Opinion
No. HHB CV 074015968S
June 1, 2009
MEMORANDUM OF DECISION
This is an appeal by the plaintiff, Dauti Construction, LLC ("Dauti") from the decision of the Newtown Water and Sewer Authority ("WSA") denying its application for a sewer connection to property located at 95 and 99 Church Hill Road in Newtown. ("The Property.")
The appeal is properly and timely brought pursuant to General Statutes § 7-246a and General Statutes § 8-8. Based on the facts presented at the time of trial, the court finds the plaintiff, as owner and contract owner of the property, is aggrieved.
BACKGROUND AND FACTS
Plaintiff, Dauti is a Connecticut limited liability company with a place of business at 5 Woodstone Court, Danbury, Connecticut 06811. Dauti is the owner of a parcel of land at 95 Church Hill Road in Newtown, Connecticut, and the contract purchaser of an adjacent parcel of land at 99 Church Hill Road, (collectively, the "Property"). Together, the two parcels contain approximately 4.5 acres.
Defendant Newtown Water Pollution Control Authority ("WSA"), is the agency designated by the Town of Newtown ("Town") to carry out the duties of a municipal water pollution control authority as set forth in Chapter 103 of the Connecticut General Statutes and to receive, process and act upon sewer applications.
Pursuant to the provisions of Conn. Gen. Stat. § 7-245, et seq. the Town, acting through its Board of Selectmen, has adopted ordinances that authorize the issuance of sewer usage connection permits, set forth general sewer usage requirements and prohibitions, authorize the levy of sewer usage charges, authorize the levy of benefit assessments, and authorize the issuance of notices of violation and the assessment of penalties for the violation of such provision. Pursuant to the provisions of Conn. Gen. Stat. § 7-246 and the ordinances adopted by the Town, the WSA has adopted regulations known as the "Newtown Sewer Use Regulations." Pursuant to the Newtown Sewer Use Regulations, and the maps adopted pursuant to Section 1.5.2 of the Newtown Sewer Use Regulations, the Property lies within a Sewer Service Area.
The regulations provide that the Water and Sewer Authority shall establish separate regulations relative to the operation of and connection to the water and sewerage systems (Record #4). A priority matrix is set forth in the Town of Newton Water Pollution Control Plan, amended June 24, 1999 which provides, "The purpose of this Plan is to designate and delineate the boundaries of areas to be served by Town sewers and areas where sewers are to be avoided and to describe policies and programs to be carried out to control surface and groundwater pollution problems." Section IV of the Plan provides in pertinent part: "The WPCA adopted a priority matrix for the central sewer service area to ensure that the limited treatment plan capacity of 332,000 gpd can be allocated in a logical manner. As used herein, the terms existing and current refer to the adoption of this matrix, April 28, 1994." (Record #3.)
In January and February 2006, Dauti submitted applications to the Newtown Inland Wetlands Agency and the Newtown Planning and Zoning Commission. These applications sought permits for the construction of 23 residential units on a portion of the Property.
In response to a preliminary request for sewer service to the property, the WSA in a letter dated July 14, 2006, to Dauti, its representatives and to all Town Boards offered the following guidance: "The property lies entirely within the central sewer district and the Owner shall be required to install a building sewer to connect the building drain to the public service. The Owner has submitted plans for development that do not meet current zoning and an application for zone change is being considered by the Town. Under the priority matrix for sewer service adopted by the WSA and on file with the state DEP, the WSA has not allocated any sewer capacity for potential development not meeting current zoning. Because a zone change would allow sewer discharge greater than that allocated for this property, the WSA recommends that the application for zone change be denied." (Record #14.)
On August 3, 2006, the Planning and Zoning Commission denied the applications associated with the proposal to construct 23 residential units.
In October 2006, Dauti submitted an application to the Town's Planning and Zoning Commission for a zoning amendment, map change and site plan approval in connection with its proposal to develop the Property with 26 residential units.
