of the South Windsor Town Hall, 1540 Sullivan Avenue, to consider the following: 1. Application of SouthRidge Estates, Inc. , for an Open Space Subdivision of land located directly east of Nevers Rd. and north of Riverside Dr. , RR Zone. 2. Application of Pasquale J. Salemi, Sr. , for a subdivision of 23.16 acres of land located on the south side of Chapel Road and west of John Fitch Blvd. , A-40 Zone. 3. Application of William Krawski, for an Open Spac Subdivision to be known as "Ridgefield III", located on the east side of Felt Rd. and south of Ridgefield, AA-30 Open Space Zone. r J,. 4. Application of East Hartford Sand & Gravel for a Special Exception for Earth Removal of land located west of Strong Rd. and east of KF Brick Co./Rt. 5, RR & I Zone. 5. Application of Windshire Abbe Estates Ltd. , Thornridge Inc. for a resubdivision of land located on Morgan Farms subdivision, Saddleback Dr. , Lots 21, 35, 36, 37, 38, A-20 - Open Space Zone. 6. Application of Kinder-Care Learning Center, Inc. for a Special Exception to Article 4.1.8.c of the Zoning Regulations of land located on the south east corner of Ellington and Chapel Rd. , RR Zone. Copies of these applications and maps more clearly defining the properties are on file in the office of the Town Clerk of the Town of South Windsor. At this hearing, interested persons may appear and be heard, and written recommendations will be received. PLANNING & ZONING COMMISSION Louise C. Evans, Chairman David H. Sorenson, Secretary 185 SILAS DEANE HIGHWAY CONS TRUC TION COO WETHERSFIELD,CONNECTICUT 06109 BUILDERS AND DEVELOPERS TELEPHONE: (203) 563-3711 NO June 3, 1987 Z, Mrs. Louise Evans Chairman, Planning and Zoning Commission Town of South Windsor 1540 Sullivan Avenue South Windsor, CT. 06074 Subject: Ridgefield Section IIIA William Krawski 5 Lot Subdivision Dear Mrs. Evans: I have reviewed the map titled "Ridgefield Section IIIA Subdivision Plan Property of William Krawski, Felt Road, South Windsor, Conn. , Scale 1" = 401 , April 3, 1987, Sheet 1 of 2, Revised April 11, 1987, Douglas Prior, Surveyor, Tolland, Conn. " As the builder of the Ridgefield Subdivision, The LaCava Construction Company feels that this plan is in harmony with the existing subdivision of Ridgefield. Therefore, we are in favor of this application. Very truly yours, L VA CONSTRUCTION COMPANY Jo seph P. LaCava pb THE SYMBOL OF HOME BUILDING EXCELLENCE .... LAW OFFICES KU EH N, CAVANAUGH AND CU M M I N GS, P. C. 1665 ELLINGTON ROAD SOUTH WINDSOR, CONN, 06074 (203) 644-3473 DANIEL P. CAVANAUGH OF COUNSEL EDWARD R. KUEHN HAROLD R . CUMMINGS WEST HARTFORD OFFICE: FRAZIER G. SCOTT 968 FARMINGTON AVENUE LORRAINE R. PAULHUS WEST HARTFORD,CONN.06107 RONA C. LYNCH MICHAEL J. LANZA (203) 236-2973 June 17, 1987 PLEASE REPLY TO:SOUTH WINDSOR Plannin nd Zoni Commission Louise (g Ivans, C airman Town of South Windsor"` 1540 Sullivan Avenue South Windsor, Cr. 06074 RE. Ridgefield III-Open Space Subdivision d, Dear Mrs. Evans: G ci',a ' ' Per your request this letter serves as notice that a 45 day extension is granted for the above referenced matter. V ours, is e Lanza MJL/krb vA, �u I CJ owN y r 7_0 apSau� ?d&"310t o � G U 1540 SULLIVAN AVENUE • SOUTH WINDSOR, CONN. 06074 r��soR.CO AREA CODE 203/644-2511 September 2, 1987 Mr. William Krawski ; 130 Buckland Road South Windsor, CT 06074 RE: Application #1245 - Open Space Subdivision Felt Road - Dear Mr. Krawski: Please be advised that the Planning and Zoning Commission voted on September 1, 1987, to deny the above-referenced application for the following reasons: 1. At least one lot does not meet the requirements of Section 5.1.a of the Zoning Regulations (10,000 square feet of contiguous buildable area with no slopes in excess of 15%). 2. The Planning and Zoning Commission approved a concept plan with a prior Ridgefield submission which contained four lots; the Commission expects that this approved concept plan will be reflected in any subdivision approval on the subject parcel. Very truly yours, PLANNING & ZONING COMMISSION By'• Louis C. Evans, Chairman LCE:cbs cc: R. Martel, Town Engineer T. D'Auria, Building Official E. Belleville, Assessor Lanning, Fire Marshal ZW Evans, Chairman, Planning and Zoning Commission Inland Wetlands Agency/Conservation Commission Michael Lanza, Esq. 44 Tiov� O-Ps qd&u&�-t 1540 SULLIVAN AVENUE • SOUTH WINDSOR. CONN. 06074 �.�.p .CO�t� AREA CODE 203/644-2511 TO BE PUBLISHED IN THE JOURNAL INQUIRER TUESDAX, SEPTEMBER 8, 1987 LEGAL NOTICE TOWN OF SOUTH WINDSOR PLANNING & ZONING COMMISSION At the September 1, 1987 meeting, the Planning and Zoning Commission voted to take the following action: 1. Deny the Application of Manchester Food Services for a resubdivision and site plan of development for a Burger King Restaurant located at the west side of Route 5, opposite Route 30. Restaurant site is a GC Zone and the balance is RR Zone. 2. Deny the Application of William Krawski for an Open Space Subdivision to be known as "Rid efi d TTT"_ located on the east side of Felt Road and south of Ridgefield, AA-30. Dated at South Windsor, Connecticut, this 3rd day of September, 1987. PLANNING & ZONING COMMISSION Louise C. Evans, Chairman David H. Sorenson, Secretary Jim i , y r Ole S_ow� �•• v� 1540 SULLIVAN AVENUE • SOUTH WINDSOR, CONN. 06074 f~�soR•co� AREA CODE 203/644.2511 __.September 8, 1987 Mr . Kevin F Rennie , Chairman South Windsor Inland Wetlands Agency/Conservation