Opinion
No. CV-10-6004807
September 9, 2011
MEMORANDUM OF DECISION
I. Statement of the Appeal
The plaintiffs, Charles and Willmeta Cockerham, have appealed from the decision of the defendant Zoning Board of Appeals of the Town of Montville (the Board) to deny their appeal from the action of the zoning enforcement officer (ZEO) in approving a zoning permit application filed by John Bialowans, Jr. (defendant) for a single-family residence on land at 4 Glen Road in the Town of Montville.
II. Jurisdiction
General Statutes § 8-8(b) governs appeals from decisions of zoning board of appeals to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82 (1989).
a. Aggrievement
"Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . In order to have standing to bring an administrative appeal, a person must be aggrieved." (Citations omitted; internal quotation marks omitted.) CT Page 19185 Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 664 (2006). "Two broad yet distinct categories of aggrievement exist, classical and statutory." The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8-8(a)(1), which provides in relevant part: "`Aggrieved person' includes any person owning land that abuts or is within a radius of 100 feet of any portion of the land involved in the decision of the board."
The evidence clearly indicates that plaintiffs, at all times relevant to these proceedings, owned property which abuts the property which was the subject of the appeal before the Board and, therefore, are statutorily aggrieved.
From the undisputed evidence, the court finds the plaintiffs are aggrieved by the decision of the Board and have standing to proceed with this appeal.
b. Timeliness and Service of Process
Pursuant to General Statutes § 8-8(b) "an appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the General Statutes . . . Notice of the decision was published in the New London Day on May 17, 2010. This appeal was commenced by service of process on the required parties on June 3, 2010.
It is found then that service of process was properly made and this action was commenced within the time allowed by statute.
III. Scope of Review
In considering the issues raised in this appeal, the scope of judicial review is limited. Horn v. Zoning Board of Appeals, 18 Conn.App. 674, 676 (1989). The authority of the court is limited by § 8-8 to a review of the proceedings before the Board. The function of the court in such a review is to determine whether the Board acted fairly or on valid reasons with the proper motives. Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49 (1964). The court is limited to determining whether the record reasonably supports the conclusions reached by the Board. Burnham v. Planning and Zoning Commission, 189 Conn. 261, 265 (1983). The court cannot substitute its discretion for the liberal discretion confirmed by the legislature on the Board. The court is limited to granting relief only when it can be shown that the Board acted arbitrarily or illegally and consequently has abused its authority. Gordon v. Zoning Board, 145 Conn. 597, 604 (1958). The burden rests with the plaintiffs to prove the impropriety of the Board's actions. Burnham, supra, 189 Conn. 266.
It is not the function of the court to rehear the matter or question wisdom of the defendant Board in taking the action which it did. The court is limited to determining whether or not the Board's action can be supported under the law.
The Board is authorized to decide appeals from the decisions and rulings of the ZEO under the provisions of Connecticut General Statutes § 8-6(1) and Section 22.1 of the Montville Zoning Regulations. In an appeal from the action of a ZEO to a zoning board of appeals, a court reviewing the decision of the Board must focus not on the decision of the ZEO but on the decision of the Board and the record before the Board. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82 (1993).
In deciding such appeals concerning the interpretation of the zoning regulations as applied to a particular piece of property, the Board acts in a quasi-judicial capacity. The Board has the authority to interpret the Town's zoning regulations and decide whether they apply in a given situation. Stern v. Zoning Board of Appeals, 140 Conn. 241, 245 (1953). On appeal, the court is required to decide whether the Board properly interpreted the regulations and applied them to the facts of the case. Danseyar v. Zoning Board of Appeals, 164 Conn. 325, 327 (1973). In reviewing the Board's decision, the credibility of witnesses and the determination of factual issues are matters within the province of the agency. Stankiewicz v. Zoning Board of Appeals, 15 Conn.App. 729, 732 (1988).
The plaintiffs have the burden of proving that the defendant Board acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1998).
"When a zoning agency (as here) has stated its reason for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the (Board'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." (Citations omitted; internal quotation marks.) Harris v. Zoning Commission, 259 Conn. 402, 420 (2002).
IV. Factual Background
The basic facts underlying these proceedings may be summarized as follows.
Michael Donahue and his wife purchased the property at 6 Glen Road in 1961 and constructed a house on the lot. The house was constructed 39 inches from the boundary line with 4 Glen Road. In 1966, the Donahues acquired 4 Glen Road.
Zoning became effective in Montville on December 6, 1966.
Michael Donahue acquired title to both lots from his wife. Mr. Donahue died and on November 13, 2003, his estate conveyed the property at 6 Glen Road to plaintiffs. At the time, both properties at 6 Glen Road and 4 Glen Road were not in conformance with the existing zoning regulations. Both properties were in the R-20 zoning district. Six Glen Road had the required frontage but lacked the required area. The house was also in violation of the side yard requirements. Four Glen Road did not have the required frontage or the minimum area required in the zone.
