Opinion
NNHCV156055458S
06-07-2018
Cecelia PFISTER et al. v. MADISON BEACH HOTEL, LLC et al.
UNPUBLISHED OPINION
OPINION
Steven D. Ecker, Judge
This is a zoning enforcement action brought by eight Madison homeowners against a local hotel and the Town of Madison. Defendant Madison Beach Hotel, LLC ("MBH") owns real property and a hotel/restaurant facility located at 86 and 88 West Wharf Road in Madison, Connecticut ("the Hotel"). Madison Beach Hotel of Florida, LLC is the operating entity for the Hotel. These two defendants collectively will be referred to as "the Hotel Defendants" in this memorandum. Defendant Town of Madison ("Town") owns the West Wharf Beach Town Park, which is situated adjacent to the southern side of the Hotel, west of West Wharf Road, between the Hotel and Long island Sound. At the northern edge of the Park, immediately adjacent to the Hotel property, lies a rectangular piece of Town-owned land known as the "Grassy Strip." The present lawsuit in substantial part arises as a result of the Hotel’s use of the Grassy Strip as a venue for an annual summer concert series organized, produced, promoted, and sponsored by the Hotel. Plaintiffs allege that the concerts and two other types of outside events at the Hotel- outdoor weddings and outdoor movies- violate applicable zoning laws, and seek injunctive relief putting an end to those activities. Plaintiffs also seek a declaratory judgment relating to the enforceability of a zoning variance restricting certain Hotel activities and functions.
The lawsuit was not filed as an administrative appeal. Rather than seeking relief through formal resort to the local zoning authorities in Madison, plaintiffs, concerned that Madison had already taken sides in the dispute, filed this direct enforcement action in superior court. See, e.g., Simko v. Ervin, 234 Conn. 498, 504 (1995) (holding that any person "specifically and materially damaged by a violation of the zoning ordinances which has occurred or is likely to occur on another’s land may seek injunctive relief restraining such violation without exhausting administrative remedies") (inner quotation marks, citation, emphasis, and brackets omitted). A court trial was held from August 7 through August 15, 2017. Extensive post-trial briefing followed. Argument was heard on December 4, 2017. For the reasons set forth herein, the court enters judgment GRANTING plaintiffs an injunction prohibiting the Hotel from organizing, producing, promoting, or sponsoring the summer concert series, DENYING the other injunctive relief sought in the operative complaint, and DISMISSING plaintiff’s claim for a declaratory judgment.
By agreement, the parties extended the court’s deadline for decision through May 31, 2018. See General Statutes 51-183b. The court issued its decision on that date. See Docket Entry # 290.00. This memorandum, which elaborates in detail the legal and factual grounds underlying Docket Entry # 290.00, was substantially complete on May 31, 2018, but various logistical issues delayed its release.
Background Facts
A. The Hotel and Its Zoning History
Defendant MBH purchased the subject premises at 86-88 West Wharf Road in 2006. Although the Hotel is located in an R-5 residential zone, use of the property as a hotel and restaurant dates back to the early nineteenth century, and long precedes the adoption of zoning regulations in Madison in 1953. It has operated as a pre-existing nonconforming use since that time. Numerous zoning variances have been granted to the facility between 1972 and 1982. Among other things, the variances allowed the owners to sell alcoholic beverages on the premises at certain times and locations, open the restaurant to the public, conduct renovations to add exterior walkways and stairs (while reducing the number of hotel rooms), raise the height of the roof, and, in 1988, operate the hotel-restaurant for use year-round.
The Madison Zoning Regulations state that the purpose of residential zones, including the R-5 residence district, is to set aside and protect areas to be used primarily for single-family dwellings. Madison Zoning Regs. § 3.1. Commercial uses of any kind are generally prohibited, with very limited exceptions; neither hotels nor restaurants are among the permitted uses. Id. at § § 3.2 through 3.4.
In 2008, the owner of MBH applied to the Madison Zoning Board of Appeals ("Board") for a variance that would allow MBH to demolish the existing buildings and reconstruct a new hotel and restaurant on the premises ("2008 Variance"). The application stated that the "subject parcel involves a nonconforming use that pre-dates the adoption of the Town’s Zoning Regulations ... [T]he comprehensive approach to dealing with this site proposed by the applicant gives the applicant and th[e] Board the opportunity to address the important issues raised by the existence of a significant commercial enterprise in the middle of a residential zone ..."
The application itself, as well as the applicant’s comprehensive presentation to the Board at the public hearings, show that MBH itself was acutely aware of potential adverse impacts created by the proposed commercial enterprise operating within a residential neighborhood. In his preliminary remarks at the first public hearing on the application, Hotel owner Ric Duques "assure[d] the Board that what happens with the hotel and restaurant being in harmony with the neighborhood is very important to [Duques and his wife]." The application proposed either eliminating or reducing ten nonconforming aspects of the property in exchange for permission to expand slightly the total building volume devoted to the nonconforming use.
Prior to 2008, the hotel and restaurant operated out of three separate buildings on the site. The proposed redevelopment demolished those buildings and constructed a single new structure housing the entire operation within a single four-story building. The new structure reduced the total number of hotel rooms from thirty-five to thirty-three, and the number of restaurant seats from 404 to 346.
The Board held a series of lengthy public hearings on the application. Residents voiced positive and negative opinions regarding various aspects of the proposal. Some expressed serious reservations about issues such as noise, parking, environmental issues, and the like. The applicant, his wife, and numerous retained professionals (including the project architect, project engineer, project landscape professional, and the Hotel’s property manager) assured those in attendance that MBH was sensitive to concerns arising from the invigoration of a commercial enterprise in a residential district, and explained. The back-and-forth led to extensive substantive discussions regarding, among other things, the need to minimize the traffic, noise, lighting, and other potential problems associated with the proposal. The Board ultimately approved the application subject to twenty-four enumerated conditions to which the applicant agreed. In granting the 2008 Variance, the Board stated that the project "would provide a comprehensive means to defining and controlling the existing commercial use in a residential neighborhood [sic]."
Among other things, the conditions attached to the 2008 Variance strictly limited numerous physical and operational features of the Hotel, including, among other things, the number of guest rooms (34), restaurant seats (346), bar seats (34); the hours of restaurant and bar operation; the location, hours, and number of attendees at any "[t]ented and outdoor functions; " lighting for outdoor functions and security; the hours of operation and other aspects of valet service to off-site locations; the number of supply deliveries per week, hours when such deliveries are permitted, and size of delivery vehicles; and the location of trash storage and pick-up times. The 2008 Variance also prohibited use of the MBH’s kitchen for off-premises catering, and included the following express condition regarding music amplification:
Music amplification or reproduction equipment shall not be operated in such a manner that it is plainly audible at a distance of 50 feet in any direction from the property. "Plainly audible" means any sound that can be detected by a person using his or her unaided hearing faculties. The detection of the rhythmic base component of the music is sufficient to constitute a plainly audible sound. It is not necessary that the title, specific words, or artist of the song be identifiable.
2008 Variance, Condition 5.
Demolition and construction proceeded, and the Hotel opened for business no later than early 2012.
The evidence before the court indicates that the Hotel Defendants were not fully satisfied with the restrictions on their ability to develop their business even after obtaining the 2008 Variance. During the past six years, MBH (or its affiliates) in various ways has sought to expand its commercial opportunities and physical footprint. In 2012, the Town and MBH entered into a "Reciprocal License Agreement," which granted the Hotel the exclusive right to use the Grassy Strip for special events on specified terms. Certain language in the Reciprocal License Agreement reveals that MBH ultimately hoped to obtain title ownership of the Grassy Strip from the Town, in exchange for a cash payment and other consideration involving a land-swap. (This transaction never occurred and the Reciprocal License Agreement was short-lived.) MBH’s interest in obtaining ownership of the Grassy Strip is not surprising given the location of that property, but its desire to purchase the tract foreshadows an expansionist agenda.
MBH paid the Town a fee of $11,000 for the "Grassy Area License Fee."
