Opinion
No. CV 03-0482668 S X20
April 1, 2005
MEMORANDUM OF DECISION
The plaintiff, Michael Capuano, is the owner of real property located in the town of Woodbridge known as 883 Baldwin Road. The parties agree, and the record reflects, that the subject property is in excess of five acres. (ROR 24, pg. 5.) The subject property is in a residential zone. The zoning regulations for the town of Woodbridge allow farms as a matter of right on tracts of land of more than five acres in any zone. (ROR 52, pg. 15.) For reasons that are unclear to this court, the Woodbridge Town Plan and Zoning Commission (commission) approved applications for the use of the subject property as a horse farm at least since 1983. The record is unclear as to what kind of permit was granted, but indicates "the first permit was issued in November of 1983 by the board was (sic) specifically for the use of the premises as a place that is limited to the instruction, boarding, and training of horses. The permit is valid until November 30, 1985." (ROR 48, pg. 55.) The record further indicates that on, July 20, 1992, the commission renewed the permit for the use of the premises at 883 Baldwin Road as a place which is limited to the instruction, boarding and training of horses until July 21, 1997. (ROR 24, pg. 21.) Again, it is not clear as to what type of permit was issued by the board and what transpired between November 30, 1985 and July 20, 1992.
The plaintiff, in preparation of purchasing the property in 2000, submitted a "permit application" to the commission on December 11, 2000. That application indicated that the subject property had been utilized as a horse farm since 1979, originally as a quarter horse breeding farm, then later, and to the present time, as a breeding, boarding, riding, training and instructional facility. (ROR 1.) On January 2, 2001, the town plan and zoning commission approved the plaintiff's "special permit" for a period of one year, conditionally. The conditions were that the permitee would provide the commission with plans for buffering; sanitation in the form of manure management; and a dust control plan. The plan was to be submitted within two months. In addition, the comments from the Water Authority were to be incorporated into the approval. (ROR 8.) The plaintiff purchased the property on January 17, 2001. (Plaintiff's Exhibit 1)
On May 14, 2002, the zoning enforcement officer issued a cease and desist order to the plaintiff for failing to submit additional data required by the permit which was issued by the commission on January 2, 2001. The plaintiff was ordered to cease and desist the conduct of a breeding, boarding, riding, training and instructional equine facility at 883 Baldwin Road within 10 days of receipt of the notice. (ROR 13.) In response to the cease and desist order, the plaintiff requested and apparently received a suspension of the cease and desist order from the zoning enforcement officer until the plaintiff had an opportunity to meet and submit additional compliance data. The suspension of the cease and desist order is inferred by the court from the fact that no action has been taken by the town of Woodbridge to enforce said order for the past 34 months. On March 27, 2003, the plaintiff submitted a new application relative to 883 Baldwin Road, Woodbridge, Connecticut. (ROR 16.) The new application set forth what the applicant believed to be the plan necessary to satisfy the concerns of the commission as set forth in the approval of January of 2001. A public hearing was scheduled by the town plan and zoning commission for May 5, 2003. On May 5, 2003, the plaintiff did not appear for the public hearing. There was a general discussion regarding the history and general issues related to the matter including that the application was in response to the cease and desist order that was previously issued. The application was denied by the commission. (ROR 27.) On July 2, 2003, the plaintiff filed a new application for the use of the property as a breeding, boarding, riding, training and instructional equine facility. (ROR 35.) A public hearing was held on September 2, 2003. The plaintiff through counsel indicated that he had not attended the prior public hearing as a result of some confusion and that he was out of town on certain dates. (ROR 48, pg. 1.) At the public hearing, the plaintiff described what actions he had taken since acquiring the property. There was a further discussion as to the history of the applications. At least two neighbors appeared in opposition to the application. After the close of the public hearing, the commission discussed the application during its work session. It appears to have been the conclusion of the members of the commission that the land was not being used as a farm and, even if were considered a farm for breeding, it is not a farm for riding. (ROR 48, pg. 55.) It further appears that it was the conclusion of the commission that the use sought by the applicant was not permitted by the Woodbridge zoning regulations and that, since prior permits had expired, the board can not legally issue a new permit. (ROR 48, pgs. 56-58.) The board voted to deny the plaintiff's application for breeding, boarding, riding, training and instructional equine facility at 883 Baldwin Road. (ROR 49.) This appeal followed.
