Opinion
No. DBD-CV-07-4008040S
September 30, 2009
MEMORANDUM OF DECISION
The Plaintiffs, RR Pool Patio, Inc., Mitchell Ross, David Ross and Philip Ross, appeal, pursuant to General Statutes § 8-8, from the decision of the defendant, the zoning board of appeals of the town of Ridgefield (board), sustaining the planning director's denial of a third site plan application for the subject premises. As owners and unsuccessful applicants, the plaintiffs are aggrieved by the board's decision and have standing to bring this appeal. See Gladysz v. Planning Zoning Commission, 256 Conn. 249, 257-58, 773 A.2d 300 (2001).
The following facts are adopted from the decisions in RR Pool Patio, Inc. v. Zoning Board of Appeals, 60 Conn.App. 82, 758 A.2d 462 (2000), rev'd on other grounds, 257 Conn. 456, 467-68, 778 A.2d 61 (2001); RR Pool Patio, Inc. v. Zoning Board of Appeals, 83 Conn.App. 1, 847 A.2d 1052 (2004); RR Pool Patio, Inc. v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. CV 324153 (October 13, 1998, Stodolink, J.) (ROR Exhibit C, X-UUUU — Page 1544) (decision on appeal from defendant's denial of plaintiff's appeal of cease and desist order); and RR Pool Patio, Inc. v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. CV 99 0336560 (August 9, 2002, Doherty, J.), and are also found based on an examination of the record in the instant matter. The plaintiffs' property is located at 975 Ethan Allen Highway in Ridgefield. The property is located in a B-2 zone in which retail uses are not permitted under the Ridgefield zoning regulations. In July 1990, Richard Amatulli, a tenant of the property at the time, obtained site plan approval to conduct a wholesale oriental rug operation on the property.
On November 5, 1990, the board granted Amatulli's application for a variance to conduct retail sales on the property. The variance provided: "[T]his action permits wholesale and retail sales to be conducted from the premises, unrestricted as to type of customer or hours of operation, but restricted as to the products to be sold. Such wholesale and retail sales shall be limited to oriental rugs, fine furniture and art."
In 1993, the then owners of the property applied for a variance to remove the restrictions as to the types of goods to be sold and to allow full retail use of the property. This application was denied by the board and no appeal was taken by the owners.
On July 2, 1993, the owners, on behalf of their new tenant, RR Pool Patio, filed an application for site plan approval with the Ridgefield planning director proposing the use of the property for warehouse, office and retail sale of fine outdoor furniture. This application was denied. One of the reasons given for the denial was that the merchandise that the tenants were planning to sell was not the "fine furniture" contemplated by the board in its decision on the Amatulli variance. The owners and the plaintiffs appealed from the decision to the board, which upheld the planning director's decision.
On February 24, 1994, the owners of the property and the plaintiffs appealed to the Superior Court, alleging that the board's decision on the site plan application was arbitrary, illegal and an abuse of discretion. The trial court dismissed the appeal for lack of standing on the ground that the property owners were not the applicants for the site plan approval. The property owners and the plaintiffs then appealed the case to the Appellate Court. While that was pending, the owners conveyed titled of the property to the plaintiffs. Upon review, the Appellate Court reversed the judgment of the trial court and remanded the case for a determination on the merits. On remand, the trial court, Stodolink, J., sustained the appeal and concluded that the record contained no evidence to support the board's conclusion that the furniture at issue was not the type of "fine furniture" contemplated by the Amatulli variance.
On July 27, 1995, while the appeal of the first site plan application was pending in the Superior Court, the plaintiffs submitted a second site plan application to the planning director, seeking approval for the retail and wholesale sales of oriental rugs, fine furniture and art. In that application the plaintiffs provided a "statement of proposed uses" for the property, along with numerous letters to the planning director. The plaintiffs stated that the "property will be used in accordance with the variance granted by the [board] in App. #90-099 on November 5, 1990," the original Amatulli variance. The plaintiffs also stated that the products to be sold on the premises would be limited to "[r]etail and wholesale sales of oriental rugs, fine furniture and art . . . The products will be of high end quality, well styled and up-scaled products . . . there will be no plastic furniture, no mass produced assembly line type of furniture, and no athletic equipment such as swing sets. RR will not be selling the type of furniture which is customarily sold in discount stores. Instead, the furniture will be of the high type and caliber which is customarily sold in high quality furniture stores throughout the United States. A consumer could expect to find the same products in stores on Fifth Avenue or Madison Avenue in New York City and similar states in different parts of the country." (ROR Exhibit B, VI.h — Page 100.) Based upon these assurances, the planning director approved the plaintiffs' second site plan application.
