Opinion
CV166057167S
05-26-2017
Stepney, LLC v. Fairfield Zoning Board of Appeals et al
UNPUBLISHED OPINION
OPINION
Dale W. Radcliffe, J.
FACTS
The Plaintiff, Stepney, LLC, is the record owner of property known as 989 Fairfield Beach Road, Fairfield. The parcel, which contains a single-family residence, is situated in a BD (Beach District) Zone.
In addition to the dwelling, an eight (8) foot by twenty (20) foot storage container, which is leased from the Eagle Container Company of West Haven, has been located on the parcel. The property owner maintains that the storage container is used for the storage of furniture (ROR 2). The container is situated on or near the property boundary, and covers an area composed of Bituminous Pavement (ROR 9, p. 7-8; ROR 15).
On January 6, 2016, the Defendant Matthew C. Decker, acting in his capacity as Zoning Enforcement Officer of the Town of Fairfield, sent a three (3) page document, labeled " Order To Comply" to Stepney, LLC, at its mailing address, 4666 Main Street, Bridgeport (ROR 16). Stepney, LLC states that it received the Order To Comply or cease and desist order, on July 12, 2016 (See Exhibit 1, Affidavit of Laura J. Borger).
On February 9, 2016, Attorney George W. Ganim, Sr. mailed an appeal of the Order To Comply to the Town of Fairfield Zoning Board of Appeals. The " Application" to reverse or modify the order of the Fairfield Zoning Enforcement Officer, was received on February 10, 2016 (ROR 1).
The appeal was filed, pursuant to section 8-6(a) of the General Statutes, which reads in part:
(a) The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter . . .
The Order To Comply (ROR 16), claimed that the storage container " does not meet accessory structure setbacks, lot coverage for the Residence BD Zone." Stepney, LLC was ordered to " 1. Remove the aforementioned storage container from the property immediately." (ROR 16, p. 3.)
The Defendant, Fairfield Zoning Board of Appeals, scheduled a public hearing concerning Stepney, LLC's appeal, for May 5, 2015. Notice of the hearing was published in The Fairfield Citizen on April 22, 2016 (ROR 5), and April 29, 2016 (ROR 6), pursuant to Section 8-7d of the General Statutes.
Section 8-7d, C.G.S.--" . . . Notice of the hearing shall be published in a newspaper having a general circulation in such municipality where the land that is the subject of the hearing is located at least twice, at intervals of not less than two days, the first not more than fifteen days or less than ten days and the last not less than two days before the date set for the hearing . . ."
When the hearing convened on May 5, 2016 (ROR 9), the Zoning Enforcement Officer did not begin the hearing by explaining to the Fairfield Zoning Board of Appeals the basis for his Order To Comply, and the applicability of the specific sections of the Zoning Regulations referenced in the order. Instead, Attorney George W. Ganim, Sr., on behalf of Stepney, LLC, presented a " NARRATIVE" setting forth his claims and defenses, and an Affidavit which he signed, stating that the storage container was set back more than forty-five (45) feet from the center line of Fairfield Beach Road (ROR 2).
Attorney Ganim denied the allegation concerning the alleged violation of the front yard setback. He claimed that the requirements of Section 11.13.1 of the Zoning Ordinances were satisfied, based upon his measurements set forth in the affidavit. He also claimed that no violation of Section 11.1.4 of the zoning regulations is present. The eight (8) foot by twenty (20) foot contained is used to store furniture, and, he maintained, is therefore accessory to the principal use of the structure as a residence.
Section 11.13.1, Fairfield Zoning Regulations--The minimum setback from Fairfield Beach Road, Old Dam Road, French Street and Pine Creek Avenue shall be as follows; . . . as to lots bounded by Long Island Sound, not less than forty-five (45) feet from the center line of the street.
