Opinion
LNDCV146052619S
11-12-2015
Congamond Lake Environmental Protection Organization et al. v. Suffield Zoning & Planning Commission et al.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Marshall K. Berger, J.
I
On April 16, 2014, the intervening defendant, Lake Road Materials, LLC (Lake Road), submitted an application to renew a special use to the codefendant, the Suffield zoning and planning commission (commission), to conduct mining operations on Lake Road's property, also known as the Cannon property or the Cannon sand pit, located on Griffin Road off of Copper Hill Road in Suffield. (Return of Record [ROR], Item 1.) The commission held a public hearing on May 19, 2014, and on June 16, 2014, and approved the application during its regular meeting on June 16, 2014. (ROR, Item 9; Item 10; Item 16.) Notice was published in the Hartford Courant on June 19, 2014. (ROR, Item 17.)
On July 3, 2014, the plaintiffs, Congamond Lake Environmental Protection Organization (CLEPO), Kenneth W. Kiely, Paul Pellerin, and Marlies Nakaja, commenced this appeal. The amended complaint of July 28, 2015, contests the validity of the administrative process and the legality of past mining operations on the property from the late 1930s to at least 2003. Lake Road filed a motion to intervene as a defendant on July 11, 2014, and the court, Vachelli, J., granted the motion on July 30, 2014. On September 22, 2014, the plaintiffs filed a motion, which was granted by the court, to supplement the record including the supplementary items, contained in pleadings ##108.00-113.00. On September 30, 2014, Lake Road filed its answer and the commission filed its answer and the return of record on October 1, 2014. On November 14, 2014, the plaintiffs filed a motion to supplement the record, which was granted by this court on April 7, 2015, with the supplementary items, contained in pleading #129.00, and their brief. On January 2, 2015, the commission filed a motion to supplement the record, which was granted in part on April 7, 2015, with the items, contained in pleading #131.00, and the commission and Lake Road filed their joint brief. The plaintiffs filed a brief in reply on January 12, 2015. The parties filed supplemental briefs on June 29, 2015, and the commission and Lake Road filed a brief in reply on July 8, 2015. Pellerin also filed briefs in reply on August 3, 2015, and on August 4, 2015. On August 13, 2015, the court heard the appeal. The court brought the parties back on October 28, 2015, to clarify certain matters concerning the amended complaint of July 28, 2015, pleading #151.00.
The plaintiffs also sought a temporary restraining order, but Lake Road agreed not to conduct operations at this time.
Lake Road's purported principals are J. Scott Guilmartin, a former chairperson of the commission (ROR, Item 29); and Frank E. Bauchiero, Jr., current chairperson of the commission. (ROR, Item 1, p. 2; Item 8; Item 9.)
II
General Statutes § 8-8(b), in relevant part, provides that " any person aggrieved by any decision of a board, including a decision to approve or deny . . . a special permit or special exception pursuant to [General Statutes] section 8-3c, may take an appeal to the superior court for the judicial district in which the municipality is located . . ." General Statutes § 8-8(a)(1) defines " aggrieved person" as " a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, 'aggrieved person' includes any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
The court originally heard the appeal starting with the issue of aggrievement on April 7, 2015. As a result of the plaintiffs failure to prove that they were aggrieved, this court dismissed the action. On April 13, 2015, the plaintiffs filed a motion to open to which Lake Road and the commission objected. The court heard the motion on May 15, 2015, and granted it as to Pellerin only based upon his ownership of abutting property. See General Statutes § § 8-8(a)(1) and (b). Therefore, Pellerin is the only aggrieved plaintiff.
Nakaja and Kiely did not prove that they were aggrieved.
In the amended complaint, CLEPO is listed as a plaintiff in error. The original complaint cited General Statutes § 22a-16 as the basis of CLEPO's claim and the prayer for relief asks for equitable action to prevent unreasonable pollution. CLEPO failed to introduce any evidence for its equitable claim when the appeal was first heard on April 7, 2015, or on May 15, 2015, when the court heard the motion to open. On October 28, 2015, counsel for the plaintiffs indicated that CLEPO was not pursuing its claim.
III
" General Statutes § 8-2(a) provides in relevant part that local zoning regulations may provide that certain . . . uses of land are permitted only after obtaining a special permit or special exception . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values . . . The terms special permit and special exception are interchangeable . . . A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values . . . When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity . . . [Its] function . . . [is] 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 . . . We have observed that the nature of special [permits] is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site . . . Review of a special permit application is inherently fact-specific, requiring an examination of the particular circumstances of the precise site for which the special permit is sought and the characteristics of the specific neighborhood in which the proposed facility would be built . . .
" Our Supreme Court has concluded that general considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit. Also, [it has] stated that before the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns . . . would adversely impact the surrounding neighborhood . . . 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 a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." (Citations omitted; internal quotation marks omitted.) Meriden v. Planning & Zoning Commission, 146 Conn.App. 240, 244-46, 77 A.3d 859 (2013).
