Legal Brief: P&Z Appeal, Morgan Estates

DOCKET NO.: MMX-CV-4010472-S

Plaintiffs

VS.

EAST HADDAM P&Z ET. AL

November 6, 2009

BRIEF

Allen Hanks and Jeffery Becker (Applicant) submitted an application for subdivision (Application) for property at 30 Orchard Road, East Haddam, Connecticut, Assessor’s Map 36, Lot 35, on January 6, 2009. Public hearings were held by the East Haddam Planning and Zoning Commission (PZC) on February 10, 2009, March 10, 2009 and March 24, 2009. At the February 10, 2009 public hearing, notice of intervention was received by the PZC. Plaintiff is an abutting landowner and was one of several parties included on the notice of intervention. Further discussion of the Application took place during regular PZC meetings on April 14, 2009 and April 28, 2009. PZC finalized its discussion and voted to approve the application at a regular meeting on May 12, 2009. A formal letter of approval (Approval) was issued by the PZC on May 14, 2009.
Plaintiff filed an appeal to the Connecticut Superior Court in a complaint dated May 27, 2009 naming PZC, PZC Commissioner Cary Brownell and Allen Hanks as Defendants. PZC Commissioner Cary Brownell is non-appearing.
The complaint consists of two elements.
a. Failure to Enforce East Haddam Subdivision Regulation 4.08 - Section 4.08 Passive Solar Energy Techniques of the East Haddam Subdivision Regulations (Regulations) was ignored by Applicant. Plaintiff notified Defendants via certified mail on May 6, 2009 prior to Approval of the Application that failure to meet the requirements of Section 4.08 represented grounds for appeal. PZC subsequently approved the Application with conditions.
b. Failure to Enforce East Haddam Section 4.04 Certification by Town Sanitarian; Approval Based on False Information of Material Importance -. PZC state in their Approval that percolation tests have been witnessed by the Town Sanitarian, an aspect of the Chatham Health District (CHD). Information was provided during the hearing process establishing the fact that the CHD did not witness the percolation test.

I. Return of Record
Plaintiff responds to the Court’s request for acknowledgment of the completion of the return of record. The record is deficient in that it does not include essential audio recordings of the PZC hearings or copies of email correspondence between PZC, town staff, Town Sanitarian and CHD. Plaintiff respectfully requests copies of all audio recordings and all email correspondence between the Town of East Haddam, the Town Sanitarian, and the CHD.

II. Non Appearance
Plaintiff notes Defendant Cary Brownell, the Commissioner of the PZC, is non-appearing and respectfully requests Court action to require said defendant’s appearance.

III. Issues in the Case
a. Failure to Enforce East Haddam Subdivision Regulation 4.08 –
i. At issue is whether conformance to the Regulations is a requirement for the approval of the Application.
ii. At issue is the responsibility of the PZC to uphold and enforce existing subdivision regulations.
1. Ancillary to this issue is the question of whether the PZC has the authority to enforce regulations through the use of specific conditions associated with approval of the Application.
a. Further to this issue is the adequacy of the condition and its consistency with the intent of the regulation and the underlying law that enables and authorizes the regulation.
b. Failure to Enforce East Haddam Section 4.04 Certification by Town Sanitarian; Approval Based on False Information of Material Importance -
i. At issue is whether conformance to the Regulations is a requirement for the approval of the Application.
ii. At issue is the responsibility of the PZC to uphold and enforce existing subdivision regulations.
iii. At issue is whether it is PZC’s responsibility to ensure that the proposed lots are capable of sustaining subsurface septic systems.
1. Further to this issue is whether the witnessing of percolation tests, a pivotal determinant in the adequacy of the ground to support subsurface septic systems, by the town or an otherwise independent witness unencumbered by a fiscal relationship with the Applicant, is a necessary ingredient to protecting the public and ensuring that proposed lots are capable of supporting subsurface septic systems.
iv. At issue is the question of whether the decision made by the PZC is able to be upheld upon scrutiny given the fact that it is partly and explicitly based on false information pertaining to the witnessing of percolation tests.
1. Further is the relationship between the PZC, the town sanitarian, and CHD.
a. PZC relied upon CHD to evaluate the Application with regard to the public health laws. Conversely, CHD relied upon PZC for certain issues purportedly not within the scope of its duties. Despite the inter-reliance of these parties to make its decisions, neither party properly addressed the issues; comprehensive protection of the public did not result.
b. At issue is the responsibility of CHD to avail itself of pertinent expert opinion offered during the PZC hearing process. By its own admission, CHD was unaware of any evidence, testimony or opinions offered during the PZC hearings other than information supplied with the Application.
i. At issue is whether the public’s right to participate in the hearing process is served if CHD does not avail itself of expert opinion developed and offered during the PZC hearing process.
1. Further is the question does PZC have the duty to interpret CHD’s report in light of information it has received but which CHD has failed or refused to consider.
ii. CHD does not offer its own venue for public input on applications it reviews related to the PZC hearing process implying a failure of due process when it does not avail itself of the information developed during the process.