In September 1995, the plaintiffs began retail sales of furniture on the property. Soon after, the Ridgefield zoning enforcement officer issued a cease and desist order ordering the plaintiffs to remedy or discontinue conducting retail sales in a B-2 zone, retail sales not allowed under the Amatulli variance, retail sales not presented during the site plan process and sales that specifically violate the conditions of the plaintiffs' site plan approval.
On January 5, 1996, the plaintiffs appealed the cease and desist order to the board, which upheld the issuance of the order. The board stated the plaintiffs had "applied for site plan approval for one use, and after receiving it . . . put the property to another use."
On May 2, 1996, the plaintiffs appealed from the board's decision on the cease and desist order to the Superior Court. The plaintiffs asserted that the board's decision was arbitrary and illegal in that the Amatulli variance ran with the land and the board could not modify it, the term fine furniture was vague and involved a matter of personal taste, and the plaintiffs were denied due process because they were not informed which items did not constitute fine furniture. The trial court, Stodolink, J., upheld the board's decision, concluding that the board's reason for sustaining the order was reasonably supported by the record. Judge Stodolink issued his decision on both the site plan appeal and the cease and desist order appeal on the same day, October 20, 1998.
The Appellate Court then granted the plaintiffs' motion to take judicial notice of the site plan appeal and concluded that the trial court had determined that the Amatulli variance could not be construed to limit the kind of furniture sold on the property. Because the board had failed to appeal from the trial court's judgment in the site plan appeal, the Appellate Court concluded that the board was precluded under the doctrine of collateral estoppel from asserting that "fine furniture," as it appeared in the Amatulli variance, meant something finer than ordinary furniture. The Appellate Court reversed the trial court's judgment on the cease and desist appeal, concluding that the plaintiffs' use of the property conformed to the Amatulli variance as defined by the trial court.
The Supreme Court then heard the case and reversed and remanded it back to the Appellate Court, stating that the Appellate Court improperly applied the doctrine of collateral estoppel. RR Pool Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 475. The Supreme Court stated that because the meaning of "fine furniture" was neither litigated by the parties nor decided by the trial court in the site plan case "the trial court did not render final judgment on an issue that would preclude the board, under the doctrine of collateral estoppel, from ensuring in the cease and desist case that the plaintiffs' actual use complied with its site plan application to sell fine furniture." Id.
On December 28, 1998, the plaintiffs filed a third application for site plan approval of specific products to be sold and specific areas for outside display. The specific products proposed in the site plan were as follows: "1. Furniture and furnishings, including the customary related accessories such as cushions, umbrellas, and tableware related to furniture in stock . . . 2. Spas, hot tubs and pool accessories . . . 3. Billiard and gaming tables and accessories . . . 4. Fireplace equipment and grills . . . 5. Works of art . . . 6. Christmas and seasonal holiday products." (ROR Exhibit B, II.a, Page 11.) On February 17, 1999, the planning director denied the application. On February 25, 1999, the plaintiffs filed an appeal to the board, and the board upheld the decision of the planning director. The plaintiffs appealed from the denial to the Superior Court. On August 9, 2002, the court sustained the appeal because there was no substantial evidence indicating that the variance did not include outdoor displays, and because the plaintiffs' proposed use of the property did not constitute a change from Amatulli's use, and, thus, they were not required to file a new site plan application. In sustaining the appeal, the court reversed the board's decision and directed the board to approve the plaintiffs' application. RR Pool Patio, Inc. v. Zoning Board of Appeals, supra, Superior Court, Docket No. CV 99 0336560. On appeal, the Appellate Court reversed the judgment "only as to the trial court's order directing the board to grant the plaintiffs' application for site plan approval" and remanded the case to the trial court with direction to remand the matter to the board for further proceedings on the issue of whether the sale of the specific items listed in the application is permitted under the Amatulli variance. RR Pool Patio, Inc. v. Zoning Board of Appeals, supra, 83 Conn.App. 9. The court reasoned that "once the [trial] court reversed the board's decision to deny the plaintiffs' application, there was not, as a matter of law, a single conclusion that the board reasonably could reach as to the plaintiffs' application. Numerous sale items are incorporated in the plaintiffs' most recent site plan application. The board has discretion to determine the specific items that are permitted by the Amatulli variance. Thus, once the court decided to reverse the board's decision, it should have gone no further than to sustain the plaintiffs' appeal. The court's overbroad order directing the board to grant the plaintiffs' application deprived the board of its discretionary authority." Id.