Commission 1540 Sullivan Avenue South Windsor , CT 06074 W RE: jZ-fdgefield IIIA A plication Review Dear Kevin : This 5 lot proposal on Felt Road , as part of the Ridgefield Subdivision, has been somewhat under a development program for a number of years . Generally speaking the scrub trees and brush have been removed in a reasonable manner to provide for some of their survival during home construction . The plan , as submitted August 21 , 1987 , indicates a minimum of disturbance , no road construction and apparently no utilites . Consistent with the normal review process , there are a number of items missing on the plans that the "Guidelines" suggest be incorporated in the plans , such as: 1 . A narrative, describing the activites involved with a single family home construction on a wooded lot with specific controls for each lot . 2 . Natural features with their appropriate protection. 3. The clearing , grading and vegetative stabilization . I am assuming that each lot will be developed separately . Their improvements should work within each lot . 4 . Location of the utility and drainage systems should be shown . 5. More detail for the temporary and permanent erosion control measures should be shown . 6. Whom shall be responsible . 7 . Etc . This can be a quality site when done . The plans as submitted , appear to be incomplete and perhaps could be heard when the above information is submitted . Very truly yours , / 4 A . Bowen Davies Deputy Town Engineer CC: William Krawski Michael J . Gantick , Director of Planning Richard P. Martel , Town Engineer / Marcia A. Banach , Director of Planning IWA/CC line 4e 4 �P- 1540 SULLIVAN AVENUE • SOUTH WINDSOR. CONN. 06074 c �a AREA CODE 203/644-25U TO BE PUBLISHED IN THE JOURNAL INQUIRER TUESDAY, SEPTEMBER 8, 1987 LEGAL NOTICE TOWN OF SOUTH WINDSOR PLANNING & ZONING COMMISSION ..� At the September 1, 1987 meeting, the Planning and Zoning Commission voted to take the following action: 1. Deny the Application of Manchester Food Services for a resubdivision and site plan of development for a Burger King Restaurant located at the west side of Route 5, opposite Route 30. Restaurant site is a GC Zone and the balance is RR Zone. 2. Deny the Application of Krawa i an Open Space Subdivision to be known as "Ridgpfia7� rl�� ocated on the east side of Felt Road and south of Ridgefield, AA-30. Dated at South Windsor, Connecticut, this 3rd day of September, 1987. PLANNING & ZONING COMMISSION Louise C. Evans, Chairman David H. Sorenson, Secretary Item 1 was denied by 6-0 vote, with Mr. Hallowell abstaining. Item 2 was denied by unanimous vote. Carolyn B. S and Recording retary f NO. 38921 SUPERIOR COURT WILLIAM KRAWSKI JUDICIAL DISTRICT OF TOLLAND VS. AT ROCKVILLE SOUTH WINDSOR PLANNING & JANUARY 101 1989 ZONING COMMISSION MEMORANDUM OF DECISION This is an appeal from the denial by the South Windsor Planning and Zoning Commission (Commission) of pl'ainti f f' s application f or approval of a f ive ( 5) lot open space subdivision. .- On or about April 28 , 1987, plaintiff filed an application with the Commission seeking approval of a five lot open space subdivision for property owned by the plaintiff and situated on the east side of Felt Road and the south side of Ridgefield Drive in the Town of South Windsor, said subdivision to be known as Ridgefield III A. A public hearing on the application was held on June 9, 1987. After requesting of the plaintiff and receiving approval for an extension of forty-five days (Record 6 and 7) , the Commission denied plaintiff 's application on September 1, 1987 for the following reasons : 1. At least one lot does not meet the requirements of Or rr, -2- Section 5. 1.a of the Zoning Regulations (10, 000 square feet of contiguous buildable area with no slopes in excess of 15% ) . 2. The Planning and Zoning Commission approved a concept plan with a prior Ridgefield submission which contained four lots ; the Commission expects that this approved concept plan will be reflected in any subdivision approval on the subject parcel. - (Record 9 ) Plaintiff, alleging that he is aggrieved by the Commission' s decision, takes the instant appeal pursuant to Conn. Gen. Stat . Sec. 8-28 . Plaintiff claims that the Commission acted illegally, arbitrarily and in abuse of its discretion in denying plaintiff ' s application. Essentially plaintiff claims that (1) the alleged concept plan referred to and relied upon by the Commission as one of its grounds for denying his application is not contained in any South Windsor subdivision regulation and state statute, (2) that Section 5.1.a of the zoning regulations requiring that slopes be not more than 15% was not part of the subdivision regulations but, nevertheless, was satisfied by oral consent, during the public hearing of June 9, 1987 , to reduce the slope of the lot involved from 17% to 15% and ( 3 ) that t eh decision was unsupported by and contrary to the record. i i i I -3- The defendant denies that the plaintiff is an aggrieved person. Further, the defendant alleges that the concept plan was a viable ground for dismissing the application as plaintiff was the owner of the entire Ridgefield project property at the inception of the approval and development processes for the entire Ridgefield Project, including all of its various phases ; and although plaintiff did orally agree to reduce the slope of the one lot involved, such grading must comply with a conservation plan as is required by Section 3. 