IV. Analysis
a. Issue I – Passive Solar
The Application as submitted did not include an evaluation of passive solar techniques. The conditions provided with the Approval are insufficient to cure the Application’s failure to provide a demonstration of such evaluation. East Haddam Subdivision Regulation 4.08, and underlying state law, Connecticut General Statute (CGS) Section 8-25 subsection (b) require passive solar techniques be evaluated in developing subdivision plans. There is no evidence that the Applicant evaluated passive solar techniques with respect to this Application and therefore the PZC could not have considered this necessary information. “In making a decision on an application, the commission shall consider information submitted by the applicant under subsection (b) of section 8-25 concerning passive solar energy techniques.” CGS Sec. 8-26(b)
Furthermore, the PZC acknowledges that the required evaluation was not part of the Application. On page 10 of the Approval, PZC states: “At the time of each site plan submitted before the zoning office for a house permit, the builder/owner shall report if passive solar techniques have been considered and such evidence is to be submitted on the site plan.” This attempt to cure the lack of a comprehensive evaluation and application of passive solar techniques during subdivision layout misses the intent of Section 4.08 and CGS 8-25(b). The regulation and statute require the consideration of passive solar while developing the subdivision plan. The purpose of Section 4.08 and CGS 8-25(b) is to require a developer to consider passive solar techniques at the stage in which the interrelationship of the individual lots is emerging as it impacts: “(1) house orientations; (2) street and lot layout; (3) vegetation; (4) natural and man-made topographical features; and (5) protection of solar access within the development.” That stage begins with and runs concurrent with the subdivision layout effort that necessarily considers multiple design issues.
Passive solar techniques include the orientation of building fenestration toward the south where solar energy is available during the cooler months when supplementary heating is required by a building. In Connecticut, the sun is low in the sky during the winter months and its rays are thus better suited to passing through windows and other types of translucent glazing at that time because the angle between the rays and the surface approaches the normal, a line perpendicular with the surface. The angle of incidence is measured between the ray of light and the normal. Less solar energy is reflected with a low angle of incidence. During the summer, the sun is higher in the sky resulting in a higher angle of incidence and more reflection off south facing windows. Shading can also be used to prevent solar energy from penetrating south facing windows during the summer when it is not needed – offering the benefit of winter heat without additional summer cooling burden. Very little solar energy is available in the morning or late afternoon in the winter on the east and west sides of a building as the sun rises and sets quite a bit south of east and west respectfully. During the summer months, a great deal of solar energy is available on the east and west sides of a building as the sun’s rays strike windows in these areas with lower incidence. This heat is not desirable and contributes to overheating and air conditioning loads. Good passive solar design precludes fenestration on these facades reducing cooling needs in the summer and lowering heating loss in the winter. The north side of a building provides useful light, but no useful thermal heat.
Thus, it is only the southerly face of the building that is able to take advantage of passive solar energy during the heating months. The specific orientation of building fenestration toward the south is the primary technique of passive solar underlying the opportunities available for consideration at the subdivision layout stage of design. Moreover, the shape of the building itself is a valid consideration when seeking to optimize passive solar techniques. For example, maximizing south-facing wall area and minimizing all other exposures is a natural corollary to the design effort in which, for example, the aspect ratio – length in relation to width – and the orientation of the long axis of the building, are pertinent.
The opportunities to create building lots that will accommodate optimally south facing building facades occur as the lots are created. The lot configurations impact the ability to site buildings at the north end of the property providing a cleared area to the south upon which future development would not encroach and impact solar access. Subdivision layout also provides the opportunity to develop coordinated rules for protecting solar access for all lots in the subdivision through effective individual lot development, building design, and conditions such as covenants associated with the deeds of newly created lots. During subdivision layout, the areas to be cleared of trees are proposed and accepted by the land use commission, so consideration of solar access with regard to existing trees needs to occur at this time. Street and driveway configuration, another function of the subdivision layout, is determined and largely controls the subsequent orientation of future buildings on the lots. All of these elements are worked out in concert with other demands on the subdivision design such as septic and well placement, conservation areas, drainage systems, swales, rain gardens, property set-backs, required building square, other zoning issues, and public health code and state design guidelines for separation distances between the various elements.
Passive solar techniques are ineffective and of no value if the underlying lot configuration is predetermined such that protected solar access or proper building location or orientation is precluded. These low cost energy savings techniques are then fatally disadvantaged as there would be no benefit to their inclusion. Further to this example is the fact that existing solar financial rebates are highly dependent on the amount and degree of solar access available to a solar device. Devices with greater solar access receive larger rebates.
The Application approved by PZC is characterized by significant constraints on any future changes to the placement, size or shape of the proposed buildings. Ample evidence of the so-called tightness of the site, a result of the wetness of the land upon which the subdivision is proposed and the marginal quality of the soils to accommodate the development, is present in the record. The condition imposed by the PZC in its approval of the Application does not remedy the absence of passive solar consideration during the subdivision layout. Moreover, numerous conditions imposed by both the Inland Wetlands and Watercourses Commission and the PZC constrain future changes to the subdivision layout to an extreme.