In a response to the Newtown Planning and Zoning Board's request for review and comment dated January 16, 2007, the WSA stated, "the proposed development does not meet current zoning as defined in the Plan." The Plan makes clear that the term `current' for zoning refers `to the adoption date of this matrix, April 28, 1994.' . . . As of that date all properties within the sewer service area (developed or undeveloped) were assigned a specific gallonage per day of sewer treatment plant capacity. The Dauti project area was assigned 850 gpd at that time (1 acre zone, 4 acres total and 212.5 gallons of capacity per equivalent dwelling unit)." (Record #15.)
On April 5, 2007, the Town's Planning and Zoning Commission denied the application for a zoning amendment, map change and site plan approval in connection with its proposal to develop the Property with 26 residential units, stating in pertinent part:
The findings herein clearly support the conclusion that sewers will not be available to the Project based upon the communications from the WSA that the Property is not entitled to a sewer allocation sufficient to support the Project.
Because the applicant has failed to provide an adequate sewage disposal plan to meet the needs of future residents of the Project, the evidence supports the conclusion that the substantial public health interest in providing sewers outweighs the need for affordable housing.
Dauti appealed the April 5, 2007, decision of the Newtown Planning and Zoning Commission, which is currently pending in the Superior Court, Judicial District of New Britain, Docket No. HHB-CV-07-4014556-S.
On August 7, 2007, pursuant to Conn. Gen. Stat. § 7-246a, Dauti applied to the WSA for approval to hook up to the sewer system at Dauti's expense, and to discharge domestic sewage associated with its proposal to develop the Property with 26 residential units (the "Application").
The WSA received the Application at its meeting on August 16, 2007. At its meeting on September 20, 2007, the WSA denied Dauti's Application, claiming that Dauti's Application did not meet the "priority matrix."
The WSA published notice of its decision to deny Dauti's Application on October 5, 2007, in the Newtown Bee.
I SCOPE OF REVIEW
"In considering an application for sewer service, a water pollution control authority performs an administrative function related to the exercise of its powers . . . When a water pollution control authority performs its administrative functions, a reviewing court's standard of review of the [authority's] action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion . . . Moreover, there is a strong presumption of regularity in the proceedings of a public agency, and we give such agencies broad discretion in the performance of their administrative duties, provided that no statute or regulation is violated . . .
"With respect to factual findings, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the authority] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [authority] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [authority] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a [water pollution control authority's] findings, it cannot substitute its judgment for that of the [authority] . . . If there is conflicting evidence in support of the [authority's] stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The [authority's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given . . . Accordingly, [the court] review[s] the record to ascertain whether it contains such substantial evidence and whether the decision of the defendant was rendered in an arbitrary or discriminatory fashion." (Citations omitted; internal quotation marks omitted.) Forest Walk, LLC v. Water Pollution Control Authority, 291 Conn. 271, 285-87, 968 A.2d 345 (2009).
"[A] presumption of validity is accorded to municipal ordinances. Every intendment is to be made in favor of the validity of the ordinance, and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt . . . The burden of proving the ordinance is invalid rests upon the party asserting its invalidity . . . and in this case, the burden is on the plaintiff." (Citations omitted; internal quotation marks omitted.) Pollio v. Planning Commission, 232 Conn. 44, 49, 652 A.2d 1026 (1995).
II DISCUSSION CT Page 8935
In its brief, the plaintiff argues, alternatively, that (1) the defendant water and sewer authority's denial was an illegal exercise of zoning authority because it was based on regulations that illegally confer zoning authority upon the defendant, and (2) the defendant's decision is not supported by substantial evidence in the record. For these reasons, the plaintiff argues, approval of its application was required and the appeal should be sustained.In support of its first argument, the plaintiff contends that the defendant denied the plaintiff's application because it "did not meet `current zoning' — defined in the Water Pollution Control Plan and the Sewer Use Regulations as the 1994 zoning of the property." It argues that this denial was ultra vires because it exceeds the defendant's statutory authority, which is limited to designation of areas where sewer service is to be provided and assuring that connections do not exceed capacity. It further maintains that the denial intrudes upon the exclusive authority of the planning and zoning commission because its priority matrix and water and sewer regulations are zoning-based, in that they regulate the use of land and the density of development.
