Opinion
WWMCV146008611S
07-13-2016
Ernest C. Lamoureux v. Town of Thompson
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Harry E. Calmar, J.
Zoning Appeal Hearing, April 1, 2016
This is an appeal by the plaintiff abutting owners from a decision of the Thompson Zoning Board of Appeals (the Board) vacating a notice of violation issued by the town's Director of Planning and Development (the Director) to the defendant, Morning Star Farm Pet Resort, LLC (Morning Star). Although each party devoted several pages to their Statement of Facts, the facts in general are not in dispute.
While the certificate of variance does not contain any conditions or restrictions, the Plaintiff-Appellants, as noted in section III below, assert that the record reflects additional limitations were imposed.
The defendant, Morning Star, is and at all times relevant to this appeal, was the owner of the premises at 317 County Home Road, Thompson, Connecticut (the property or the subject property) where it operates a dog boarding and grooming business. The predecessor of Morning Star received a variance dated March 11, 2002 and recorded in the Thompson Land Records at Volume 461, Pages 94 and 95. Morning Star's property is located in a R40 district and, but for the variance, would not be allowed to operate a dog kennel. The plaintiffs are the owners of premises located at 297 County Home Road, Thompson, Connecticut, which abuts the subject property. On October 17, 2013, Mary Ann Chinatti, director of planning and development for the Town, issued a notice to Morning Star indicating that in the opinion of staff, the operation exceeded the scope of the variance approved in 2002. The notice advised Morning Star that if they disagreed with the decision, they had a right to appeal to the Zoning Board of Appeals. Morning Star appealed (the first appeal).
The Town of Thompson (the Town) is also named as a defendant in this matter.
The variance as recorded authorized a dog kennel and does not contain any conditions or restrictions.
On February 10, 2014, the board held a public hearing on the first appeal. The board received evidence from, the plaintiffs, the director of planning and development, representatives of Morning Star and members of the public. The Board struggled with the fact that there was a technical failure to comply with the Board's notice requirement, as Morning Star failed to provide notice to abutting owners by mail or post the sign as required. The board voted unanimously to deny (dismiss) the first appeal for non-compliance with the regulations. On February 21, 2014, the Board published notice of its decision dismissing the appeal in the Thompson Villager. The Board noted that their denial was a technical denial for failure to meet the notice requirements and advised that it was the Board's intent both to waive any time periods and fees so as to allow the applicant to refile.
During the public hearing and its deliberations the Board reviewed the records of the 2002 variance application and minutes, noting that the applicant represented that the proposed use would be to " utilize a portion of the large barn [on the premises] for boarding and grooming of 10-15 dogs. The dogs would have regulated exercise two or three times a day, one at a time, in a 75' x 24' pen and would otherwise be housed in the barn." The board also received evidence from Morning Star's representative that there are always more than 15 dogs per day being boarded and, or, groomed at the property and that during peak times of the year there may be as many as 70 dogs on the property per day.
Article II, § 4(2)(b)(2) and Art. II, § 8 of the Thompson zoning regulations (the regulations) require that appellants notify abutting property owners by mail of the pendency of the appeal at least ten days prior to the public hearing and also post a sign on the property describing the nature of the appeal and specifying the date of the public hearing at least fourteen days prior thereto.
On March 6, 2014, Morning Star attempted to file a second appeal of the notice of violation to the Board but was advised in writing by John Mahon, the Town's zoning enforcement officer, that because the board heard the appeal (the first appeal) the February 14, 2014, decision of the Board could only be appealed to the Superior Court. Nevertheless, on March 11, 2014, Morning Star filed another appeal of the notice of violation with the Board (the second appeal). The second appeal was assigned docket no. 14-01.
No appeal of the decision of the board dismissing the first appeal was taken to the Superior Court.
At its April 14, 2014 meeting the Board voted unanimously to accept the second appeal and the matter was set for the Board's May 2014 meeting. On May 13, 2014, the Board held a public hearing on the second appeal where it again received evidence from the plaintiffs, Morning Star's representatives and attorney as well as the public. The matter was then carried over to the Board's June 9, 2014 meeting for a decision. At the June 9, 2014, meeting the Board voted unanimously to sustain the appeal. A formal Notice of Decision was not published. Subsequently, Ernest C. Lamoureux, et al. filed the current appeal.
At the public hearing, plaintiffs' counsel objected to the board's re-consideration of the first appeal on the grounds that it did not have jurisdiction to hear the second appeal because it had already ruled on the same and no appeal had been taken by Morning Star from that decision to the Superior Court.
