Opinion
No. CV06-4006314
September 11, 2008
MEMORANDUM OF DECISION
I. Factual and Procedural Background
The plaintiff, Bank of America, appeals from the decision of the defendant, the Zoning Board of Appeals of the Borough of Fenwick, denying the plaintiff's request for a zoning permit to authorize the construction of a single-family residence on a lot held in trust by the plaintiff. The essential facts giving rise to this appeal are largely undisputed. This appeal centers on the relationship between lots 189 and 190 on Pettipaug Avenue in the Borough of Fenwick in Old Saybrook. The plaintiff's predecessor in interest, the Bradin family, had been record owner of the lots in question for almost 100 years prior to the lots being placed in trust. Throughout this period a cottage was maintained on lot 190. Lot 189 was not, and has not, been developed. Bank of America, as trustee for the family trusts holding lots 189 and 190, applied for a building permit to construct a single-family dwelling on lot 189. Fenwick's Zoning Enforcement Officer refused to issue the permit because of his conclusion that, pursuant to Section 8.3 of the zoning regulations, lot 189 constitutes a non-conforming lot and does not qualify for an exemption under that provision. Plaintiff appealed unsuccessfully to the Zoning Board of Appeals. This appeal followed.
II. Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). An owner of the subject property is aggrieved and, therefore, is entitled to institute an appeal. See Winchester Woods Associates v. Planning Zoning Commission, CT Page 14738 219 Conn. 303, 308, 592 A.2d 953 (1991). The plaintiff pleads, and the defendant concedes, that "Lot 189 and Lot 190 have been owned by the Bradin Trusts since 1970 . . ." (Appeal, ¶ 12.) Accordingly, the plaintiff is aggrieved and therefore has standing to maintain this appeal.
III. Standard of Review
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] 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 [board] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached." (Internal quotation marks omitted.) Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294, 947 A.2d 944 (2008).
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002) "If a trial court finds that there is substantial evidence to support a zoning [commission's] findings, it cannot substitute its judgment for that of the [commission] . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 560, 916 A.2d 5 (2007).
"When a zoning commission has not stated on the record the basis of its determination, the reviewing court must search the record to determine the basis for the commission's decision . . . If any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld . . . A reviewing court may not substitute its own judgment for that of the commission. The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . The evidence, however, to support any such decision must be substantial . . . In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Clifford v. Planning Zoning, 280 Conn. 434, 452-53, 908 A.2d 1049 (2006)
IV. Discussion
The principal issue in this appeal concerns the interpretation of Section 8.3 of the Fenwick zoning regulations: "Nothing in these Regulations shall prevent the construction, reconstruction or structural alteration of building or other structure conforming in all respects to these Regulations, except that it is constructed, reconstructed or structurally altered on a lot containing less than the number of square feet required in section 5, provided that on the effective date of these Regulations and continuously thereafter such lot was owned separately from any adjoining lot, as evidenced in the Land Record of the Town of Old Saybrook . . ." (emphasis supplied). (ROR, Exh. 6(c).) The effective date of these regulations is September 30, 1992. (ROR, Exh. 6(d).)
On appeal, the plaintiff argues that the language of § 8.3 requiring a nonconforming lot to be "owned separately from any adjoining lot" is ambiguous. It is the plaintiff's belief that this language, if accorded its common meaning, has "nothing to do with the identity of the lots' owners and everything to do with how the lots are used and depicted and described in the Land Records." In response, the board contends that the phrase "separately owned," as used in § 8.3, should be interpreted to require ownership by different persons.
The issue presently before the court, therefore, is a matter of statutory construction and is considered to be a question of law. See Trumbull Falls v. Planning Zoning Commission, 97 Conn.App. 17, 21, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006). Our Appellate Court has stated that "[o]rdinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes . . . An agency's factual and discretionary determinations are to be accorded considerable weight . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . It is for the courts, and not administrative agencies, to expound and apply governing principles of law." (Internal quotation marks omitted.) Cunningham v. Planning Zoning Commission, 90 Conn.App. 273, 279, 876 A.2d 1257, cert. denied, 276 Conn. 915, 888 A.2d 83 (2005); see also Raymond v. Zoning Board of Appeals, 76 Conn.App. 222, 233, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003)
The following legal principles are relevant to this court's analysis of Section 8.3. "[Z]oning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended . . . The process of statutory interpretation involves the determination of the meaning of the statutory language [or the relevant zoning regulation] applied to the facts of the case, including the question of whether the language does so apply." (Citations omitted; internal quotation marks omitted.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 652, 894 A.2d 285 (2006); see also Trumbull Falls, LLC v. Planning Zoning Commission, supra, 97 Conn.App. 21-22. Furthermore, "[r]egulations must be viewed to form a cohesive body of law, and they must be construed as a whole and in such a way as to reconcile all their provisions as far as possible . . . This is true because particular words or sections of the regulations, considered separately, may be lacking in precision of meaning to afford a standard sufficient to sustain them. When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results . . . [W]e consider the statute as a whole with a view toward reconciling its parts in order to obtain a sensible and rational overall interpretation." (Citations omitted; internal quotation marks omitted.) Field Point Park Association v. Planning Zoning Commission, 103 Conn.App. 437, 440-41, 930 A.2d 45 (2007).