The Water Pollution Control Plan, provides in relevant part: "As used herein, the terms existing and current refer to the adoption date of this matrix, April 28, 1994."
Relying on Wright v. Woodridge Lake Sewer District, 218 Conn. 144, 149, 588 A.2d 176 (1991), and the trial court decision issued after the case was remanded for a new trial; see Wright v. Woodridge Lake Sewer District, Superior Court, judicial district of Litchfield, Docket No. CV 0043504 (January 7, 1992, Susco, J.), the plaintiff argues that absent the adoption of zoning authority, a water and sewer authority may not limit the density of development to preserve sewer capacity for landowners who may decide to develop their properties in the future, as such a regulation would operate as a zoning regulation. It argues that by requiring all properties within the sewer service area to connect to the sewer, but limiting the sewer capacity allocated to each property to a level determined in 1994, the defendant "inhibits the ability of the [planning and zoning commission] to change the zone of the property in accordance with the comprehensive zoning plan, the Newtown Plan of Conservation and Development, or other lawful considerations." It maintains that even if the planning and zoning commission decides to change the zoning designation of the property to allow for greater density on a particular site, the defendant "can veto such a change by limiting the sewer capacity." The plaintiff argues that because these regulations exceed the scope of authority delegated to the defendant, they are ultra vires and illegal as applied to the plaintiff's application. Accordingly, it contends, the defendant's denial of the plaintiff's application was ultra vires and illegal.
The defendant counters that the plaintiff's arguments are without merit for several reasons. First, it argues that the plaintiff "completely ignores the fact that the Town's priority matrix was developed to comply with the terms of the Stipulated Judgment that required the Town to develop a sewer avoidance plan in order to address specific groundwater pollution problems in a defined area." It maintains that if the town were to develop a plan that would allow for increased capacity, the town could be held in contempt of court. Second, the defendant contends that the priority matrix provides a "standard or rational basis for reviewing applications" because it "allows for the most objective and nonarbitrary means of allocation." Third, the defendant contends that, if it were to grant the application, the plaintiff would benefit to the detriment of the other property owners in town who have already paid for a future right to connect to the sewer, and who may later wish to connect to the sewer system, because the capacity of the sewer system is limited to 332,000 gallons per day.
Fourth, the defendant argues that the plaintiff's contention that the priority matrix impermissibly regulates zoning "elevates form over substance" because land use agencies "regularly limit development and such regulation is not a usurpation of a zoning commission's function, particularly where a zone change is involved." The defendant attempts to distinguish Wright v. Woodridge Lake Sewer District, supra, Superior Court, Docket No. CV 0043504, by arguing: (a) the town in that case was not required by court order to develop a sewer avoidance plan that included an allocation of limited sewer capacity; (b) evidence was not presented in Wright to show that property owners had been assessed and had paid their assessments and would, therefore, be disenfranchised if they were left without sewer capacity; (c) Wright involved a sewer amendment that was based on pure speculation that other land in the district would be developed to the same extent as a high density forty-unit planned development; and (d) the amendment in Wright was adopted when there were no zoning regulations in place, thereby effectively changing the zoning for the properties in the district. The defendant maintains that in the present case, at the time the priority matrix was adopted, it was consistent with then current zoning for each property, which "allowed for the most reasonable projection of sewer needs at the time the Plan was adopted. In fact, it would have been pure speculation if the [defendant] had projected that a property owner, such as [the plaintiff], would seek a zone change almost a decade later and base its allocation on that speculation." Accordingly, the defendant argues, the plaintiff has failed to meet its burden of proving that the plan and the regulations are invalid beyond a reasonable doubt.