The condition imposed by the PZC, intended to remedy the passive solar non-conformance, requires builders, who may be entirely different entities from the developer, to somehow prove consideration of passive solar techniques during the subsequent lot development and building design stage. Yet Section 4.08 clearly states that it is the Applicant that is affected because of the controlling nature of the subdivision layout and the approval process thereof. “The applicant shall demonstrate to the Commission that they have considered, in developing the plan, using passive solar energy techniques.” The condition imposed by PZC in its Approval requires conformance at a stage of the building process after the development of the subdivision plan. This subsequent stage is entirely subject to the constraints developed on the site as a condition of approval of the subdivision plan.
After approval, the subdivision design is inextricably entwined with the other controlling issues of drainage, septic, water, clearing, etc, named above. Changes to these controlling aspects would incur substantial economic penalties for revisions after the fact, including the enormous financial risk of having to reapply for subdivision plan approval. These revision costs would be inappropriately attributed to the application of passive solar techniques.
The Approval of the Application absent passive solar consideration severely limits and may even render passive solar techniques completely uneconomic and unusable during subsequent lot development and building design. Specific to the Application is the issue of the so-called tightness of the plan, referred to numerous times in the record, and the difficulty of moving or changing the shape of the proposed buildings that virtually eliminates the potential for passive solar application. Out of seven lots proposed, six of the houses are oriented with the long axis running north and south, an orientation that encourages excess heat gain in the summer and is not optimal for passive solar heating gain. The one proposed building having a better orientation is situated very close to the southern edge of the lot and its existing, mature tree line, thus offering little potential for solar gain.
The PZC condition of requiring after-the-fact evidence of passive solar techniques at the level of lot development and house design completely misses the intent of Section 4.08 and CGS 8-25(b) in that it does not remedy the obvious preclusion of passive solar inherent in the approved subdivision plan. Section 4.08 and CGS 8-25(b) strive to ensure the potential for these techniques. It is impossible to optimally apply passive solar techniques if the major elements of the subdivision are predetermined, as in this case.
In Perry Brothers v. Canton Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV 90382078, 5 Conn. L. Rptr. 650, the procedural background underlying the appeal indicated that the consequence of a condition not being satisfied was to have the approval withdrawn, not modified. The planning commission granted conditional approval of a site plan subject to the subsequent approval of a special exception. However, when the special exception was denied, the commission withdrew its approval. In the case of the Application, the Approval is moot if it is based on the condition demonstrating consideration of passive solar techniques that can not be carried out.
Section 1.02 Purpose of the Regulations states “These Regulations are adopted pursuant to the authority granted in Chapter 126, Section 13a-71 of Chapter 238, and Section 7-120 of Chapter 97, of the General Statutes of the State of Connecticut, as amended. It is declared to be the policy of the Commission to consider land subdivision as part of a plan for the orderly, efficient and economical development of the Town so as to further the general welfare and prosperity of its people. Accordingly, it is the purpose of these Regulations to insure that: ….provisions shall be made for energy-efficient patterns of development and land use, the use of solar and other renewable forms of energy, and energy conservation.” The Approval does not create provisions for the use of solar energy and is inconsistent with the purpose of the Regulations and the explicit policy of the PZC.
Section 1.10 Adoption of a Temporary Moratorium, (a) Purpose, “…East Haddam has almost 20,000 acres undeveloped and uncommitted acres of vacant land still available for use. East Haddam will be adversely impacted if these areas are not developed in accordance with current policies intended to minimize topographic disturbances, protect surface and subsurface waters, preserve wildlife habitats, avoid exceeding the capacity of the existing and proposed municipal infrastructure, and avoid sprawl.” These statements confirm and strengthen the explicit policy of the Town of East Haddam and its PZC to provide for the use of solar and other renewable forms of energy, and energy conservation, and that harm in the form of adverse impact to the Town of East Haddam and the general welfare and prosperity of its people will occur if areas are not developed in accordance with current policies.
Section 3.01 Requirement of Approval of Subdivision Plan states “Application for approval of a plan of subdivision shall be made to the Commission pursuant to Section 8-26 of Chapter 126 of the Connecticut General Statutes, as amended.” Subsection a. Subdivision Plan Approved and the Sale of Lots states “All plans for the subdivision or re-subdivision of land must be submitted to the Commission for approval and no lot resulting from or affected by the subdivision or re-subdivision of any tract or parcel of land shall be sold or offered for sale or use for building development and no Certificate of Zoning Compliance (Zoning Permit) for any use, nor any building permit for the erection or enlargement of any building on such lot shall be granted without the prior approval of the subdivision or re-subdivision plan, or any amendment thereof, by the Commission, and the filing of the endorsed Final Subdivision Plan in the Office of the Town Clerk.” With these regulations, the PZC establishes subdivision plans as the means for establishing compliance with town regulations. The regulations further establish the PZC as the authority for evaluating the conformance of subdivision plans with the regulations.
Section 3.04, Subsection xx. states “It is the burden of the applicant to submit a complete application, and to demonstrate compliance with all criteria and requirement of these Regulations and, accordingly, the applicant may submit, or the Commission may require, such additional reports or information as may be required to satisfy that burden. Any application found to be incomplete may be denied by the Commission without prejudice to a future, complete application.” This section grants the PZC the authority to withhold approval of a non-conforming plan. Given the PZC’s explicit policy to protect the welfare of the town including the provision of the use of solar energy, the Regulations promulgated consistent with this policy, and the PZC’s duty to review subdivision applications for compliance with the Regulations, Plaintiff asserts that the PZC has failed its duty with the approval of the Application.