In 2014, Madison Beach Hotel of Florida, LLC, applied to the Madison Planning and Zoning Commission (PZC) for a zoning regulation change and zoning map change to create a new district, to be called the West Wharf District, which would have superseded the 2008 Variance, eliminated the Hotel’s nonconforming use, and established a new zone comprised of four parcels- including the Hotel, its parking and septic area, a .27-acre beachfront property known as "the Fish House" owned by a Duques-related entity, and 1.33 acres of the Town-owned West Wharf Beach Town Park adjacent to the Hotel. The purpose of the zone change, as described by its advocates, was to recognize "West Wharf as an area enjoyed by both town residents and visitors for boating, fishing, swimming and other leisure activities as well as a regional destination for lodging and dining." See Exhibit B to Brief of PZC in Mannino v. Planning & Zoning Comm’n, No. NNH-CV-146049022 (Document # 109.00, dated 4/8/15). One goal of the zone change, according to the PZC itself, was to "facilitate" adoption of what was being called the "West Wharf Enhancement Project," which was a "long-planned project" calling for what appears to be the very same land-swap contemplated by the 2012 Reciprocal License Agreement described above, wherein the Hotel would obtain ownership of the Grassy Strip in exchange for title to the Duques-controlled "Fish House" parcel. Id. at 2, 6.
The zone change was approved by the PZC, but was found by a superior court to be illegal, see Memorandum of Decision, as Corrected, dated 9/25/15, Mannino v. Planning & Zoning Comm’n, No. NNH-CV-146049022 (Entry # 122.00). The zone change never went into effect.
The record relating to the efforts to obtain a zone change, beginning in 2014, is suffused with evidence that the Hotel Defendants, and even Town authorities, were frustrated by the existing zoning requirements limiting the Hotel’s ability to expand operations. A brief submitted by the PZC in the Mannino matter informed the court that the 2014 zone change (later overturned by the superior court, see n.5 above) was approved "to create a new West Wharf District to end a confusing and problematic use by the Madison Beach Hotel ." Id. at 1 (emphasis added). Speaking "[c]andidly," the PZC acknowledged that although the 2008 Variance "was passed [by the Board] with good intentions," it provided an "unorthodox method to govern and control" a complex land-use situation, resulting in "complaints and enforcement problems." Id. at 4. The difficulties arose, in part, because the conditions attached to the 2008 Variance "have proven to be the source of confusion and plainly difficult to enforce ... [leading to] multiple problems for the Town [and leaving numerous] unresolved issues ..." Id. at 5. For better or worse, those problems remained unresolved after the zone change was judicially nullified in September 2015.
B. The Hotel’s "Grassy Strip Summer Concert Series"
The idea for a summer concert series at the Hotel was hatched in the Spring of 2012. The concept was the brainchild of a Hotel consultant named Luke Carrier and John Mathers, the Hotel’s general manager. The series was launched on June 28, 2012. Concerts were held every Thursday night thereafter through the end of August 2012- ten concerts in all. Eleven concerts were held between June 27 and August 31, 2013. Concert night was moved to Wednesdays in 2014, and, weather-permitting, the Hotel has continued to hold these events each Wednesday in July and August ever since. The concerts themselves are open to the public, with no charge for admission.
The "Grassy Strip" in the name of the concert series refers to the rectangular strip of Town-owned land bordering a portion of the southern side of the Hotel. The various concert-related activities take place primarily at the Hotel, on the Grassy Strip, and in the Town-owned parking lot on West Wharf Road ("West Wharf Lot"), immediately adjacent to the Grassy Strip. The musical entertainment usually lasts from approximately 7 p.m. until slightly after 9 p.m. The performance itself is staged on a portable platform called a "showmobile," which on concert night is parked at the edge of the West Wharf Lot, facing the Grassy Strip and Hotel. Lighting and sound amplification is powered from the Hotel using an electrical cable running to the showmobile. The audience listens from either the Grassy Strip or expansive outdoor porches, balconies and other open vantage points situated on multiple levels of the Hotel- areas which include restaurant seating and bar areas. Some concertgoers also congregate on the beach area closer to the water, south of the Grassy Strip, while others listen from the Hotel-owned "Church Lane" tract to the west of the Grassy Strip, see n.8 below. Food and beverages, including alcoholic beverages, are served at the Hotel restaurant and service bars on the Hotel property. Concertgoers can also bring their own food and drink for consumption on Town-owned property.
The showmobile is a long rectangular trailer with retractable panels. It can be transformed hydraulically into an attractive, functional, open-sided stage. The showmobile used by the Hotel for the Grassy Strip Summer Concert Series was purchased by the Town in 2015. The Hotel pays the Town a rental fee for use of the showmobile on concert nights.
The Hotel itself always has been responsible for organizing, producing, promoting and sponsoring the series in all respects. Thus, Hotel employees or contractors have selected, booked and paid the performers, arranged for sound, lighting and staging equipment, hired public relations advisors and marketed the event through advertising and social media, provided for parking, valet and shuttle-bus service, paid for traffic control, security and all other necessary services, items and facilities, and organized all other aspects of the events. Not incidentally, the Hotel sells large amounts of food and beverages, alcoholic and non-alcoholic, to the concertgoers each week.
Making all of these arrangements is no small task- each concert is attended, on average, by many hundreds of people; attendance reached approximately 1,000 persons on June 28, 2017, for a concert featuring a band called "John Cafferty & Beaver Brown." In addition to the extensive planning that must take place internally at the Hotel, and with its many outside vendors, the concert series also requires elaborate coordination between the Hotel and the Town. For each concert, the Hotel submits a "Facility Request Form" to the Madison Beach and Recreation Department for permission to use the Grassy Strip and rent the showmobile. In 2017, the Beach and Recreation Department charged the Hotel $200 per concert for a "Grassy Strip & Alcohol permit fee," plus $900 per concert for rental of the showmobile, and a labor charge of $255.00 per concert for labor associated with the showmobile’s use (a total charge of $1,355.00 per concert). The Hotel also must coordinate with the Madison police department to arrange for the extensive traffic control needed to maintain safe conditions on concert day. The police establish control posts on Route 1 and at West Wharf; at least three to four officers are used to direct traffic. The officers are paid by the Town at overtime rates, and the Hotel then reimburses the Town. The Hotel also pays the Town a prescribed charge for the police vehicles used by the officers.
The Hotel hires the band, and retains a production company to manage lighting, sound, and other logistical aspects of the performance. It also contracts to provide shuttle buses from various remote locations to the event, and valet parking for Hotel guests. The Hotel also pays for marketing, signage, electricity, and all other concert-related expenses.
C. Outdoor Wedding Ceremonies and Outdoor Movies at the Hotel
In addition to the Grassy Strip Summer Concert Series, plaintiffs seek injunctive relief enjoining the Hotel from hosting outdoor wedding ceremonies, and a summertime outdoor children’s movie series. Plaintiffs contend that both activities impermissibly expand the Hotel’s prior nonconforming use of the property and extend that use to Town-owned land. They also complain about the noise and light created by the activities at night. The basic facts are summarized below, and will be supplemented later in this memorandum as needed.
Weddings are a relatively small but important part of the Hotel’s business. Anywhere from 50 to over 150 guests attend these functions, which typically include not only the ceremony itself, but also a reception, dinner, dancing, and the usual celebratory activities. In 2017, the Hotel charged $1,100.00 for hosting the ceremony, plus $150-175 per guest for food and drink, and additional fees for other options. Lodging, of course, was extra. The Hotel specifically advertised "Beach Weddings" for the summer months, and trial testimony established that approximately 75% of the Hotel’s weddings are held outdoors. John Mathers, the general manager, testified that no aspect of the Hotel’s wedding events are held on Town-owned property. He acknowledged that the Hotel’s marketing materials include wedding photographs showing bridal parties on a Town-owned portion of the beach, but said that those photographs were staged and taken by the wedding parties acting on their own initiative.
The outdoor movies are shown at sundown on Tuesday nights during the summer. They are projected on a large portable outdoor screen, assembled for the occasion by the Hotel staff. The event takes place on the grass on the southern side of the Hotel. The spectators are mostly families, because the films are geared to children. People sit on chairs or blankets on the lawn area owned by the Hotel, west of the Grassy Strip. A portion of the viewing area extends onto grass located on the "Church Lane" piece of the Hotel property. Some moviegoers bring food or beverages to the show, while others purchase those items from the Hotel.
The "Church Lane" tract was acquired by the Hotel on March 14, 2011. It is a strip of land, approximately 200 feet in length and fifteen feet wide, which runs in a northerly direction from the waters of Long Island Sound along the western border of the Hotel property. The northernmost part of the tract is paved; it then becomes grassy, and the lower portion is sandy beach.
D. Pre-Suit Complaints and Zoning Enforcement Officer Involvement
Plaintiffs filed this lawsuit without first initiating any administrative proceeding before the Board at the municipal level, a circumstance that raises a jurisdictional issue to be addressed later in this memorandum. The following facts are relevant.