Section 11.1.4, Fairfield Zoning Regulations--Accessory uses customary with and incidental to the aforementioned permitted uses, subject to the following additional standards: " 11.1.4.1--The accessory use shall be located on the same lot with the permitted use to which it is accessory, and no detached accessory structure shall contain any finished livable floor area, plumbing fixtures, or heat . . ."
Attorney Ganim further maintained, that no violation of the " coverage" standards had occurred, consistent with the requirements of Section 11.10 of the Regulations had occurred. He insisted that a storage shed was not a " building foundation deck or impervious patio surface, " and that the storage of furniture did not qualify as new construction or reconstruction on the property.
Section 11.10, Fairfield Zoning Regulations--" For the purpose of this section, existing lot coverage shall mean the aggregate of all building foundations, decks and impervious surfaces existing as of the date of the adoption of these Beach District Regulations."
Furthermore, in addition to claiming that the eight (8) foot by twenty (20) foot rented storage container did not constitute new construction on 989 Fairfield Beach Road, Attorney Ganim explained that the container did not meet the definition of a " structure" under Section 32 of the Fairfield Zoning Regulations. The use of the terms " building" and " structure" are interchangeable, under the applicable regulations.
Section 22.8gg, Fairfield Zoning Regulations.
Stepney, LLC's representative was forced to acknowledge, however, that the location of the storage container appears to be in violation of Section 11.11 of the Zoning Regulations, the side yard setback requirement. The physical location of the container was confirmed by an abutting property owner, Doreen Landino, who provided the Zoning Board of Appeals with a survey, on which the container was drawn (ROR 15, ROR 9, p. 7-8).
Section 11.11.1, Fairfield Zoning Regulations--" Side yard setback for lots having an average width of less than forty (40) feet shall be established by the existing foundation of the principal structure, or, if there is no existing structure, then the cumulative side yard setback shall be twenty (20) percent of the average width of the lot, but not less than four (4) feet on any side."
Following the presentation on behalf of Stepney, LLC, those wishing to speak in opposition were recognized. Abutting property owners, and neighbors, told the Zoning Board of Appeals that the storage container was unsightly, and had resulted in additional on-street parking by the tenants at 989 Fairfield Beach Road. They also maintained that the container's location has an impact upon emergency vehicles, because it impedes access (ROR 9, p. 2-8).
The Zoning Enforcement Officer spoke briefly, after the representative of Stepney, LLC and the neighbors, had concluded (ROR 9, p. 8-9). He listed, without explanation, the various sections of the Fairfield Zoning Regulations, and then rendered the conclusory opinion that " the violations were plentiful."
The Zoning Enforcement Officer made no effort to explain why any particular regulation was being violated, and made only a passing reference to the text of any Regulation.
Matthew Decker called no witnesses in support of his Order To Comply. He presented no photographs depicting the location and nature of the storage container, and prepared no written memorandum or submission concerning any of the claimed violations.
No member of the Zoning Board of Appeals posed a question (ROR 9, p. 9).
When the Zoning Enforcement Officer had nothing further to offer, the property owner was given an opportunity to " rebut." (ROR 9, p. 9.) Attorney Ganim accepted the invitation, and explained that the flood zone regulations cited by the Zoning Enforcement Officer apply to buildings and structures, not to storage containers (ROR 9, p. 10).
The Zoning Enforcement Officer provided no substantive evidence during the course of the public hearing (ROR 9). However, he participated in the Board's executive session, offering additional opinions concerning storage containers. (ROR 10.)
When Matthew Decker concluded, an unidentified commissioner stated: " So, we're voting on Attorney Ganim's application to overrule Mr. Decker."
A " yes vote" was characterized as supporting Matthew Decker, while a " no vote" constituted a vote to deny the appeal (ROR 100).
The Fairfield Zoning Board of Appeals made no findings of facts, following the hearing. Nor did the members of the Board suggest any legal conclusions, based upon the facts presented, and a review of the applicable regulations.