DISCUSSION
I. Did the Board Have Jurisdiction to Hear the Second Appeal Given That it Had Previously Heard and " Dismissed" the Matter?
Plaintiffs claim that the first appeal was a final decision of the Board which it was unable reverse. Specifically the plaintiffs argue that, " a board cannot reverse its previous decision unless there has been a substantial change in circumstances materially affecting the reason that produced the initial decision." The plaintiffs cite to a number of Connecticut cases. See St. Patrick's Church Corporation v. Daniels, 113 Conn. 132, 137, 154 A. 343 (1931) (" it appears to be well established that zoning board of appeals . . . should not ordinarily be permitted to review its own decisions and revoke action once duly taken. Otherwise there would be no finality to the proceeding; the result would be subject to change at the whim of members or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty or impermanence"); Grillo v. Zoning Board of Appeals, 206 Conn. 362, 367, 537 A.2d 1030 (1988) (" [o]rdinarily, an administrative agency cannot reverse a prior decision unless there has been a change of conditions or other considerations have intervened which materially affect the merits of the matter decided . . . the principle applies, however, only when the subsequent application seeks substantially the same relief as that sought in the former" [citations omitted; internal quotation marks omitted]).
Moreover, the plaintiffs argue that the decision in the first appeal was finalized when the Board published its decision in the Thompson Villager on February 21, 2014, a decision it was unable to reopen at the later appeal. See Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 311 A.2d 77 (1972); Sharp v. Zoning Board of Appeals, 43 Conn.App. 512, 526, 684 A.2d 713 (1996) (" [o]nce the board published notice of the decision, its decision was final and could not be opened. Because the board opened its decision after the publication of notice thereof that action was invalid and the published decision remained in effect").
The Town argues that the plaintiffs' argument fails because the decision of the Board in the first appeal was not a substantive decision, and instead was clearly based on a technical failure of lack of notice. Further, the Town asserts that the lack of notice addressed during the February hearing created a material difference between the first hearing in February and the subsequent May hearing, when no issues of notice existed. The Town emphasizes that at the February hearing the Board made it clear that the applicant could reapply and that the reapplication could be completed without additional fees. Public policy concerns regarding the finality of the Board decisions are inapplicable because the first decision was decided on a technical defect. Morning Star highlights the fact that the decisions cited by the plaintiffs stem from instances where the zoning board decided the issue on the merits of the case, and then later tried to reopen their decision.
This court finds that the Board had jurisdiction to hear the second appeal, as the first decision was not a final decision on the merits. Even in St. Patrick's Church Corporation v. Daniels where the court adopted the rule that a zoning board should not generally be permitted to review and reconsider their own decisions, the Court recognized that this may not always be the case. Specifically it stated, " the power to reopen should not be interpreted with too much refinement, nor should it be hedged about with technicalities, if, in the meantime, no rights have arisen which would be injured . . . Great difficulty might be experienced by a hard and fast rule denying permission to rehear and modify [the board's] rulings; that is to say, in correcting matters which were overlooked and were of slight materiality, but which were capable of speedy and practical correction . . . without prejudice to the rights of any one . . . But the power to reconsider is not an arbitrary one and its exercise should be granted only when there is justification and good cause." (Citation omitted; internal quotation marks omitted.) St. Patrick's Church Corporation v. Daniels, supra, 113 Conn. 137-38.
All the cases cited by the plaintiff involved final decisions which were decided on the merits. See Grillo v. Zoning Board of Appeals, supra, 206 Conn. 367 (original matter involved application for " special exception" that was treated as a variance containing a condition that lot was not to be used as a building lot. Property owner later sought to obtain a variance allowing lot to be used as a building lot); Sharp v. Zoning Board of Appeals, supra, 43 Conn.App. 516-18 (final decision reached on the merits at on June 6, 1991, publication of board's decision occurred same day. Board attempted to reopen decision on its own accord by special meeting on June 17, 1991).
Here the published decision indicated that a further appeal would be necessary to conduct a hearing on the merits. The Board considered a technical defect, and indicated that Morning Star could refile the appeal once the defects in notice had been cured. The Board went a step further, indicating that no filing fees would be assessed against Morning Star when the appeal was refiled. Such action by the Board reflects a decision to continue the mater until notice could be cured, only then would it address the merits. In fact, the second appeal cured the defects allowing the matter to be heard on its merits. For these reasons, the court finds that the Board had jurisdiction to hear the second appeal.