Many people responded positively to the outdoor activities sponsored by the Hotel beginning in 2012. Judging by the attendance levels and feedback, the Grassy Strip Summer Concert Series gained popularity among Madison residents and non-residents alike. Some residents, predictably, did not appreciate what they saw as the commercialization of the neighborhood. Complaints were made to Hotel management directly, and to various Town authorities, including Chief of Police John Drumm, Zoning Enforcement Officer John DeLaura, Planning Director David Anderson, Tom Banisch, and others. The complaints primarily involved noise and/or traffic problems associated with the concerts and (to a lesser degree) the wedding events.
As mentioned earlier, it is evident that these complaints served as part of the motivation behind the Hotel’s efforts to obtain a zone change in 2014- a change, had it survived judicial review, that would have legislated away some or all of the legal grounds giving life to complaints based on alleged zoning violations. Thus, in its brief filed in the administrative appeal of the zone change adopted by the PZC in the Mannino case, the PZC’s argument in support of the zone change repeatedly emphasized that the change was necessary to provide an enforcement mechanism to address the complaints raised by some of the neighbors. See PZ & C Brief at 4 ("[T]here was ample testimony before the [Planning and Zoning] Commission on this subject application regarding complaints and enforcement problems, as confirmed by the Planning and Zoning Department director ..."); id. (noting that summer concerts "sometimes caused] some complaints from some neighbors," and that "complaints have continued"); id. at 17-19 (reviewing complaints, as well as enforcement problems arising from "unworkable" terms of 2008 Variance); id. at 19 ("The existing problems [regarding noise, etc.] and the inability of the ZBA variance conditions to control the problems were made clear at the public hearing").
The Town’s ZEO, John DeLaura, testified at trial in this case that he dealt on an informal basis with the complaints received by him relating to the concert series. He never issued a "cease and desist" order nor did he otherwise take any formal enforcement action against the Hotel. DeLaura received two letters from William H. Clendenon, Jr., plaintiffs’ counsel, both written after commencement of this lawsuit. Clendenon’s first letter, dated February 17, 2016, contains plaintiffs’ allegations regarding the various ways in which the Hotel has violated the Town’s zoning regulations, and formally demands that DeLaura "exercise [his] duties under Section 15.1 of [those] regulations and Section 8-12 of the Connecticut General Statutes to correct these zoning regulation violations and assess the statutory violation fines for each such violation." The allegations include claims of nonconforming uses of the Church Lane parcel for outdoor movies and other outdoor events, see n.8 above; use of the Grassy Strip for concerts, movies and weddings; and other allegations of nonconformity in violation of § 12.3 of the Madison Zoning Regulations. The letter also identifies eight specific violations of the 2008 Variance. DeLaura never responded to Clendenon’s 2/17/16 letter.
Section 15.1 of the Madison Zoning Regulations establishes fines for zoning violations, and states: "The duly authorized agent [i.e., Zoning Enforcement Officer] of the Zoning Commission is hereby designated as the officer to enforce these rules." General Statutes § 8-12 authorizes the appropriate municipal zoning official to institute abatement proceedings.
Clendenon wrote DeLaura again on May 3, 2016, in what was marked as a "DRAFT" correspondence. This letter advises DeLaura that the Hotel was planning to host a series of concerts on the Grassy Strip again in the summer of 2016, and warned: "As you are aware from our letter dated February 17, 2016, the hosting of these concerts by the Hotel on the Grassy Strip is a clear violation of the Madison zoning regulations." The letter requests DeLaura to enforce the regulations by prohibiting the Hotel from holding the concerts.
DeLaura responded to the second letter by writing back to Clendenon on May 6, 2016. DeLaura’s reply concisely summarizes the Town’s position as to why the Grassy Strip concert series does not violate the zoning regulations. He states that the concerts are held on the Grassy Strip, located in a Town-owned park, and are no different from many other concerts and similar public events hosted "independently and cooperatively" on town owned and residentially zoned properties throughout Madison [and the entire State of Connecticut] ... These events provide an opportunity for community engagement and are enjoyed by many community residents." No enforcement action was taken by DeLaura, and no administrative appeal was taken by plaintiffs.
E. The Present Legal Proceedings
Plaintiffs are owners of single-family residences with direct frontage on Long Island Sound, east of the Hotel. Their respective homes are located on either Middle Beach Road West (plaintiffs Pfister, Spence, Platt and Stone) or Middle Beach Road (Geisenheimer, Crowley). The plaintiffs closest to the Hotel live at 73 Middle Beach Road West (Pfister and Spence), approximately 100-200 feet from the Hotel property. The plaintiff farthest away from the Hotel resides at 14 Middle Beach Road (Geisenheimer), approximately .45 miles southeast of the Hotel. The concave coastline immediately to the east of the Hotel bows inward to form a harbor, and as a result there is almost nothing but water between the Hotel and plaintiffs’ respective homes. The evidence at trial confirmed the well-known observation that sound tends to carry over open water.
While the particulars may vary, the common thrust of plaintiff’s allegations is that they each have suffered, and continue to experience, cognizable harm as a result of the noise, traffic, and other problems caused by commercial activities carried on at the Hotel- specifically the summer concert series, outdoor wedding ceremonies, and outdoor movies. Trial proceeded on two counts of plaintiffs’ complaint. The Tenth Count seeks a declaratory judgment holding that the terms and conditions of the 2008 Variance are enforceable. The somewhat unusual nature of this claim- seeking a judicial determination of the ZEO’s enforcement authority rather than a direct ruling that the Hotel’s activities in fact violate the 2008 Variance- is the result of plaintiffs’ desire to avoid the administrative exhaustion requirement applicable to claims directly alleging the violation of a zoning variance. See Simko v. Ervin, supra, 234 Conn. at 505 (holding that doctrine allowing direct enforcement action for violation of zoning regulations, without the need first to exhaust administrative remedies, does not extend to alleged violations of a zoning variance ).
The Fourth Amended Complaint dated May 11, 2016, the operative pleading at the time of trial, originally contained thirteen separate counts. Plaintiffs withdrew all except the Tenth Count and Thirteenth Count prior to trial. See Docket Entry # 242 (June 12, 2017).
The Tenth Count alleges that Madison’s ZEO, John DeLaura, has taken the position that the terms and conditions of the 2008 Variance are unenforceable with respect to activities taking place on Town-owned property, including the Grassy Strip. DeLaura’s (and the Town’s) position is that the 2008 Variance applies only to the specific property for which it was sought by the applicant and issued by the Board, i.e., the Hotel property located at 86 and 88 West Wharf Road; the 2008 Variance has no application to activities on the Grassy Strip, and thus no application to the Grassy Strip Concert Series. Plaintiffs argue that the 2008 Variance governs the Hotel’s business activities connected to the premises, and those activities plainly include outdoor events and activities (parking, catering, etc.) that may extend beyond the physical boundaries of the Hotel’s property. Plaintiffs ask this court to enter judgment accordingly.
The Thirteenth Count of the complaint, as amended, seeks an injunction prohibiting the Hotel from violating the nonconformity provisions of the Madison Zoning Regulations. Specifically, plaintiffs ask this court to enjoin the Hotel from holding the Grassy Strip Summer Concert Series, hosting weddings, or showing outdoor movies, all on the ground that these activities represent an extension or expansion of the pre-existing nonconforming use, in violation of § 12.3 of the Madison Zoning Regulations.
Section 12 of the Madison Zoning Regulations governs "Nonconforming Buildings and Uses." The relevant provisions state as follows:
Legal Discussion
1. Tenth Count (Declaratory Judgment Re: 2008 Variance)
Plaintiffs seek a declaratory judgment holding that the 2008 Variance is enforceable with respect to Hotel activities held on the Grassy Strip. Defendants argue that the court is without subject matter jurisdiction over this claim because plaintiffs have failed to exhaust their administrative remedies. They contend that if plaintiffs were dissatisfied with ZEO DeLaura’s position that the 2008 Variance applies only to the Hotel’s property at 86 and 88 West Wharf Road, and has no force and effect with respect to Hotel-sponsored events on the Grassy Strip, then they were obligated to appeal that decision to the Town’s Zoning Board of Appeals (ZBA) in accordance with General Statutes § 8-6. The Court has concluded that controlling law requires dismissal of the Tenth Count for failure to exhaust administrative remedies.