An unidentified " commissioner" described the issue before the Board as: " . . . a question of fact for the Board to decide. I find the facts as presented by Mr. Decker to be more convincing than those proposed by Mr. Ganim" (ROR 10, p. 2).
What " facts presented by Mr. Decker" the Board member found compelling, were not disclosed to the other members, or made part of the motion.
The Fairfield Zoning Board of Appeals voted unanimously to " support" the Zoning Enforcement Officer (ROR 10, p. 2).
A notice of the decision was published in the May 13, 2016 edition of the Fairfield Citizen (ROR 13).
Following publication, Stepney, LLC instituted this timely appeal.
AGGRIEVEMENT
At trial Attorney George W. Ganim, Sr., a principal in Stepney, LLC, testified that Stepney, LLC is the owner of 989 Fairfield Beach Road, Fairfield. The limited liability company has owned the parcel, according to Attorney Ganim, for between fifteen (15) and twenty (20) years. Stepney, LLC has been the owner of the property at all times during this appeal.
Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996); Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991). The question of aggrievement is one of fact, to be determined by the trial court. Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93, 558 A.2d 646 (1989).
A party claiming to be aggrieved must satisfy a well-established two-fold test: 1) that party must show that it has a specific personal and legal interest in the subject matter of the decision, as distinct from a general interest such as concern of all members of the community as a whole, and 2) the party must show that the personal and legal interest has been specifically and injuriously affected by the action of the agency. Cannavo v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980). Ownership of 989 Fairfield Beach Road, the property which is the subject of the Order To Comply issued by Matthew Decker, demonstrates a personal and legal interest in the subject matter of the appeal. Huck v. Inland Wetlands and Watercourses Commission, 203 Conn. 525, 530, 525 A.2d 940 (1987); Bossert Corporation v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1969).
The decision of the Fairfield Zoning Board of Appeals, sustaining the Order To Comply issued by Matthew Decker, has specifically and injuriously affected the interest of Stepney, LLC in 989 Fairfield Beach Road.
It is found that Stepney, LLC is aggrieved by the decision which generated this appeal.
STANDARD OF REVIEW
When hearing an appeal by a property owner from an order issued by a municipal zoning official, the zoning board of appeals sits in a quasi-judicial capacity, and must hear and decide any appeal de novo. Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 137, 677 A.2d 987 (1997). In conducting this de novo review, the zoning board of appeals has the responsibility, pursuant to the statutorily required hearing, of finding the facts, and applying the pertinent zoning regulations to those facts. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 89-90, 626 A.2d 744 (1993); Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560-61, 236 A.2d 96 (1967).
Because the zoning board of appeals is required to review the action of a zoning enforcement official de novo, the review must be conducted without any deference to the action of the zoning enforcement officer. Woodbury Donuts, LLC v. Zoning Board of Appeals, 139 Conn.App. 748, 757-58, 57 A.3d 810 (2012); Mountain Brook Assn., Inc. v. Zoning Board of Appeals, 133 Conn.App. 359, 363-64, 37 A.3d 748 (2012).
Section 8-7 of the General Statutes provides flexibility and discretion to a zoning board of appeals, in its quasi-judicial role. The statute declares that the zoning board of appeals, after hearing, " . . . may reverse, affirm, wholly or partly, or may modify any order, requirement or decision appealed from, and shall make such order, requirement or decision as in its opinion should be made in the premises, and shall have all the powers of the officer from whom the appeal has been taken . . ."
The extensive powers and prerogatives vested in a municipal zoning board of appeals enables the board to provide aggrieved persons with full, adequate and fact-specific relief, and to provide a reviewing court with the benefit of the local board's judgment. Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33-34, 193 A.2d 483 (1963). The board is charged with making an independent assessment, as to the application, to the facts received during a public hearing, rather than merely rubber stamping or ratifying the decision of the zoning enforcement officer. Munroe v. Zoning Board of Appeals, 75 Conn.App. 796, 802-03, 818 A.2d 72 (2003).