II. Was the Board's Decision in the Second Appeal Rendered Void by the Failure of the Board or Morning Star to Publish Notice of the Decision?
The plaintiffs also argue that the Board's decision in the second appeal was rendered null and void because the Board and the plaintiffs' failed to publish notice of the decision, as required by statute. The plaintiffs rely on the language of General Statutes § 8-7, which states in relevant part: " Whenever a zoning board of appeals . . . sustains or reverses wholly or partly any order, requirement or decision appealed from, it shall state upon its records the reason for its decision . . . Notice of the decision of the board shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to any person who appeals to the board . . . within fifteen days after such decision has been rendered. In any case in which such notice is not published within such fifteen-day period, the person who . . . took such appeal may provide for the publication of such notice within ten days thereafter." The plaintiffs, citing Akin v. Norwalk, 163 Conn. 68, 301 A.2d 258 (1972), assert that the failure to publish the decision prevents the appeal period from running, creating unwarranted delay. Moreover, the plaintiffs argue, citing Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 44, 301 A.2d 244 (1972), that the lack of publication " constitutes a jurisdictional defect, results in a lack of due process, and renders the action of the [board] null and void." (Internal quotation marks omitted.).
Jarvis was referring to a constitutional defect occurring when proper notice of a hearing was not given. See Jarvis Acres, Inc. v. Zoning Commission, supra, 163 Conn. 44-45.
The Town distinguishes the cases cited by the plaintiffs, and argues that the subsequent failure to publish notice of the Board's decision was not fatal. Relying on Ozanne v. Darien Zoning Board of Appeals, Superior Court, judicial district of Stamford, Docket No. CV-99-0173450-S (October 10, 2000, Ryan, J.) (28 Conn.L.Rptr. 315, 315), which ultimately held that " [t]he statutory requirement, [§ ]8-7, that notice of . . . a decision of the zoning board be published within fifteen days is directory rather than mandatory as evidenced by the statute's amendment in 1989 to allow applicants to cure the board's failure to timely publish. Therefore failure to publish notice of a decision within the statutory period does not render the decision invalid." (Emphasis added.) Further, the Town argues that the interested parties had actual notice of the decision, and that failure to publish acted as a benefit to the plaintiffs as it allowed them additional time to file this appeal.
Morning Star also acknowledges § 8-7, but argues that the plain language of the statute is intended to highlight a time period for which an appeal is no longer timely. Further they assert that: " The board's failure to publish in the newspaper does nothing more than to toll the statute of limitations for a timely filing of an appeal of the decision. Additionally the applicant's discretionary right to publish the decision is merely a way in which the applicant can start the clock sooner so as to not extend the time in which an appeal may be heard. Failure to do so is not fatal to the decision, but rather just extends the time in which any aggrieved parties may appeal the decision of the board." Finally, Morning Star distinguishes the cases cited by the plaintiffs as they concern the publication of the pendency of a hearing, and not on the publication of a zoning board's final decision.
This court finds that the failure to publish the decision of the Board in the second appeal was not fatal, and therefore does not render the Board's decision null and void. This court finds the decision in Ozanne v. Darien Zoning Board of Appeals, supra, Superior Court, Docket No. CV-99-0173450-S, persuasive as applied to the present matter. In Ozanne, the court recognized that the plaintiff relied upon the holdings in Akin v. Norwalk, supra, 163 Conn. 68 and Hyatt v. Zoning Board of Appeals, supra, 163 Conn. 379, as does the plaintiff in the present matter, which ultimately found the publishing requirement of § 8-7 to be mandatory. However, the court in Ozanne found that the 1989 amendment to § 8-7, which allowed the applicant to publish the decision, rendered the publication requirement directory as opposed to mandatory. As in the present case, the plaintiff in Ozanne was not prejudiced by the lack of timely publication.
Moreover, the public policy reasoning behind the publication requirement, which is to allow the requisite time to appeal and also to start the running of the clock in regards to an appeal, has not been violated in the present case. As noted by both the Town and Morning Star, all interested parties were aware of the decision. Further, no party was harmed by the lack of publication, as it allowed for additional time to appeal the Board's decision. The court finds that the Board's decision in the second appeal has not been rendered null and void due to lack of publication of the decision.