2.a(ll) of the subdivision regulations , and must be approved as part of the application submitted. This provision for grading was not included in plaintiff ' s application. I Plaintiff must be an aggrieved party in order to bring this appeal. Therefore, whether the court has I jurisdiction to hear- this appeal must be determined initially. Bakelaar v. West Haven, 193 Conn. 59 , 65 (1984) . i Pleading and proof of aggrievement are a prerequisite to the trial court ' s jurisdiction over the subject matter of plaintiff ' s appeal, Distributors , Inc. v. Liquor 4 Control Commission, 177 Conn. 616 , 622 (1979 ) • V Li e e -4- The question of aggrievement is a jurisdictional one and claims of aggrievement present an issue of fact for the determination of the trial court with the burden of proving aggrievement resting upon the plaintiff who has alleged it. Bakelaar v. West Haven, supra, 65 ; Hall v. Planning Commission of Le 181 Conn. 442, 444 (1980 ) ; Hartford Distributors, Inc. v. Liquor Control Commission, supra, 622. The party claiming aggrievement must first successfully demonstrate a specific, personal legal interest in the subject matter -of the decision, as distinguished from a general interest, and second, that his specific personal and legal interest had been specially and injuriously affected by the decision. Huck v. Inland Wetlands & Watercourses Agency, '203 Conn. 525 , 530 (1987 ) ; Bakelaar v. West Haven, supra, 65. Aggrievement is established if "there is a possibility, as distinguished from a certainty, that some legally protected interest has been adversely affected. Ibid. Plaintiff ' s 'status as owner of the property establishes that he has a specific personal and legal interest in the subject matter of the Commission' s decision. The fact that Commission' s decision resulted in a denial to the plaintiff of the ability -to use his property as proposed f -5- establishes that "this specific personal and legal interest 2 has been specially and injuriously affected. " Accordingly, plaintif f is found to,be aggrieved by.; the denial, of his subdivision application. 7t .4.4 La Cava Construction Company had obtained .4.1 . - subdivision approval of a section of property known as Ridgefield II subject to conditions that, prior to Asubmitting applications for subsequent phases of Ridgefield, - a conceptual plan must be submitted to the Commission indicating a road going through from Felt Road to Foster V� Street and that Lots #40, #41, 142 and #43 , in a subsequent phase, may not be approved in their present configuration. 29 The Commission was expecting to see not more that three lots on the subject parcel. (Record 5 ) Although La Cava Construction Company had submitted the concept plan, it had not been reviewed by the Commission as of June 9, 1987. (Record 5) The Commission was of the opinion that the plaintiff was the actual owner of the property previously e� subdivided (Ridgefield II) and the proposed subdivision, notwithstanding that the application for Ridgefield II was -�i F •x e -6- submitted by La Cava Construction Company. Therefore, the Commission, deciding that the plaintiff was bound by the aforesaid conditions, denied plaintiff ' s application on the ` ground that the concept plan was not reflected in the present subdivision application. There is nothing in the subdivision regulations of the Commission which deals with any concept plan or which permits the Commission _ to impose, as a . condition of approving a prior application, conditions on the submission of and approval of any subsequent subdivisions of remaining parcels of land owned by the developer. Further, there is nothing in Conn. Gen. Stat. Sec. 8-26 which . allows for the imposition of conditions upon planning and zoning commission' s approval of a subdivision plan. "The statute merely provides for the Commission to approve, modify and approve, or disapprove a subdivision application. " Moscowitz v. Planning & Zoning Commission, 16 Conn. App. 303 , 308 (1988 ) . The subdivision met 'the requirements of the subdivision regulations. Therefore, the .Commission-- acted illegally in denying plaintiff's application because of the lack- of a concept plan. i 1 -7- III The next issue is whether the Commission properly denied the plaintiff ' s application on the ground that at least one lot (#45 ) did not meet the requirements of Section 5 .1.a of the zoning regulations (10,000 sq. ft. of contiguous buildable area with no slopes in excess of 15% ) . The record discloses that Lot #45 has a slope of approximately 17% . However, there is no regulation in the Town of South Windsor Subdivision Regulations such as Section 5 .1.a of the Town of South Windsor Zoning Regulations. Accordingly, the Commission cannot justify denial of plaintiff ' s application on that ground. If such a regulation did exist, it would be applicable only to the lot with the excessive grade and not to the lots which met the subdivision regulations. A planning and zoning commission acts in an administrative capacity in approving a subdivision application and acting in such a capacity, it has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance. Forest Construction Co. v. Planning and Zoning Commission, 155 Conn. 669 , 674-675 (1967 ) . 1 e F -8- The record indicates that the slope problem was of a minor nature and that it was a 'condition the Zoning Commission of South Windsor has the authority to act on t pursuant to Section 5. 