The board, upon remand from the Superior Court, at a meeting on October 17, 2005, considered the list of six items in the plaintiffs' site plan application. The transcript of the meeting reveals that the board attempted to derive a workable definition of "fine furniture." (ROR Exhibit B, V.a, Page 40.) The board had access to photocopies of the original photos submitted with the Amatulli application (ROR Exhibit B, III.d, Page 33) and made use of them in their deliberations. A board member indicated a desire to understand the "legislative history" of the variance grant, but only in passing, and made no reference to the transcript. (ROR Exhibit B, V.a, Page 40.) A board member acknowledged the existence of the Raymond Ross letter of August 15, 1995 (ROR Exhibit B, VI.h, Page 100) but indicated that it was "not theoretically part of the record" and did not consider it further. The board also had access to a historical, procedural summary prepared by board clerk Marjorie Tippet (ROR Exhibit B, VI.f, Page 80), but no reference to it appears in the transcript of the board's deliberations. Over the course of the deliberations, the board developed the definition of "fine furniture" to be furniture that is "one of a kind, hand-crafted, not massed produced, that may appreciate in value." (ROR Exhibit B, V.a, Page 40, pages 48-49.) Based on that definition, the board took up each of the six proposed categories of products and rendered the following decision: "1. Furniture and furnishings, including the customary related accessories such as cushions, umbrellas, and tableware related to furniture in stock would be permitted only to the extent that each such item was `one of a kind, hand-crafted, not massed produced and capable of appreciating in value,' 2. Spas, hot tubs and pool accessories are not permitted, 3. Billiard and gaming tables and accessories would be permitted only to the extent that each such item was `one of a kind, hand-crafted, not massed produced and capable of appreciating in value,' 4. Fireplace equipment and grills are not permitted, 5. Works of art are permitted, 6. Christmas and seasonal holiday products are not permitted." (ROR Exhibit B, V.a, Page 40, pages 51-65, and ROR Exhibit B, VII.a, Page 102.)
The plaintiffs appealed from the decision of the board to the Superior Court. On June 19, 2007, the court, Minz, J., after determining that four of the five board members who had voted on the decision had not heard the entire case and had not familiarized themselves with the record prior to voting, remanded the matter back to the board with direction that each board member was to read the entire record, reconsider the matter and render a new decision. Judge Mintz's remand order was specific. It required the board to "review prior proceedings . . . public hearings and meetings that led up to Judge Doherty's decision of August 9th, 2002 . . . The remand is only for the purpose of the board reviewing those public hearings . . . and . . . transcripts from meetings or minutes of meetings and rendering a new decision . . . And no evidence besides what's in that record, okay, is to be produced by anybody whether it's the board or the plaintiffs in this action, and the board has to make a decision pursuant to that." (ROR, Exhibit A,1.a, Page 3.)
On September 17, 2007, the board reconvened pursuant to the remand order to reconsider the six proposed categories of products on the third site plan application. Each member of the board signified in turn that he had read the entire record. Each of the six categories of products was taken up in turn, discussion on each was minimal, and each of the six items was approved or disapproved in terms identical to the prior decision rendered on October 17, 2005, including the application of the definition of "fine furniture" adopted at the prior hearing as being "one of a kind, hand-crafted, not massed produced and capable of appreciating in value." (ROR Exhibit A, III.a and III.b.)
On September 26, 2007, the plaintiffs commenced this present action as an appeal from the decision of the board, claiming that the board acted illegally, arbitrarily and in abuse of its discretion in multiple respects. All of the instances claimed by the plaintiffs essentially fall into three categories, namely, that the board has illegally and arbitrarily redefined "fine furniture" as it is used in the Amatulli variance, that on remand from at least the Appellate Court, if not also on remand from the trial court, Mintz, J., the board considered documents and information which was not in the return of record, and the board prejudged and predetermined the application. At the start of the trial of this matter on September 3, 2009, plaintiffs' counsel formally withdrew the claim of predetermination as a ground for appeal.