In support of this argument, the plaintiff contends that, under the plaintiff's reasoning, an inland wetlands agency that denied a wetland permit would be regulating zoning impermissibly if that denial became the basis for a zoning commission's denial of a zone change. It maintains that a denial of a wetland permit under such circumstances is analogous to the present case and would not be ultra vires despite the fact that its decision would ultimately affect the zoning of the property. This hypothetical is inapposite because a denial of a wetland permit under such circumstances would not be analogous to the defendant's denial of a sewer permit in the present case. A denial of a wetland permit based on an adverse impact on the wetlands is within the statutory authority of an inland wetlands agency. General Statutes §§ 22a-42a(c)(1), 22a-42a(d)(1) and 22a-41. By contrast, as the plaintiff argues, regulation of density and use of property is not within the jurisdiction of a sewer authority; see generally General Statutes § 7-245 et seq.; but is within the jurisdiction of a zoning commission. General Statutes § 8-2. Although both a denial by an inland wetlands agency and a denial by a water pollution control authority might result in a subsequent denial of a zone change for the same property by a zoning commission, the plaintiff is not arguing that this result constitutes an illegal exercise of zoning powers. Rather, the plaintiff is arguing that the defendant's imposition of a density limitation on the plaintiff's property is an illegal exercise of zoning authority by a water and sewer authority.
In its reply brief, the plaintiff counters that the stipulated judgment between the commissioner of environmental protection and the town of Newtown provides no authority for a denial of an application for a sewer connection based on zoning considerations. It maintains that this stipulated judgment does not order or compel the defendant to allocate sewer capacity parcel by parcel based on zoning. Rather, it merely provides deadlines for the planning and construction of a waste treatment facility and does not prescribe any particular allocation method. Specifically, the plaintiff notes that in the stipulated judgment, the town agreed to fund the construction of a water pollution control facility, agreed to a schedule for development, construction and commencement of operations for such a facility and agreed to penalties for its failure to comply with the stipulation. It notes that the stipulation contains no provisions relating to the allocation of sewer capacity. It argues that the stipulation indicates that the town already had adopted a water pollution control plan prior to the stipulated judgment and that the stipulated judgment in no way ratifies that plan. Moreover, the plaintiff maintains, regardless of whether the stipulation contains provisions relating to allocation of capacity, a stipulated judgment could not authorize the defendant to act beyond its statutory authority. Accordingly, it contends, the defendant's argument that its allocation plan is enforceable as a court order is without merit.
The plaintiff further argues that impacts of the proposal on other properties are irrelevant because the defendant has conceded that adequate capacity exists within the sewer system for the plaintiff's proposed development. The plaintiff maintains that the defendant's claim that it would be required to provide millions of gallons of capacity to the other properties in town if it were to grant the plaintiff's application is not supported. Moreover, it maintains that the record contains no evidence that approving the plaintiff's application would disenfranchise other potential users or undermine the public welfare. It contends that by indicating that the system has adequate capacity for its proposed discharge, the defendant admits that the system will protect current and potential users. It notes that the court in Wright v. Woodridge Lake Sewer District, supra, Superior Court, Docket No. CV 0043504, found that preservation of sewer capacity for future development was unreasonable because the sewer authority chose to base its limitations on zoning considerations. It maintains that, similarly, the defendant in the present case may not defend its denial by stating that such denial protects capacity when it has indicated that the system has the capacity to handle the plaintiff's proposed discharge.
Finally, the plaintiff argues that when an applicant applies for a sewer connection, rather than a sewer extension, a sewer authority has no discretion to deny an application that complies with its regulations. It contends that in the present case, it has presented an application that meets the defendant's specifications for a connection. It argues that regardless of its rationale for adopting its regulations, the defendant does not deny that its regulations are zoning-based, and the regulations, therefore, exceed the scope of authority granted to it. It distinguishes Forest Walk, LLC v. Water Pollution Control Authority, Superior Court, judicial district of Waterbury, Docket No. CV 06 4009486 (September 28, 2007, Upson, J.) [44 Conn. L. Rptr. 328], aff'd, 291 Conn. 271, 285-87 (2009), upon which the defendant relied in arguing that a sewer authority has broad discretion in deciding whether to supply sewerage, by noting that Forest Walk involved an application to extend the existing sewer system into a new area, whereas the present case involves an application to connect to the sewer system, which already serves the plaintiff's property, over which a sewer authority's discretion is limited to determining whether the application meets the regulatory requirements.