In discharging its quasi-judicial function, the zoning board of appeals is endowed with liberal discretion, and its actions are subject to review by a court only to determine whether the action taken is unreasonable, arbitrary or illegal. Pleasant Valley Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269, 588 A.2d 1372 (1991); Wing v. Zoning Board of Appeals, 61 Conn.App. 639, 643, 767 A.2d 131 (2001). The burden of demonstrating that the board acted improperly, is upon the party seeking to overturn the board's decision. Graff v. Zoning Board of Appeals, 277 Conn. 645, 669, 894 A.2d 285 (2006); Sciortino v. Zoning Board of Appeals, 87 Conn.App. 143, 147, 866 A.2d 645 (2005).
A court may not substitute its judgment for that of the zoning board of Appeals, so long as an honest judgment has been reasonably arrived at, based upon facts contained in the record. Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 548, 684 A.2d 735 (1996). The court's function is to determine whether substantial evidence has been presented to the board, to support the decision reached, and its underlying findings. Smith Bros. Woodland Management, LLC v. Zoning Board of Appeals, 108 Conn.App. 621, 628, 949 A.2d 1239 (2008). The credibility of witnesses and the determination of factual issues are matters within the province of the municipal agency. Stankiewicz v. Zoning Board of Appeals, 15 Conn.App. 729, 731-32, 546 A.2d 919 (1988).
Consistent with the de novo review which the zoning board of appeals is obligated to conduct, a reviewing court must focus on the decision of the zoning board of appeals, and the record compiled at the public hearing, rather than the decision of the zoning enforcement officer. Caserta v. Zoning Board of Appeals, supra, 91; Cockerham v. Zoning Board of Appeals, 146 Conn.App. 355, 363-64, 77 A.3d 204 (2013).
Section 8-7 requires a zoning board of appeals to state the basis for its decision, and, when a board has followed the statutory mandate and provided reasons for its action, a reviewing court should go no further, but should only decide if any reason given is supported by substantial evidence. Gibbons v. Historic District Commission, 285 Conn. 755, 770-01, 941 A.2d 917 (2008).
Section 8-7, C.G.S.--" Whenever a zoning board of appeals sustains or reverses, wholly or partly, any order, requirement or decision appealed from, it shall state upon the record the reason for its decision."
However, where, as here, no collective reasons for the decision were provided, and no specific findings of fact were made, the failure of the board to state reasons, find facts, or analyze the applicable law is not fatal. Under these circumstances, a reviewing court is required to search the record, in an effort to determine whether it discloses substantial evidence to support the decision of the board. Walgreen Eastern Co. v. Zoning Board of Appeals, 130 Conn.App. 422, 428, 24 A.3d 27 (2011); Manchester v. Zoning Bd. of Appeals, 18 Conn.App. 69, 556 A.2d 1026 (1989). Substantial evidence is enough evidence, if the trial were to a jury, to refuse to direct a verdict, if the conclusion to be drawn is one of fact. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588, 628 A.2d 1286 (1993).
STEPNEY, LLC BROUGHT TIMELY APPEAL
The Defendants first claim that Stepney, LLC, failed to bring this appeal, within the time provided in S. 8-7 of the General Statutes. Although the timeliness of the appeal was not challenged at the time of the public hearing, or during the Zoning Board of Appeals' executive session (ROR 10), it has been raised in response to this appeal.
Section 8-7, C.G.S.--" Any appeal may be taken to the zoning board of appeals by any person aggrieved . . . and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days, by filing . . . a notice of appeal specifying the grounds thereof. Such appeal period shall commence for an aggrieved person at the earliest of the following: (1) upon receipt of an order, requirement or decision from which such person may appeal, 2) upon publication of a notice in accordance with subsection (f) of section 8-3, or 3) upon actual or constructive notice of such order, requirement or decision . . ."
