Opinion
FSTCV186037626S
07-23-2019
7 FOREST HILL ROAD, LLC v. ZONING BOARD OF APPEALS OF the CITY OF NORWALK
UNPUBLISHED OPINION
OPINION
HON. A. WILLIAM MOTTOLESE, JUDGE
The plaintiff is the owner of a single-family, ranch style dwelling located in the AAA residence zone which permits single-family dwellings and numerous other uses pursuant to special permit. The plaintiff applied for and obtained zoning and building permits to renovate and use the dwelling as a home for five unrelated elderly adults. The intervening parties in this appeal, Mark and Patricia Lorusso, timely appealed the issuance of the permits to the defendant which after notice and hearing sustained ("approved") the appeal because it determined that the use proposed was not a single-family dwelling but rather a nursing home or boarding house neither of which is a permitted use in the AAA residence zone. The plaintiff’s appeal alleges that the board acted illegally in its conclusion that (a) the proposed use was not that of a single-family dwelling because it incorrectly interpreted the zoning regulations; (b) the board’s action resulted in a violation of G.S. § 46a-64c by discriminating against the elderly; and (c) the decision violated Article XXI of the Connecticut Constitution.
While "elderly" is not defined in the record, reference is made in the record to the Sunshine Senior Resident Agreement, I.B.1. where the only age requirement is that the resident be at least 18 years of age. But see, C.G.S. § 53a-320(2) and C.G.S. § 17b-450(1) where an elderly person is defined as "a person who is 60 years of age or older."
Because the plaintiff has been the owner of the property which is the subject of this appeal at all relevant times and also is the unsuccessful party before the board, the plaintiff is found to be aggrieved. Goldfeld v. Planning and Zoning Commission, 3 Conn.App. 172 (1985); Tazza v. Planning and Zoning Commission, 164 Conn. 187, 190-91 (1972).
This appeal requires the court to set forth the particular standard of review which applies when a zoning board of appeals reverses the decision of a zoning enforcement officer.
"A zoning enforcement officer acting on an application for a zoning permit has a purely ministerial function ... If the application conforms to the requirements of the regulations, he has no discretion but to issue a permit." (Citations omitted.) Maluccio v. Zoning Board of Appeals, 174 Conn.App. 750, 756 (2017).
"[F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board ... [T]he zoning board of appeals makes a de novo determination of the issue before it, without deference to the actions of the zoning enforcement officer ...
"[T]he board is endowed with liberal discretion and ... its actions are subject to review by the courts only to determine whether they are unreasonable, arbitrary or illegal ... The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision ... It is the board’s responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts ... Upon an appeal from the board, the court must focus on the decision of the board and the record before it ...
"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 [the 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 the 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 commission ... The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citations omitted; footnote omitted; internal quotation marks omitted.) Woodbury Donuts, LLC v. Zoning Board of Appeals, 139 Conn.App. 748, 757-60 (2012).
When applying the specific regulations of a town, "[g]enerally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The [Superior Court must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts ..." (citation omitted). Watson v. Zoning Board of Appeals, 189 Conn.App. 367, 381-83 (2019). Evidence is substantial if it affords a "substantial basis of fact from which the fact in issue can be reasonably inferred ... It must be enough to justify, if a trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." Lawrence v. Kozlowsky, 171 Conn. 705, 713 (1976).
Since the board concluded that the plaintiff’s proposal constituted either a nursing home or a boarding house and the plaintiff maintains that it is a single-family dwelling, the court must engage in an exercise of statutory construction of the pertinent zoning regulations. Article 10 of the Norwalk Building Zone Regulations (the Regulations) defines these uses as follows.
NURSING HOME/HOSPICE- An establishment for the care of the aged or terminally ill which furnishes, in single or multiple facilities, food, shelter and nursing supervision and which is licensed by the State of Connecticut. The facility may provide services which meet a need beyond the basic provisions of food, shelter and nursing supervision but shall not include surgical services or similar activities as is customarily provided in hospitals.
BOARDING-OR ROOMING HOUSE- Any dwelling or portion thereof in which at least three (3) persons but not more than twenty (20) persons are housed or boarded without separate kitchen facilities, where meals may be provided.
