Opinion
DBDCV185012961S
06-05-2019
Nancy BURTON v. ZONING BOARD OF APPEALS OF the TOWN OF REDDING
UNPUBLISHED OPINION
OPINION
Krumeich, J.
Plaintiff Nancy Burton has appealed from the decision of the Zoning Board of Appeals of Redding ("ZBA") to uphold a cease and desist order issued by the Redding Zoning Enforcement Officer ("ZEO") concerning the use of certain property owned by plaintiff in Redding (the "Property"). For the reasons stated below, the appeal is denied.
As owner of the Property plaintiff was aggrieved by the ZBA decision.
Standard of Review
In Anatra v. Zoning Board of Appeals of Madison, 307 Conn. 728, 737-38 (2013), the Supreme Court addressed the standard of review applicable to judicial review of a Zoning Board of Appeal’s decision. "Generally, it is the function of a zoning board ... to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court ha[s] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts ... In applying the law to the facts of a particular case, the board is endowed with liberal discretion, and its action is subject to review ... only to determine whether it was unreasonable, arbitrary or illegal ... Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." 307 Conn. at 737-38 (ellipsis in original) quoting Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 408-09 (2007).
A reviewing court is not permitted to substitute its judgment on the evidence for that of the Board. "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 ... If the trial court finds there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board ... 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." Woodbury Donuts, LLC. v. Zoning Board of Appeals of Woodbury, 139 Conn.App. 748, 759-60 (2012) (citations omitted).
A zoning board’s actions must be approved if even one of the board’s stated reasons is sufficient to sustain the action. See Blakeman v. Planning & Zoning Com’n of Shelton, 82 Conn.App. 632, 647 (2004).
The Anatra Court also distinguished between issues based on the interpretation of statutes, which presents a question of law subject to plenary review, and the question of whether the board properly ruled on an application, which is "subject to review only to determine whether the board ‘acted unreasonably, arbitrarily, illegally or in abuse of its discretion.’" Anatra, 307 Conn. at 738 quoting Alvord, 282 Conn. at 409.
Plaintiff bears the burden of proving the ZBA acted improperly in upholding the cease and desist order. Wood v. ZBA Somers, 258 Conn. 691, 698 (2008).
There Is Substantial Evidence in the Record to Support the ZBA Decision
There is substantial evidence in the record to support the ZBA’s decision to uphold the cease and desist order. The cease and desist order cited plaintiff for keeping goats in excess of the number allowed by zoning regulations in the absence of an approved land management plan. Plaintiff admitted to the ZBA that she kept at least fifty-eight goats and thus admitted she had thirty to forty goats in excess of the allowed limit of nine goats. The cease and desist order cited plaintiff for parking vehicles not in regular use which are inoperable and/or not registered. Plaintiff admitted to the ZBA that she had two unregistered vehicles parked on the Property, a Camry and a Land Rover, and an unregistered Jeep she used primarily to store and transport grain to feed the goats. The cease and desist order cited plaintiff for exterior storage of inoperable or abandoned equipment. Plaintiff told the ZBA certain equipment was sold, but had not been picked up by the buyer, and conceded to the ZBA there was farm equipment on her property purchased by her son and she did not know whether the equipment worked. The ZEO testified before the ZBA that the equipment "really hasn’t moved" for a long period of time. Based on this evidence, the ZBA upheld the cease and desist order, which the members did not find to be in error. The Court has searched the record and has determined that substantial evidence supports the ZBA’s decision to uphold the cease and desist order. See Mountain Brook Ass’n v. Wallingford Zoning Board of Appeals, 133 Conn.App. 359, 364 (2012).
Pursuant to C.G.S. § 8-12 the cease and desist order included a ten-day grace period to discontinue the zoning violations before the owner becomes subject to civil penalty. This did not require plaintiff to slaughter her goat herd within that period, as she asserts.
Zoning Regulation 5.14.2 contains a formula of one goat per .4 acre of site area. The plaintiff’s property contains 3.61 acres. Both parties concede her herd could be greater in number pursuant to a land management plan approved by the Redding Zoning Commission ("Commission"). The Plaintiff informed the ZBA that she did not have a land management plan; her application was denied by the Commission. In the operative complaint plaintiff alleged that the Commission was misled as to the number of goats in her herd and acted with "bias and improper motives which invalidated its decision[-]making"; there is no similar accusation of bias against the ZBA. In her briefs and arguments plaintiff often conflates the Commission and the ZBA. The Commission is not party to this appeal.
The ZBA denied a variance request to use the Jeep for grain storage, which was not appealed.