For the reasons discussed below, the court agrees with the plaintiff that the defendant's regulations allocating sewer capacity based on the zoning of the property in 1994 are invalid and, therefore, the appeal must be sustained. Because the defendant has not offered any additional evidence demonstrating that its regulations, specifically the "priority matrix" incorporated into the town's water pollution control plan are rationally related to the public health, safety and welfare and do not operate in a manner that is not arbitrary, oppressive or fraudulent; see Wright v. Woodridge Lake Sewer District, supra, 218 Conn. 149; and because the record does not contain such evidence, the court sustains this appeal for essentially the same reasons that the amendment at issue in Wright was invalidated by the trial court on remand, i.e., that the regulation was not based on engineering data or health data showing that the regulation is rationally related to public health and safety concerns, that the restriction was based on the mere mathematical calculation of sewage that would be generated if all properties were developed to the same density as the subject property and that the water and sewer authority had not adopted zoning authority.
In Wright v. Woodridge Lake Sewer District, supra, 218 Conn. 144, the Supreme Court reversed a decision by the trial court in a declaratory judgment action brought to challenge a sewer ordinance similar to the regulatory provisions at issue in the present case. In Wright v. Woodridge Lake Sewer District, supra, 218 Conn. 144, the court set forth the relevant portions of the amended ordinance at issue as follows: "`[N]otwithstanding any other provisions of this Ordinance, [connection] permits hereunder shall be issued only under circumstances such that there shall be no more than (1) dwelling unit equivalent per acre or per smaller lot of record as may exist as of the date of this provision of this Ordinance.' The amendment defines `dwelling unit equivalent' as `any use reasonably expected, consistent with good engineering practice, to generate less than 200 gallons of sewage per day.'" Id., 146. The amendment at issue in Wright differs from the regulation at issue in the present case in that in Wright, the amendment itself limited development to one dwelling unit per acre, whereas the regulation in the present case limits a certain allocation of capacity to "[p]otential development meeting [April 28, 1994] zoning within the sewer service area." In effect, however, these regulations are analogous because the zoning of the plaintiff's property in 1994 limited development to one dwelling unit per acre and the priority matrix does not allow for any change in density for this property after April 28, 1994. The regulation at issue in this case, therefore, has the same effect as the amendment in Wright because both regulations limit density. The plaintiffs brought the declaratory judgment action to invalidate the ordinance at issue because it was, inter alia, an unlawful, de facto exercise of planning and zoning authority. Id., 146-47. In considering the plaintiff's claims, the trial court refused to consider any evidence other than evidence concerning the plaintiffs' aggrievement. Id., 147. On appeal, the Supreme Court held that the trial court had erred in invalidating the ordinance without considering the evidence offered by the defendant sewer authority as to the design and capacity of the sewer system and the underlying purpose of the sewer ordinance. Id., 148. The court explained: "Municipal regulations are upheld as a legitimate exercise of the police power provided that they are rationally related to the public health, safety and welfare and operate in a manner that is not arbitrary, oppressive or fraudulent . . . Whether municipal regulations meet the test of legitimacy must be determined in the light of the circumstances shown to exist in a particular case." (Citations omitted.) Id., 149-50. The court determined that the trial court had erred in refusing to consider the defendants' evidence "relevant to the issue of whether the sewer ordinance, as amended, is rationally related to the operation and maintenance of a sewerage system and, thus, a legitimate exercise of the police power." Id., 150. Accordingly, the Supreme Court remanded the case to the trial court for a new trial. Id., 151.
On remand, the trial court, Susco, J., considered evidence relating to the design and capacity of the sewer system and the underlying purpose of the amendment to the sewer ordinance. Wright v. Woodridge Lake Sewer District, supra, Superior Court, Docket No. CV 0043504. Based on the evidence presented at trial, the court found that "the ordinance was adopted because of concern about capacity of the sewer system to handle sewage which might be generated were [vacant] land in the district to be developed." Id. The court found that the amendment was "based on the defendants' engineer's estimate of the impact of the addition of forty units on the system and a projection of the number of units which would be added if the vacant land were developed at the same density as the planned unit development [proposed by the plaintiffs]. That projection, however, failed to take into account any of the physical characteristics of the land itself, but was purely a mathematical exercise." Id.