FAMILY- One (1) or more persons occupying a single-dwelling unit, provided that unless all members are related by blood or marriage (or adoption), no such family shall contain more than five (5) persons, but further provided that domestic servants employed on the premises may be housed on the premises without being counted as a "family" or families.
The court now sets forth the applicable principles which govern statutory construction.
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ... In seeking to determine that meaning, General Statutes § 1-2z direct us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra textual evidence of the meaning of the statute shall not be considered." Weems v. Citigroup, Inc., 289 Conn. at 778-79.
Words in a statute shall be construed according to the commonly approved usage of the language. Martone v. Lensink, 207 Conn. 296, 302 (1998). When the language used by the legislature is plain and unambiguous there is no room for statutory construction by the courts and the statute will be applied as its words direct. Verrastro v. Siverstein, 188 Conn. 213, 220 (1982); Keleman v. Rim Rock Corporation, 207 Conn. 599, 606 (1988). "In construing a statute common sense must be used and the courts will assume that the legislature intended to accomplish a reasonable and rational result." King v. Board of Education, 203 Conn. 324, 332-33 (1987). To ascertain commonly approved usage when a term is not defined, resort may be had to a dictionary definition of the terms. Stone-Krete Construction, Inc. v. Eder, 289 Conn. 672, 678 (2006). Related statutory provisions or statutes in pari materia "often illuminate the task." Hatt v. Burlington Coat Factory, 263 Conn. 279, 312 (2003). Zoning regulations must be interpreted in accordance with ordinary rules of statutory construction. Schwartz v. Planning and Zoning Commission, 208 Conn. 146, 153 (1988).
Because a question of proper statutory interpretation is involved, the court must go beyond the conventional scope of administrative review and conduct a plenary review of the board’s action. Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 416 (2007). "Ordinarily [trial courts afford] deference to the construction of a statute applied by an administrative agency empowered by law to carry out the statute’s purpose ... Cases that present pure questions of law, however, invoke a broader standard of review that is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily 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 ... [It] is for the courts, and not administrative agencies, to expound and apply governing principles of law." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 698-99 (2001). Whether the Board properly interpreted and applied the relevant regulations depends upon whether it read the particular regulations "in the context of all the regulations, their evident purpose and policy, and recognized principles of zoning in general." Field Point Park Association, Inc. v. Greenwich Planning and Zoning Commission, 103 Conn.App. 437, 441 (2007).
Because there is no indication in the record that the board has developed a time tested interpretation of these definitions and because counsel have failed to bring to the court’s attention any instance of prior judicial scrutiny having been given to the definitions, the court’s review is plenary.
Nursing Home. Of the three possibilities, that of a nursing home can be disposed of summarily because by the terms of the definition, in order to become a nursing home the facility must be licensed by the state of Connecticut. The parties concede and the record confirms that the plaintiff has not been issued such a license for this dwelling and does not intend to apply for one.
Family. The definition breaks down a family into two distinct groups: (1) all occupants who are related by blood, marriage or adoption, and (2) not more than five unrelated occupants. Significantly, the text describes a family as occupying a "single dwelling unit." The plaintiff’s attorney described the proposed use as follows. "My client intends to have up to a maximum of five (5) unrelated elderly adults living and sharing the dwelling as a single-family unit. The use of the dwelling will be leased to each unrelated adult individually and separately. Each elderly adult will have their own bedroom and each will share in all other necessities and conveniences. Additionally, the elderly adults will share non live-in assistants who will be available in shifts to provide daily help to cook meals, clean, provide laundry and medication reminders. The assistants will not dispense medication or provide any medical care other than to assist in making appointments. They will also provide such other tasks as may be necessary or required for the occupants to live in a safe and comfortable environment and to maintain the dwelling, both inside and out, as a single-family home. These assistants will be outsourced by a local licensed home care agency and will provide the same services other elderly persons living in their own single-family home customarily hire for their own exclusive use." The intervenors point out that each of the five bedrooms will have its own bathroom and a half-bathroom will be provided for communal use. In addition, there will be single kitchen.
