Opinion
CV136006524S
07-25-2016
D.F.C. of Meriden, LLC v. Meriden Planning Commission et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John F. Cronan, J.
I
STATEMENT OF APPEAL
The plaintiff, D.F.C. of Meriden, LLC, appeals from the decision of the defendant, the Meriden Planning and Zoning Commission (the commission), granting the application of the defendant, John B. Kennelly (Kennelly), on behalf of his client, Lamar Central Outdoor (Lamar), which sought to construct an electronic billboard located at 528 Murdock, Avenue (the application). The plaintiff alleges, inter alia, various failures by the commission to properly apply the Meriden Zoning Regulations. The plaintiff also alleges that the defendant is not exempt from its own regulations pursuant to General Statutes § 8-2 and Chapter 213 § 5A of the Meriden Zoning Regulations.
II
BACKGROUND
The record reveals the following facts. On June 27, 2013, the defendant, Kennelly, filed an application for a certification of approval to the defendant, the commission, on behalf of his client, Lamar, requesting permission to erect an electronic billboard located at 528 Murdock Avenue, Meriden, Connecticut. Return of the Record (ROR) Ex. A. Notice of the commission's meeting regarding the application for a certificate of approval for the electronic billboard was sent to abutting landowners. ROR Ex. C. The plaintiff is an abutting landowner as it owns property known as Nessing Field, which consists of two softball fields, a parking lot, and land that is undeveloped. ROR Ex. U. On July 10, 2013, the commission held a meeting to discuss the application and it was decided that the application needed to conform with the billboard standards in place at the time of the application. During the same meeting, the commission discussed amending the Meriden Zoning Regulations, which included amending the text for the billboard regulations and also adding a billboard overlay zone. ROR, Ex. F., p. 2. On August 14, 2013, the commission approved the certificate of approval for the electronic billboard, with conditions, noting that the billboard needed to comply with the billboard standards approved by the Meriden City Council. ROR Ex. F and Ex. I. Legal notice of the commission's decision to approve the application was published on August 16, 2013. ROR Ex. J. Kennelly was notified of the commission's approval on August 19, 2013. ROR Ex. T. Additionally, the City of Meriden (City) entered into a twenty-year lease agreement with Lamar in which the City of Meriden will generate revenue from the lease agreement with Lamar. Lamar also agreed to provide 2, 000 per year of advertising at no cost to the City, for local public service announcements during the terms of the lease. ROR Ex. Z.
The plaintiff commenced his appeal on August 30, 2013, asserting that the commission's approval of the application were invalid due to: (1) the lack of substantial evidence to support the commission's decision and (2) various defects in the application and the commission's approval. On September 16, 2013, the Meriden City Council adopted the billboard overlay district, pursuant to Meriden Municipal Code Chapter 213 § 56, in which the subject parcel is located. ROR Ex. AA and Ex. FF.
The commission filed a return of record on December 10, 2015, and supplemental to the return of records on December 14, 2015, March 29, 2016, and April 21, 2016. In accordance with the court's scheduling order, the plaintiff filed its pretrial brief on January 20, 2016. The defendants filed their pretrial briefs on February 23, 2016, to which the plaintiff filed a reply on March 8, 2016. The court conducted a trial, hearing oral argument from the parties, on March 22, 2016. The court now renders its decision.
III
JURISDICTION
General Statutes § 8-8 governs an appeal from a planning and zoning commission to the Superior Court. " A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
A
Aggrievement
" Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). " [P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002).
" Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest." (Internal quotation marks omitted.) Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008). As for statutory aggrievement, § 8-8(a)(1) provides that an " aggrieved person" includes " any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." " Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Wallingford v. Zoning Board of Appeals, 146 Conn.App. 567, 575, 79 A.3d 115 cert. denied, 310 Conn. 964, 83 A.3d 346 (2013).
In its complaint and brief, the plaintiff alleges that it is the owner of property located at 470 Murdock Avenue in Meriden, which abuts the property located at 528 Murdock Avenue. The court, therefore, finds that the plaintiff is statutorily aggrieved pursuant to § 8-8(a)(1) as an owner of abutting property.
B
Timeliness and Service of Process
Section 8-8(b) provides that " [an] appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes . . ." Section 8-8(f) provides that " [s]ervice of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows: . . . (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57."
General Statutes § 52-57(b) provides, in relevant part: " Process in civil actions against the following-described classes of defendants shall be served as follows: . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ." Section 8-8(g) provides that " [s]ervice of process shall also be made on each person who petitioned the board in the proceeding, provided such person's legal rights, duties or privileges were determined therein."
Notice of the commission's decision was published on August 16, 2014. The marshal's return of service indicates that service of the plaintiff's complaint was made upon all defendants on August 30, 2014, within the fifteen-day period allowed by § 8-8(b), and by methods permitted by § § 52-57(b)(5) and 8-8(f)(2). The defendants offered no contradictory evidence or objection to the method of service. Therefore, the court finds that the plaintiff's appeal was timely and properly served.
IV
SCOPE OF REVIEW
" [T]here is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission . . ." (Internal quotation marks omitted.) Clifford v. Planning & Zoning Commission, 280 Conn. 434, 441, 908 A.2d 1049 (2006). " [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 marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).
" The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Citations omitted; internal quotation marks omitted.) E& F Associates, LLC v. Zoning Board of Appeals, 320 Conn. 9, 14-15, 127 A.3d 986 (2015).
" 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 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 commission'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." (Internal quotation marks omitted.) Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294, 947 A.2d 944 (2008).