A commission cannot deny a special exception if the regulations and statutes are satisfied. See Irwin v. Planning & Zoning Commission, 244 Conn. 619, 628, 711 A.2d 675 (1998) (" [a] zoning commission does not have discretion to deny a special permit when the proposal meets the [applicable] standards"). " The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, 53 Conn.App. 636, 640, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999).
Additionally, where a nonconforming use is alleged, " General Statutes § 8-2(a) provides in relevant part that zoning regulations 'shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations. Such regulations shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use . . .' A nonconformity has been defined as a use or structure [that is] prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations [were] adopted . . . For a use to be considered nonconforming . . . that use must possess two characteristics. First, it must be lawful and second, it must be in existence at the time that the zoning regulation making the use nonconforming was enacted . . . The party claiming the benefit of a nonconforming use bears the burden of proving that the nonconforming use is valid." (Citations omitted; emphasis in original; internal quotation marks omitted.) Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622, 627-28, 814 A.2d 396, cert. denied, 263 Conn. 901, 819 A.2d 836 (2003).
IV
Suffield adopted its first zoning regulations in 1932 and the town was divided into four zones. (Pleading [Pl.] #131.00, Exhibit [Exh.] 1.) It is undisputed that the subject property was and is located in an " A" residential zone. (ROR, Item 18.) Section 3.A of Suffield's building zone regulations, effective May 9, 1932, provided, in relevant part, that " within any 'A' residence zone no building or premises shall be used . . . except for one or more of the specified purposes . . ." (Pl. #108.00, Exh. 1, pp. 5-7.) While sixteen uses are specified, they are silent on the use of gravel and mining operations. (Pl. #108.00, Exh. 1, pp. 5-7.) As set forth in § 1, the regulations were permissive " meaning that those matters not specifically permitted are prohibited." See Graff v. Zoning Board, 277 Conn. 645, 653, 894 A.2d 285 (2006).
In relevant part, § 1 provided: " Except as hereinafter provided, no building or premises shall be used and no building shall be constructed, reconstructed, extended or structurally altered except in conformity with the provisions of the ordinance applicable to the zone within which the same is located." (Pl. #108.00, Exh. 1, p. 4.)
Pellerin argues that the photograph attached to the motion to supplement shows no gravel operation in the area in 1934. (Pl. #110.00.) It appears from the record that the mining operation commenced after Suffield enacted its zoning regulations at some point between 1934 and 1939. (ROR, Item 9; Item 18; Item 33, p. 5.)
In the commission and Lake Road's July 8, 2015 joint reply, they argue that until the passage of the 1955 Public Acts, No. 55-239, amending § 197(c) of the 1953 Supplement to the General Statutes, which is the predecessor of General Statutes § 7-148, and of the 1957 Public Acts, No. 57-354, effective October 1, 1957, municipal zoning commissions had no authority to regulate gravel and mining operations. They argue that 1957 and not 1932 is the relevant date to determine whether the sand and gravel pit was a nonconforming use. They stress that the 1957 amendment which included the language " except where there exists a local zoning commission, which commission is then so empowered, " means that a zoning commission had no power to regulate such uses prior to that time. Indeed, they argue that even though the commission adopted regulations, including § 9, on April 27, 1954, it was without power to do so. Thus, they assert that it was not until the adoption of the latter amendments--sometime between 1954 and 1989, at which time § 9 became § 5.20--that the gravel and mining regulation became effective.In contrast, Pellerin argues that the commission had authority to regulate the sand and gravel pit under General Statutes § 8-2, and that the commission and Lake Road have conflated § 8-2 with the authority found in § 7-148, which provides for the scope of the towns' authority. He notes that the court in Sullivan v. Town Council, 143 Conn. 280, 282, 121 A.2d 630 (1956), discusses the genesis of zoning powers in Connecticut commencing in 1921 with the city of New Haven and made available to all towns by 1925. He also argues that Suffield voted in 1928 to create a zoning commission with the powers conferred by chapter 242 of the Public Acts of 1925, the predecessor of § 8-2. Moreover, he cites R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d ed. 2007) § 4:24, pp. 117-18: " Connecticut municipalities can regulate excavation of sand, gravel and other earth products by regulations based on [General Statutes] § 8-2, the zoning enabling statute, or by an ordinance based on [§ ]7-148 of the General Statutes, which allows municipality to pass ordinances on a wide variety of subjects, including the regulation of excavation activities. Section 7-148(c)(8)(C) allows an ordinance passed under the provisions of that statute 'except where there exists a local zoning commission, ' presumably showing legislative intent that where a municipality has zoning, earth removal activities would be governed by provisions in the municipal zoning regulations. Some municipalities had ordinances passed based on [§ ]7-148 before they adopted zoning regulations, and may continue to regulate under the [§ ]7-148 ordinance. This statute does not provide any protection for pre-existing nonconforming uses unlike [§ ]8-2 which expressly provides that zoning regulations cannot prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of the zoning regulations." (Footnote omitted.)Pellerin also references Teuscher v. Zoning Board of Appeals, 154 Conn. 650, 228 A.2d 518 (1967), a case with somewhat similar facts. In Teuscher, a zoning ordinance was adopted in 1930, mining operations commenced in the late 1930s and continued through 1963, a gravel removal ordinance was adopted in 1953, and there was a question of the operation's status as a nonconforming use. Id., 652-53. The court stated, " The Westport zoning ordinance is now, and since its