The basic policies and purposes served by the exhaustion doctrine are well-known:
It is a settled principle of administrative law that if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter ... We have frequently held that where a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure ... The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted ... A primary purpose of the doctrine is to foster an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency’s findings and conclusions. It relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review ... Moreover, the exhaustion doctrine recognizes the notion, grounded in deference to [the legislature’s] delegation of authority to coordinate branches of [state or local] [g]overnment, that agencies, not the courts, ought to have primary responsibility for the programs that [the legislature] has charged them to administer. Therefore, exhaustion of remedies serves dual functions: it protects the courts from becoming unnecessarily burdened with administrative appeals and it ensures the integrity of the agency’s role in administering its statutory responsibilities.Stepney, LLC v. Town of Fairfield, 263 Conn. 558, 563-65 (2003) (citations and internal quotation marks omitted). The doctrine unquestionably plays an important role in the zoning context, where the administrative board’s knowledge of local conditions, though not infallible, provides a useful perspective that should be considered by a reviewing court. See, e.g., Simko v. Ervin, supra, 234 Conn. at 503-4.
Plaintiffs contend that they were not required to exhaust their administrative remedies prior to seeking declaratory relief, because administrative review by the ZBA is required under the governing statutory scheme only with respect to "any order, requirement or decision of the official charged with the enforcement of the zoning regulations," General Statutes § 8-7, and ZEO DeLaura made no such "decision" concerning the enforceability of the 2008 Variance. Because there was no appealable decision by DeLaura, plaintiffs argue, the administrative exhaustion requirement has no application here. Plaintiffs claim to find support for this argument in a line of cases holding that informal or preliminary statements by a ZEO will not qualify as a "decision" appealable to a zoning board of appeals under General Statutes § 8-7. See Plaintiff’s Post-Trial Br. Dated 9/22/17, at 38-40 (citing Holt v. Zoning Bd. Of Appeals, 114 Conn.App. 13 (2009), and its progeny).
Plaintiff’s position is based on a misreading of the case law. What plaintiffs call the "Holt line of cases" establishes rules for determining what type of action by the local zoning enforcement officer is sufficient to trigger the statutory right of a landowner to appeal to the local zoning board of appeals under § 8-7. See Piquet v. Town of Chester, 306 Conn. 173, 181-87 (2012) (citing Holt with approval, and elaborating its holding). A letter, statement, or other action by the zoning enforcement officer is an appealable "decision" for purposes of the statute if it is (1) clear and definite, and (2) not contingent on future permitting or approval:
[W]hen a landowner obtains a clear and definite interpretation of zoning regulations applicable to the landowner’s current use of his or her property, the landowner properly may appeal that interpretation to the local zoning board of appeals. Conversely, when a zoning enforcement officer provides an interpretation that is contingent on future events, that interpretation will not be appealable, and the landowner must await a subsequent final determination following that interpretation- e.g., the issuance of a zoning certificate of compliance- in order to appeal to the local zoning board of appeals.Piquet, supra, 306 Conn. at 185-86.
Just as a landowner may not invoke the appeal process too early by seeking a zoning board’s review of an enforcement officer’s preliminary or contingent opinion, a landowner likewise may not invoke the appeals process too late, by challenging an enforcement officer’s inaction with respect to a zoning issue that has already been decided in some past final determination. See Reardon v. Zoning Board of Appeals, 311 Conn. 356, 367-68 (2014) (holding that a landowner could not collaterally attack issuance of building permits to neighbor by later appealing zoning enforcement officer’s failure to take action against neighbor for alleged misrepresentations in earlier permitting process). Reardon is discussed further below at n.13.
The cases relied on by plaintiffs, in other words, merely delineate what degree of finality and non-contingency is necessary to make a local zoning officer’s decision appealable to a local zoning board under General Statutes § 8-7. If the officer’s interpretation of the applicable zoning regulations does not constitute a "decision" under those cases, then the zoning board is without jurisdiction to hear the appeal. See, e.g., Holt v. Zoning Bd. of Appeals, supra, 114 Conn.App. at 29. If, on the other hand, the officer’s interpretation satisfies the requirements of Holt and its progeny, then it is a "decision" subject to administrative appeal under § 8-7. See, e.g., Piquet v. Town of Chester, supra, 306 Conn. at 189-90. But the Holt line of cases does not hold or imply that the administrative exhaustion requirement somehow disappears if the local zoning officer’s action is not an appealable "decision" under § 8-7. The absence of a "decision" by a zoning enforcement officer deprives the zoning board of jurisdiction to hear an appeal under 8-7, but in no way does the absence of a "decision" eliminate the exhaustion requirement. None of the cases relied on by plaintiffs say such a thing. It would be a very strange exhaustion doctrine that requires a party to pursue every administrative avenue for redress before turning to the courts for relief, but allows a party to avoid administrative review altogether if the primary enforcement officer fails to respond. Administrative inaction is the antithesis of administrative exhaustion; it should not provide a basis for bypassing the administrative process.
To be fair, it may have been difficult for plaintiffs to identify with precision exactly when DeLaura’s views regarding the 2008 Variance crystallized into a definitive decision that the variance has no application beyond the physical boundaries of 86 and 88 West Wharf Road. There is reason to believe that DeLaura’s initial position may have been that the relevant conditions contained in the 2008 Variance were too vague or confusing to be enforced. DeLaura, moreover, inexplicably failed to respond to Attorney Clendenon’s 2/17/16 letter demanding enforcement of the 2008 Variance, and his later reply to Clendenon’s second letter does not mention the 2008 Variance. The ZEO’s failure to issue an explicit written decision, moreover, may have presented plaintiff with procedural challenges, because it is not obvious how one appeals a non-decision, or refusal to issue a decision, under a statute requiring a "decision" from which to appeal. See below n.13.
Notwithstanding all of this, two things are clear to the court. First, DeLuara at some point did ultimately reach a definitive determination that the 2008 Variance and conditions attached thereto were inapplicable (and thus unenforceable) with respect to activities occurring outside the boundary lines of the Hotel property located at 86 & 88 West Wharf Road. He testified to this effect in court, and presumably he would have articulated the same point much earlier if plaintiffs had insisted. Second, whether or not DeLaura was dilatory or coy about rendering a formal decision regarding the 2008 Variance, the most basic principles animating the doctrine of administrative exhaustion require a party in plaintiffs’ position to seek administrative review before coming to court for declaratory relief. See Simko v. Ervin, supra, 234 Conn. at 503-04 ("the specialized knowledge held by the zoning board of appeals with respect to the terms of a variance that it has granted counsels against allowing the plaintiffs to bypass an appeal to that body").
In this court’s view, the failure to render a decision under these circumstances should be treated as the "functional equivalent of a denial." Ahneman v. Ahneman, 243 Conn. 471, 480, 706 A.2d 960, 964 (1998) ("The trial court’s decision not to consider the defendant’s motions was the functional equivalent of a denial of those motions"); accord Coleman v. Comm’r of Correction, 111 Conn.App. 138, 140 (2008) (treating trial court’s refusal to rule on petition for certification as equivalent to denial of petition). ZEO DeLaura, in other words, could not have insulated his interpretation of the 2008 Variance from administrative review by refusing to express that interpretation. Note also that the Reardon case would not have been an impediment to an appeal under these circumstances. See Reardon v. Zoning Board of Appeals, supra, 311 Conn. 356. Reardon holds that a litigant may not mount a collateral attack on the issuance of prior zoning decisions, in that case building permits, by belatedly appealing a zoning enforcement officer’s subsequent refusal to take action against the permittee for alleged misrepresentations in the previously-approved permit applications. There is passing language in Reardon indicating that the mere failure of a ZEO to bring an enforcement action is not itself an appealable "order, requirement or decision" within the meaning of § 8-7. Id. at 364 (citing Greenfield v. Reynolds, 122 Conn.App. 465, 472-73 (2010), which is a mandamus case holding that the refusal to issue a cease and desist order is a discretionary act). The Court’s point in Reardon, however, is simply that a ZEO has discretion whether or not to take certain actions, not that he has discretion to refuse to decide an issue that is within the scope of his responsibility.
Plaintiffs cannot escape the holding of Simko by arguing that they seek "only" a declaratory judgment regarding the enforceability of the 2008 Variance with respect to Hotel activities on the Grassy Strip. By formulating their claim for relief on Count Ten in this fashion, it is true that plaintiffs do not request the court to issue a direct determination that the Hotel’s activities on the Grassy Strip in fact violate the 2008 Variance. But the declaratory relief sought by plaintiffs nonetheless requires this court to undertake essentially the same interpretive work that the Simko Court said must be performed in the first instance by the administrative body charged with that task, the Madison ZBA. Plaintiffs argue that the 2008 Variance was intended to regulate the activities of the Hotel both on and off premises, including activities on the Grassy Strip. They present some formidable arguments in support of their position, many of which are based on the text of the variance itself. Defendants, for their part, contend that the 2008 Variance cannot and does not control Hotel activities occurring anywhere except 86 & 88 West Wharf Road. They argue the point as a matter of law, and also as a matter of fact and intention. The court believes that Simko requires plaintiffs to exhaust their administrative remedies regarding the issue presented in Count Ten.