III. Did the Board Act Illegally or Arbitrarily in Sustaining the Second Appeal on its Merits?
Finally, the plaintiffs argue that in sustaining the second appeal the Board acted illegally and arbitrarily, therefore abusing their discretion. They contend that while the Board did not give any formal reason for its decision, the record reflects that the Board felt it could not enforce the restrictions that the Director alleged were being violated because the applicable terms were not included in the recorded notice of variance. Specifically, the plaintiffs argue that in 2002, when the variance was granted to Morning Star's predecessor, the Board discussed the scope of the variance and limited it to allowing for ten to fifteen dogs at one time. The plaintiffs acknowledge that no limitations were set forth in the certificate of variance, recorded on the land records, but argue that the discussion held by the Board when the variance was first addressed should have been considered by the Board in the present matter. The plaintiffs rely largely on the Supreme Court's decision in Anatra v. Zoning Board of Appeals, 307 Conn. 728, 59 A.3d 772 (2013), arguing that: " The Court [in Anatra] went on to rule that conditions attached to the granting of a variance need not be explicitly stated in the certificate of variance to be enforceable." Id., 12.
The plaintiffs recognize that, the Court in Anatra specifically did not address whether the administrative record should be consulted in order to determine if restrictions apply to a variance where there is no indication in the certificate that the variance had conditions." Pl.'s Brief, 12. However, they argue that " such is the implication of the reasoning used in the decision." Id.
The Town argues that there were no conditions attached to the 2002 variance, as they were not listed in the recorded certificate of variance. Further, the Town argues that the Supreme Court's decision in Anatra is limited, and does not apply in the present matter because of a key distinction found in the first footnote of the decision, which states: " We do not address the issue of whether the record should be consulted in order to determine whether restrictions or conditions have been attached to the granting of a variance when there is no indication in the variance that approval was granted with conditions." Id., 730. The Town asserts that allowing for the consideration of the circumstances leading to the grant of the 2002 variance would defeat the purpose and usefulness of requiring that variances be recorded. They argue that allowing for the consideration of such information would require every potential purchaser of property subject to a variance to review much more than the recorded record, even if there was no notice of any additional conditions.
Morning Star advances a similar argument. Specifically, they state: " Thus, what is clear from the Anatra decision is that the public record is to be looked to only as a way to define the scope of, or to fully understand existing conditions that appear on the certificate or application for variance. What Footnote (1) makes clear, is that the court was wary to allow the public record to be used as a fishing expedition for the addition of conditions on a variance." Nothing on the face of the variance, by Morning Star's account, indicates that there were any conditions imposed when it was granted. In the alternative, Morning Star argues that even if the public records could be consulted, there is nothing on the record suggesting that the variance was granted with the conditions that the plaintiffs claim were imposed.
In Anatra the Supreme Court makes it clear that, " [the Court] agree[s] with the board that it makes more sense to treat a certificate of variance, which refers to conditions having been attached, as a notice to all those searching the land records that further investigation should be undertaken by reviewing the administrative file." (Emphasis added.) Anatra v. Zoning Board of Appeals, supra, 307 Conn. 747.
" The scope of judicial review of a decision of an administrative commission is limited. The standard to be applied by a Superior Court in reviewing the actions of a zoning board is whether the board's action was arbitrary, illegal or an abuse of discretion . . . The burden of proof that a zoning board of appeals acted improperly is on the party seeking to overturn the board's decision . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own . . . In discharging [its] responsibility, a 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 . . . [T]he determination of factual issues are matters within the province of the administrative agency . . . The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings . . . Evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . On appeal, a reviewing court reviews the record of the administrative proceedings to determine whether the board has acted fairly or with proper motives or upon valid reasons." (Citations omitted; internal quotation marks omitted.) Jacobson v. Zoning Board of Appeals, Superior Court, judicial district of Litchfield, Docket No. CV-08-4007857-S (May 21, 2010, Gallagher, J.).
The record in this case confirms that there was a contested issue regarding whether there were any conditions attached to the variance granted to the previous landowner. It is clear that all of the parties argued their interpretation of the Supreme Court's decision in Anatra to the Board. The transcripts from the May 13, 2014 and the June 9, 2014 meetings indicate that the Board considered the arguments of both sides, interpreted the records of the 2002 variance, application and minutes in a reasonable manner, and recognized the impact that their decision could have on future purchasers of land subject to a variance. The court finds that the Board's decision was not illegal or arbitrary.
CONCLUSION
The court upholds the June 9, 2014 ruling of the Board, overruling the Notice of Violation of the March 11, 2002 variance and sustaining Morning Star's appeal.