The attorney who represented plaintiffs in the purchase of the 6 Glen Road property was concerned about the zoning requirements and whether the division of the Donahue property into two small lots would be in compliance with the regulations. To protect plaintiffs' interest, the attorney discussed the matter with the ZEO. On November 13, 2003, the attorney wrote a letter to the ZEO indicating that officer's agreement that 6 Glen Road could be purchased alone without 4 Glen Road and that this would not constitute a violation of the zoning or subdivision regulations. The ZEO signified his agreement by endorsing the letter.
Plaintiffs purchased the property at 6 Glen Road with the house constructed 39 inches from the property line. Plaintiffs indicated that at the time they acquired the property, they were not aware that the house was located so close to the property line. This is difficult to believe, particularly in view of the zoning concerns which their attorney raised. It is more reasonable to conclude that at the time plaintiffs acquired the property, they were aware as to where the house was located on the lot. Plaintiffs were aware that the adjoining property at 4 Glen Road was for sale. Although they may have intended to purchase the property, they never did.
In November 2004, defendant purchased the unimproved property at 4 Glen Road from the Donahue estate. His purchase and sale agreement was contingent upon obtaining building approval from the town. On April 14, 2004, the ZEO issued a zoning permit to defendant and Carol Murcho for the construction of a single-family residence on the property.
With the intent to build the approved single-family residence, defendant caused certain surveying, landscaping and construction work to be performed on the property. Plaintiffs observed this action and, after investigation, learned that the ZEO had issued the zoning permit on April 14, 2005.
Plaintiffs appealed the action of the ZEO in issuing the zoning permit to the Board. The Board denied the appeal and stated as its reason that the appeal had not been taken within the time allowed by Connecticut General Statutes § 8-6(1). The action of the Board was appealed to this court (Docket Number CV-05-4004221). By memorandum of decision dated September 30, 2009, the court determined that the appeal had, in fact, been brought to the Board within the time allowed by statute and remanded the matter back to the Board for hearing of the appeal as filed.
A separate appeal in Docket Number CV-05-4003702 was also brought and other issues in addition to the timeliness of the appeal also came before the court. Such matters are not directly involved in this appeal.
In accordance with the remand, a public hearing on plaintiffs' appeal to the Board was held on April 7, 2010. At the hearing, the town attorney, Mr. Carey, summarized the proceedings. Attorney Case representing plaintiffs addressed the Board as did Attorney Harris representing defendant. Exhibits, including the record of the previous proceedings, were introduced. At the request of Attorney Harris, Attorney Harry Heller spoke concerning the background of the regulations in question.
The public hearing was continued to the meeting of May 5, 2010. After some discussion, it was voted to close the public hearing. The Board members then discussed the issues. After such discussion, the Board voted unanimously to deny plaintiffs' appeal stating as its reasons:
The Zoning Board of Appeals finds that the Zoning Enforcement Officer did not err as alleged by the plaintiffs, but acted legally and consistently within the framework of the Montville Zoning Regulations in granting a separate zoning permit for the property located at 4 Glen Road, Uncasville, Connecticut as shown on Assessor's Map 106, Lot 6A, a separate nonconforming lot.
Within the time allowed by statute, plaintiffs appealed the decision of the Board to court under the provisions of Connecticut General Statutes § 8-8(a). Additional facts will be stated as necessary.
V. Analysis
Briefs were properly filed by the parties at interest. The court is not bound to consider any claim of law not properly briefed. Shaw v. Planning Commission, 5 Conn.App. 520, 525 (1998); Moulton Brothers, Inc. v. Lemieux, 74 Conn.App. 357, 363 (2002).
Plaintiffs have raised the following issues which must be addressed by the court:
(1) Did the Board err in interpreting the zoning regulations in upholding the ZEO's decision to issue the zoning permit to defendant?
(2) Was the Board's decision arbitrary, capricious, characterized by abuse of discretion or clearly unwarranted exercise of discretion?
(1)
In denying plaintiffs' appeal, the Board determined that the ZEO did not err as claimed by plaintiffs but acted consistently with the zoning regulations in granting the zoning permit to allow construction of a single-family residence on the property at 4 Glen Road.
Plaintiffs' argument that the ZEO and therefore the Board acted in error is based upon two claims: (1) merger; and (2) misinterpretation of § 4.13.5 of the zoning regulations.
a.