This brings us to the issue of futility. Plaintiffs argue that if the exhaustion requirement applies, they are excused from its demands because the Town of Madison and its leadership is so clearly biased in favor of the Hotel’s expansionist agenda. Plaintiffs cite, among other things, the Town’s active support of the 2014 zone change proposal, the Town’s position that the 2008 Variance is "unenforceable," and the fact that the Hotel’s general manager, John Mathers, is a member of the Town’s Planning and Zoning Commission. The court does not fault plaintiffs for being generally pessimistic about obtaining relief at the local level in light of the unfolding events since 2012. But it cannot be said, on this record, that resort to the Madison ZBA would have been futile with respect to the issues raised in Count Ten.
The futility doctrine in this context requires a showing that resort to the relevant administrative tribunal "could not result in a favorable decision and invariably would result in further judicial proceedings." Simko v. Ervin, supra, 234 Conn. at 507 (citations omitted). The doctrine has been explained in this way:
The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions ... [W]e have recognized such exceptions only infrequently and only for narrowly defined purposes ... such as when recourse to the administrative remedy would be futile or inadequate. Because of the policy behind the exhaustion doctrine, we construe these exceptions narrowly. See, e.g., O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429 (1995) (actual bias, rather than mere potential bias, of administrative body renders resort to administrative remedies futile); Polymer Resources, Ltd. v. Keeney, [ 227 Conn. 545,] 561 [1993] (mere conclusory assertion that agency will not reconsider decision does not excuse compliance, on basis of futility, with exhaustion requirement).Stepney, LLC v. Town of Fairfield, supra, 263 Conn. at 565.
As this quotation indicates, agency bias is a recognized basis for invocation of the futility exception. But the analysis begins with a presumption that the agency will do its job fairly and without bias, see O & G Industries, Inc. v. Planning & Zoning Commission, supra, 232 Conn. at 429, and that presumption cannot be overcome by speculation or conjecture. Plaintiffs have failed to make the necessary showing of futility here. The issue is not whether the ZEO or Town Planner or First Selectman has already decided the issue at hand, nor whether the owner of the Hotel has influence in local government generally. The issue is whether there was bias within the membership of the Madison ZBA such that appeal to that entity would have been futile. On this record, there is no factual basis to support a finding that the members of the ZBA would have abdicated their responsibilities to be fair and impartial with respect to the proper interpretation of the 2008 Variance.
Count Ten is dismissed because plaintiffs have failed to exhaust their administrative remedies.
B. Thirteenth Count (Injunctive Relief to Enjoin Violations of Zoning Regulations)
1. Jurisdiction
The Thirteenth Count alleges that the Hotel’s outdoor activities (the Grassy Strip Summer Concert Series, the outdoor weddings, and the outdoor movies) violate the Madison Zoning Regulations. Both parties agree that the administrative exhaustion doctrine operates differently in this context than in the context of alleged violations of a variance, discussed above. When the violation of a zoning regulation is at issue, well-settled Connecticut case law permits a private enforcement action for injunctive relief by any person "specifically and materially damaged" by that violation, without any requirement of administrative exhaustion. See Cummings v. Tripp, 204 Conn. 67, 75-78 (1987); Reynolds v. Soffer, 183 Conn. 67, 71 (1981); Reichenbach v. Kraska Enterprises, 105 Conn.App. 461, 468 (2008); see also Simko v. Ervin, supra, 234 Conn. at 504-07 (holding that the Cummings/Reynolds exception to the exhaustion requirement in cases involving alleged violation of zoning regulations does not extend to alleged violation of variance).
The agreement ends there, however. Defendants contend that plaintiffs fail to come within the Cummings/Reynolds exception because they have not been "specifically and materially" damaged by the alleged violations. This requirement is intended to distinguish those individuals who have standing to bring a private enforcement action from those members of the general public who must rely on the local zoning official to enforce the zoning regulations. See Steroco, Inc. v. Szymanski, 166 Conn.App. 75, 88 n.6 (2016).
For ease of reference, the court will refer to the required showing under Cummings/Reynolds as the "special-damage requirement." No different meaning is intended by use of this term- it is simply shorthand for the Cummings/Reynolds requirement that plaintiff be "specifically and materially damaged" by the violation at issue. Steroco, Inc. v. Szymanski explains that the terminology used to describe this requirement has changed slightly over time. The "older cases" (prior to 1980) stated that a plaintiff must show "special damages" to have standing to seek private enforcement of a zoning regulation. 166 Conn.App. at 88 n.6. More recent cases, including Simko, Cummings, and Reynolds, use the "specifically and materially damaged" formulation. Id. The essential requirement is that the plaintiff must demonstrate that the zoning violation causes harm to plaintiff of a nature or degree that distinguishes plaintiff from the general public.
The court will analyze the Cummings/Reynolds special-damages inquiry separately for each of the three different activities at issue in the Thirteenth Count- the Tuesday night outdoor movie series, the outdoor weddings, and the Grassy Strip Summer Concert Series.
With respect to the Tuesday night outdoor movie series at the Hotel, the court cannot find that any of the plaintiffs have established that they have been specifically and materially harmed by the adverse effects of the alleged zoning violation. Only one plaintiff, Emile Geisenheimer, testified about any particular harm caused by the outdoor movie screenings. Geisenheimer testified that the light and sound from the movies impair the enjoyment he derives from Tuesday night summer beach walks on West Wharf Town Beach near the Hotel. The light projection makes it impossible for him to enjoy the night sky on those occasions. The sound, which Geisenheimer said can be heard approximately 150 feet away, disturb the quiet natural surroundings. The court has no doubt that Geisenheimer’s enjoyment of the public beach area is significantly diminished by the movie events. For some people, a quiet evening stroll on the beach is one of life’s great pleasures, and the intrusion of artificial noise and light can ruin the experience. There is nothing bizarre or unreasonable about this perspective. But the harm identified by Geisenheimer is visited on anyone and everyone who happens to enjoy a quiet beach walk in the darkness at West Wharf Town Beach on Tuesday night in the summertime. The harm is not "specific" to him, in the sense that there is nothing special about Geisenheimer, or the particular location of his home, that would naturally tend to cause more harm to him than to any other member of the public walking the beach at that time and place. On this record, plaintiffs cannot pursue their private enforcement action for injunctive relief in connection with the Hotel’s movie series without first exhausting their administrative remedies.
In light of this finding, there is no need to determine whether the harm at issue is "material" within the meaning of the Cummings/Reynolds standing inquiry.
The court expresses no opinion regarding the merits of plaintiffs’ allegation that the Hotel’s movie nights violate the Madison Zoning Regulations (Thirteenth Count) or the 2008 Variance (Tenth Count).
The proof of specific injury caused by the outdoor weddings at the Hotel fails for similar reasons. The court finds that the Hotel’s wedding business is a significant component of its commercial operation, particularly during the summer. These typically are not small indoor affairs; the Hotel’s marketing materials emphasize the beautiful shoreline surroundings, and wedding ceremonies and related festivities often occur outdoors. The events themselves appear to take place on Hotel-owned property, but the wedding guests inevitably also make use of the adjacent Town-owned property to some extent.
The strongest evidence of harm in relation to the outdoor weddings was Geisenheimer’s testimony that he no longer fishes on weekends from the rocks below the Hotel at the West Wharf Beach, due to the interference caused by the Hotel’s outdoor wedding events, including wedding photo sessions on the beach and even on the rocks. But, as with the evidence of damages regarding the outdoor movies, this evidence fails to establish damages that are not shared by every other member of the public wishing to fish from the rocks during wedding events at West Wharf Town Beach. Geisenheimer also testified more generally about the congestion at West Wharf Town Beach and environs caused by the Hotel’s commercialization of the area. For him, the traffic, parking, and level of commercial activity are causes of concern and consternation. Geisenheimer said that he used West Wharf Town Beach extensively for the past thirty years; now he no longer even wants to go to the beach due to the congestion caused by the Hotel’s commercialization.
Again, the court takes these complaints seriously, and acknowledges that Geisenheimer feels a real loss. He obviously found great happiness in the simpler life offered by summers spent walking or fishing or otherwise relaxing at the wharf area, which, prior to the Hotel renovation, for him typified the beauty of the southern New England shoreline of old. But, while Geisenheimer and the other plaintiffs were very specific about the particularized damage they absorbed as a result of the Grassy Strip concert series (discussed below), they did not provide the same kind of evidence with respect to the outdoor weddings. As such, the evidence fails to meet the legal standard required to established standing to bring a private enforcement action under Cummings/Reynolds .