inception in 1930 has been, so written as to permit only those uses specifically authorized in each zoning district. Uses not specifically authorized are prohibited. The mining of gravel was never a permitted use in any zoning district." Id., 654. The court went on to address the constitutionality of the zoning regulation. Id., 657-60.In the present case, the commission and Lake Road argue that the phrase " which commission is then so empowered" in P.A. 57-354 means that zoning commissions--including Suffield's commission--did not have the statutory authority to regulate mining and gravel operations prior to 1957. Evidently, the commission and Lake Road believe that the phrase " use of buildings, structures and land for trade, industry, residence or other purposes" in § 8-2 did not encompass that power. Frankly, this is the first time this court has encountered such an argument. In all of the Supreme Court's cases involving earth removal questions, it has never indicated that commissions, and perhaps towns, lacked the authority to regulate earth removal operations pursuant to that legislative enactment under municipal zoning powers. See, e.g., Toffolon v. Avon, 173 Conn. 525, 378 A.2d 580 (1977) (claim of nonconforming use since 1954 prior to adoption of zoning regulations regulating removal and processing of earth materials); Waterford v. Grabner, 155 Conn. 431, 232 A.2d 481 (1967) (claim of nonconforming use as to 1954 zoning regulations regulating operation of sand and gravel pits); Teuscher v. Zoning Board of Appeals, supra, 154 Conn. 650; Calve Bros. Co. v. Norwalk, 143 Conn. 609, 124 A.2d 881 (1956) (upholding 1952 nonzoning ordinance regulating earth removal); Abramson v. Zoning Board of Appeals, 143 Conn. 211, 120 A.2d 827 (1956) (upholding 1953 zoning regulation allowing for special exception in connection with prohibition against excavation, removal, sale, or use of earth materials); DeFelice v. Zoning Board of Appeals, 130 Conn. 156, 32 A.2d 635 (1943) (extension of nonconforming use issue as to 1936 zoning regulations for wet sand classifier); but see Farmington River Co. v. Town Plan & Zoning Commission, 25 Conn.Supp. 125, 129, 197 A.2d 653 (1963) (" [t]he power to regulate the removal of earth products in the case of Farmington was vested in the zoning commission of Farmington, not as part of its zoning powers under chapter 124 of the General Statutes but as a town police power under § 7-148 of the General Statutes").There is a distinction between zoning powers and general municipal powers to regulate mining operation. See T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 9 (" some of these . . . § 7-148 powers are exercisable only if there is no zoning commission in the town [e.g., trailer parks, sand and gravel operations], implying that the other powers just listed are exercisable by ordinance even though a zoning commission exists that is exercising those same powers" [emphasis in original]). Public Acts No. 57-354 specifically amended § 7-148 giving municipalities that did not have a zoning commission the authority to regulate earth removal activities; the legislation did not amend the zoning statutes. Indeed, § 7-148(c)(8)(C) buttresses this interpretation as it provides: " Any municipality shall have the power to do any of the following, in addition to all powers granted to municipalities under the Constitution and general statutes . . . Except where there exists a local zoning commission, regulate the filling of, or removal of, soil, loam, sand or gravel from land not in public use in the whole, or in specified districts of, the municipality . . ."" The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Tayco Corp. v. Planning & Zoning Commission, 294 Conn. 673, 679, 986 A.2d 290 (2010)." It is a well settled principle of statutory construction that the legislature knows how to convey its intent expressly . . . or to use broader or limiting terms when it chooses to do so." (Internal quotation marks omitted.) Gould v. Freedom of Information Commission, 314 Conn. 802, 818, 104 A.3d 727 (2014). " [T]his court cannot, by judicial construction, read into legislation provisions that clearly are not contained therein . . . In determining legislative intent, in the absence of ambiguity, we look only to what the legislature actually said, not to what it might have meant to say." (Citation omitted.) Stitzer v. Rinaldi's Restaurant, 211 Conn. 116, 119, 557 A.2d 1256 (1989). " As we repeatedly have stated in seeking to ascertain legislative intent from more than one statutory pronouncement on a particular subject, specific terms in a statute covering a given subject matter will prevail over the more general language of the same or another statute that otherwise might be controlling." Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 713-14, 802 A.2d 731 (2002). If the legislature wished to amend the zoning statutes, it could have done so. See, e.g., State v. Kevalis, 313 Conn. 590, 604, 99 A.3d 196 (2014).The commission and Lake Road argue that the clause " which commission is then so empowered" granted power to the zoning commission. It is true that " [s]tatutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant . . ." (Internal quotation marks omitted.) Semerzakis v. Commissioner of Social Services, 274 Conn. 1, 18, 873 A.2d 911 (2005). Nevertheless, the phrase " which commission is then so empowered" is susceptible to more than one interpretation; it could simply mean if the commission is already empowered. See T. Tondro, supra, p. 9 (" some of these . . . § 7-148 powers are exercisable only if there is no zoning commission in the town [e.g., trailer parks, sand and gravel operations], implying that the other powers just listed are exercisable by ordinance even though a zoning commission exists that is exercising those same powers" [emphasis in original]). " 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." (Internal quotation marks omitted.) Kraiza v. Planning & Zoning Commission, 304 Conn. 447, 454, 41 A.3d 258 (2012). The court rejects the commission and Lake Road's interpretation of P.A. 57-354 in light of the previous discussion, the legislature's failure to include any reference to § 8-2 in P.A. 57-354, and the many cases addressing regulations in the relevant time frame and authority concerning earth removal and nonconforming uses.
