Opinion
No. CV02-0099749
October 7, 2005
MEMORANDUM OF DECISION
This is an appeal from the decision of the defendant East Haddam Zoning Board of Appeals ("ZBA") overturning a cease and desist order issued by the East Haddam Zoning Enforcement Officer ("ZEO") prohibiting the continued construction of a single-family home owned by defendants Richard and Marlene Hart. For the reasons set forth below the plaintiffs' appeal is sustained.
The facts giving rise to this dispute are largely undisputed. The defendants Marlene and Richard Hart are the record owners of a parcel of property located on Ridgewood Road at Lake Hayward in the Town of East Haddam. In 1997 the former owner of the parcel, Carolyn Hart, who is the mother of Richard Hart and an employee of the East Haddam Building Department, obtained site plan approval from the Building Department for a two-bedroom, two-story house with a 962-square-foot footprint. Thereafter, Mrs. Hart transferred title to the property to her son and daughter-in-law. In September 2001, Richard and Carolyn Hart filed a Zoning and Building Application with the Town Building Department seeking permission to construct a two-story single-family dwelling.
The Hart's application apparently did not contain a set of building plans, but rather only a copy of the previously granted site plan approval. In order to properly grant the application town officials are required to determine whether the square footage shown on the building plans is within the limits authorized by the site plan approval. Despite the absence of the building plans, the ZEO, Fern Tremblay approved the application one day after its submission on September 12, 2005. On November 1, 2001, Building Inspector Wayne Greene also approved the application, also failing to calculate whether the plans conformed to the site plan approval.
Construction began shortly after the Harts received approvals from the ZEO and Building Inspector. In early 2002, zoning officials began receiving complaints from neighbors concerning the number of stories on the house and its total square footage. In response to his investigation and a review of the pertinent documents including a February 2002 set of plans submitted by the Harts, James Ventres, Town of East Haddam Land Use Administrator, in May 2002 issued a cease and desist order commanding the Harts to halt construction of their by then substantially completed home. The cease and desist order alleged that because the Harts fully enclosed a deck shown on the original plans, the house exceeded the permissible lot coverage in violation of East Haddam Zoning Regulations.
The issuance of the cease and desist order prompted the Harts to both appeal that order and file an application for a variance. They subsequently withdrew the variance application and pursued only the appeal of the cease and desist order before the East Haddam Zoning Board of Appeals. The Harts' appeal prompted hearings — often contentious — spanning a period of over four months. At the conclusion of the hearings the ZBA voted to overturn the May 20, 2002 cease and desist order, ruling, in effect, that the doctrine of municipal estoppel prohibited the Town from stopping further construction of the Hart residence because the Harts in good faith relied on the erroneous and improper decision of the ZEO and Building Inspector to issue a building permit. In its decision the ZBA stated:
The Board overturn[ed] the Cease Desist Order dated May 20, 2002, issued by James Ventres, on the violation of Lot Coverage restrictions of Section 10.1 of the Zoning Regulations, for the following reasons:
1. At the time the applicant submitted the application to the Zoning Enforcement Officer, the Zoning Enforcement Officer endorsed the application without computing the lot coverage square footage of the proposed home.
2. The applicant relied upon the Zoning Enforcement Officer's endorsement of the applicant's application and proceeded with construction. The construction to date has involved a considerable expense to the applicant.
The plaintiff Kathleen DeVeau and nine other neighbors of the Harts now appeal the Zoning Board of Appeals' decision vacating the cease and desist order. As of the date of the argument of this appeal the Harts have completed construction of the property, obtained a certificate of occupancy and are now residing in the residence that is the subject of this appeal. The essence of the plaintiffs' claim in this appeal is that the ZBA erred by relying on the doctrine of municipal estoppel as the basis of its decision to vacate the cease and desist order.
Because no appeal of the decision to grant a certificate of occupancy was taken to the Zoning Board of Appeals within thirty days of its issuance it is therefore unclear what practical relief, if any, the plaintiff's can obtain, even in the face of this court's ruling that the East Haddam Zoning Board of Appeals acted illegally and in excess of their authority by vacating the cease and desist order. See, generally, Fuller in Land Use Practice and Law § 8.6.