1.a of its regulation if a building �r permit is requested for said lot. r For reasons stated, the defendant 's denial of plaintiff's y unreasonable, easonablc__and.,,in abuse_,-of its discretion. Therefore, plaintiff' s appeal - is sustained. h { Vasin ton, J. i I i TATOIAN, DEVLIN, PETERS & DAVIS ATTORNEYS AND COUNSELLORS AT LAW PHILLIP E.TATOIAN, JR. II SOUTH ROAD ROBERT F.PETERS f POST OFFICE BOX 400 MICHAEL J. DEVLIN GLENN T.DAVIS SOMERS, CONNECTICUT 06071 SCOTT R.CHADWICK �- �" TELEPHONES: r G f (203)749-0793 (203)627-9071(HARTFORD) TELEFAX(203)627-9073 r January 13, 1989 Mr. William Krawski b �- 130 Buckland Road South Windsor, Cr 06074 ` ,�. �A. t - RE: Krawski v. South Wir>rdsor Planning & Zoning _ i Dear Bill: Please find enclosed Memorandum of Decision received by this office on January 13, 1989, wherein Judge Vassington sustained our appeal indicating that the action of -the planning and zoning commission was illegal,: I would suggest that you take a corr>plete set of prints of the subdivision and present them to the planning office for approval. Those maps should then be filed in the office of the Town Clerk immediately. Should you have any prob kindly contact this office immediately. I have also enclosed herewith my statement fo leg services rendered. Very t y yo , ip . Tatoian, Jr. PET,JR/ltnl Enclosures TATOIAN, DEVLIN, PETERS 8 DAVIS ATTORNEYS AND COUNSELLORS AT LAW PHILLIP E.TATOIAN, JR. 11 SOUTH ROAD ROBERT F.PETERS MICHAEL J.DEVLIN POST OFFICE BOX 400 GLENN T. DAVIS SOMERS, CONNECTICUT 06071 SCOTT R.CHADWICK TELEPHONES: (203)749-0793 (203)627-9071(HARTFORD) TELEFAX(203)627-9073 March 17, 1989 Mr. William Krawski 130 Buckland Road South Windsor, CT 06074 RE: Krawski v. South Windsor P & Z i P Dear Bill: We have, this date, received notification that your case against the Town of South Windsor Planning & Zoning Commission has been granted certification for review by the Connecticut Appellate Court. It is suggested that, as soon as possible, you take the appro- priate steps necessary to regrade Lot 45, as well as any other lot , if applicable, so that it conforms with South Windsor' s 15% grade maximum within a 100 ' x 100 ' square. Once the regrading is completed, you may then wish to reapply for subdivision approval with the issue of the grading removed from your subdivision application. While this appeal is pending, I would appreciate your making some regular periodic payments on our existing and outstanding bill. I would anticipate an additional $5, 000 to $7, 500 as the cost of defending the appeal to the Appellate division. If you have any questions with regard to is tter, please do not hesitate to contact me. Very t 1 y r , Ph ' 1 p E. Tato an, Jr. PET, JR/lml It wM C aps �. 1540 SULLIVAN AVENUE • SOUTH WINDSOR., CONN. 06074 AREA CODE 203/644-2511 �SOR•CD April 20, 1989 Mr. William Krawski 130 Buckland Road South Windsor, Ct. 06074 Dear Mr. Krawski: Pursuant to conversations between you and Planning Department staff, and pursuant to the letter dated March 17, 1989 from Attorney Phillip E. Tatorian to you regarding regrading of unapproved subdivision lots on Felt Road, pl.ease be advised that the Town of South Windsor Zoning Regulations do contain a provision regulating regrading of earth (see Section 10 enclosed) . You will note that Town Engineer's input is required prior to any regrading activities to determine if the proposed regrading requires Planning & Zoning Commission approval. Any regrading which is initiated without the required Town staff input and necessary approvals, would be in violation of the above- noted regulation. Thank you for your cooperation. Very truly yours, Marcia A. Banach Director of Planning MAB/pmm cc: John McCahill, Zoning/Wetlands Enforcement Officer Jerry C. Iazzetta, Town Engineer Raymond Hallowell, Planning & Zoning Commission Chairman IF i Jt APR 20 19S9 South Wird,,<,r Of RICHARD M. RITTENBAND � i�;�R�,�a.•.-- � - ,� A ATTORNEY AT LAW 17 5 0 47091 ELLINGTON ROAD MAY 8 1 � 90UTH WINDSOR.CONNECTICUT OW74 (203)644-2456 South Windsor planning & Zoning May 7 , 1990 Mrs. Louise Evans Chairman Planning and Zoning Commission Town of South Windsor 1540 Sullivan Avenue South Windsor, CT 06074 Re : Krawski v. South Windsor Planning and Zoning Commission; AC 7942 Dear Louise: We won the Krawski appeal. Enclosed is a copy of the Decision sustaining our appeal to the Appellate Court with an order to the Superior Court to dismiss Mr. Krawski' s appeal. Thank you. truly )Ri4ttenband a Ri RMR: ds Enc. „A 11111M�p pill� -- — — — OFFICE FOR APPEALS 231 Capitol Avenue Francis J. Drumm, Jr. Drawer Z.Station A Supreme Court Chief Clerk Hartford,Connecticut o6106 .• APPelHate Count May 4, 1990 WMLIAM KRAWSKI SOUTH WINDSOR P & Z COMMISSIOlN = Decision released: May 4, 1990 .