The court has not ignored the testimony of Spence and Pfister regarding the problems they encountered on a few occasions as a result of excessive noise from Hotel wedding events. These plaintiffs live less than 200 feet east of the Hotel, and, more than once, each of them has been disturbed in their home by very loud amplified music emanating from a wedding-related party held at the Hotel late at night. This noise, however, evidently came from parties being thrown inside the Hotel, and therefore do not establish harm with respect to the outdoor wedding events at issue in the Thirteenth Count. Pfister also testified in passing about occasional noise from wedding-related traffic; in the court’s view, however, the evidentiary record does not support a finding that any plaintiff has met the specific-damage requirement in connection with the outdoor wedding events.
It is 2018, and it stands to reason that all of the parties in this case would have a strong interest in knowing whether or not the wedding-related commercial activity carried on at the Hotel violates the 2008 Variance and/or the Madison Zoning Regulations. Unfortunately, on the present record, the court does not have subject-matter jurisdiction to issue a ruling on that issue.
The court expresses no opinion regarding the merits of plaintiffs’ allegation that the Hotel’s outdoor wedding events violate the Madison Zoning Regulations (Thirteenth Count) or the 2008 Variance (Tenth Count).
The court reaches a very different conclusion with respect to the Grassy Strip Summer Concert Series. The plaintiffs- or each of them who testified- have standing under Cummings/Reynolds to bring a private enforcement action to enjoin the Hotel’s alleged violations of the Madison Zoning Regulations. The excessive noise and traffic congestion caused by the concerts impact the plaintiffs much more severely than the general public. The concerts take place in plaintiffs’ neighborhood. The noise envelops their property and living space. Each and every plaintiff testified that the amplified music from the concerts invaded their homes and destroyed or impaired the peaceful, quiet enjoyment that otherwise exists there. For some plaintiffs, the vehicular and pedestrian congestion caused by the concerts also materially affects their lives on Wednesday evenings throughout the summer. The pertinent evidence is summarized below.
Emile Geisenheimer, whose house is .45 miles from the Grassy Strip across open water, spends as much time as possible outdoors during the summer. Weather permitting, he eats three meals a day on his patio. He frequently is joined by friends and guests. He just turned seventy, and his outdoor time is precious to him. But approximately ten times each summer, Geisenheimer is forced indoors for two hours because of the Grassy Strip Summer Concert Series. The amplified music from the concerts is so loud and bothersome to Geisenheimer that he cannot enjoy the use of his yard. The court heard recordings of the music as heard from Geisenheimer’s property on the nights of July 6, 2016 and June 28, 2017. In the court’s estimation, the amplified sound is obnoxiously loud for a residential neighborhood, and Geisenheimer is fully justified in feeling that he was being forced indoors during the concert. Though not everyone would consider the noise bothersome, it was entirely reasonable for Geisenheimer to feel that way and react as he did.
The other plaintiffs gave comparable testimony. Plaintiffs Cecelia Pfister and Katherine Spence, who live only 100-200 feet from the Hotel, find the amplified concert music to be extremely disruptive. The sound enters their home at a very loud volume and makes it difficult for them to hear the television or listen to the genealogy "webinars" which Pfister sometimes plays on Wednesday evenings. The amplified bass sound is so loud that Pfister can actually feel the music’s vibrations in her home. The concert-related disturbances have made Pfister physically abandon her house and go elsewhere on perhaps six to ten concert nights over the years, and, as a general rule, she tries to avoid being at the house on concert nights due to the noise and congestion. With respect to the traffic, Pfister also has been affected by the congestion caused by the concertgoers, particularly on West Wharf Road. She has been caught as both a driver and pedestrian in backed-up traffic on concert nights. One person visiting her house had the same experience. The situation can be exasperating- Pfister has learned to try to avoid traveling down West Wharf Road on concert nights.
The negative effects of concert-related activities are not limited to evening and night hours. On three separate occasions in 2017, Pfister was awakened at 6:55 a.m. Wednesday morning by the back-up beeps emitted by the "showmobile" arriving at the West Wharf Lot for a concert later that day.
Plaintiff Henry Platt lives approximately ten houses away from the Hotel. The amplified music from the concerts is so loud that he has difficulty having a conversation while standing in the yard of his waterfront property. More often than not, he needs to move inside to shield himself from the noise. He has encountered traffic congestion from the concerts on occasion. Charles Stone, Sr., is a long-time Madison resident who lives at 33 Middle Road Beach West. Title to the property is held in the name of Plaintiff 33 MBW, LLC. The home is a single-family residence. The noise from the concerts drives Stone off his porch. He can also hear the sound from inside his home. Unfortunately, he does not have air conditioning, so he cannot shut his windows to modulate the noise without getting hot. The noise frays his nerves. Plaintiff Douglas Crowley testified that the noise from the concerts was "intolerable" in the past, but more recently he has found it to be "intrusive but liveable."
Plaintiffs have alleged and proven that the concerts cause them specific and material harm within the meaning of Cummings/Reynolds . Each of them is significantly impacted by the physical intrusion onto their property of loud noise generated by the amplified music from the Hotel’s concert series. Plaintiffs are deprived of the peaceful enjoyment of their outdoor lawns, patios or porches during the concerts- they are driven indoors by the music. Pfister is actually forced to leave her home altogether on most concert nights. These effects are, imposed on plaintiffs because they live in waterfront homes in close proximity to the Grassy Strip. The ill effects plainly are specific to landowners within hearing distance of the music, especially those who live on the water. The same point applies with respect to the traffic congestion near the Hotel, which obviously only impacts those living nearby.
The court found credible the testimony of each of the plaintiffs regarding the ill effects of the concerts on their lives. The court also finds that their reactions to the loud music- their aggravation, avoidance efforts, etc.- to be entirely reasonable. Some reasonable people like loud music and summertime concerts. Other reasonable people may prefer to avoid such events, but are able to block out unwanted noise, or adjust to it, or at least tolerate it. But there are some reasonable people who are unable to adjust to unwanted noise disturbing their peace. They find it terribly intrusive and difficult to tolerate. Plaintiffs- certainly Pfister, Spence, Geisenheimer, Platt and Stone- fall into this category. The court’s finding in this regard (i.e., that plaintiffs’ adverse reaction to the loud concert music is a reasonable reaction) is based on all of the evidence presented at trial, including without limitation the photographs and audio/visual recordings in evidence.
Defendants have emphasized the fact that many neighbors are not bothered by the music. This is beside the point. See n.19.
The harm is also "material" under the Cummings/Reynolds standing analysis. As discussed, the amplified sound is sufficiently obnoxious to deprive at least five of the six testifying plaintiffs of the use of the outdoor portion of their respective property during the concerts. It creates significant problems for some of the plaintiffs inside their homes as well. The traffic impact also is not trivial or inconsequential.
2. The Grassy Strip Concert Series Violates the Madison Zoning Regulations
Plaintiff’s fundamental contention is that the Hotel’s promotion and production of the Grassy Strip Summer Concert Series is an illegal nonconforming use under the nonconformity provisions of the Madison Zoning Regulations. A legal (or pre-existing) nonconforming use refers to the use of land or a structure that would be prohibited by existing applicable zoning regulations, but nonetheless is permitted because that use of the land/structure existed at the time the zoning regulations were adopted. A useful working definition is provided in the "American Jurisprudence" encyclopedia:
A nonconforming use is a use of property that lawfully existed prior to the enactment of a zoning ordinance, and continues after the effective date of the ordinance, even though it no longer complies with current zoning restrictions. In other words, it is a use prohibited by the zoning regulations but permitted because if its existence at the time the regulations were adopted. A nonconforming use is often referred to as a "grandfather right" and is allowed to continued only to avoid injustice.
83 Am.Jur.2d, "Zoning and Planning," § 524, at 518 (2013), quoted in North Haven Auto Sales and Service, Inc. v. North Haven Zoning Bd. Of Appeals, No. NNH-CV 126029512, 2014 WL 2854034, at *6 (Superior Court, May 19, 2014); see, e.g., Lane v. Cashman, 179 Conn.App. 394, 438 (2018).
