WILLIAM J. NEWMAN et al. v. AVON PLANNING AND ZONING COMMISSION et al., SC 18106/18107

Judicial District of Hartford

 Zoning; Whether Zoning Commission Could Rely on its Historical Interpretation of Regulation Setting Forth Maximum Density Requirements for Certain Residential Lots; Whether Regulation Should Have Been Interpreted in Favor of Landowners Directly Affected By It.  Mary Markow and Eric R. Secor, Jr., applied to the Avon planning and zoning commission for permission to subdivide their four-acre parcel of property into two two-acre lots.  The parcel was located in a RU-2A zone, and according to section IV, 4.5 of the town's zoning regulations, any parcel located in a RU-2A zone that is developed for residential use must have a maximum density of .3 single family units per acre.  In approving the subdivision application, the commission relied on a traditional practice of going back to the "parent" parcel within which the property to be re-subdivided existed in 1957, when the subdivision regulations were adopted.  In 1957, the subject property was part of a lot known as the "Alsop Homestead."  Thirty-four acres of the Alsop Homestead were located in Avon, and the commission considered this acreage as the parent parcel.  The commission then applied the density formula of .3 units per acre, taking into consideration the entire parent parcel, and concluded that the total number of lots that could be created from the acreage would be thirty-four times .3, or 10.2 lots.  It further determined that since the parent parcel had already been subdivided into eight parcels, two more lots could be created from the parent parcel.  Hence, it essentially concluded that the excess acreage of the remaining lots in the parent parcel permitted the re-subdivision of the subject property.  Several neighboring property owners appealed from the commission's ruling, arguing that section IV, 4.5 requires a minimum of 3.33 acres for a single family dwelling.  In sustaining the neighbors' appeal, the trial court found that the commission improperly relied on its historical practice of going back to the parent parcel in determining whether the proposed subdivision application satisfied the density requirements of section IV, 4.5.  It determined that nothing in the written zoning or subdivision regulations supported the commission's conclusion that the term "parcel" set forth in section IV, 4.5 refers to a parent parcel.  It also determined that "prospective or present owners of nearby lots should not be required to rely on a historical formula for calculating density, not set forth in some regulation available to the public and not ascertainable without some esoteric search into historic commission procedures, which would not yield any written authority, but only the oral testimony of commission staff or members."  The trial court therefore voided the commission's ruling.  Markow and Secor now appeal from the judgment of the trial court, arguing that the court improperly concluded that the commission could not rely on its historical interpretation of the word "parcel" contained in section IV, 4.5 in determining whether their subdivision application satisfied the requisite density requirements.  The commission has also appealed and raises a similar argument.  The commission further argues that the court should have construed the arguably vague density regulation in favor of Markow and Secor rather than deferring to the interests of their neighbors.