� The enclosed decision will be published at a later date in the Connecticut w Journal. This notice serves as official notification to counsel and pro se parties of record. P.B. §§ 2012, 4121, 4129. By the Court, A Alan M. Gannusci o Assistant Clerk Appellate encl. Notice to: 5/4/90 Brady, Willard & Alexander' Richard Rittenband Devlin, Peters & Davis Clerk, Tolland J.D. CV87-0038921 WILLIAM KRAWSKI v. SOUTH WINDSOR PLANNING & ZONING COMMISSION (7942) BORDEN, SPALLONE and O'CONNELL, Js. Argued December 20 , 1989 -- decision released May 4, 1990- SPALLONE, J, The defendant commission appeals from the judgment of the trial court sustaining. the plaintiff' s appeal from the denial of his application for a subdivision plan. The commission claims that the court erred in concluding that the application 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 seventeen percent and was of such a size that a home 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 of less than fifteen percent.l The plaintiff expressed- an interest in retaining the . sl.oge to build a solar home, but stated that he would regrade the property if requested to do so. His engineer stated that the lot 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 subdivison 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 'submit'ting 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 ,either with zoning regulations -2- or with 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, th. 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. 4 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 Cann. 480, 483, 370 A.2d 1026 ( 1976) ; Camm v. Hart, 6 Conn. App. 284 , 2881 504 A.2d 1388 ( 1986) . ' Although planning and zoning are separate functions not to be interchanged; Vose v.- Planning '& Zoning Commission, supra; coordinatiod 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 ) . . f -3- ate zoning bd regulations ivision regulations incorpor Town su '. for the he town ' s requirements reference Section 2.1 of t by re " (a Ill P ' ent part that " [ l portions subdivi sion of land states in pectin - the Town Zoning n subdivision shall conform o • of any ---- subdivision plan Regulations " The requirement that a I - com ly with zoning re9ula�tion s " is mirrored in an even more P 8-26 . ' cement -in General Statutes § rin ent1Y drawn s unl•lar requi 509 , 514 • st 9 Zonis Cols►mission, 5 Conn. APP• Federico v. Planning of ct•ion 8-26 , which 'concerns approval 500 A.2d - 571 (1985) • Se shall be "nothing. in this Section subdivision plans , provides that subd such subdivision ' the commission to approve any deemed to authorize resubdivision which conflicts with applicable zoning or in holding regulations. We conclude that the trial court erred g subdivision that town zoning regulations ,may not be the basis for t planning decisions . commission, hoWever, does not have unbridled discretion The ulation as the basis for e a v reiolation of a. zonin9 9 to use "Generally , it is the a subdivision application. disapproving within board or commission to decide function of a zoning boa ts] legal prescribed t with the exercise of [i limits and consisten regulations a particular. section of the zoning discretion, whether -4- . A• AiT ..�i given situation and the manner in which it does r "INC� applies to a + • Schwartz v. Planning & Zoning apply, (Citations omitted . • --- ' 46 , 152, 543 A.2d 1339 ( 1988) . "General Commission, 208 Con n. j. subdivision plans which conflict with Statutes § 8-26 bars s Y ^� ' & Zoning a licable regulations." Federico v. Planning Commission, suprat 515. • ' ssIon is endowed with liberal discretion in - A zoning comma applying the law to the facts of a case; id. ; and we must be cautious about disturbing commission decisions on review. 22120n v. Munici al -Plannina Co mmission, 10 Conn. App. 54, 56-57, 521 203 Conn. 807 , 525 A.2d 521 (1987) . The A.2d 5891 'cert. denied, . commission here has determined that the zoning regulation . � ions are applicable to its review of the governing slope limitat • oposed lot exceeds plaintiff' s plan and tha t the slope of one pr, these limitations. If the commission has reasonably and fairly exercised its honest �udgm ent after a full hearing, we must uphold its decision unless un reasonable, arbitrary or illegal. Id • l 57 ' The commission here has not arbitrarily reached out for an as a basis for its denial of the inapplicable zoning regulation lication. The slope limitation of town a plaintiff's subdivision PP ' S . 1 is explicitly made applicable to zoning regulations � • -5- municipal planning by the town's subdivision regulations. Pursuant to § 2. 1 of these subdivision regulations, subdivisions are .to be "designed, planned, and constructed in conformance with these regulations and the provisions of Sections 5. 1 and 5. 2 [for' conventional subdivisions .or Section 5. 3 for open space subdivisions] of the Zoning Regulations of the Town. "2 The subdivision regulations specifically direct the commission to review the slope grade limitation and the defendant here properly has done so. The plaintiff argues that .the commission impermissibly confused its planning and zoning functions by ',denying ' the subdivision plan because of a merely potential violation in the use of the land. The gist of the plaintiff 's argument is that the commission could -not validly base a planning decision on a zoning regulation which is only prospectively violated. We agree with the plaintiff that speculative violations may not be the basis of commission decisions and look to the guidelines enunciated - in Federico v. Planning & Zoning Commission, supra, to decide whether the commission correctly determined that this subdivision application contains an existing violation of the town zoning regulations. -6- In Federico v. Planning & Zoning Commission , supra, 514-15 , we concluded that a planning commission had mistakenly relied upon speculative testimony as - to the• future use of a proposed 