DISCUSSION
An appeal from a decision by a zoning board of appeals is statutory in nature and the standard of review by the Superior Court is well established. "The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." RR Pool Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 470. "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. (Internal quotation marks omitted.) Id. "Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001).
In Osborne v. Zoning Board of Appeals, 41 Conn.App. 351, 675 A.2d 917 (1996), the court stated: "Ordinarily, the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." Id., 354.
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning [board]'s stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the [board] . . . The [board's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citations omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004); Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547-48, 684 A.2d 735 (1996). "[A zoning] board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal." (Internal quotation marked omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).
"Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law . . . These principles apply equally to regulations as well as to statutes . . . A court that is faced with two equally plausible interpretations of regulatory language, however, properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation." (Citations omitted; internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 698-99, 784 A.2d 354 (2001).
"[A] zoning regulation is legislative in nature, and its interpretation involves the principles of statutory interpretation . . . We seek to determine the meaning of the regulations by looking to the words of the regulation, to the history of its enactment, including the circumstances surrounding its enactment, to the public policy it was designed to implement and to its relationship to other regulations governing the same general subject matter." (Citation omitted.) Smith-Groh, Inc. v. Planning Zoning Commission, 78 Conn.App. 216, 232, 826 A.2d 249 (2003), citing Bhinder v. Sun Co., 263 Conn. 358, 367, 819 A.2d 822 (2003).
In this latest appeal to the Superior Court, the issues have been narrowly focused. The task assigned to the board in the original remand by the Appellate Court in RR Pool Patio, Inc. v. Zoning Board of Appeals, supra, 83 Conn.App. 9, and by way of remand in the subsequent decision on appeal by order of the Superior Court, Mintz; J., (ROR Exhibit A, 1.a, Page 3) was to decide whether the sale of the specific items in the third site plan application was permitted under the Amatulli variance. This determination is a two-part process. The first part involves determining the meaning of "fine furniture" within the meaning of the Amatulli variance and is a question of law. Pursuant to General Statutes § 8-6(a) the "zoning board of appeals shall have [ inter alia] the following powers and duties: . . . (3) to determine and vary the application of the zoning . . . regulations . . ." Further, "(b) [a]ny variance granted by a zoning board of appeals shall run with the land and shall not be personnel in nature to the person who applied for and received the variance . ." As such, the grant of a variance itself is an exercise of the board's regulatory powers. "[A] variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations." (Internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, 206 Conn, 362, 372, 537 A.2d 1030 (1988).
The second part of the board's task involves determining whether a specific proposed item falls within the criteria of "fine furniture" and is a question of fact. During the course of their deliberations after remand both from the Appellate Court and from the Superior Court, Mintz, J., the board first made a determination of the meaning of "fine furniture" within the terms of the Amatulli variance. This was the first time since the Amatulli variance was granted on November 5, 1990 that the board made such a determination. The board determined "fine furniture" to be "one of a kind, hand-crafted, not mass produced and capable of appreciating in value." As such, it was a determination on a question of law. It is the task of this court to determine based upon the record before the board whether the board has acted fairly or with proper motives or upon valid reasons. Barbieri v. Planning Zoning Commission, 80 Conn.App. 169, 173, 833 A.2d 939 (2003).
In its review of the Appellate Court's dismissal of the appeal from the cease and desist order involving the second site plan, our Supreme Court recognized that the meaning of "fine furniture" had thus far neither been litigated by the parties nor decided by the trial court in the site plan case. The court noted that it was not necessary for the trial court, Stodolink, J., to have made such determination to rule on whether the board's denial of the first site plan was proper. RR Pool Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 475. Since that time, no court has reviewed the interpretation of the Amatulli variance or determined its meaning. This court's review is therefore plenary. Alvord Investment, LLC. v. Zoning Board of Appeals, 282 Conn. 393, 409, 920 A.2d 1000 (2007). This court notes that in his site plan decision Judge Stodolink engaged in an extensive and insightful analysis of the term "fine furniture" as used in the Amatulli variance and considered the proposed uses in the variance application, original transcripts of the hearing on the variance, circumstances surrounding the granting of the variance, testimony of expert witnesses from the first site plan hearings (which testimony had been introduced as part of the third site plan application and is part of the record of these proceedings (ROR Exhibits C, VII.CCC, DDD, EEE, FFF and GGG) and dictionary definitions. Judge Stodolink formulated parameters toward a definition of "fine furniture" but stopped short of actually stating a definition. Relevant portions of his analysis follow:
In 1990, the previous lessee of the subject property, Amatulli, was a seller of extremely high quality oriental rugs. These rugs were handmade, imported from all over the world, and some sold for as much as $30,000. In 1990, the property was zoned for wholesale sales only; no retail sales were permitted. Therefore, if a customer walked into Amatulli's business, and wished to purchase an oriental rug directly from Amatulli, they could not do so because of the zoning regulations. Instead, customers would have to retain a contractor to purchase the oriental rug for them.