The passage of the 1949 Public Acts, No. 49-528, provided for a combined planning and zoning commission for Suffield. The town amended its zoning regulations in 1954 to allow for the removal of material through the special permit process. (Pl. #131.00, Exh. 3, pp. 96-97.) The 1954 amendments allow, however, gravel removal only in conjunction with construction, landscaping, or agricultural operations. (Pl. #131.00, Exh. 3, pp. 96-97.) Specifically, § 9.2 provides: " Unless otherwise provided in this section there shall be no removal from the premises in any district of earth, sand, gravel, clay or quarry stone except as surplus material resulting from a bona-fide construction, landscape or agricultural operation being executed on the premises, and provided that no permanent damage is done to the landscape." (Pl. #131.00, Exh. 3, p. 96.)
At a commission meeting on July 21, 1986, in connection with the topic, " Gravel Pits--'grandfather' clause--the question of new expansion?" the town attorney, Judith Jentzen, stated, " most of the gravel pits are 'grandfathered' because they were begun prior to 1954 when Zoning Regulations came into being in Suffield, but this is only for the use. They are non-conforming uses because they have been in existence for a long period of time, but the regulations must be followed. The regulations for a Special Use Permit applies to them and the owners must apply for it. This also applies to new expansion. Section 5.20 of the Regulations applies. The owners must comply with the present regulations. The use is 'grandfathered' but the owners must operate under the present regulations." (Pl. # 129.00, Exh. b.)
The following year during a commission meeting on December 21, 1987, the chairperson, Douglas H. Viets, reported that " he had received a letter from the Town Attorney in response to the Commission's inquiry concerning the Cannon Gravel Pit and that in summary, the Town Attorney has stated that the Commission does have the power to regulate even pits that are 'grandfathered, ' but cannot prohibit them. The Commission can require the present owners to come to the Commission for a Special Use Permit for the operation of the sand (or gravel) pits." (Pl. #129.00, Exh. c.) At the February 1, 1988 commission meeting, the subject came up again and " Dr. Viets said that the legal opinion received from Mr. O'Malley, Town Counsel, indicated that 'grandfathered' gravel pits that are in operation now can continue to exist, but the [commission] can require the owners to seek a permit from the Commission. New operations are required to file with the Commission for a permit." (Pl. #129.00, Exh. d.) Later that year at the November 21, 1988 commission meeting, the minutes reflect that " Dr. Viets read the two sections of the legal opinion from the Town Counsel that referred to Connecticut General Statutes [§ § ]7-148 and 8-2 concerning non-conforming uses that existed prior to zoning in Suffield (or any town) and the regulations that could be required, therefore, the Commission does not have jurisdiction to turn down a permit, only to set down conditions concerning safety and welfare." (Pl. #129.00, Exh. e.) Sometime before 1989, the regulations were modified and § 9 became § 5.20. (Pl. #129.00, Exh. a; Pl. #131.00, Exh. 4.) The previous owners of the property, Lewis H. Cannon, Jr., and William L. Cannon, received a special permit from the commission on January 23, 1989, which was recorded in the Suffield land records. (Pl. #131.00, Exhs. 5-6.) The permit was renewed every two years through 2001. (ROR, Item 18.)
Neither party provided an exact date, but they agree on the revision.
Evidently, certain residents, including Pellerin, in Brice v. Zoning & Planning Commission, Superior Court, Docket No. CV-89-0357496-S, appealed the issuance of the permit and made some allegations similar to those in the present case. (Pl. #131.00, Exh. 7.) The court, O'Neill, J., denied a motion for a temporary injunction, and the appeal was withdrawn on September 1, 1989. (Pl. #131.00, Exhs. 10-11.) The parties in the present case have not been able to produce any original part of the file and the court's file was destroyed in accordance with Practice Book § § 7-10 and 7-11.