In the present case the parties dispute the meaning of the phrase "owned separately from any adjoining lot." The plaintiff argues that "owned separately" refers to the title relationship between the lots. According to this view, if, following the enactment of Section 8.3, lot 189 retained its status on the land records as a parcel legally separate from lot 190, regardless of who owned either lot, it is subject to the exemption for non conforming lots. However, if at any time after 1992, lot 189 was subdivided from a larger parcel, it would not have been "owned separately" and therefore would not qualify for the exemption.
By contrast, the defendant Commission argues that the phrase "owned separately" refers to the ownership interest in the lots. According to this interpretation, if the same person or entity has owned lots 189 and 190 continuously since 1992, lot 189 remains nonconforming and is not eligible for the exemption. If, on the other hand, the owner of lot 189 is not the same owner as lot 190, the lot is eligible for the exemption.
In order to resolve this dispute, reference is made to the usual tools of statutory construction beginning with an examination of the common and ordinary meaning of the regulation's language. Doyen v. Zoning Board of Appeals, 67 Conn.App. 597 (2002). The verb "own" is defined by the Merriam-Webster Dictionary as "to have or hold as property" or "to have power or mastery over." The adverb "separately" modifies the verb "own" and is defined as "set or kept apart" "not shared with another" or "existing by itself." Finally, the preposition "from" is used "to indicate physical separation or an act or condition of removal, abstention, exclusion, release, subtraction, or differentiation." Thus, in accordance with the ordinary usage of the language, an undersized lot is considered a valid nonconforming lot if it is held as property existing by itself and not shared with another adjacent lot. The language indicates that the adjacent lots must be differentiated from each other in some way, but does not clearly establish whether this differentiation occurs by ownership or use. The arguments proffered by both parties consist of plausible interpretations of this language. "Owned separately," as suggested by the plaintiff, can refer to whether the lot has been recorded on the land records continuously since 1992 as a separate parcel. Or, as argued by the defendant, "owned separately" can refer to the identity of the owner — is the record owner of lot 189 the same person or entity as the owner of lot 190.
Because reference to the usual meaning of the phrase "owned separately from" does not resolve its interpretation in the context of this dispute, it is necessary to next consider the purpose of the regulations as a whole so that the disputed language can be interpreted in a manner that is consistent with the intent of the drafters and the overall purpose of the regulations. Id. Not surprisingly, the parties have differing views as to the purpose of Section 8.3. Both parties acknowledge that the general purpose of Section 8.3 is to increase the lot size for and therefore control the density of homes in the Borough of Fenwick while protecting against the confiscation of undersized lots that met the minimum size requirements prior to the adoption of Section 8.3 of the Regulations.
Plaintiff argues that ". . . the purpose of the Zoning Regulations is to merge undersized lots that have been used together, as one lot; not to punish owners who have steadfastly maintained the separate identity of an unimproved lot" (emphasis in original). Thus, according to the plaintiff, the overall purpose of the Fenwick zoning regulations is advanced by interpreting the disputed portion of Section 8.3 to require the merger of an undersized lot if it has not had a continuous separate legal identity. The defendant, by contrast, insists that "[t]he effect of Section 8.3 is to merge adjoining lots owned by the same person, resulting in a larger overall lot, in conformity or in closer conformity with the minimum lot area established by the Regulations. At the same time, the section avoids potential confiscation of property for the person who owns no adjoining property that could be benefited by the non-conforming lot."
While it is a close call, the defendant's interpretation of Section 8.3, in light of the overall purpose of the regulations, is the more persuasive. It is undisputed that the general purpose of Section 8.3 is to increase residential lot size in the Borough of Fenwick while protecting owners of undersized lots. The drafters of the regulations could reasonably conclude that in order to strike a reasonable balance between the desire to increase lot size and not deprive owners of undersized lots of the value of their property, those lots which share a common owner would be merged, but the owner of an undersized lot who does not own the abutting property would be exempt from the merger. Under this formulation, the same owner of abutting lots would retain the presumably increased value accruing from the merger while the non common owner would not be deprived of the value of the lot if no building were permitted on it. While an observer may disagree with the balance that was struck by Section 8.3, it cannot be said that the apparent intent of the drafters is arbitrary or illegal.
This conclusion is consistent with the general principle that, "[A] court that is faced with two equally plausible interpretations of regulatory language . . . properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation." (Internal quotation marks omitted.) Cunningham v. Planning Zoning Commission, supra, 90 Conn.App. 280. In this matter, both the Zoning Enforcement Officer and the Commission itself have interpreted Section 8.3 to require a merger of the undersized lot if the adjacent parcel is owned by the same person or entity. In this case, the record indicates that there is a documented history, albeit limited, of the Commission interpreting and applying Section 8.3 consistent with the position advanced by the defendant in this case. "A local board . . . is in the most advantageous position to interpret its own regulations and apply them to the situation before it. If a board's time-tested interpretation of a regulation is reasonable, that interpretation should be accorded great weight by the courts." Doyen v. Zoning Board of Appeals, supra, at 611. While not dispositive, the Commission's interpretation is persuasive and reinforces the conclusion that the overall purpose of the regulation is advanced by concluding that under Section 8.3 a merger of adjoining lots is required if there is an identity of ownership between the undersized and an abutting lot.