Because the time within which to bring an appeal involves subject matter jurisdiction, the time limits are mandatory, and compliance is a prerequisite for maintaining an appeal. Koepke v. Zoning Board of Appeals, 30 Conn.App. 395, 398-99, 620 A.2d 811 (1993); Bailey v. Zoning Board of Appeals, 30 Conn.App. 797, 800, 622 A.2d 1020 (1993). Subject matter jurisdiction, which involves the authority of the court to adjudicate a controversy presented, can be raised at any stage of the proceedings. Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 429, 829 A.2d 801 (2003).
The parties acknowledge that the Fairfield Zoning Board of Appeals has not adopted a local rule concerning the bringing of an appeal, and that the thirty (30) day period specified in S. 8-7 applies.
The record reveals that Matthew Decker's Order To Comply (cease and desist order), was received by Stepney, LLC on January 12, 2016 (Ex. 1). No evidence was presented at trial, and none appears in the record, from which a finding of either actual notice or constructive notice prior to January 12, 2016 could be made.
Therefore, it is found that notice of the Order To Comply was provided to Stepney, LLC, on January 12, 2016.
The appeal letter (ROR 2) was signed in February 9, 2016, and was received by the Town of Fairfield on February 10, 2016 (ROR 1).
When computing time periods pursuant to Section 8-7 of the General Statutes, terminal days are excluded from the calculation. DiCamillo v. Clomiro, 174 Conn. 351, 353, 387 A.2d 560 (1978); Treat v. Town Plan & Zoning Commission, 145 Conn. 136, 139, 139 A.2d 601 (1958).
Since the notice was sent via regular mail, and not certified mail, return receipt requested, the Town of Fairfield is unable to counter the Plaintiff's claim that the Order To Comply was not received until January 12, 2016.
It is found that Stepney, LLC's appeal of the Order To Comply was filed within thirty (30) days of its receipt by the Plaintiff. Therefore, the Fairfield Zoning Board of Appeals had jurisdiction to both hear and decide the appeal.
VIOLATION OF SIDE YARD SETBACK STANDARD SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD
Because the Fairfield Zoning Board of Appeals failed to state or adopt collective reasons for its decision, and failed to make any findings of fact, the court has searched the record of the public hearing in an attempt to determine whether substantial evidence supports the decision reached.
Based exclusively upon the testimony of Zoning Enforcement Official Matthew Decker, at the hearing (ROR 9, p. 8-9), and during the Board's executive session, (ROR 10), no violation could be detected. However, the record does not consist exclusively of the testimony of the Zoning Enforcement Official.
Due to the candor of the representative of Stepney, LLC, and the testimony offered by Doreen Landino, the record reflects that the leased storage container is less than four (4) feet from the side yard boundary line.
Attorney Ganim told the Board that the location appeared to violate the side yard setback, and expressed a desire to " legalize" the structure (ROR 2). Doreen Landino stated that the storage container is on the property line, and provided demonstrative proof in the form of a survey, on which the storage container was drawn by hand (ROR 15).
For these reasons, and not due to any evidence brought forward by the Zoning Enforcement Official, substantial evidence exists to support a finding that Section 11.11.1 of the Fairfield Zoning Regulations is violated, due to the container's location.
REVIEW OF RECORD FAILS TO PROVIDE SUBSTANTIAL EVIDENCE TO SUPPORT A VIOLATION OF ANY ADDITIONAL REGULATIONS, AS ALLEGED BY THE ZONING ENFORCEMENT OFFICIAL
The Zoning Enforcement Official, during the course of the public hearing, listed allegedly " plentiful" violations of the Fairfield Zoning Regulations, but failed to offer any supporting testimony or documents in support of his opinion (ROR 9, p. 8-9). During the Board's executive session (ROR 10, p. 1-2), Matthew Decker acknowledged that the eight (8) foot by twenty (20) foot container was a storage container, not a dumpster.
He told the Zoning Board of Appeals " . . . we've let storage containers stay on properties for more than a temporary purpose, so long as it complies with the regulations." (ROR 10, p. 1.)