Based on the testimony presented at trial the court finds that the plaintiff's are both statutorily and classically aggrieved and therefore have standing to maintain this appeal.
The law governing resolution of this appeal is well established.
"Generally it is the function of the zoning board or commission to decide within proscribed 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 trial court [decides] 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 case, the board is endowed with a liberal discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons." (Citations omitted; internal quotations marks omitted.) Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). "The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision." Pleasant View Farms Development, Inc. v. Zoning Board off Appeals, 218 Conn. 265, 269-70, 588 A.2d 1372 (1991) (internal quotation marks omitted).
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the [board's] decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations . . . The principle that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action. It does not apply to mere utterances of individual members of the agency." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
"In an appeal from the decision of a zoning board, we therefore review the record to determine whether there is factual support for the board's decision, not for the contentions of the applicant." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994). If "a zoning authority has stated the reasons for its actions, the reviewing court ought to examine the assigned grounds to determine whether they are reasonably supported by the record and pertinent to the considerations the authority was required to apply pursuant to the zoning regulations." Beit Havaurah v. Zoning Board of Appeals, 177 Conn. 440, 444-45, 418 A.2d 82, (1979).
The plaintiffs' specific claim of error is that the ZBA improperly concluded that the Town of East Haddam is prohibited, under the doctrine of municipal estoppel, from ordering the Harts to cease further construction of their residence.
"The contours of the application of the doctrine of municipal estoppel to zoning regulations are well established in our jurisprudence. [I]n special circumstances, a municipality may be estopped from enforcing its zoning regulations . . . In municipal zoning cases, however, estoppel may be invoked (1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations . . . Moreover, it is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge . . .
"To summarize, in order for a court to invoke municipal estoppel, the aggrieved party must establish that: (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents." (Citations omitted; internal quotation marks omitted.) Cortese v. Planning and Zoning Board of Appeals, 274 Conn., 411, 420 (2005).
The record indicates that the Building Official Fern Tremblay issued a building permit without determining whether the structure complied with the lot coverage requirements set forth in the Town Regulations. The record also reflects that Tremblay told the applicants that he would take care of the required calculations. In order to find that the ZBA properly applied the doctrine of municipal estoppel this court must necessarily conclude that the factors set forth in Cortese v. Planning and Zoning Board of Appeals, id., are supported by the record. Assuming, without deciding, that the record would support a finding that: 1) the authorized agent of the municipality, Mr. Tremblay, had taken action "to induce the [Harts] to believe that certain facts existed and to act on those facts"; 2) "the [Harts] had changed [their] position in reliance on those facts"; and 3) the Harts "would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents," the record does not support a finding that "the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge." Id.
At the outset, it should be noted that the defendant ZBA did not make a specific finding regarding this element of municipal estoppel. If it is assumed that such a finding is implied in its decision to vacate the cease and desist order on the broad grounds of municipal estoppel, the record is devoid of any evidentiary basis to support the implied finding that the Harts "lacked knowledge of the true state of things namely, that the square footage of the house exceeded the limits specified in the site plan." Nor is there any evidence upon which the ZBA could reasonably conclude that the Harts "had no convenient means of acquiring that knowledge." Id. Indeed, the available evidence might reasonably be construed to permit a finding that the Harts in fact were aware that the square footage exceeded permissible limits. The failure to submit a copy of the actual plans with the application for the building permit, coupled with the Harts' resistance to the Building Inspector's inquiries concerning this very issue, could be construed to reflect the Harts' actual knowledge that the house they were building in fact did not comply with the site plan approval. At a minimum, it is unquestionable that the Board did not have before it sufficient evidence upon which it could make an affirmative finding that the Harts were unaware of the square footage limitations of their parcel. In addition, because the Harts obviously had discussions with the Building Department concerning this issue, the ZBA could not and did not make a finding that the Harts "had no convenient means of acquiring that knowledge." Id. Given the Harts' state of knowledge concerning this issue, there is no evidentiary basis upon which the ZBA could reasonably conclude that the Harts "exercised due diligence to ascertain the truth." Id. Accordingly, the ZBA erred in concluding that the doctrine of municipal estoppel prohibits the enforcement of the cease and desist order.
The plaintiffs' appeal is sustained.
Robert L. Holzberg, J.