In 2003, Lake Road and Marlene M. Cannon sought a special permit to conduct mining operations--this time in the vicinity of the road utilized by adjoining neighbors for access to their Colony Road subdivision homes. (ROR, Item 33.) The special permit was conditionally granted; (ROR, Item 35); and the Cannons appealed. (ROR, Item 33.) The court, Stengel, J., issued a decision on January 7, 2005, holding that the conditions were improperly imposed, were an integral part of the permit, and could not be severed from the permit. Lake Road Properties, LLC v. Suffield Zoning & Planning Commission, Superior Court, judicial district of Hartford, Docket No. CV-04-0832682-S (January 7, 2005, Stengel, J.). Accordingly, the court sustained the appeal essentially voiding the special permit. Id.
The private road, known as Lake Road, is utilized by the Colony Road subdivision homeowners by permission of the Cannons and is maintained by Suffield. (ROR, Item 33, p. 5.)
The letter informing Marlene M. Cannon and Lake Road of the conditional approval is signed by Bauchiero, who was secretary of the commission at the time. (ROR, Item 35.)
In July 2004, the regulations were again amended. (ROR, Item 38.) Under the new regulation § V.J. renewal of special permits is limited to existing operations; (ROR, Item 38, pp. § V.15-16); and new sand and gravel operations are prohibited under § IV.L.1(q). (ROR, Item 38, pp. § IV.25-26.)
Section V.J. is titled " Earth Removal" and, in relevant part, provides: " 1. The purpose of this section is to preserve a cover crop on the land to prevent erosion and to control any excavation operations that may create a safety or health hazard to the public or the adjacent property owners, or be detrimental to the immediate neighborhood or to the Town of Suffield. This use is only permitted for existing earth removal uses in which a renewal of a special permit is being sought.
**** 3. The Commission may grant a special permit for the renewal of existing earth removal or sand and gravel operations only, under the following conditions: a. The applicant shall submit a plan showing existing grades in the area from which the above material is to be removed together with finished grades at the conclusion of the operation. b. The plan shall provide for proper drainage of the area of the operation after completion and no bank shall exceed a slope of one foot of vertical rise in two (2) feet of horizontal distance. No removal shall take place within twenty (20) feet of a property line. c. At the conclusion of the operation, or of any substantial portion thereof, the whole area where removal takes place shall be covered with not less than four (4) inches of topsoil and seeded with a suitable cover crop. d. No stone crusher or other machinery not required for actual removal of the material shall be used. e. Before a special permit renewal can be granted under this section the applicant shall post a bond with the Treasurer of the Town of Suffield in an amount approved by the Commission as sufficient to guarantee conformity with the provisions of the permit issued hereunder. f. In passing on such applications, the Commission shall consider the effect of such removal on surrounding property and the future usefulness of the premises when the operation is completed. g. Such permits shall be issued for a period not exceeding two (2) years. h. Nothing herein shall prevent filing a revised plan with the Commission, modifying or reducing the scope of work originally approved, provided that the bond required above shall not be released until all the requirements of the section shall have been met. (ROR, Item 38, pp. § V.14-16.)
Section IV.L.1(q), in relevant part, provides: " Any use not listed as permitted by these regulations is deemed to be prohibited (see Sec. I.C. of these regulations). Nevertheless, due to their uniquely objectionable characteristics, certain uses are identified in this Section for specific prohibition in any zone, as principal or accessory uses, and no use category set forth in these Regulations shall be deemed to include any use set forth herein. No land, premises, building or structure in any zone shall be used for any of the following uses . . . Commercial mining or quarrying operations, including removal of sand, and gravel operations." (ROR, Item 38, pp. § IV.25-26.)
Lake Road and Marlene M. Cannon brought another suit against the town in 2005 in Lake Road Properties, LLC v. Suffield, Superior Court, judicial district of Hartford, Docket No. CV-05-4006605-S, requesting that Suffield construct a new highway under General Statutes § 13a-63 which would relocate the road in order to conduct mining operations. The case was resolved in a stipulated judgment that was approved on August 7, 2008. (ROR, Item 32.)
The stipulation, in part, provided that the town would establish a new road at the request of the plaintiffs within five years and that " [t]he Town shall affirmatively support any application made by the plaintiffs to any agency or official, including but not limited to the Suffield Zoning and Planning Commission, for such permits as may be required for the plaintiffs to excavate, remove and transport sand, gravel or other earth materials from elsewhere on their property, in such volumes as either (1) may be used to construct the New Highway, or (2) may provide a reasonable source of funds, by sale or payment in kind, to allow the plaintiffs to satisfy their portion of the construction obligations under this Stipulation. Nothing in this paragraph shall preclude the plaintiffs from seeking excavation permits for additional materials, and nothing shall oblige the Town to support any application for excavation of materials that are not needed for construction of the New Highway, and the sale of which would produce funds beyond the reasonable needs of the plaintiffs to satisfy their portion of the road-construction obligations set forth in this Stipulation." (ROR, Item 32, p. 2.) There is no indication that Lake Road or its predecessors requested that the town construct the road.