Decker made no effort to explain to the Zoning Board of Appeals why the container was not an accessory use, maintained " customary with and incidental to" to residence. Nor did he provide any rationale as to the claimed coverage violation, in that the container is not a building, foundation deck or impervious patio surface, pursuant to S. 11.10 of the Fairfield Regulations.
Attorney Ganim provided an affidavit concerning his measurement of the distance of the container from the center line of Fairfield Beach Road. He repeated the results of his specific measurement at the hearing.
Decker did not attempt to refute the testimony, based on any measurements or calculations he had performed. Nor did he say that any other Fairfield municipal employee had measured the distance. An email (ROR 4) from a police captain, providing an estimate of the container's setback " from the road" does not supply substantial evidence to support a finding of a front yard setback violation.
Matthew Decker did not address the substance of the flood zone regulations. Nor did he explain why the storage container would qualify as a " building" under those regulations.
The Zoning Enforcement Officer did not cite any regulation requiring the need for a permit, when a storage container was being used. Nor did he refer to any specific interpretation of any of the Fairfield Regulations by a municipal agency, or a court.
An examination of the executive session transcript (ROR 10), reveals that the Zoning Board of Appeals did not examine any of the Fairfield Regulations cited by the Zoning Enforcement Official. The Board eschewed discussion, in any detail, of the information presented during the public hearing, and was disposed to defer to the conclusions reached by the Zoning Enforcement Officer, even in the absence of evidence to support those conclusions.
One unidentified commissioner stated that he found " the facts as presented by Mr. Decker" to be " convincing." However, neither that commissioner, not any other member of the Board, made reference to the alleged " facts" submitted by Matthew Decker.
The record reflects sincere neighborhood concerns regarding the use of 989 Fairfield Beach Road for student housing, and the unsightly appearance of the storage container. However, notwithstanding the validity of these claims, undefined aesthetic considerations alone are insufficient to support the invocation of police power, which is the source of all zoning authority. DeMaria v. Enfield Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970).
Nor do the self-serving representations and pledges of support concerning health and safety issues by an official of Fairfield University (ROR 7), assist the Zoning Board of Appeals, sitting in a quasi-judicial capacity. The use of 989 Fairfield Beach Road as student housing is not the issue which was before the Board.
Courts are prone to accord some deference to a municipal zoning agency, when the agency construes a regulation. Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001). However, the record compiled in this case demonstrates that the Fairfield Zoning Board of Appeals made no effort to either analyze the facts presented at the public hearing, or to apply those facts to the Regulations cited in the Order To Comply. Therefore, this court does not have the benefit of any independent analysis by the Fairfield Zoning Board of Appeals, concerning the applicable Regulations.
Furthermore, all of the evidence points to the conclusion that the Zoning Board of Appeals abandoned its role as fact finder and adjudicator, and opted instead to serve as an acolyte for the Zoning Enforcement Officer, Matthew Decker.
Stepney, LLC claims that Matthew Decker's participation in the executive session constituted ex parte communications with the Zoning Board of Appeals, and was, therefore, improper. Although Decker clearly participated in the executive session, he did not provide any information which was not available on the public record of the hearing.
Therefore, the argument is unavailing.
No additional facts were presented during the executive session, and it cannot be found that anything uttered by the Zoning Enforcement Officer impacted the Board's ultimate decision.
Decker's conclusory comments did not taint the process, or provide new information germane to the decision, which was not subject to rebuttal. Megin v. Board of Zoning Appeals, 106 Conn.App. 602, 610-11, 942 A.2d 511 (2008).
CONCLUSION
The appeal of the Plaintiff, Stepney, LLC, is DENIED, as to the violation of the side yard setback regulation, Section 11.11.1 of the Fairfield Zoning Regulations.
The appeal is SUSTAINED, as to all other violations alleged by the Zoning Enforcement Officer in his Order To Comply.