16t to find zoning violations . These violations of frontage and yard size zoning requirements would occur, if ever, only when a subsequent building permit application positioned a residence on the site. Id. A commission may legally base subdivision application- denials on zoning violations "inherent in the plan itself as submitted" but not on those that are "entirely speculative. " Id. A subdivision plan which, as submitted, complies with town zoning regulations should not -be disapproved on merely "inchoate" violations. Id. In this case, the zoning violations cannot be considered speculative or inchoate . It is not the proposed use of the lot that violates the zoning regulations but rather its existing topographical features . The zoning violations were not brought to the commission's attention by speculative testimony, as in Federico; these violations are apparent on the face of the submitted subdivision plan. There was no need for the commission to wait for an application for a building permit in order to determine whether a home could be_ positioned on the lot in -7- a�•r+9.'d JR %conformity with zoning regulations. The town zoning regulations specify that each approved lot contain a ninety foot by ninety foot square of buildable area "on which the dwelling must be located." (Emphasis added. ) See § 5 . 1 .a , footnote 21 supra. Given the size and slope of the lot, it would be physically i conforming residence on the parcel , no matter impossible to site a • how the building plans were drawn. The p laintiff next argues that the trial court correctly Go found that the denial of the entire subdivision plan on the basis of one non conforming lot was unreasonable and arbitrary. we do not agree. The commission acted within its statutory power to Pursuant to § 8-26 , a commission disapprove the entire plan. "shall approve, modify and approve, or disapprove • application or maps and plans submitted once a .zoning violation has been found on the face of a submitted plan, a commission may not approve the plan. • Reed v. Planning & Zoning ion 208 Conn. 431 , 4331 AAA A•2d 1213 ( 1988) ; Moscowitz v. Commiss , mmissicn*1 16 Conn. App. 303 , 309-09 , 547 A. 2d Planning & Zoning Co _ 569 (1988) . A commission may, at its discretion, choose between approval with conditions . Moscowitz v. PZC , supra. disapproval - or A comma Y commission may even, under appropriate conditions , waive certain -8- J ' requirements by a three-quarters vote. General• Statutes 8-26 . The commission here decided to disapprove the subdivision plan and w • will" not substitute our own. '. ��udgment. See Goldfeld v. Planning & Zoning Commission, 3 Conn. App. 172, 178, 486 A. 2d 646 ( 1985) . The plaintiff further argues that a mandate to review a ' subdivision plan for conflicts with zoning regulations does not require a review for strict compliance with each and every zoning regulation. The plaintiff contends that his plan is in conformance with all major requirements of the zoning regulations, that the lot of excessive slope is ' only a. minor noncompliance and that regrading would be more appropriately done when home construction is planned. . We find no statutory support for a distinction between major and minor zoning violations. Nothing in the empowering statute or the towns, regulations requires the commission to approve plans with even easily remedied nonconformities or to postpone the decision until the commission has before it an application for a building permit . Moreover, the denial of this subdivision application is a decision appropriately taken at the planning stage of review when the plaintiff has available the widest range of options. The plaintiff here may choose regrading as the most cost effective way -9- i to bring this lot into conformity with the zoning regulations. He may alternatively elect to- increase the size of the buildable area of, the lot and retain the slope; especially in light of the commission's concerns on thre--record about the number of lots and driveways in the subdivision. The developer is better able than the zoning commission co weigh the costs -and benefits of these options, and the ultimate decision is best made at the planning stage. We conclude that the record in this case supports the commission's denial of the plaintiff 's subdivision plan on the basis of an inherent zoning violation. It is therefore unnecessary to consider the second reason for the denial based on the violation of the terms set in the prior subdivision rev.-.ewe The commission' s action must be upheld if even one. of the stated reasons is sufficient to support the decision. Manchester v. Zoning Board of Appeals, 18 Conn. App. 69, 72, 556 A.2d 1026 ( 1989) ; Anastasiou v. Zoning Commission, 6 Conn. App. 278 , 284 , 505 A.2d 8 (1986) . The trial court was in error in concluding that the defendant acted improperly. There is error, the judgment is set aside and the case is remanded with direction to render judgment dismissing the appeal . -10- ' FOOTNOTES / 1 r I _� Sect ions 5 . 1 .a and 5. 