Boarding House. Quoting from board member Joseph Beggan, the intervenors argue that there was a sufficient basis in the record to support the board’s conclusion that the actual use will have more in common with a boarding house rather than a residential, five unrelated persons rental unit. All three parties agree that the determinative issue before the board was the particular circumstances of the operation at the facility and the nature of the services to be provided to the residents. The court agrees because on their face, either definition would seem to fit this operation.
In examining whether the Hartford tax assessor properly classified a nursing home as a commercial or residential use it was appropriate for the court to consider not only the function of the facility but also the services provided to determine whether they "fell within the ambit of a residential dwelling." Hartford/Windsor Healthcare Properties, LLC v. City of Hartford, 298 Conn. 191 (2010), citing with approval, Connecticut Light and Power Company v. Overlook Park Healthcare, Inc., 25 Conn.App. 177, 180 (1991). Therefore the court must undertake a comparative analysis of whether the function of the facility and the services provided its residents more closely align with a single-family dwelling or a boarding house. The court will first examine the text of the definition of "family." A key part of the definition is the term "dwelling unit." A dwelling unit "is described in the regulations as any room or group of rooms located within a residential building and forming a single-habitable unit with facilities which are used or intended to be used for living, sleeping, cooking and eating by one (1) family provided that each such unit is limited to 1 (one) kitchen, as herein defined" (emphasis added). According to Webster’s New World Dictionary, 2d Coll. Ed. at 627, the word "habitable" is defined as "fit to be lived in." Thus, on its face it would seem that an unrelated family of five without more would qualify as a family. The same dictionary defines "unit" as "a single person or group ." (Emphasis added.) Id. at 1552, thus implying cohesiveness or commonality to the family.
Similarly, textually on its face, boarding house would likewise seem to: qualify because in this facility less than twenty persons will be "housed or boarded without separate kitchen facilities where meals may be provided." The key word here is "boarded" because it is obvious that the occupants are housed. In Dinan v. Board of Zoning Appeals, 220 Conn. 62, 73 (1991) our Supreme Court considered whether two groups of five unrelated individuals, each occupying separate apartments in a lawful two-family dwelling, constituted a rooming house or rather was a permitted two-family use. The court acknowledged that each group of five may have comprised a single-housekeeping unit but concluded nevertheless that the house was operating as a rooming house. In reaching this conclusion the court focused on two conditions that it found determinative. First, eleven parking spaces were available to these occupants which the court believed exceeded what would normally be expected on the site of a single-family house. Second, the fact that each occupant made its own separate rental arrangements with the landlord indicated a "lack of cohesion within both five person groups that negates the claim that each group constitutes a family." Additionally, the court noted the absence of "any tie among them that is likely to outlast their separate occupancies of the premises." Id. In the present case, there is nothing in the record to suggest that the residence will have automobiles so this feature is not present in this case. On the other hand, the two cases are similar in that both Dinan and the present case each resident will sign a separate rental agreement with the landlord. But this is only one of a multitude of factors which the court should weigh in deciding the proper definitional classification of this facility as a single-family home or a boarding house.
Since the legislative body in defining "boarding house" employed the very same base word, "board" in the text in describing the attributes of a boarding house, resort must be had to external sources for elucidation of the word’s meaning. Webster’s New World Dictionary, 2d. Coll. Ed. at 156 defines "boarder" as a person who regularly gets his meals or room and meals at another’s home for pay." Ballentine’s Law Dictionary 3rd Ed. at 142 defines "boarder" as "one who takes his meals regularly at a single definite place, the terms sometimes carrying with it the idea of residence. He usually pays by the week, occasionally by the month."
Decisions of our sister states provide additional insight into the characteristics of a boarding house. "A boarding house is a quasi-public place, State v. McRae, 86 S.E. 1039 (N.C. 1915); in a boarding house the guest is under an express contract to pay a specific sum for a specific period of time, Birmingham Ry Light and Power Co. v. Drennen, 57 So. 876 (Ala. 1914); "a boarding house accepts transient guests, Simmons v. Pinsky, 58 N.Y.S.2d 573 (NY 1945); a person who makes the place his residence for the time being is a boarder, Jackson v. Ingert, 453 S.W.2d 615, 618 (Mo. 1970).