The board felt that this situation created a hardship, and therefore, it granted Amatulli's application for a variance to sell, at retail, "oriental rugs, fine furniture, and art." The board, in granting Amatulli the variance, also stated that the retail sale of these three items would not increase the traffic flow on or around the property, because relatively few consumers would purchase such expensive rugs.
The outcome of this appeal depends, in part, upon whether the board acted arbitrarily or unreasonably in its determination that the plaintiffs did not sell "fine furniture" as contemplated in the 1990 variance. Consequently, an examination of the transcripts from the 1990 variance application hearing and decision session is necessary.
The transcript from Amatulli's variance hearing is twenty-two pages long, but "fine furniture" was mentioned expressly only once. At the end of the hearing, Chairman Creamer stated: "[Amatulli] has no retail rights other than extremely expensive oriental rugs," to which Amatulli responded: "And fine furniture and art, as indicated on the application." The previous exchange is the extent of the consideration given to "fine furniture" at Amatulli's variance application hearing. Virtually all of the discussion focused on Amatulli's oriental rug business.
During the board's decision-making session on Amatulli's application, the record reflects that the board, itself, was unsure of what type of furniture Amatulli intended to sell. The following statements demonstrate this point. First, Chairman Creamer stated: "You know [Amatulli] is going to use [the property] for specific, for artistic rugs only," to which board member Hume responded, "[n]o, there is furniture," and board member Tippet interjected, "and fine art." Later in the discussion, Hume stated: "But he sells all kinds of furniture according to the picture," and board member Mannion replied: "But maybe they are all individually crafted. His biggest source is going to be carpets." Finally, Tippet summed up the board's position with respect to the issue of "fine furniture": "You are not going to be selling $30,000 rugs and then put in cheap Scandinavian furniture.
The foregoing represents the extent of the board's discussion concerning "fine furniture." The record does not demonstrate that the board offered any definitions, or any ascertainable guidelines or standards, upon which a subsequent owner or lessor of the subject property could have reasonably relied upon when selling furniture from the property.
With respect to the present appeal, the board's decision states that the term "fine furniture" was not "specifically described" at the previous hearings. Yet, the board also states in its decision that the variance should be read "in its entirety as having inherent unity of decision." Further, the board states that the plaintiffs' definition of "fine furniture" was not the kind of product presented to the board when the variance was requested, nor was it the kind of product contemplated by the board when the variance was granted. Finally, the board states that "[o]utdoor furniture simply does not fit [the definition of fine furniture]."
The record, however, contains no factual evidence to support the board's conclusion that the plaintiffs' furniture is not the "fine furniture" contemplated by the 1990 variance. As indicated above, the board never defined the term "fine furniture" when it granted Amatulli the variance. It is further submitted that the court may also find the board's statement that the plaintiffs' furniture was not the "kind of product that was presented to the board when the variance was requested, and it is not the kind of product that was considered by the board when the variance was granted," to be misleading. The record reflects that Amatulli presented nothing pertaining to furniture during his hearing, and that the board focused almost exclusively on Amatulli's oriental rugs.
Additionally, during the course of the plaintiffs' hearings, they presented four witnesses who testified that a definition of "fine furniture" does not exist, and that the term is a fairly subjective one. The witnesses also testified that in their opinions, the furniture that the plaintiffs proposed to sell was "fine furniture" because it was quite expensive and of a high quality. Finally, the witnesses stated that the plaintiffs' furniture could be used both indoors and outdoors, and that the indoor/outdoor distinction, standing alone, would not necessarily lower the quality of the furniture.