Plaintiffs claim that while 6 and 4 Glen Road were owned by Michael Donahue, the lots merged into a single lot. "Merger occurs in two situations. In the absence of a change in the zoning provisions, merger is determined by a party's intent to treat multiple lots as a single property." Laurel Beach Ass'n. v. Zoning Board of Appeals, 66 Conn.App. 640, 653 (2001). Here, plaintiffs' claim of merger is based principally on the actions of Mr. Donahue rather than the zoning regulations themselves. "Once merged the lots form one lot that meets or more closely approximates the zoning requirements and the separate lots lose their exception for nonconformance." Id. "The owner's intent under the common law to merge lots is inferred from his or her conduct with respect to the land and the use made of it." Id., 654.
The sole evidence that Mr. Donahue had the intent to merge the two lots into one consists of the fact that he acquired 6 Glen Road and constructed his house there near the boundary with 4 Glen Road with the understanding that he might acquire that property at a later date. At the time Mr. Donahue acquired 4 Glen Road, zoning did not exist in Montville and presumably he was free to erect his house without considering side yard requirements. There was evidence that after he acquired 4 Glen Road, Mr. Donahue cleared the property adjacent to the house and laid out a walkway.
There was also evidence that Mr. Donahue acquired title to both properties by separate deeds from his wife. There is conclusive evidence that Mr. Donahue's daughter, executrix of his estate, did not consider that a merger had occurred since the properties were separately marketed and conveyed.
A merger of the two properties would, in effect, have created one lot that would have been in conformance with the zoning regulations. This would be consistent with the general goal of zoning which "is to reduce the nonconforming uses with all the speed justice will tolerate." Neiuman v. Board of Appeals, 14 Conn.App. 55, 62 (1988), relying on Helbig v. Zoning Commission, 185 Conn. 295, 306 (1981). If a merger had occurred here, then the conveyance to plaintiff would have created a nonconforming lot. This conveyance to plaintiff under such circumstances would have been illegal. It was out of concern for this situation that plaintiffs' attorney sought assurance from the ZEO that the Donahue property could be divided. If a merger had occurred, the marketability of plaintiffs' property, as well as defendant's property, would be adversely affected.
Although the Board in its decision did not address the issue of merger in upholding the ZEO by implication, it found that a merger had not occurred. A determination of factual issues are normally within the province of the Board. Stankiewicz v. Zoning Board of Appeals, supra, 15 Conn.App. 732. Here, with conflicting evidence on the issue of merger, plaintiffs have failed to establish that the Board was in error on this issue as claimed.
b.
The principal issue in this case is plaintiffs' claim that in approving the action of the ZEO in granting the zoning permit to defendant for the construction of a house at 4 Glen Road, the Board violated its own regulations.
Section 4.2 of the regulations provides that no building shall be erected without a zoning permit. There is no question but that at the time defendant applied for the zoning permit to construct a building at 4 Glen Road the property was not in compliance with the zoning regulations. For this reason, the ZEO could not issue a zoning permit unless he was authorized to do so by some other section of the regulations. Section 4.13 of the regulations covers nonconforming lots such as 4 Glen Road. Section 4.13.6 provides that lots for single-family detached residences which meet the definition of nonconforming lots in § 4.13.5 which have a total area or lot frontage less than the minimum required in the district may be used for such purposes provided that the lot conforms to other requirements. The ZEO would then be authorized to issue a zoning permit for the construction of a house on a lot which did not meet the area or frontage requirements of the zone if it could be found to be a nonconforming lot as defined in § 4.13.5.
Section 4.13.5 provides in pertinent part as follows:
For purposes of these Regulations, a non-conforming lot shall be defined as a lot which was separately owned prior to the enactment of the Zoning Regulations . . .
Section 1.3 of the regulations also contains a definition of "Lot, Nonconforming" which is basically the same as § 4.13.5. The language used in §§ 4.13.5 and 4.13.6 indicate that the definition found in § 4.13.5 was intended to apply to proceedings involving § 4.13.
In issuing the zoning permit to defendant, the ZEO was acting on his understanding that 4 Glen Road, and by inference 6 Glen Road, were nonconforming lots as defined by § 4.13.5. In denying plaintiffs' appeal, the Board agreed with this understanding of the regulations. The plaintiffs disagree with this interpretation.
The operative language of § 4.13.5 which is in dispute is "a lot which was separately owned prior to the enactment of the zoning regulations."
In upholding the action of the ZEO, the Board interpreted the phrase "separately owned" by placing the emphasis on the word "separate." Under the Board's interpretation of the regulation, separate lots would be lots that were separately described in the land records even though owned by a single person. Plaintiffs argue that the exception described in § 4.13.5 would apply only if the lots were held by different persons prior to the enactment of the zoning regulations.
In a matter involving a similar regulation, these conflicting interpretations came before the court in Bank of America v. Zoning Board of Appeals of the Borough of Fenwick, No. CV-06-4006314, 2008 WL 4378824, 46 Conn. L. Rptr. 430. "In this case, the court determined that the arguments proffered by both parties consist of plausible interpretation of the language."