AGGRIEVEMENT
Pursuant to Connecticut General Statues § 8-8(a)(1) an "aggrieved person" is "a person aggrieved by a decision of a board . . . and includes any person owning land which abuts or is within a radius of 100 feet of any portion of land involved in any decision of the agency." The land involved in the commission's approval is located at 883 Baldwin Road, Woodbridge, Connecticut. The plaintiff, at all times pertinent hereto, was the owner of the property. As a result, the plaintiff is statutorily aggrieved by the commission's denial and has standing to prosecute this appeal.
DISCUSSION
The Connecticut Appellate Court has recently discussed the requirements for the granting of a special exception permit. In Smith Brothers Woodland Management, LLC v. Planning and Zoning Commission of the Town of Monroe, 88 Conn.App. 79 (March 2005), the court indicated that special exceptions and special permits were interchangeably known. "The basic rationale for the special permit . . . is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated because of the particular topography, traffic problems, neighboring uses, etc., of the site . . ." Id., at page 83.
"The rule of law and applicable standard of review are as follows. `When ruling upon an application for a special (permit), a planning and zoning board acts in an administrative capacity . . . Generally, 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 regulation applies to a given situation and the matter in which it does apply. The (Appellate Court and) trial court (must) decide whether the board correctly interpreted the section (of the regulations) and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular cage, the board is endowed with liberal discretion and its action is subject to review by the courts only to determine whether it was unreasonable arbitrary or illegal . . . Although a zoning commission or board possesses the discretion to determine whether a proposal meets the standards established in the regulations, it lacks the discretion to deny a special permit if a proposal satisfies the regulations in statutes . . .
`. . . (C)ourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . The trial court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support the (board's findings) . . . (E)vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . Where the board states its reasons on the record we look no further . . . More specifically the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons . . ." Id., at 84-85.
The issue becomes one strictly of the interpretation of a zoning regulation, to which the Appellate Courts apply the same principles of construction as they apply to a statute. Raymond v. Zoning Board of Appeals, 76 Conn.App. 222, 234, cert denied, 264 Conn. 906 (2003). Although courts ordinarily defer to a planning and zoning commission's construction of its regulations, the regulations at issue in the present case have never been subjected to judicial scrutiny and therefore the commission's construction is not entitled to special deference. Id., at 233. Furthermore, "(w)here more than one interpretation of language is permissible, restrictions upon the use of lands are not to be extended by implication . . . (and) doubtful language will be construed against rather than in favor of (restriction)." Balf Co. v. Planning Zoning Commission, 79 Conn.App. 626, 636, cert. denied, 266 Conn. 927 (2003).
The specific problem presented to the court is what exactly was presented to the commission and what did they deny. Clearly, a farm would be a permitted use, and it does not appear to require a special permit under the Woodbridge regulations. A farm is defined by the regulations as "a tract of more than five acres used for agricultural, dairy, orchard or horticultural purposes, and including, without limitation, truck gardens, nurseries, pasturage, woodland and other unimproved land." (ROR 52, pg. 5.) Connecticut General Statute Sec. 1-1(q) defines the words "agricultural" and "farming" as including "cultivation of the soil, dairying, forestry, raising or harvesting any agricultural or horticultural commodity, including the raising, sheering, feeding, caring for, training and management of livestock, including horses." It includes as an incident to such farming operations "the maintenance of a farm and its buildings, tools and equipment." Agricultural is defined by Merriam-Webster on-line dictionary as "the science, art, or practice of cultivating the soil, producing crops, and raising livestock and in varying degrees the preparation and marketing of the resulting products." The Merriam-Webster on-line dictionary defines farm to include a "plot of land devoted to the raising of animals and especially domestic livestock." That same dictionary defines livestock "as animals kept or raised for use or pleasure; especially; farm animals for use and profit." It therefore appears to this court that the breeding, boarding, riding, training and instructional equine facility on the plaintiff's property is in fact a farm which would be a permitted use which does not require a special permit under the town of Wallingford zoning regulations. The commission's conclusion that the plaintiff's facility is not a farm is not supported by substantial evidence.
The court has reviewed the plaintiff's claim that the use was a pre-existing nonconforming use. The court does not reach that issue due to the finding that the plaintiff's use is permitted as a matter of right.
CONCLUSION
This matter is remanded to the town of Woodbridge Plan and Zoning Commission for a determination as to what if any permits the plaintiff is required to possess pursuant to the Woodbridge zoning regulation consistent with this opinion.
Pinkus, J.