Additionally, the plaintiffs submitted numerous excerpts from dictionaries and other sources demonstrating the lack of any definition of "fine furniture." They also submitted catalogues and photographs of the furniture proposed to be sold at the property; most of which was expensive and would be appropriate for indoor use. Letters were also submitted, most notably from David Barquist, who is currently employed by Yale University and who has been published in the area of American furniture. These letters indicated that there is no definition of fine furniture, except that the terms when used together generally imply quality. All of the foregoing was made part of the record before the board, and none of the foregoing was refuted by any evidence. Most notably, the plaintiffs' witnesses' testimony stood unrefuted.
The record indicates that the board relied on its own subjective beliefs in its determination that the plaintiffs' furniture did not comport with the variance, "In evaluating whether the conclusions reached meet the substantial evidence standards, the credibility of witnesses is a matter within the province of the [board] . . . [The board] is not required to believe any witness, even an expert." (Citation omitted; internal quotation marks omitted.) Bradley v. Inland Wetlands Agency, 28 Conn.App. 48, 53-54, 609 A.2d 1043 (1992). Nonetheless, while the court recognizes that "an administrative agency is not required to believe any of the witnesses, including expert witnesses; Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980); it must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge." Tanner v. Conservation Commission, 15 Conn.App. 336, 341, 544 A.2d 258 (1988). Although, the determination of whether furniture is "fine" is generally not a technically complex issue, a certain degree of sophistication and familiarity with quality furniture is required before a true assessment of the subject matter can be made. The record reflects, however, that the board members did not possess any expertise or specialized knowledge of furniture that would permit them to completely disregard the uncontroverted testimony of the plaintiffs' witnesses.
The record also indicates that the board relied extensively on Inglese's decision with respect to the plaintiffs' furniture, even though his decision was based purely upon his own opinion. Inglese had neither been to the plaintiffs' store to see what type of furniture they sold, nor did he know what brands of furniture the plaintiffs sold. Furthermore, he never asked the plaintiffs what type of furniture they sold. In fact, when asked what he thought fine furniture was Inglese responded: "One that is rather expensive, that I would purchaser [sic] not on the outdoors, but in the indoors; one that I would pay a substantial amount of money for; one that is very unique; and frankly one that pleases my eyes and fits my pocketbook." Finally, the record reflects that the town's regulations do not define the term "fine furniture." In light of the foregoing, the court cannot find any substantial evidence in the record to support the board's conclusion that the plaintiffs' did not sell "fine furniture.
Additionally, the board's statement that the terms "oriental rugs, fine furniture and art" should be read together in their entirety to indicate the level of quality of the furniture, is contradicted by the sentence immediately following that statement. The board's decision provides: "While fine furniture was not specifically described, the variance would be read in its entirety as having an inherent unity of decision. The applicant for that variance [Amatulli] presented his request as a unitary operation with the sale of furniture as an adjunct to the sale of oriental rugs . . ." . . . It is difficult to see how the variance should be viewed as inherently unified, when the sale of furniture was only an adjunct, and not equal to, the sale of oriental rugs.
The board's conclusion that whatever furniture the plaintiffs' sold was not "fine furniture" as envisioned in the Amatulli variance, was arbitrary and unreasonable . . .
In conclusion, the board did not define the term "fine furniture," when it granted Amatulli's variance application. In fact, the transcript from the hearing in which Amatulli requested the variance sheds little light on the board's interpretation of the term "fine furniture." The record reflects that the board was almost exclusively concerned with Amatulli's request for the limited retail sale of oriental rugs. The record also reflects that the board's inclusion of "fine furniture" and art as a permitted retail use appears to be an afterthought.
RR Pool Patio v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. CV 316152 (October 26, 1998, Stodolink, J.). This court adopts the findings and the reasoning of the court, Stodolink, J., in the above referenced site plan decision.
Turning now to each of the four criteria set forth by the board, i.e. "one of a kind," "hand-crafted," "not massed produced" and "capable of appreciating in value," the court finds the record devoid of any support for the conclusion that an item of "fine furniture" must possess any one, several or all of these qualities. The phrase "not massed produced" appears to have been taken somewhat out of context from the Raymond Ross letter dated August 15, 1995. (ROR Exhibit B, VI.h, Page 100.) The entire phrase reads "no massed produced assembly line type of furniture." The letter was not properly part of the record on either of the last two remands (both the remand from the Appellate Court and the remand from the Superior Court, Mintz, J.) back to the board. Commissioner Odachowski specifically mentions the letter as being persuasive in his determination. (ROR Exhibit A, III.a Page 14, 18.)