Zoning Regulation § 4.2(g) allows in a residential zone on-site parking for passenger automobiles in regular, off-premises use by the residents. It does not permit storage of unregistered vehicles that cannot be used in regular, off-premises use. The evidence before the ZBA relating to the equipment and unregistered automobiles was sufficient to allow the ZBA to conclude there was a zoning violation. The Court cannot substitute its judgment on conflicting evidence for that of the ZBA. See Ogden, 157 Conn. at 680.
Plaintiff Has Sought to Raise Issues That Were Never Presented to the ZBA and Are Outside the Scope of this Appeal
Plaintiff has sought to introduce many alleged facts into this appeal that are outside the record on appeal." ... [I]n an administrative appeal, the court is not permitted to consider evidence that was not before the board, such as the plaintiff’s statements at trial, or substitute its judgment for that of the board." Ogden v. ZBA, 157 Conn.App. 656, 682 (2015). Moreover, plaintiff sought to raise numerable issues on appeal that were not asserted before the ZBA nor raised in the pleadings. See Ogden, 157 Conn.App. at 665.
On this appeal plaintiff filed a preliminary brief dated August 6, 2018, a second preliminary brief dated November 15, 2018, a brief dated December 17, 2018 and a post-hearing brief dated May 24, 2019. Plaintiff made repeated motions to extend the briefing deadlines, and moved to amend the appeal twice, which delayed scheduling the hearing on appeal.
The operative complaint is the "Second Amended Appeal" dated May 10, 2018. This Court denied the request for leave to file a "Third Amended Appeal" dated August 6, 2018 because plaintiff alleged new claims concerning matters and parties outside the scope of the administrative appeal that would require additional discovery and supplementation of the record relating to allegations about the First Selectman, ZEO, the Commission and the State Department of Agriculture. For the first time in the proposed Third Amended Appeal plaintiff advanced a selective enforcement claim based on an alleged conspiracy against her by municipal officials and a claim of municipal estoppel based on approval of the construction of sheds to house more than nine goats. Despite denial of her request to amend the complaint, in her briefs and arguments plaintiff persisted in raising these and other claims outside the scope of the appeal. At the hearing plaintiff sought to revive the selective enforcement claim and to introduce copies of photographs she took shortly before the hearing showing farm equipment and vehicles parked on other properties in Newtown. No other foundation was offered for these exhibits, which were not admitted into evidence. The Court declined to hear argument about municipal estoppel or the bias of municipal officials on other boards and commissions that was not within the scope of the Second Amended Appeal. In her post-hearing brief, plaintiff sought to raise new constitutional claims that she was denied due process of law and equal protection. Also in her brief plaintiff made new factual assertions not in the record on appeal or in evidence submitted at the hearing. The Court declines to open the hearing to allow plaintiff to supplement the record and reaffirms that claims not made in the operable pleading are outside the scope of this appeal. The Court will not decide constitutional issues that were not properly pleaded. See Casertano v. ZBA of Cheshire, 1993 WL 566667 *3 (Conn.Super. 1993) (Gordon, J.) .
At the outset of the hearing, the Court denied plaintiff’s motion to stay the appeal pending resolution of a new declaratory judgment case she commenced against the Town to support her municipal estoppel and denial of due process claims and a recent action she commenced against a private party she engaged to assist in management and relocation of her goat herd. The Court also decided not to recuse himself from hearing the appeal in response to a motion to disqualify filed that day later denied by the Court.
In addition to the photographs, plaintiff offered a photograph of her goat shed and summonses and complaints in actions she represented were filed that day against Julie Pemberton and the Town of Redding and an action against Animal Nation and Patrick Moore. The representations made by plaintiff as to the relevance of the offer related to claims made in the rejected third amended appeal. These exhibits were not admitted.
The due process argument in plaintiff’s brief dated December 17, 2018 asserted she was denied due process because she could not obtain a hearing before the Commission on a new land management plan within the ten-day period in the cease and desist order. In the post-hearing brief dated May 24, 2019, plaintiff asserted a violation of due process because she was denied the opportunity to engage in discovery and present evidence in support of her selective enforcement claim alleged in the disallowed third amended appeal. The Court does not agree that plaintiff was denied due process in either instance. Defendant had a right to due process before the ZBA and the Court, but that right did not include the right to ignore the limited scope of the administrative appeals under C.G.S. § § 8-7, 8-8.
Plaintiff appears to have abandoned her claims under the First Amendment, which was not raised at the hearing or mentioned in the pre-hearing and post-hearing briefs. See generally Watson Real Estate, LLC v. Woodland Ridge, LLC, 187 Conn.App. 282, 294 n.11 (2019). Similarly, plaintiff did not raise her claim that the cease and desist order was tantamount to confiscation of her property, a claim that was never raised before the ZBA, and could be denied on that basis alone, had it not been abandoned. See Fuller, Land Use Practice § 54.2 (4th ed. 2018).
The appeal is denied.