The background legal principles governing nonconformities are well-established. Pre-existing nonconforming uses cannot be prohibited by municipal zoning laws, see General Statutes § 8-2, but municipalities are free to enact regulations to prohibit the expansion or enlargement of a nonconforming use. These regulations are very common in zoning codes throughout Connecticut and elsewhere. Such prohibitions make good sense, of course, because the fundamental objectives of zoning law would be substantially frustrated if municipalities were unable to prevent the expansion of nonconforming uses. The Connecticut Supreme Court has explained that the "obvious purpose" of zoning regulations prohibiting enlargement of nonconformities "is to contain a nonconforming use within the limits of the use in existence when the regulations were adopted so that, eventually, the use may be brought into conformity with the regulations for the district in which the premises are located." Guilford v. Landon, 146 Conn. 178, 182-83 (1959); see 9B R. Fuller, Connecticut Practice Series : Land Use Law and Practice § 52.2, at 225-26 (4th ed. 2015) (hereinafter "Fuller, Land Use Law and Practice "). One of the most basic principles in zoning law supplements this objective by providing that "nonconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit. In no case should they be allowed to increase." Salerni v. Scheuy, 140 Conn. 566, 570 (1954), quoted in Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 740 (1993); accord Vine v. Zoning Board of Appeals, 281 Conn. 553, 562 (2007); State v. Perry, 149 Conn. 232, 234-35 (1962) (stating that restrictive regulations of this nature are "in accordance with the policy of the law and the spirit of zoning"); Woodbury Donuts, LLC v. Zoning Board of Appeals, 139 Conn.App. 748, 760-61 (2012).
The Zoning Regulations adopted by Madison reflect the clear intention to limit to preclude the enlargement (extension or expansion) of a nonconforming use. Section 12.3 puts the point very bluntly: "No nonconforming use shall be extended or expanded ." (Emphasis added.) Many nonconformity cases turn on the distinction between a prohibited enlargement (extension or expansion) of the nonconforming use, and a permissible "intensification" of the nonconforming use. This is not such a case, however. It is obvious to everyone that the Hotel would be in flagrant breach of numerous zoning restrictions- the 2008 Variance, the nonconforming use regulations, or both- if the Grassy Strip Summer Concert Series were to be held on Hotel property. Use of the Hotel premises as a venue for large-scale outdoor (or indoor) amplified music concerts would never pass muster under applicable land-use restrictions; defendants do not contend otherwise.
Two other provisions set forth complementary restrictions. Section 12.1 provides that "No nonconforming use may be changed except to a conforming use or, with the approval of the [ZBA], to another nonconforming use no more objectionable in character." Section 12.2 states: "No nonconforming use shall, if once changed into a conforming use, be changed back again into a nonconforming use."
A substantial body of law has developed to help landowners, lawyers and trial judges recognize the dividing line. An oft-repeated statement of the basic doctrine is from Zachs v. Zoning Bd. of Appeals of Town of Avon, 218 Conn. 324, 331-32 (1991): "We have previously held that a mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use. There must be a change in the character of the existing use in order to bring it within the prohibition of the zoning ordinance ... In deciding whether the current activity is within the scope of a nonconforming use consideration should be given to three factors: (1) the extent to which the current use reflects the nature and purpose of the original use; (2) any differences in the character, nature and kind of use involved; and (3) any substantial difference in effect upon the neighborhood resulting from differences in the activities conducted on the property." (Citations and inner quotation marks omitted.) See generally 9B Fuller, Land Use Law and Practice § 52.3, at 235-44 (reviewing extensive case law).
Defendants’ argument, instead, is essentially that the "nonconformity" issue is a red herring here. They contend that plaintiffs erroneously conflate what should be two distinct analyses, one applicable to the Hotel property, and the other applicable to the Town-owned Grassy Strip. Defendants’ bifurcated analysis proceeds looks like this:
1. Use of the Hotel property itself is governed by the 2008 Variance. As it relates to the Hotel property, the present lawsuit fails because plaintiffs do not have standing to allege violations of the 2008 Variance. See Simko v. Ervin, supra . Use of the Hotel property itself therefore is not part of the case. Even if the court were to reach the merits, moreover, plaintiffs lose because the concerts are held on The Grassy Strip, not at the Hotel. See # 2 below. In sum, the Hotel’s operations at 86 & 88 West Wharf Road are in full compliance with the 2008 Variance; the nonconforming use doctrine has nothing to do with the Hotel’s use of its own property on these facts.
2. The Grassy Strip is where the concert series is held. The Grassy Strip has been part of a public park (West Wharf Beach Park) since long before zoning regulations were enacted in Madison, see Joint Stipulation of Facts at ¶¶ 15-16, and the Hotel has the same right as any other Madison citizen to obtain a permit to use the park for any authorized purpose. Section 19 of the Madison Zoning Regulations provides that parks may be used for "active or passive recreational purposes," which, defendants argue, include musical performances. QED.
Although the park is located in a residential district, and the current zoning regulations require a variance to operate a park in a residential district, West Wharf Beach Park (including the Grassy Strip) is a pre-existing nonconforming use because public parks were a permitted use in residential districts in Madison as of 1974, see Joint Stipulation of Facts at ¶ 17.
The artificiality of this analysis is palpable. Defendants ask the court to pretend that the applicable legal analysis is neatly bifurcated into two isolated parts. Part One examines the permissibility of the Hotel’s use of its own property for its business operations, and Part Two examines the permissibility of the Hotel’s use of the adjacent Town-owned land for the concerts. This approach is blind to the unmistakable fact that there is no separation at all between the two activities (the concerts and the Hotel’s business operations) as a practical, functional, logistical matter- which is to say, as a matter of objective reality. The Grassy Strip Summer Concert Series from the very beginning has been integrated into the Hotel’s operations, and is functionally inseparable from those business operations. The simple truth is that the Hotel has substantially enlarged its business operations by producing and hosting a summer concert series on an adjacent property known as the Grassy Strip. It pays a fee to the owner of the Grassy Strip for the purpose of annexing that land to enlarge the business operations on its adjacent land each Wednesday evening in July and August. The concerts are part of the Hotel’s commercial activities.
The intertwined, inseparable nature of these business activities is actually physical in operation and manifestation. The music itself is broadcast onto the Hotel’s property and entertains people there. The concerts are coordinated and run out of the Hotel itself. As mentioned, the Hotel pays a fee to the Town for use of the Grassy Strip, and the property becomes part of its own operations for the duration of the event. The physical connection works in both directions. Hundreds of customers watch and listen to the musical performance from the Hotel’s porch and balconies. Concertgoers flow freely back and forth from the Grassy Strip to the Hotel itself. They buy food and refreshments at the Hotel and either remain there or carry their purchases back to the Grassy Strip. The flow of business between the Hotel and the temporarily Grassy Strip is not accidental or incidental- it is an important part of the event. Even the electricity powering the lighting and amplified concert music is physically tied to the Hotel itself through a cable running from the "showmobile" stage to an electrical box at the Hotel. The operation is fully integrated.
As discussed, the Hotel funds, coordinates and controls virtually every aspect of the concert series. See above at pp. 8-10. It sponsors the concerts and pays for all associated expenses (including marketing and advertising, entertainment, sound, lighting and staging production, transportation and valet services for concertgoers, security and traffic control, electricity, etc.). The Hotel also derives revenues from the patronage of scores, probably hundreds, of concertgoers who purchase food and beverages from the Hotel on concert night. With each concert, moreover, the Hotel also generates goodwill, and draws to its doorstep hundreds of potential future customers for the Hotel’s lodging, banquet, and other services. Whatever other interests may be served by the concert series (promoting town spirit, supporting arts and entertainment, and so forth), the event is plainly a commercial activity which generates direct and indirect economic benefits for the Hotel as a business enterprise.