Distinguishing the characteristics of the proposed operation in the present case from the above, the following differences are noted: (1) residents will share status as elderly with common or at least similar needs and wants; (2) they will live in community sharing meals and services; (3) the facility will be their permanent home; (4) they will not have unlimited mobility to come and go at will; (5) although each will have his/her rental agreement, the terms are basically the same for everyone; (6) the facility will not be quasi-public in the sense that it will not be open to all; (7) none of the residents will be transient guests.
The word "transient" is defined as "staying only for a short time." Webster’s New World Dictionary 2d Coll. Ed. at 1510.
Insofar as the plaintiff claims that the services offered the residents more closely resemble those found in a single-family dwelling whereas the intervenors and the board argue that they are more closely aligned with a boarding house, the court now turns to the characteristics of a single-family dwelling unit. The following characteristics are identified more closely, if not exclusively, with a single-family home and would not be identified with a boarding house: (1) three communal meals per day; (2) individual rather than shared bathrooms; (3) room furnishings supplied by each individual resident, or in default, by the landlord; (4) group social and recreational activities; (5) medication reminders; (6) day to day assistance with activities of daily living; (7) onsite availability of non-live-in assistance; (8) residents do not drive automobiles; (9) onsite availability of licensed caregivers to assist the handicapped with personal hygiene, housekeeping and daily interaction; (10) availability of food in rooms in the event of sickness; (11) in house availability of transportation to outside services; (12) arranged family visits; (13) beneficiary of a resident’s bill of rights; (14) staff observation of resident’s health status to identify dietary, social and healthcare needs; (15) consultations regarding social and health-related issues.
Activities of daily living (ADLs) are generally identified as eating, bathing, dressing, toileting, transferring and sometimes continence. Investopedia by Jim Chappelow, June 25, 2019.
G.S. § 17b-450(9) defines caregiver as follows: The term "caregiver" means a person who has the responsibility for the care of an elderly person as a result of family relationship or who has assumed the responsibility for the care of the elderly person voluntarily, by contract or by order of a court of competent jurisdiction.
There is no need to consult the record to realize that such services are not customarily available at boarding houses but are available in the privacy and serenity of a private home. Common human experience makes that evident. In fact, the general assembly recognized the homelike or residential nature of these types of services when it created institutional classifications for residential-care homes and homemaker services which it defines as follows: Sec. 19a-490(c) "Residential care home or rest home means a community residence that furnishes, in single or multiple facilities, food and shelter to two or more persons unrelated to the proprietor and, in addition, provides services that meet a need beyond the basic provisions of food, shelter and laundry and may qualify as a setting that allows residents to receive home and community-based services funded by state and federal programs." Sec. 20-670(6): "Homemaker services" means nonmedical, supportive services that ensure a safe and healthy environment for a person in such person’s home, such services to include assistance with personal hygiene, cooking, household cleaning, laundry and other household chores. Obviously, the legislature did not envision that such services would be provided in a boarding house setting. These statutes are in pari meteria with the definitions under review and thereby illuminate their meaning. Hatt v. Burlington Coat Factory, 263 Conn. at 312 (2003).
Analogous to this elderly group home are group homes for the mentally impaired which have been deemed to constitute single-family dwellings in this jurisdiction and other jurisdictions in which the issue has been litigated. See Oliver v. Zoning Commission, 31 Conn.Supp. 197 (1974); Costley v. Caromin House, Inc., 313 N.W.2d 21 (Minn. 1981) where the Minnesota Supreme Court held that the profit nature alone would not change the single-family character of the use. See also, Hessling v. City of Broomfield, 363 P.2d 12 (Colo. 1977) where the Colorado Supreme Court held that six retarded children living in a home with surrogate parents comprised a family because it maintained a single-housekeeping unit.
This term is not intended to equate with "group home" as it is defined in Article 10 of the Norwalk Zoning Regulations.
In conclusion, the court determines that the board acted illegally and in abuse of its discretion in interpreting the plaintiff’s use as either a nursing home or boarding house. Furthermore, for the foregoing reasons, substantial evidence in the record amply supports the proposed use as a single-family use rather than a boarding house. Accordingly, the plaintiff’s appeal is sustained.