Marshall Sonn v. Planning Commission of City of Bristol 374A.2d159. 172, Conn 156, regulations covering subdivision of land must conform to statutory requirements. Section 4.08 conforms to the underlying statute. It is, in fact, word for word. In Beach v. Planning and Zoning commission of Town of Milford 103 A2d814, 141, Conn. 79, the court ruled against the use of discretion by the commission in the absence of a controlling regulation in favor of discretion controlled by fixed standards offered by regulations. In that case, the applicant would have been deprived of due process of law according to the court. In this case, it is the public that is deprived due process of law when the PZC rules in favor of the Application despite the Application’s non-conformance with existing regulations. La Voie, State ex rel. v. Building Commission of town of Trumbull 65 A.2d165, 135 Conn 415, the court ruled “commission was without power to approve revised map of lots for residential use, which did not comply with zoning regulations…” Correspondingly, in Marshall Sonn v. Bristol, the court ruled subdivision standards must be controlled by fixed standards. Replacing conformance to Section 4.08 with a condition that does not meet the intent of the underlying, authorizing statute constitutes the absence of a fixed standard.
Plaintiff argues that ‘shall’ in Section 4.08 should be read as required by the Town of East Haddam. Op. Attorney General, no. 86-054 Conn. Op. Atty. Gen. 207, 1986 WL289119, “the word ‘shall’ mandates the inclusion within those regulations that passive solar energy techniques be considered in a subdivision plan.” The legislative intent of CGS is clarified as of October 1, 2009.
“Section 1. Subsection (b) of section 8-25 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2009):
(b) The regulations adopted under subsection (a) of this section shall also encourage require energy-efficient patterns of development and land use, the use of solar and other renewable forms of energy, and energy conservation. The regulations shall require any person submitting a plan for a subdivision to the commission under subsection (a) of this section to demonstrate to the commission submit an analysis to the commission demonstrating that such person has considered used, in developing the plan, using passive solar energy techniques which that would not significantly increase the cost of the housing to the buyer, after tax credits, subsidies and exemptions, and that such passive solar energy techniques maximize solar heat gain, minimize heat loss and provide thermal storage within a building during the heating season and minimum heat gain during the cooling season. As used in this subsection and section 8-2, passive solar energy techniques mean site design techniques which maximize solar heat gain, minimize heat loss and provide thermal storage within a building during the heating season and minimize heat gain and provide for natural ventilation during the cooling season. The site design techniques shall include, but not be limited to: (1) House orientation; (2) street and lot layout; (3) vegetation; (4) natural and man-made topographical features; and (5) protection of solar access within the development.
Based on the Op. Atty. Gen 207 and the clear intent of the CGS 8-25(b), Applicant’s subdivision plan must include facts demonstrating he has considered passive solar energy techniques. The facts in this particular case clearly show the subdivision plan did not demonstrate the consideration of passive solar energy techniques. In Pelliccione v. Planning and Zoning Commission of Town of Ridgefield 780 A.2d185, 64 Conn App. 320, the court denied certification, upholding a town subdivision regulation as having a standard that afforded a valid basis for planning and zoning commission to use in passing on propriety of an application and it did not leave the fate of such applications to subjective views of commission members; regulation provided that applicant was required to demonstrate certain matters. We argue the similarity of Pelliccione v. Planning with requirements of Section 4.08 in question.
Given that the Application was still deemed successful by the PZC, it appears that the approval was based on the subjective views of the PZC through its use of a condition to try to justify the non-enforcement of Section 4.08.
Krawski v. Planning and Zoning Commission of Town of South Windsor 575 A.2d1039, 21 Conn. App. 667 upheld, by reversing the lower court’s ruling, the authority of the zoning board or commission to decide, within prescribed limits and consistent with exercise of its legal discretion, whether a particular section of zoning regulations applies to given situation and the manner in which it does apply. In meeting this duty, the commission is acting “in administrative capacity, rather than legislative capacity.” Sowin Associates v. Planning and Zoning commission of Town of South Windsor 580 A.2d91, 23 Conn App. 370. Also from Sowin v. Planning, “Zoning commission deciding whether to approve application for residential subdivision in residential zone could not weigh offsite traffic concerns, municipal services required by development, property values, or general harmony of district and could not look beyond question whether plan satisfied town subdivision regulations.” Plaintiff argues that it is within the authority of the PZC to determine if the Application meets the regulations and in so doing, PZC is not authorized to act legislatively nor beyond the question of Regulation satisfaction.
Commissions have the authority to enact subdivision regulations, but such regulations must derive their authority from General Statutes and may not conflict with such statutes. PZC appears to have acted legislatively in crafting the condition on page 10 of the Approval. Moreover, given that the intent of CGS 8-25(b) is not met by the condition, it is neither proper for PZC to approve with condition nor adequate in meeting the intent of the statute that provides the authority vested in Section 4.08.
“The requirement that regulations contain known and fixed standards to be applied to all cases of a like nature reduces the likelihood of an administrative body, unsure of its prerogative, acting in a capricious manner in the exercise of its authority. Marshall Sonn v. Bristol. If the reasons for not looking at passive solar techniques were based on monetary values, the court disallowed this criterion in Damick v. Planning & Zoning Commission, 158 Conn. 78, 83, 256A.2d428 which also relied on Marshall Sonn v. Bristol. “The maximum possible enrichment of a particular developer is not the controlling purpose of zoning.”
With regard to the Approval’s condition requiring a builder/owner to comply, “At the time of each site plan submitted before the zoning office for a house permit, the builder/owner shall report if passive solar techniques have been considered”, Plaintiff argues that CGS 8-25(b) does not confer upon PZC the authority to require such compliance. Buttermilk Farms, LLC v. Planning and Zoning Commission of Town of Plymouth 973 A.2d64292 Conn 317. Moreover, the condition rises to the level of special legislation for which PZC is without authority. Beach, et al.