The foregoing reality brings tumbling down the artificial analytical wall defendants have constructed in their effort to legitimize the Hotel’s activities in connection with its Grassy Strip Summer Concert Series. Once the concert series is seen for what it is- an activity produced by the Hotel as part of its business operations- the legal analysis is relatively straightforward. The activity is illegal because it goes far beyond the pre-existing nonconforming use permitted under Section 12.3 of the Madison Zoning Regulations. ("No nonconforming use shall be extended or expanded.") The fact that the Hotel has made arrangements (for a fee) to locate the musical performance (and some of the audience) on an adjacent property does not change the undeniable reality that the concert series substantially extends and expands the Hotel’s nonconforming use of its own property. Physically and operationally, the concerts are an integral component of the business activity at the Hotel in virtually every respect. See above at pp. 37-38. In the same way that the Hotel could not evade the illegality by purchasing or leasing the Grassy Strip from the Town to hold the concerts, it also cannot temporarily lease or license the Grassy Strip for the purpose, and with the effect, of enlarging its business operation; an annexation of adjacent land that enlarges the Hotel’s nonconforming use is illegal in the absence of a variance or zone change. See e.g., Crabtree Realty Co. v. Planning and Zoning Comm’n, 82 Conn.App. 447, 562 (2004); see generally 9B Fuller, Land Use Law and Practice § 52.3, at 236 & n.16, 239-41, 244-46 (reviewing extensive case law prohibiting enlargement of physical area devoted to nonconformity); cf. McKosky v. Planning & Zoning Comm’n of Town of N. Branford, No. NNHCV 136039112S, 2014 WL 6996359, at *15 (Conn.Super.Ct. Oct. 31, 2014) ("The relevant cases and authorities hold that the physical expansion of the nonconforming use- whether by the erection of a new structure, a structural alteration materially increasing the size of an existing structure, or any similar expansion of buildings, structures or other improvements dedicated to the nonconforming use- ordinarily constitutes an impermissible expansion of the nonconforming use").
The Grassy Strip Summer Concert Series also creates an illegal nonconformity on the Town-owned property adjacent to the Hotel. Defendants may be correct as a general matter that musical concerts are a permissible activity at Town-owned parks because concerts can be "recreational" in nature. Defendants are certainly correct that the Hotel obtains permission from the Parks and Recreation Department to use the West Wharf Beach Park for every concert. But these points change nothing. Scott Erskine, Director of the Parks and Recreation Department Parks and Recreation Department, testified at trial that it is not within his purview to enforce the Madison Zoning Regulations; his department’s issuance of a facilities permit does not mean that the Hotel’s concert series complies with those regulations. The hypothetical possibility that other Madison citizens might be free to use the facility for a non-commercial recreational purpose (e.g., a musical performance) does not mean that the Hotel can use the facility for a concert series as part of its business operation, in a manner that temporarily annexes the Town’s property to extend its (nonconforming) commercial activities using the Town’s land.
The court need not decide the issue, but will assume the contention is correct for the sake of argument.
Indeed, the Madison ZEO, John DeLaura, testified at trial that it would violate the Madison Zoning Regulations for the Hotel, as part of its commercial operations, to underwrite the concert series ("pay all the bills") held at the West Wharf Beach State Park. The significance of this testimony should not be overlooked. The concerts, as held by the Hotel, are commercial activities, and are not a permitted use at the West Wharf Beach Park. Due to the commercial nature of the concerts as they are produced by the Hotel, this activity also violates the Madison Zoning Regulations applicable to West Wharf Park, because commercial activities of this nature are not a permitted use in an R-4 zone, park or no park. The concerts are "free" to attendees in the sense that the Hotel charges no admission fee, but each concert generates thousands of dollars in direct revenue (and extremely valuable indirect financial benefits) from those in attendance, and it is pure fantasy to pretend that the Grassy Strip Summer Concert Series is not part of the Hotel’s commercial activities. The "public" venue, and the rhetoric of public spiritedness, cannot conceal the fact that the concerts are part of the Hotel’s business activities.
Perhaps recognizing the legal difficulty presented by plaintiffs’ nonconformity analysis, defendants attempt to sidestep the problem by arguing that the 2008 Variance effectively superseded their nonconforming status. See, e.g., Hotel Defendant’s Post-Trial Brief at p. 8 ("Accordingly, by virtue of the final [2008] Variance decision, the Hotel property does not occupy the legal status of nonconforming use, but rather a use expressly defined and comprehensively permitted under a variance"); Town of Madison’s Reply Brief at p. 14 n.11 ("It should be noted that the Hotel’s use here is not a ‘nonconforming use,’ but instead a use subject to a Variance"). These assertions do not accurately characterize the situation. In fact, the Hotel continues to operate as a nonconforming use, subject to a variance. Indeed, as recently as 2015, the Town of Madison’s own Planning and Zoning Commission took the formal position that the Hotel’s nonconforming status remained in existence. It did so in the Mannino litigation, when the PZC told a judge of the superior court that adoption of a new "West Wharf Zone" was necessary "to end a confusing and problematic nonconforming use by the Madison Beach Hotel." Brief of Madison PZC dated 4/8/15, at 1, Mannino v. Madison Planning and Zoning Comm’n, No. NNH-CV-146049022 (Docket Entry # 109.00) (emphasis added). The same position was taken throughout the brief submitted in that matter by Defendant Madison Beach Hotel Beach of Florida, LLC. See Brief of Hotel Defendants dated 4/8/15, at 2, Mannino v. Madison Planning and Zoning Comm’n, No. NNH-CV-146049022) (describing Hotel as "the site where the applicant operates a hotel and restaurant as a legal, nonconforming use and under the provisions of a variance granted by the Madison Zoning Board of Appeals in 2008") (emphasis added); id. at 2, 4, 7. The nonconforming use did not disappear in 2008, and defendants know it.
See above at pp. 6-7 for additional facts regarding the Mannino case.
* * *
For whatever reasons, the Hotel Defendants decided years ago that they were not satisfied with the commercial opportunities available to them under the restrictions imposed by applicable zoning regulations, even as modified by the 2008 Variance. That view evidently enjoyed support in the community- not from everyone, but from a critical mass which included the right town officials. With the Town’s cooperation and assistance, the Hotel Defendants tried to obtain relief from the existing zoning restrictions through a proposed zone change. That effort ultimately proved unsuccessful, because it was found to be unlawful. But the Hotel’s expansion efforts have continued nonetheless. Sometimes with the Town’s active support, and at other times with its passive acquiescence, the Hotel Defendants have enlarged their commercial activity notwithstanding the operative zoning restrictions. They seem to have done so on the theory that they are performing a public service in the process; they believe, that is, that the concerts and other activities represent a significant improvement of the status quo ante, benefit the Town and its residents, and are appreciated by a substantial majority of the citizenry. Perhaps they are right. But their civic-minded gloss does not alter the outcome of this case.
In closing, four points warrant repetition. First, the concerts, profit-making or not, are fundamentally commercial in nature. Second, the concerts represent a substantial enlargement of the Hotel’s prior nonconforming use. Third, the Town has an obligation to enforce its zoning regulations regardless of the personal views of Town officials (or influential citizens). And fourth, those citizens with standing to demand such enforcement- plaintiffs here- are not stripped of their right to do so because the violations "only" occur ten times per year, or because some of them own other property elsewhere, or because they would be on the losing side if tolerance for the violations were subject to popular vote.
3. Injunctive Relief is an Appropriate Remedy on These Facts
The applicable legal standard for granting injunctive relief is well-settled:
A party seeking injunctive relief has the burden of alleging and proving irreparable harm and a lack of an adequate remedy at law ... The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm. Additionally, a decision to grant or deny an injunction must be compatible with the equities in the case, which should take into account the gravity and willfulness of the violation, as well as the potential harm to the defendant.
Steroco, Inc. v. Szymanski, supra, 166 Conn.App. at 87-88.
The court finds that plaintiffs are entitled to injunctive relief. The nature and extent of the harm is reviewed above at pp. 29-32. In summary form, the evidence at trial established that the amplified music produced by the concerts deprives plaintiffs of the quiet enjoyment of their property. Most of the plaintiffs cannot be outside during the concerts due to the noise. One plaintiff, who resides in especially close proximity to the Hotel, is forced to leave her home on concert nights, and spend the night elsewhere. Plaintiffs reside in a residential neighborhood, and they are entitled to live on their property and enjoy its use without being aurally assaulted by loud music caused by the Hotel’s violation of the zoning regulations. Again, it is irrelevant that many people in Madison are not upset by the loud music, or even enjoy it. The property rights at issue are not subject to forfeiture, even for twenty hours per year, merely because most of the citizens would enjoy the music produced by the Hotel’s commercial venture. The harm from allowing the concerts to go forward is imminent and substantial and irreparable in the absence of an injunction. There is no adequate remedy at law. The Hotel defendants are permanently enjoined from organizing, producing, promoting, or sponsoring the Grassy Park Summer Concert Series, as stated in the court’s order dated May 31, 2018.
12. Any nonconforming use or building lawfully existing at the time of the adoption of these regulations [i.e., April 10, 1953] ... may be continued and any building so existing which was designed, arranged, intended for or devoted to a nonconforming use may be reconstructed and structurally altered, and the nonconforming use therein changed, subject to the following regulations:
12.1 No nonconforming use may be changed except to a conforming use or, with the approval of the Zoning Board of Appeals, to another nonconforming use no more objectionable in character ...
12.3 No nonconforming use shall be extended or expanded.