The instant special permit application, like the 2003 application, sought to relocate the road. (ROR, Item 9, p. 2.) On April 16, 2014, Lake Road provided notice to the inland wetlands agency (agency) that it was submitting an application similar to that approved by the agency in 2003. (ROR, Item 12.) The agency decided that the 2003 approval was still effective. (ROR, Item 11.) The public hearing before the commission commenced on May 19, 2014, and was continued to June 16, 2014. (ROR, Items 9-10; Items 36-37.) In a memorandum to the commission on May 16, 2014, the town planner, Bill Hawkins, provided a history for the Cannon property. (ROR, Item 18.) During the public hearing, numerous Suffield residents spoke against the proposal. (ROR, Items 9-10; Items 36-37.)
Hawkins stated: " Prior to the last 9 years, the sand pit off Lake Road has been continuously operated since 1939, predating the adoption of Suffield's Zoning Regulations in 1954 . . . From 1991 to 2001 the Commission approved the special use permit for the property every two years with a public hearing . . . The last approval of the sand pit was issued February 23, 2004 which contained sixteen conditions of approval . . . I understand the gravel pit operations have been dormant since 2005." (ROR, Item 18.)
On June 6, 2014, Lake Road revised its application and both Hawkins and the town engineer addressed the revision at the June 16, 2014 public hearing. (ROR, Item 3; Items 20-21; Item 37.) After the close of the public hearing, the commission voted unanimously to approve the application subject to twenty-eight conditions. (ROR, Item 16; Item 39.)
Pellerin argues that the commission exceeded its authority (1) by approving the renewal of a two-year special permit which was last issued ten years ago for a prohibited use that did not predate zoning regulations; and (2) by failing to follow the proper procedures. While the commission last issued a permit in 2004; (ROR, Item 35); the challenge in Lake Road Properties, LLC v. Suffield Zoning & Planning Commission, supra, Superior Court, Docket No. CV-04-0832682-S, resulted in a judicial annulment of the special permit in 2005. The Cannons and Lake Road did not seek to operate the pit until the current permit application in 2014. (ROR, Item 1.) This court agrees with Pellerin that procedurally Lake Road could not renew an expired permit, much less an invalid permit. Permits are valid for two years under § V.J.3.g. (ROR, Item 38, pp. § V.15-16.) However, the court is not holding, within the context of zoning law, that an alleged nonconforming use was abandoned. See Cummings v. Tripp, 204 Conn. 67, 93, 527 A.2d 230 (1987) (" 'Abandonment' is a question of fact which implies a voluntary and intentional renunciation. Nevertheless, the intent to abandon may be inferred as a fact from the circumstances . . . The mere discontinuance of a use where there is no intent to abandon is not enough . . . To establish abandonment, the intention on the part of the owner [must be] to relinquish permanently the nonconforming use . . . Because the conclusion as to the intention of the landowner is an inference of fact, it is not reviewable unless it was one which the trier could not reasonably make." [Citations omitted; emphasis in original; internal quotation marks omitted.]). This court need not make this determination as discussed hereinafter.
While hearing the appeal on August 13, 2015, the court granted Pellerin's July 28, 2015 request to amend his complaint to allege that the commission erred because (1) a renewal cannot be granted on an expired permit; (2) the " permitted" use was abandoned; and (3) the renewal process was procedurally deficient. This court granted the amendment as it only clarified and added nothing new to what had been alleged and discussed by counsel throughout these proceedings.In paragraph twenty-eight of count two of a previous version of the amended complaint filed on August 25, 2014, it was alleged that " the operation of the sand and gravel operation on the Cannon property became a nonconforming use when Suffield's Regulations were changed . . ." In paragraph thirty of count two of the operative complaint, it is alleged that " [f]rom 1988 to 2004, the sand and mining operation on the Cannon property was a permitted use under the terms and conditions of the permits issued by the Commission." The commission and Lake Road argue that the two allegations constitute judicial admissions concerning the status of the operation. While this court recognizes that generally statements in a pleading constitute admissions; see Ferreira v. Pringle, 255 Conn. 330, 345, 766 A.2d 400 (2001) (" [f]actual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case" [internal quotation marks omitted]); this is not the case when the pleading is withdrawn or superceded. See Sean O'Kane A.I.A. Architect, P.C. v. Puljic, 148 Conn.App. 728, 739, 87 A.3d 1124 (2014) (" [t]he [trial] court concluded that because the defendants withdrew the pleading in which the statement appeared, the statement was no longer a binding judicial admission, but rather had become an evidential admission that could be explained or denied at trial"). The actions of the commission created this semantic wrestling match: the commission did permit the operation with the issuance of permits; hence, it was permitted. Nevertheless, that the operation had permits is not the same as Pellerin admitting that the operation was ever legal. Indeed, once paragraph thirty is read in context of the whole operative complaint, particularly paragraphs twelve and thirty-five, there is no admission.