In defining "fine furniture" as "one of a kind, hand-crafted, not massed produced, capable of appreciating in value," the board has significantly raised the bar to a stratospheric standard. This court finds the board's definition of "fine furniture" as articulated at its October 17, 2005 meeting to be illegal and arbitrary and to have no relation to the use of the premises as originally proposed and approved by the board at the time of the grant of the original variance. Accordingly, the board's decision with respect to the first category of products, "[f]urniture and furnishings, including the customary related accessories such as cushions, umbrellas, and tableware related to furniture in stock," and the third category of products, "Billiard and gaming tables and accessories," was improper.
Further, after considering the language of the grant of the variance, the proposed uses in the variance application, original transcripts of the hearing on the variance, circumstances surrounding the granting of the variance, testimony of expert witnesses from the first site plan hearings and the plain dictionary meaning of both "fine" and "furniture," the court determines the meaning of "fine furniture" as used in the Amatulli variance to be "good quality furniture," nothing more and nothing less. The court notes that there is a degree of subjectivity in this definition but finds that it provides sufficient parameters to be workable for both the board and the property owners.
The court also notes that it has not looked to the Raymond Ross letter of August 15, 1995 (ROR Exhibit A, III.a Page 14, 18) in formulating this definition. The Ross letter was part of the package of documents submitted to the planning director in the second site plan application to aid in determining the conformity of the proposed use of the premises to the zoning regulations and the Amatulli variance. See SSM Associates Limited Partnership v. Planning Zoning Commission, 15 Conn.App. 561, 566, 545 A.2d 602, aff'd, 211 Conn. 331, 559 A.2d 196 (1989). The court, Stodolink, J., in the cease and desist case noted that "the record before the ZBA reflects that the plaintiffs, as part of their site plan application, made various statements to the planning director in order to secure approval of the site plan." RR Pool Patio, Inc. v. Zoning Board of Appeals, CV 324153, dated October 13, 1998, Stodolink, J. (ROR Exhibit C, X-UUUU — Page 1551.) In reliance on these representations, the planning director approved the site plan. The Ross letter therefore represents the best expression of the understanding and agreement between the board and the property owners at that point in time. This court finds nothing in the Ross letter which is inconsistent with the definition of "fine furniture" which the court has set forth in this decision. The parties may, but are certainly not required, to look to the Ross letter for common grounds of agreement.
This leaves us with three other categories of products of which the board disapproved but such disapproval was not based on the definition of "fine furniture" as "one of a kind, hand-crafted, not massed produced, capable of appreciating in value," namely item two, spas, hot tubs and pool accessories, item four, fireplace equipment and grills, and item six, Christmas and seasonal holiday products. The decision itself states no reason for the denial. The court is bound by the general rule that "when a commission gives no reason for its decision, the trial court must search the entire record to find a basis for the commission's decision . . ." (Internal quotation marks omitted.) Gibbons v. Historic District Commission, 285 Conn. 755, 770, 941 A.2d 917 (2008). The transcript of the proceedings before the board reveals that as the board took up discussion of each of these categories of items, the operative reason for the denial was that the board members did not believe that the particular category of products was part of the original Amatulli variance. (ROR Exhibit A, III.a, Page 14, 20, 23, 26.) In each case the board made a determination of a question of fact. The court finds that the board acted within the scope of its discretion and authority in each case.
The board approved item number five, "[w]orks of art," and, therefore, no further discussion on this point is necessary.
Insofar as the court finds that the above stated reasons are dispositive of this appeal, it does not address the plaintiffs' alternate contention that the board had considered documents and information that was not part of the record.
CONCLUSION
For the foregoing reasons, the court finds that the plaintiffs have sustained their burden of proof with regard to item one, furniture and furnishings, including the customary related accessories such as cushions, umbrellas and tableware related to furniture in stock, and item three, billiard and gaming tables and accessories; of the third site plan. Accordingly, the matter is remanded to the board to reconsider these categories of products consistent with the definition of "fine furniture" which the court has set forth in this decision. The appeal is dismissed with regard to item two, spas, hot tubs and pool accessories, item four, fireplace equipment and grills, and item six, Christmas and seasonal holiday products, of the third site plan.