b. Issue 2 – Percolation Tests
Section 4.04 Certification by Town Sanitarian of the East Haddam Subdivision Regulations states “All percolation tests and test pits shall be witnessed by the Town Sanitarian and shall be specified on all subdivision plans.” This information is not present in the Application. Moreover, the Plaintiff presented evidence to the PZC that the Town Sanitarian (CHD) had not witnessed the percolation tests.
Significant discussion took place among members of PZC, the public, the Applicant and both the Applicant’s and the Town’s experts with regard to the tight nature of the subdivision layout, concerns about high water tables, questions about aspects of the state storm water drainage guidelines and other aspects of industry accepted best management practices, as well as the integrity of the field notes available from the Town Sanitarian with respect to the witnessing of testing. The materiality of the question of ground water, percolation rates, public health issues and design criteria, given the admittedly wet nature of the property, is well established in the record.
Moreover, substantial discussion among members of PZC occurred with regard to the respective roles of the PZC and CHD. The town attorney was adamant about constraints to the PZC’s authority relative to CHD. However, Section 4.03 land With Limitations for Development, subsection (b) Soils with significant limitations for the installation of septic tank absorption fields, which is the pertinent section for the Application as the subject property comprises Paxton, Montauk and Woodbridge soils, states “The soils that are categorized as having significant limitations for the installation of septic tank absorption fields are limited by steep slopes (15-45%), seasonal high water table, stoniness, shallow depth to bedrock and slow to very slow permeability to substratum. Within each major soil grouping, there may be found, upon field investigation "pockets" of soils with slight to moderate limitations. Due to the varied range of slope in each unit (15-45%), there may be areas where the slope is acceptable. With careful testing, design and installation, a septic system can be successfully constructed subject to the provisions of the State Health Code.” This section makes clear that it is the Regulations that provide constraining criteria for which the PZC is responsible. The provisions of the State Health Code are, thus, not determining, but rather an additional criteria that the PZC must recognize. Repeated guidance by the town attorney, however, contradicted this authority vested in PZC, telling them to rely solely on CHD’s evaluation of the Application’s compliance with the State Public Health Code. PZC’s refusal to uphold its authority, in addition to relying on incorrect information and thus failing to ensure independent witnessing of critical percolation tests designed to determine if the soil and ground are capable of supporting the proposed development, results in a failure to protect the abutting property owners and the public health in general.
Section 1.02 Purpose of the Regulations is clear in that it is the policy of the PZC to protect health and public safety. “Accordingly, it is the purpose of these Regulations to insure that: Land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety; proper provision shall be made for water supply, surface drainage and sanitary sewerage…”
Sheet 8 of 9, Soil Test Results & Erosion and Sediment Control Notes, Nemergut Consulting, February 8, 2008 revised 2/26/09 indicates fifteen percolation tests, none of which are certified as witnessed by the Town Sanitarian. Section 4.04 is the regulation that establishes that aspect of the PZC subdivision policy requiring witnessing of percolation tests by the Town Sanitarian. PZC approved the Application notwithstanding the absence of conformance with this regulation and despite being informed of this deficiency during the public hearings. There is no statutory basis for this approval. “There must be statutory authority for action taken by a planning commission in the exercise of its planning power, in the control of subdivision of land. Nicoli v. Planning and Zoning Commission of Town of Easton 368 A.2d24, 171, Conn.89.
In a separate meeting with CHD, Plaintiff was informed that the CHD was not aware of any of the expert testimony or any other aspect of the public hearing process. Despite interveners’ expenditure of some $15,000 for independent expert opinions from soil scientists and a professional engineer, CHD did not avail themselves of any of this information thus denying interveners and the public due process in CHD’s deliberations.