The plaintiff next argues that Lot 189 is "grandfathered in" by General Statutes § 8-26a and is exempt from subsequent changes in the zoning regulations. It maintains that the borough map used in the zoning regulations is a subdivision map, and has been approved by the board of warden and burgesses of the borough of Fenwick thereby implicating the provisions of § 8-26a. In response, the defendant maintains that there is no evidence in the record that the board was ever authorized to act in the capacity of a planning commission.
General Statutes § 8-26a(b)(1) provides: "Notwithstanding the provisions of any general or special act or local ordinance, when a change is adopted in the zoning regulations . . . no lot or lots shown on a subdivision or resubdivision plan for residential property which has been approved, prior to the effective date of such change, by the planning commission of such town, city or borough, or other body exercising the powers of such commission, and filed or recorded with the town clerk, shall be required to conform to such change."
The main dispute regarding this ground for appeal is whether the subdivision plan depicting Lot 189 was approved by a "body exercising the powers of a planning commission." In support of their respective positions, both parties cite to Johnson v. Board of Zoning Appeals, 35 Conn.App. 820, 646 A.2d 953 (1994). In Johnson, the Appellate Court addressed the issue of whether an undeveloped lot that complied with zoning regulations when it was created is protected by § 8-26a(b) from later regulations that rendered it nonconforming. Id., 821. The subject lot was included as one of fifty-two lots appearing on a subdivision map accepted and recorded by the Stratford selectmen in 1918. Id. An amendment to the zoning regulations in 1945, however, rendered the lot nonconforming. Id. Subsequent to this amendment, the plaintiff sought a certificate of zoning compliance in order to obtain a building permit; however, her request was denied on the basis that the lot was nonconforming and was not exempt from subsequent regulations because the selectmen did not act as a planning commission when they accepted the subdivision plan, nor did they possess the power to accept such a plan. Id., 822. On appeal, the court reviewed the source of the planning authority wielded by the selectmen in 1918, finding only two potential sources for such authority. "The former authorized the selectmen to divide and otherwise dispose of common lands. The latter authorized the selectmen to regulate building construction and demolition, and lay out public ways and grounds. Neither provided the selectmen with the authority to divide private property or otherwise act as a planning commission." Id., 825. Based on this analysis, the Appellate Court affirmed the trial court's judgment sustaining the decision of the zoning board of appeals.
In the present case, the plaintiff argues that the board was exercising power equivalent to a planning commission when it approved the subdivision plan by incorporating a pre-existing borough map in the zoning regulations adopted in 1946. To establish that the board was acting with the requisite authority, the plaintiff cites to the 1899 Special Act No. 271. Section 20 of this Act delineates the wide range of powers conferred on the board, including the power to "regulate the sale, conveyance, and transfer of [Borough] property" and "to establish building lines and regulate the construction of buildings." Section 22 further provides the board with the power and the duty to "lay out, make, pave, repair, alter, widen, straighten, and discontinue streets, highways, drains and sewers in said borough."
The method used to "approve" this subdivision plan is contested by the defendant in its memorandum. This court, however, need not address this argument in light of the subsequent analysis.
Much like the powers conferred on the town selectmen in Johnson, the powers outlined in the 1899 Special Act do not relate to the power to divide private property or act as a planning commission. The trial court's discussion in Jacobs v. Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FST CV 04 0199606 (August 17, 2005, Lewis, J.T.R.), is also relevant to the plaintiff's argument regarding the extent of the commission's authority. In Jacobs, the court applied the analysis of Johnson to determine that § 8-26 did not exempt the plaintiff's property because the authority of the Westport town plan commission did not extend to subdividing private property. In reaching this conclusion, the court stated: "Creating building lines is not the same as approving a subdivision. The term `building lines' refers to set back or front lines. Ballantine's Law Dictionary, 3rd Ed. 1969 at 159. `Building lines or setbacks . . . reflect the stated goal of zoning to provide light and air by keeping houses back from streets and highways and the noise, vibrations, fumes and dust emanating therefrom . . . Subdivision means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption by the [planning] commission . . .'" The same distinction applies in the present case. The grant of authority to the board "to establish building lines and regulate the construction of buildings" is not sufficient to confer the authority to act as a planning commission and subdivide private property. See, also, T M Building v. Trumbull, Superior Court, judicial district of Fairfield, Docket No. CV 04 4002329 (March 30, 2006, Owens, J.T.R.) [41 Conn. L. Rptr. 107], concluding that the subject lots were not located in a protected subdivision because "the record demonstrate[d] that no planning commission charged with the authority to approve subdivisions existed at the time the subject subdivision map was recorded in 1916." The record in this case does not support the argument that the Burgesses were authorized to exercise the powers of a planning commission.
For all of the foregoing reasons the plaintiff's appeal is dismissed.