In ruling that the defendants' action adopting the amendment at issue was ultra vires, the court explained that the district was created as a sewer authority pursuant to General Statutes § 7-325, and that although the district had considered adopting planning and zoning powers, it declined to do so. It noted that General Statutes § 8-2 authorizes municipal zoning authorities to regulate the density of population and the use of land, that lot size and density are primarily concerns of the zoning authority, and that "[t]he authority to zone is vested solely in municipal zoning commissions." Id. Accordingly, the court found that the defendant sewer authority had no authority to adopt the ordinance at issue because it limited the density allowed on the plaintiffs' property. Id. The court further reasoned that although there is a presumption that legislation is valid unless it "plainly appears that the terms of the legislation are not reasonable or that they are not rationally adapted to the promotion of public health, safety, convenience, or welfare," the presumption was overcome in that case because "[t]he adoption of the ordinance here was not supported by any engineering data, but was based on a mathematical computation of what might be generated in the future if the vacant land were developed with the same density as the planned unit development had been." Id. The court also reasoned that "[w]hile defendants' concerns about preserving sewer capacity for landowners who might wish to develop their properties in the future are and were laudable ones, the choice of limiting the density of development, absent adoption of zoning and planning authority, was not reasonable." Id. The court then declared the ordinance null and void, reasoning that "[w]ith no engineering data or health data presented to support the amendment, it was not rationally adopted to promote the public health or welfare." Id.
General Statutes § 8-2 provides in relevant part: "(a) The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land . . ."
In the present case, the defendant's attempts to distinguish Wright v. Woodridge Lake Sewer District, supra, Superior Court, Docket No. CV 0043504, are unavailing. Specifically, the defendant's assertion that the defendant in Wright had not adopted zoning authority while the town of Newtown has such authority is not a relevant distinction because the court's decision in Wright was based on the fact that the administrative agency that attempted to enforce a zoning-based regulation had not adopted zoning authority, not on the fact that the town itself had not adopted such authority. In both Wright and in the present case, the defendant agencies have not adopted such authority and have jurisdiction that is limited to sewerage. "It is settled law that as a creation of the state, a municipality has no inherent powers of its own . . . A municipality has only those powers that have been expressly granted to it by the state or that are necessary for it to discharge its duties and to carry out its objects and purposes . . . This principle applies with equal force to quasi-municipal corporations . . . A sewer district established under chapter 105 of the General Statutes is a quasi-municipal corporation . . . which, through its sewer authority, has the power to acquire, construct, maintain, supervise, manage and operate a sewer system and perform any act pertinent to the collection, transportation and disposal of sewage. General Statutes [§] 7-245 . . ." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Sewer Commission, 270 Conn. 409, 425, 853 A.2d 497 (2004). Accordingly, as the defendant agency is a sewer authority, it has only those powers granted to it by the legislature, which did not grant it jurisdiction to regulate the use of land based on zoning considerations.
Moreover, although the allocation of sewer capacity was consistent with the zoning of the plaintiff's property at the time the priority matrix was adopted, the water pollution control plan and the priority matrix therein do not allow for changes in zoning to affect the allocation of sewer capacity, essentially restricting the density of development to that for which it was zoned in 1994, resulting in sewer allocations that would become inconsistent with the zoning of any properties for which zoning has changed since 1994.
The defendant's allocation of sewer capacity in accordance with its priority matrix is not supported by any engineering or health data, nor has it offered any other evidence demonstrating that it is rationally related to the public health, safety and welfare. See Wright v. Woodridge Lake Sewer District, supra, 218 Conn. 149 ("[m]unicipal regulations are upheld as a legitimate exercise of the police power provided that they are rationally related to the public health, safety and welfare and operate in a manner that is not arbitrary, oppressive or fraudulent"); see also Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 24, 523 A.2d 467 (1987) (presumption in favor of validity of police power legislation "is overcome only when it plainly appears that the terms of the legislation are not reasonable or that they are not rationally adapted to the promotion of public health, safety, convenience, or welfare"). Instead, it relies primarily on the fact that Newtown had entered into a stipulated judgment with the commissioner of environmental protection concerning the design and construction of its water pollution control facilities and its desire to preserve capacity for other property owners in town who have already paid for the right to connect to the sewer system in the future. For the reasons discussed below, these justifications are not supported by substantial evidence in the record.