V. Conclusion
“In exercising its function of approving or disapproving a subdivision plan, planning board acts in an administrative capacity, and in passing upon a plan its action is controlled by regulations that it has on discretion but to approve a subdivision conforming to the regulations.” Lanbein v. Planning Board of City of Stamford 146 A.2d412, 145 Conn 674. “When planning commission grants or denies subdivision application it is acting in administrative capacity and it must approve plan if it complies with applicable regulations.” Weatherly v. Town Plan and Zoning Commission of Town of Fairfield 579 A.2d94,23 Conn App. 115. Under the Constitution of the United States, Plaintiff and the public are guaranteed equal protection under the law. If the PZC must approve a plan if it complies with applicable regulations, then it follows that the Application, in not meeting the Regulations, must be denied.
In LePage Homes, Inc. v. Planning and Zoning Commission of Town of Stonington 812 A.2d156, 74 Conn. App 340, the Appellate Court upheld the planning and zoning commission’s denial of a subdivision application containing an inherent violation of the subdivision regulations. Plaintiff argues two inherent violations; specifically the Application is non-conforming with Sections 4.04 and 4.08 of the Regulations.
In Grigerik v. Sharpe, the Connecticut Supreme Court upheld the decision of the trial court awarding negligence in the case of an engineering firm that failed to have percolation tests witnessed by the Town Sanitarian. Grigerik v. Sharpe 247, 721 A.2d526 Conn. 293. We believe there is clear precedence for the materiality of the argument that the Approval is without merit in the absence of the proper witnessing of percolation tests.
Plaintiff argues this case is supported by copious evidence in the record and substantial case law precedence. The integrity of the process is essential to serving the intent of the Regulations and statutes of the State of Connecticut. The process leading to the Approval was deficient in that the intent of these regulations and laws, as well as the health and safety of the abutting landowners and the public, was not served. It is critical to public health and safety that the information associated with percolation testing be held in the highest regard as it goes to the ability of the PZC and CHD to properly evaluate the capacity of the land to accommodate the proposed plan. It is essential that the two entities work together effectively to protect the public health. The current dysfunction represents on-going harm to the public and to the abutting landowners affected by the Approval for which relief is much needed. It is equally critical to the wholesome well-being of the state that current policy regarding the implementation of passive solar, renewable energy and energy efficiency techniques be genuinely embraced and its promulgating laws and regulations thoroughly enforced.
Plaintiff respectfully requests the Court to void the decision of the PZC and issue orders requiring the Defendants to begin the process anew, consistent with the nature of the deficiencies; with regard to consideration of passive solar techniques at the time of and concurrent with subdivision design, and with regard to the proper witnessing of percolation tests.