3.b- of the South Windsor zoning regulations provide in pertinent part that " [e] ach approved residential lot shall contain a contiguous building area ( 'buildable' defined as exclusive of areas with slopes at or in excess of 15%) of at least 10 ,000 square feet , into which a square of ninety feet by ninety feet (90 ' by 90 ' ) can be located, and on which the dwelling must be located. " 2 Although the plaintiff submitted an application for an open space subdivision which should conform to •zection 5.3 of the i town zoning regulations , the commission references section 5 .1 , which regulates conventional subdivisions , as the basis for its disapproval of the plan. Conventional and open space plans are merely alternative methods of subdivision design and sections 5. 1 .a and 5.3 .b contain identical language bn the permissible slope percentage. See note 1 , supra. -11- WILLIAM KRAWSKI v. SOUTH WINDSOIZ-PLANNING & ZONING COMMISSION ( 7942) BORDEN, SPALLONE and O'CONNELL, Js. - Argued December 20 , 1989 -- decision released May 4, 1990 BORDEN, J. , dissenting. I disagree with the majority that this subdivision plan violated an applicable zoni-ng regulation. I would also reach the issue of whether the commission' s second reason for denial of the plaintiff' s application was valid, and agree with the trial court in its ruling on that issue as well. Planning promotes the coordinated *develoi3ment of the municipality by ensuring its uniform and harmonious growth, while zoning regulates the use of land. Ferndale Dairy, Inc. v. Zoning Commission, 148 Conn. 172, 176 , 169 A.2d 268 ( 1961 ) ; Kiska V. Skrensky, 145 Conn. 28 , 32, 138 A.2d 523 ( 1958) . Subdivision regulation is a part of the planning function. General Statutes § , 8-25 and 8-26; .Vose v. Planning & .Zoning Commission, supra, 483. ti- Because of this bifurcation of functions, a planning commission, or as here, a planning and zoning commission sitting as a planning commission, does not have unbridled discretion in disapproving- 'subdivision applications based on any .claimed violation of a zoning regulation. The proffered zoning regulation - must be one that is applicable at the planning stage. In ,Federico v. Planning & Zoning Commission, 5 Conn. App. 509 , 500 A.2d 571 ( 1985) , this court considered the effect of a local subdivision regulation requiring subdivision plans to comply with zoning regulations . We required such a subdivision .regulation to be read in conjunction with General -Statutes S 8-26 , under which a planning commission cannot approve any subdivision "which conflicts with applicable zoning regulations ." (Emphasis added. ) Federico established a framework for distinguishing those zoning regulations that are applicable when reviewing subdivision applications from those inchoate violations that may not be used by a planning commission at that stage of review. A planning commission may only disapprove a subdivision application based on "zoning violations inherent in the plan itself as submitted and not potential use violations. Such requirements relate to subdivision pians' which in and of themselves would violate zoning -2- d. r 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 prohibted_suCh- use. Inchoate violations involving the use of the lot in question, which may never occur, form no basis for a conclusion that a conflict exists between the approved subdivision plan and the zoning regulations so as to render- the subdivision approval void. " - Id. , 515. The issue here , then, is whether the excessive slope under § 5. 711.a is a zoning violation "inherent in the plan as submitted," or is an " [i] nchoate violation involving the use ,of the lot in question . . . Id. I conclude that under the facts of this case, the violation of 5.1 .a because of the seventeen percent slope did not involve a zoning violation inherent in the subdivision plan itself. The focus of S 5. 1.a is on. the slope of the land surrounding a dwelling to be built on the lot. If and when a building permit is sought -- that is, when the use of the lot is sought -- the owner will be required to comply with S 5.1.a. Where , as here, the slope of the lot in question is not immutable,l such compliance cannot be determined until the applicant for a building -3- permit proposes the location of the dwelling on the lot. Under 5. 1.a, the dwelling must be located in a ninety foot square within a contiguous area of at least 10',000 square feet having a slope of less than fifteen percent. It-is-clear from this record that the potential slope violation was minor, and that the owner could regrade the lot at any time prior to seeking a building permit. In that event, there would not be a zoning violation. Thus , the purported violation of S 5.1 .a was inchoate and may never occur. The commission also claims that the court erred in concluding that the defendant' s second reason for disapproval was invalid , namely, that it had already approved a previously- submitted "concept plan" for a four lot subdivision on the parcel in question, rather than a five lot subdivision. I believe this claim to be without merit. The commission relies on § 3.1 .a of the subdivision regulations. That section provides in pertinent part : "It is . recommended that the applicant prepare a set of preliminary plans for the initial meeting with the Commission. The purpose of the meeting is to afford the subdivider an informal opportunity to avail himself of the advice and assistance of the appropriate Town officials before preparation of the final plans , and before formal f -4- ,. application for subdivision is made.," (Emphasis added. ) This section does no more than set forth a permissive procedure under which a subdivision applicant may obtain an informal review prior to the submission of a formal