A Compliance with the Stipulated Judgment
A review of a copy of the stipulated judgment between the commissioner of environmental protection and the town of Newtown filed on December 9, 1991, which is attached to the defendant's brief as Exhibit A, reveals that the defendant is incorrect in asserting that granting the plaintiff's sewer connection application would result in a violation of that court order. As the plaintiff argues, the stipulated judgment merely sets forth a schedule for the town to follow for the design and construction of water pollution control facilities, prescribes penalties for the violation of that schedule and provides for an award of damages. Regardless of whether the priority matrix was developed as part of the town's effort to comply with the stipulated judgment, that stipulated judgment does not specify how the sewer capacity shall be allocated among the properties in town, nor does it specify any limitations on capacity overall. Accordingly, the defendant's reliance on that stipulated judgment is misplaced.
B Disenfranchisement of Property Owners Who Have Already Paid Sewer Assessments
Although the defendant argues that granting the plaintiff's application would benefit the plaintiff to the detriment of other property owners in town who have already paid for a future right to connect to the sewer, and who may later wish to connect to the sewer system, it has offered no evidentiary support for this assertion. As the plaintiff notes, the plaintiff has alleged in its complaint, in relevant part: "At its July 13, 2006 meeting, the [defendant] discussed the 23-unit residential development and voted to issue a letter to [the plaintiff's] agents . . . (3) recognizing that adequate capacity exists at the Sandy Hook Pump station and the [defendant's wastewater treatment plant], although the [wastewater treatment plant] was nearing its limits." The defendant has admitted these allegations in its answer. This admission indicates that the defendant had found, with regard to the plaintiff's prior application for a sewer connection, that adequate capacity existed to handle discharge from that earlier proposed development. Although this admission does not, by itself, definitively demonstrate that adequate capacity exists for the plaintiff's subsequent application for a sewer connection for twenty-six units, this admission suggests that adequate capacity exists. Further, in light of the fact that the earlier application for twenty-three units did not include the additional portion of the property on which an existing multifamily dwelling was situated, which already had a sewer connection for each of its units, adequate capacity for twenty-six units must exist. More importantly, the defendant has not referred to any evidence in the record in support of a finding that the town's sewer system lacks sufficient capacity for the plaintiff's proposed development or that other property owners would be deprived of sewer connections to which they are entitled.
Moreover, the defendant's assertion that it lacks adequate capacity to serve the plaintiff's proposed development and all other properties in town is based, in part, on its assertion that if it were to increase the sewer allocation to the plaintiff's property by the amount it requests, it would be required to increase the allocation of sewer capacity for all properties in town, "which would require available sewer capacity of 2,158,000 gallons per day for all properties." Pursuant to the trial court's decision in Wright v. Woodridge Lake Sewer District, supra, Superior Court, Docket No. CV 0043504, a mathematical computation of what might be generated in the future if other properties were developed to the same density as the applicant's property, without taking into account the physical characteristics of the land itself, is not a proper justification for the defendant's denial. Accordingly, the defendant's concerns regarding disenfranchisement of other property owners in town are not supported by substantial evidence in the record.
As the plaintiff notes with respect to the trial court's decision in Forest Walk, LLC v. Water Pollution Control Authority, supra, Superior Court, Docket No. CV 06 4009486, that case is distinguishable from the present case. Similarly, the Supreme Court's recent opinion affirming that trial court decision is also distinguishable from this case. In the Supreme Court opinion, Forest Walk, LLC v. Water Pollution Control Authority, supra, 291 Conn. 271, the court affirmed a decision of the Superior Court, Upson, J. The trial court had upheld the Middlebury Water Pollution Control Authority's (WPCA) denials of the plaintiff's applications for a sewer extension and a sewer connection. Among other reasons that both the Supreme Court and the trial court found to be supported by substantial evidence in the record, the Supreme Court held that "there was substantial evidence to support the defendant's determination that the extension application should not be granted because the sewage capacity sought by the plaintiff exceeded the defendant's safe design standards for evaluating extension applications, and that such capacity was a disproportionately large allocation of the town's remaining sewer capacity for the size of the parcel." Id., 295.