List of Cases, Laws and Regulations Cited
1. East Haddam Subdivision Regulation (EHSR) Section 4.08
2. Connecticut General Statute (CGS) Section 8-25 subsection (b)
3. Perry Brothers v. Canton Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV 90382078, 5 Conn. L. Rptr. 650
4. (EHSR) Section 1.10 Adoption of a Temporary Moratorium, (a) Purpose
5. (EHSR) Section 3.01 Requirement of Approval of Subdivision Plan
6. (EHSR) Subsection a. Subdivision Plan Approved and the Sale of Lots
7. (EHSR) Section 3.04, Subsection xx.
8. Marshall Sonn v. Planning Commission of City of Bristol 374A.2d159 172, Conn 156
9. Beach v. Planning and Zoning commission of Town of Milford 103 A2d814, 141, Conn. 79
10. La Voie, State ex rel. v. Building Commission of town of Trumbull 65 A.2d165, 135 Conn 415
11. Op. Attorney General, no. 86-054 Conn. Op. Atty. Gen. 207, 1986 WL289119
12. Pelliccione v. Planning and Zoning Commission of Town of Ridgefield 780 A.2d185, 64 Conn App. 320
13. Krawski v. Planning and Zoning Commission of Town of South Windsor 575 A.2d1039, 21 Conn. App. 667
14. Sowin Associates v. Planning and Zoning commission of Town of South Windsor 580 A.2d91, 23 Conn App. 370. Also from Sowin v. Planning
15. Damick v. Planning & Zoning Commission, 158 Conn. 78, 83, 256A.2d428
16. Buttermilk Farms, LLC v. Planning and Zoning Commission of Town of Plymouth 973 A.2d64292 Conn 317
17. (EHSR) Section 4.04 Certification by Town Sanitarian
18. (EHSR) Section 4.03 land With Limitations for Development, subsection (b) Soils with significant limitations for the installation of septic tank absorption fields
19. (EHSR) Section 1.02 Purpose
20. Nicoli v. Planning and Zoning Commission of Town of Easton 368 A.2d24, 171, Conn.89.
21. Lanbein v. Planning Board of City of Stamford 146 A.2d412, 145 Conn 674
22. Weatherly v. Town Plan and Zoning Commission of Town of Fairfield 579 A.2d94,23 Conn App. 115)
23. LePage Homes, Inc. v. Planning and Zoning Commission of Town of Stonington 812 A.2d156, 74 Conn. App 340
24. Grigerik v. Sharpe 247, 721 A.2d526 Conn. 293.




THE PLAINTIFF
Pro Se