In page fourteen of Pellerin's brief filed on November 14, 2014, the crux of his argument is that " [t]he operation of the sand and gravel operation on the Cannon Property was never legal as the permits issued by the Commission were issued under a mistaken belief that the Cannon Property enjoyed constitutional protection as a use which pre-dated zoning." The acting chairperson, presumably John Murphy, stated at the public hearing on June 16, 2014, " As I understand it, it's a permitted use; it's a grandfathered permitted use, given the fact that it's been in operation over time. Even though it's been dormant for some years, it's still a permitted use. We had independent counsel confirm that. That's a well-established matter of fact and law from our perspective. So I understand that under our regulations, we have a Special Permit Application for this permitted use. It's unusual . . . The scope of our review is rather limited, there's a permit use and they are before the regulations were adopted." (ROR, Item 37, p. 33.) As a result of this mistaken belief, Pellerin argues that the commission could not issue this or any permit.
The court's analysis of the commission's decision requires an examination of the validity of the previous special permits and the legal doctrine known as vested rights. The record, as previously discussed, indicates that the commission; (ROR, Item 37, p. 45); as well as the town planner; (ROR, Item 18); operated under the incorrect belief that the mining operation commenced prior to the enactment of the zoning regulations and that the operation was thus " grandfathered" as a nonconforming use.
" It is a fundamental zoning precept in Connecticut . . . that zoning regulations cannot bar uses that existed when the regulations were adopted . . . It is readily apparent that the rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the zoning regulations." (Citation omitted; emphasis in original; internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 65 Conn.App. 687, 694, 783 A.2d 526 (2001). " Where a nonconformity exists, it is a vested right which adheres to the land itself. And the right is not forfeited by a purchaser who takes with knowledge of the regulations which are inconsistent with the existing use . . . A vested right, unless abandoned, to continue the nonconforming use is in the land . . . [T]he right to a nonconforming use is a property right and . . . any provision of a statute or ordinance which takes away that right in an unreasonable manner or in a manner not grounded on the public welfare is invalid. A lawfully established nonconforming use is a vested right and is entitled to constitutional protection." (Citation omitted; emphasis added; internal quotation marks omitted.) Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483-84, 408 A.2d 243 (1979). If the use is not valid when established, it cannot be a nonconforming use. See 2 R. Anderson, Am. Law of Zoning (5th Ed. 2015) § 12:17, p. 12-93 (" Nonconforming use status is available only for those uses which were legally established before the enactment of the restrictive regulation which rendered the use noncompliant. Accordingly, if the use violated zoning regulations in effect when the use was commenced, it will gain no right to continue under subsequent zoning restrictions which also prohibit the use."). " Vested rights cannot be acquired in a use that is illegal." 4 R. Anderson, supra, § 32.2, p. 32-4.
In the present case, the commission was incorrect in its consideration of the special permit application. The property was and is located in a residential zone. (ROR, Item 18.) Suffield first adopted its zoning regulations in 1932, not 1954. (Pl. #131.00, Exh. 1.) Section 3.A of the 1932 regulations provided for a sixteen specific uses and the regulations were silent on the use of gravel and mining operations. (Pl. #108.00, Exh. 1, pp. 5-7.) Additionally, § 1 provided that the regulations were permissive; (Pl. #108.00, Exh. 1, p. 4); and, thus, an unspecified use was prohibited. See Graff v. Zoning Board, supra, 277 Conn. 653. Furthermore, Suffield enacted a regulation, § 2, regarding nonconforming uses at that time. (Pl. #108.00, Exh. 1, p. 4.) Since the regulations were effective in 1932 and the mining operation was not established until the late 1930s, it was both unlawful and was not in existence before the enactment of § 2. See Cumberland Farms, Inc. v. Zoning Board of Appeals, supra, 74 Conn.App. 628. The unlawful status impacts the special permits that were subsequently issued; see 2 R. Anderson, supra, § 12:17, p. 12-93; and the commission and Lake Road have not sustained their burden to prove that the mining operation was a nonconforming use. See Cumberland Farms, Inc. v. Zoning Board of Appeals, supra, 628.
Pellerin also argues that the commission could not issue this permit without knowing the extent of the operation in 1989 and the commission had no evidence of the scope of the operation at that time. Notwithstanding the twenty-eight conditions placed upon the renewed special permit; (ROR, Item 16); the foundation for the commission's review was the mistaken idea that this was a lawful existing use and that its review was therefore limited. (ROR, Item 37, p. 42.) Consequently, the commission did not consider the alleged expansion of the nonconforming use.Pellerin further asserts that the administrative process was deficient in that the commission failed to give notice to the regional planning agency pursuant to General Statutes § 8-3b, failed to consider whether the application complied with Suffield's plan of conservation and development as required by § XIV.B.1.b.5 of the regulations, failed to obtain review by the town's agency, and failed to consider traffic impacts. Because the court holds that there was no legal nonconforming use, these issues are not discussed.
