Krawski v. Planning & Zoning Commission

Borden, J.,

dissenting. I disagree with the majority that this subdivision plan violated an applicable zoning 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 development 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, 171 Conn. 480, 483, 370 A.2d 1026 (1976).

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 576 (1985), this court considered the effect of a local subdivision regulation requiring subdivision plans to comply with zoning regu*676lations. We required such a subdivision regulation to be read in conjunction with General Statutes § 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 disapprove only those subdivision applications based on “zoning violations inherent in the plan itself as submitted and not potential use violations. Such requirements relate to subdivision plans that 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 that prohibited such use. Inchoate violations involving the use of the lot in question, which may never occur, form no bases 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 § 5.1.a is a zoning violation “inherent in the plan as submitted,” or is an “[ijnchoate [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 17 percent slope did not involve a zoning violation inherent in the subdivision plan itself.

The focus of § 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 § 5.1.a. Where, as here, the slope of the lot *677in question is not immutable,1 such compliance cannot be determined until the applicant for a building 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 15 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 § 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 offi*678cials before preparation of the final plans, and before formal 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. 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 exercise only 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.

I cannot agree with the majority that a zoning violation cannot be considered speculative or inchoate simply because it involves a physically existing 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 majority fails to take cognizance of the fact that a slope violation can be corrected by regrading when a building permit is applied for. As a result, under the majority decision, the plaintiff would be forced to regrade the property at the time of subdivision approval rather than when he is ready to build. This result is unnecessary under our statutes, which distinctly separate the planning and zoning functions. Compare General Statutes §§ 8-1 through 8-13a (zoning) with General Statutes §§ 8-18 through 8-30a (planning).