The issue before the court is, in essence, a matter of statutory construction and is therefore a question of law. Trumbull Falls v. Planning Zoning Commission, 97 Conn App. 17, 21, cert. denied, 280 Conn. 923 (2006). "Additionally, zoning 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 regulations) as applied to the facts of the case, including the question of whether the language does so apply." Id., 21, 22. On appeal, the court is required to decide whether the Board properly interpreted the regulations and applied them to the facts of the case. Danseyar v. Zoning Board of Appeals, supra, 164 Conn. 327. In support of their position, plaintiffs rely on two well-reasoned Superior Court decisions, Murphy v. Zoning Board of Appeals, 2003 Conn.Super.Lexis 2248, and Vichi v. Zoning Board of Appeals, 2004 Conn.Super.Lexis 2420. Both of these cases involved regulations which were similar to § 4.13.5 of the Montville Regulations. In both cases, the courts dismissed appeals from ZBA decisions which interpreted the regulations in a manner consistent with plaintiffs' position.
In the Fenwick case, the court also upheld the decision of the board that a similar regulation required ownership by separate individuals. In reaching this decision, the court reasoned as follows:
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. at 280, 876 A.2d 1257. In this matter, both the Zoning Enforcement Officer and the Commission itself have interpreted § 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 § 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, 789 A.2d 478. While not dispositive, the Commission's interpretation is persuasive and reinforced the conclusion that the overall purpose of the regulation is advanced by concluding that under § 8.2 a merger of adjoining lots is required if there is an identity of ownership between the undersized and an abutting lot.
The situation here is quite different from that which existed in Fenwick, Murphy and Vichi. In those cases, the local authorities interpreted similar regulations to require ownership of lots by separate individuals for the property to be considered nonconforming. This was not the case in Montville. At the public hearing, there was testimony from Attorney Harry Heller whose firm represented the Town at the time zoning regulations were first enacted. His testimony indicated that at that time, property owners were quite concerned about the status of nonconforming lots and how such lots would be treated under the regulations. The testimony indicated that the protection of the vested rights of such property owners was a specific goal in the enactment of the regulations.
There was also evidence that the interpretation of § 4.13.5 upheld by the Board in this case had been consistently applied since zoning regulations were first enacted in the Town.
There was evidence that in 30 specific instances permits were granted, or other action taken, based upon the interpretation by zoning officials of the Town that § 4.13.5 granted nonconforming status to lots separately described and not owned by separate individuals prior to the enactment of zoning regulations. Although plaintiffs argue that there was no real evidence in the record of the 30 specific instances, it must be concluded that the zoning authorities of the Town had been consistent in so interpreting the regulations in many instances over the years.
In upholding the action of the ZEO, the Board concluded that he "acted legally and consistently within the framework of the Montville Zoning Regulations in granting a separate zoning permit for the property located at 4 Glen Road, Uncasville, Connecticut, as shown on Assessor's Map 106, Lot 6A, a separate nonconforming lot." The facts support this conclusion.
Under the circumstances here, it must be concluded that the Board did not err in interpreting the zoning regulations in upholding the ZEO's decision to issue the zoning permit to defendant.
(2)
Plaintiffs claim that the Board's decision to uphold the action of the ZEO in issuing the zoning permit to defendant was arbitrary, capricious and characterized by an abuse of discretion or clearly unwarranted exercise of discretion. The basis of this argument by plaintiffs appears to be that the decision of the Board is not supported by sufficient evidence in the record.
Plaintiffs argue that Attorney Heller's testimony was not substantial evidence. The principal issue before the Board was the interpretation of § 4.13.5 of the regulations. Attorney Heller's testimony concerned problems that existed at the time the zoning regulations were enacted and the attempts to alleviate the concerns of property owners in the enactment of the regulations. His testimony also concerned the interpretation of the zoning regulations by zoning authorities in subsequent years.
Statements by the ZEO concerning the consistent interpretation of § 4.13.5 were also before the Board. The credibility of witnesses and the determination of factual issues are matters within the province of the Board. Stankiewicz v. Zoning Board of Appeals, supra, 15 Conn.App. 732.
In this matter, the decision of the Board is supported by substantial evidence in the record and plaintiffs have not established that the decision appealed from was arbitrary, capricious or characterized by an abuse of discretion or clearly an unwarranted exercise of discretion.
VI. Conclusion
It must be concluded that the reasons stated for the action of the Board in upholding the decision of the ZEO are supported by substantial evidence in the record and such reasons are pertinent to the considerations which the Board was required to consider under the regulations. In reaching its conclusion, it has not been proven that the Board acted arbitrarily, illegally or in abuse of its authority.
Accordingly, plaintiffs' appeal is dismissed.