That case is distinguishable from the present case because the WPCA's determination in Forest Walk, LLC, that the amount of capacity sought by the plaintiff "exceeded the defendant's safe design standards" was supported by substantial evidence in the record, specifically expert testimony stating that the sewer system "had been designed for a rural community to service roughly six people per acre of developable land"; and that the "proposed development would require the town to allocate sufficient sewer capacity to service roughly sixty-seven people per acre of developable land, far in excess of the specifications under which the system had been designed." (Emphasis added.) Id., 295-96.
Although the defendant in the present case similarly argues that the capacity sought by the plaintiff is disproportionately large, unlike the defendant in Forest Walk, LLC, it has not demonstrated that its denial was based on "safe design standards" or was otherwise based on evidence that the proposed connection would adversely impact health, safety, or welfare. Rather, the evidence in the record indicates that the denial was based on a mechanical application of its priority matrix, which has no discernable connection to health, safety, or welfare. The record indicates that adequate sewer capacity exists for the plaintiff's proposed development and that the priority matrix was impermissibly based on zoning considerations. Further, in Forest Walk, LLC, the plaintiff did not challenge the defendant's denial on the basis of an invalid regulation, but claimed, inter alia, that the defendant's decision was contrary to its regulations, not supported by substantial evidence in the record and was arbitrary and an abuse of its discretion. Id., 275. Accordingly, the court's review of the plaintiff's arguments concerning excessive capacity was limited to considering whether the WPCA's reasons were supported by substantial evidence in the record. For these reasons, the court's opinion in Forest Walk, LLC does not affect the outcome of this case.
Accordingly, because the defendant has not offered any evidence that its allocation of sewer capacity is rationally related to the public health, safety and welfare, and because the plaintiff has demonstrated that its allocation is based purely on mathematical considerations, the plaintiff has met its burden of proof of establishing the invalidity of the defendant's allocation of sewer capacity beyond a reasonable doubt. In light of this conclusion that the defendant's allocation of sewer capacity based on 1994 zoning of the plaintiff's property is invalid, it is not necessary for the court to consider the plaintiff's alternative argument that, regardless of the validity of the regulations, the defendant's decision is not supported by substantial evidence in the record.
Alternatively, the plaintiff argues that the defendant's denial is not supported by substantial evidence in the record and that the evidence in the record requires approval. Although the plaintiff frames this as an alternative argument, the plaintiff acknowledges that its application does not comply with the "illegal zoning requirement," i.e., the limited allocation of sewer capacity of based on the 1994 zoning designation of the property. It maintains that its property is entitled to a sewer connection because it lies within a sewer service area, requires no extension of the sewer system and meets all of the defendant's engineering requirements. Also, it maintains that the sewage treatment plant has adequate capacity to treat discharge from the property and that the defendant found no other fault with the proposal. Accordingly, the plaintiff argues, the defendant's denial is illegal, arbitrary and is not supported by substantial evidence.
The defendant counters that the plaintiff's alternative argument, that even if the regulatory provisions at issue in this case are valid, the defendant's decision is not supported by substantial evidence in the record, is "completely erroneous" because there is no dispute that the plaintiff's application calls for a 650 percent increase in sewer capacity from what is currently allowed for the property. Assuming these regulations are valid, it argues, it was required to follow them. Accordingly, the defendant maintains, its denial should be upheld.
While the defendant is correct in arguing that its decision is supported by substantial evidence in the record if the regulation at issue were valid, because the parties agree that the proposed development would have greater density than that for which it was zoned in 1994, this argument is unavailing in light of the court's finding that the regulation allocating sewer capacity based on the 1994 zoning of the property is invalid.
III CONCLUSION
For the reasons set forth above, the appeal is sustained.