Regardless of whether the mining operation was a nonconforming use, the commission and Lake Road argue that the improperly issued permits created a vested right in the mining operation. It is our law, however, that " a vested right to perpetuate the consequences of a mistake would be an anomaly, and would effectively deny the power of a court of equity and of the legislature to correct the mistake." Atkins v. Nichols, 51 Conn. 513, 520 (1884); see also Schomer v. Shilepsky, 169 Conn. 186, 194, 363 A.2d 128 (1975) (" The action taken here was contrary to the regulations at all times. In those circumstances no vested rights have been infringed upon."). Indeed, " [t]he fact that benefits were mistakenly awarded the plaintiff cannot give her vested rights in something to which she was never entitled. An honest mistake by a government employee cannot restrain the administrator from doing his statutory duty." Williams v. Administrator, 30 Conn.Supp. 123, 126, 303 A.2d 749 (1972).
The commission and Lake Road also argue that the commission is estopped from enforcing its regulations because it issued the special permits over that long period of time and cites West Hartford v. Rechel, 190 Conn. 114, 122-25, 459 A.2d 1015 (1983) (remanding case for determination as to whether " the agents of the town acted to induce their reliance and that the defendants relied on the town's actions to their detriment to such an extent that enforcement of the town's zoning regulations would be 'highly inequitable or oppressive' "). The commission and Lake Road only raise estoppel and vested rights in subsequent briefs and they were not separately pleaded. Additionally, the court finds the estoppel argument unavailing as it is a shield and not a sword. See Cabrera v. Dept. of Social Services, Superior Court, complex litigation docket at New London, Docket No. X04 CV-00-0124541-S (August 19, 2002, McLachlan, J.) (32 Conn. L. Rptr. 741).
Additionally, " under the accepted law of this state, there is no vested property right in a mere building permit." Graham Corporation v. Board of Zoning Appeals, 140 Conn. 1, 4, 97 A.2d 564 (1953); see also Ertel v. Rocque, Superior Court, judicial district of Middlesex, Docket No. CV-03-0100647-S (January 21, 2005, Aurigemma, J.) (" [t]he law is clear that one does not have a property interest in a construction permit"), aff'd, 108 Conn.App. 48, 946 A.2d 1251, cert. denied, 289 Conn. 926-27, 958 A.2d 158 (2008). " Permits that are granted by mistake generally do not confer a vested right to the property owner, and the government may revoke that permit." 4 R. Anderson, supra, § 32:5, p. 32-24.1; see also In re Broad Mountain Development Co., LLC, 17 A.3d 434, 444 (Pa. Commw.) (" [g]enerally, a municipal permit issued illegally or in violation of the law, or under a mistake of fact, confers no vested right or privilege on the person to whom the permit has been issued, and it may be revoked notwithstanding that the person may have acted upon the permit"), cert. denied, 611 Pa. 647, 24 A.3d 864 (2011). Cases of other states illustrate the rule that permits unlawfully or mistakenly issued do not create a vested right. See Ebzery v. City of Sheridan, 982 P.2d 1251, 1257 (Wyo. 1999); Matter of Westbury Laundromat, Inc. v. Mammina, 62 App.Div.3d 888, 892, 879 N.Y.S.2d 188, 190-91 (2009); Clark Stone Co, Inc. v. North Carolina Dept. of Environmental & Natural Resources, Division of Land Resources, 164 N.C.App. 24, 594 S.E.2d 832, 842 (N.C. Ct.App.), cert. denied, 358 N.C. 731, 603 S.E.2d 878 (2004).
The court in In re Broad Mountain Development Co., LLC, supra, 17 A.3d 444-45, noted that vested rights could be acquired with an invalid permit and set forth five factors that " must be weighed in determining whether one has acquired vested right as a result of a permit improperly issued by a government entity, those being: (1) due diligence in attempting to comply with the law; (2) good faith throughout the proceedings; (3) the expenditure of substantial unrecoverable funds; (4) the expiration without appeal of the period during which an appeal could have been taken from the issuance of a permit; and (5) the insufficiency of evidence to prove that individual property rights or the public health, safety or welfare would be adversely affected by the use of the permit." The court held that " [a] claim of vested rights to a permit, however, must fail where a timely appeal of the permit at issue has been taken." Id., 445. In the present case, Pellerin has timely appealed the permit at issue.
Furthermore, " [a] right is not vested unless it amounts to something more than a mere expectation of future benefit or interest founded upon an anticipated continuance of the existing general laws." (Internal quotation marks omitted.) Aspetuck Valley Country Club, Inc. v. Weston, 292 Conn. 817, 834, 975 A.2d 1241 (2009). In the present case, Lake Road is a contract purchaser of the property upon which a former sand and gravel operation sits; its interest is only a mere expectation of a future benefit. Thus, Lake Road has failed to establish that it has a vested right.
In summary, the commission and Lake Road have not sustained their burden to prove a legal nonconforming use in the gravel and sand operation or a vested right to the operation. Thus, the court holds that Pellerin has sustained his burden to prove that the commission acted outside of its authority in conditionally granting Lake Road's application to renew a special permit. Accordingly, Pellerin's appeal is sustained.