application. . r There is nothing to suggest that this preliminary planning . procedure creates binding standards that must be followed when a final application is formally submitted. Furthermore , there is- nothing in General Statutes § 8-26 that . provides for the use of binding preliminary or concept. plans in the subdivision approval process. A planning commission can only exercise those powers expressly granted to it, and in determining whether it has the authority for a specified act, " 'we do not search for a statutory prohibition against such an . [action] ; rather, we must search for statutory authority for the action."' (Citations omitted. ) Moscowitz v. Planning & Zoning Commission, 16 Conn. App. 303, 308, 547 A. 2d 569 ( 1988) , quoting Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 274-75, 545 A. 2d 530 (1988) . I therefore would find no error. f -5- Ir FOOTNOTE OTE 01 1 I cannot agree w' • 9 with- the majority that a zoning violatio cannot be considered speculative or inch oate simply because it involves a physically -existingt • topographical feature. The majority treats the slope variance. as if it were an immutable characteristic. Where, as here, the slope variance was minor, this may not necessarily be true. The majorit y fails to take * cognizance of the fact that a slope violation can be corrected by regrading when a building permit under the majority dec is applied for. As . a result, ision, the plaintiff w . ' . would he forced to regrade the property at the time of Subdivis ion approval rather than when he is ready to build. This re_ sult is unnecessary under our statutes, which distinctly separate the planning and zoni • ng functions. Compare General Statutes SS 8-1 through 8-13a ( zoning) with General Statutes SS 8-18 th • rough 8-30 a (planning) . f -6- ■ esign rofessionals, inc. civil engineers • planners • surveyors • ■ May 23 , 1990 Scott R. Chadwick, Esq. TATOIAN, DEVLIN, PETERS & DAVIS 11 South Road Post Office Box 400 Somers, Connecticut 06071 Re: Krawski v. South Windsor Planning & Zoning Commission Dear Attorney Chadwick: Please be advised that I have prepared the attached grading plan for Lot #45 at Ridgefield Section IIIA and it contains slopes less than 15% within the 10 ,000 sq. ft. contiguous area and within the 90 ' x 90 ' square. Sincerely, DESIGN PROFESSIONALS, INC. By. • Ro ert �. rsenaul�t. P.E. Principal 1170 Ellington Road (Route 30), South Windsor, CT 06074 (203) 291-8755 Mrs. Louise Evans, Chairman Planning and Zoning Commission Town of South Windsor 1540 Sullivan Avenue South Windsor, 'CT 06074 Dear Mrs. Evans: With reference to our meeting on d 3 N 90 during which we plan to discuss possible changes in thba ove-referenced application, or the filing of a new application with the Planning and Zoning Commission, I understand and agree as follows: 1 . This is an informal meeting for discussion purposes only. 2. This is not a meeting of the Commission and you are not speaking on behalf of the Commission. 3. Anything you say at this meeting shall not be construed as a commitment or a binding representation by you or the Commission; and 4. I will not rely upon any statements made or any part of the discussion. Dated at South Windsor, Connecticut this day of 19_qp. Signed S<o-tA je• cZ�C�1� William Krawski vs. Planning & Zoning Commission of the Town of South Windsor June 8 , 1990 In exchange for approval of the five lots, the plaintiff offers the following proposal to resolve pending litigation: 1) . Plaintiff agrees to regrade lot No. 45 to achieve slopes less than 15% within the contiguous buildable area (10,000 sq. ft./90 ft. x 90 ft. ) , as shown on a plan prepared by Design Professionals, Inc . Mr. Robert Arsenault, P.E. , has stated in writing that the maximum proposed slope within said contiguous buildable area is less than 15%. 2) . Plaintiff agrees to immediately apply to the Planning & Zoning Commission for an amendment to the zoning regulations clarifying that buildable conditions (i.e. , slopes) as defined in Section 5.1.a, expressly means existing conditions. 3) . Plaintiff agrees to stake out the area of regrading and tree-clearing on all lots prior to regrading and tree clearing activities, for inspection/approval by the zoning enforcement officer. Said activities shall be restricted to the areas necessary for regrading, driveway, house, garage, shed and utility connections. If necessary, this could be backed up with a conservation easement. 4) . Plaintiff agrees to restrict the maximum house size on all five lots to 1400 square feet of floor area (excluding basement and garage) , for a term of five years. This is the maximum house size permitted in the zone. 7T SUPRENM COURT STATE OF CONNECTICUT � D IV JUN191990 NO. PSC-89-1161 South Windsor Planning & Zoning Commissiob William Krawsla V. Planning and Zoning Commission of the Town of South Windsor ORDER ON PETITION FOR CERTIFICATION TO APPEAL On consideration of the petition by the plaintiff for"certification to appeal from the Appellate Court (21 Conn. App. 667), it is hereby ordered that said petition be, and the same is hereby denied. BY THE COURT, ASSISTANT CLERK APPELLATE Dated: June 14, 1990 Notice to: 6/14/9 0 Clerk, Superior Court, Tolland, 38921 Clerk, Appellate Court ' Devlin, Peters & Davis Brady, Willard & Alexander Richard R.ittenband Scott R. Chadwick in-support of petition; Richard M, Rittenband, in opposition.