" Because the interpretation of . . . regulations presents a question of law, [judicial] review is plenary . . . Additionally, zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended . . . The process of statutory interpretation involves the determination of the meaning of the statutory language [or . . . the relevant zoning regulation] as applied to the facts of the case, including the question of whether the language does so apply." (Internal quotation marks omitted.) Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn.App. 17, 21-22, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006).
" [O]rdinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purpose . . . [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." (Internal quotation marks omitted.) Cunningham v. Planning & Zoning Commission, 90 Conn.App. 273, 279, 876 A.2d 1257, cert. denied, 276 Conn. 915, 888 A.2d 83 (2005).
Finally, " a court that is faced with two equally plausible interpretations of regulatory language . . . properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation . . . Thus, in construing regulations, our function is to determine the expressed legislative intent . . . Moreover . . . the words employed therein are to be given their commonly approved meaning." (Internal quotation marks omitted.) Trumbull Falls, LLC v. Planning & Zoning Commission, supra, 97 Conn.App. 23.
V
DISCUSSION
In its brief, the plaintiff argues that the application for the electronic billboard should not have been approved as the application violates several of the Meriden Zoning Regulations. The plaintiff further argues that General Statutes § 8-2(a) and Chapter 213 § 5A of the Meriden Zoning Regulations do not allow the defendant commission to exempt itself from its own zoning regulations because the use of the electronic billboard does not constitute a public purpose.
The defendants counter that General Statutes § 8-2(a) and Chapter 213 § 5A of the Meriden Zoning Regulations allow the defendant commission to exempt itself from its own zoning regulations because the electronic billboard constitutes a public purpose. Thus, the sole issue before the court is whether the electronic billboard constitutes a public purpose rather than a proprietary purpose for the City of Meriden.
General Statutes § 8-2(a) sets forth the manner in which a municipality promulgates regulations. Section 8-2(a) provides in relevant part: " [t]he zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes, including water-dependent uses . . . and the height, size and location of advertising signs and billboards . . . Any city, town or borough which adopts the provisions of this chapter may, by vote of its legislative body, exempt municipal property from the regulations prescribed by the zoning commission of such city, town or borough; but unless it is so voted municipal property shall be subject to such regulations." In other words, § 8-2(a) " allows municipalities to exempt themselves from their own zoning regulations." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 1:5, p. 12. Nevertheless, " [a]s a general rule few municipalities use this exemption provision, so that municipal improvements and land uses . . . are not exempt." Id.
This court's inquiry, as in any issue of statutory interpretation, begins with the language of the statute at issue. Branford v. Santa Barbara, 294 Conn. 803, 810, 988 A.2d 221, 225 (2010). Chapter 213 § 5A of the Meriden Zoning Regulations provides " [i]n accordance with Chapter 124, § 8-2, of the Connecticut General Statutes, as amended, this Zoning Ordinance shall not apply to municipal property owned or leased by the City of Meriden for public purposes, including public library, public hospital or public school or park and recreation purposes, except that municipal building and site development plans shall be approved by the City Planning Commission in accordance with Chapter 126, § 8-24, of the Connecticut General Statutes, as amended, and § 213-72 of this chapter." Chapter 213 § 5A, however, does not define the term " public purpose." This issue appears to be one of first impression, and given the fact that there is no direct case law on point, the court must look to the statutory meaning of Chapter 213 § 5A.
When interpreting a regulation " [a] local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it . . . Although . . . the interpretation of provisions in the ordinance is nevertheless a question of law for the court . . . A local ordinance is a municipal legislative enactment . . . A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance . . . The words [employed] are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms . . . Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body." (Citations omitted; internal quotation marks omitted.) Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 603-05, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002).
" Although [c]ourts are bound to accept the legislative definition of terms in a statute"; (internal quotation marks omitted) Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992); the terms including and public are not defined in the regulations or anywhere else in the Meriden Municipal Code. Accordingly, our Supreme Court has construed " the term according to its commonly approved usage, mindful of any peculiar or technical meaning it may have assumed in the law." (Internal quotation marks omitted.) Lieberman v. Aronow, 319 Conn. 748, 758, 127 A.3d 970, 977 (2015). The court further stated that it " may find evidence of such usage, and technical meaning, in dictionary definitions, as well as by reading the statutory language within the context of the broader legislative scheme." Id., 758-59. See also State v. Menditto, 315 Conn. 861, 866, 110 A.3d 410 (2015).
Moreover, " [i]n interpreting a statute, [r]elated statutory provisions . . . often provide guidance in determining the meaning of a particular word . . ." (Internal quotation marks omitted.) Gilmore v. Pawn King, Inc., 313 Conn. 535, 555-56, 98 A.3d 808 (2014). Accordingly, this court turns to other sources for guidance.
Standard dictionaries assign more than one meaning to the word " include." Merriam-Webster's Collegiate Dictionary (7th Ed. 1971) defines the word " include" as: " to take in or comprise as a part of a larger aggregate . . . to contain within as part of the whole." Black's Law Dictionary (7th Ed. 1999) defines the word " include" as: " to contain as part of something. The participle including typically indicates a partial list . . ."
There appears to be no direct case law on whether the word " include" in a statute is a word of limitation or a word of enlargement. Nonetheless, there is case law on this issue with regard to the word " include" when used in a statutory definition. Our Supreme Court has long held that the word " includes, " when used in a statutory definition, is so ambiguous as to require construction with the aid of other provisions in the statute, the statute's legislative history, and other standard tools of statutory construction. See, e.g., State v. White, 204 Conn. 410, 422-23, 528 A.2d 811 (1987) (recognizing that word " include" may be considered a word of limitation as well as a word of enlargement); Maciejewski v. West Hartford, 194 Conn. 139, 147, 480 A.2d 519 (1984) (finding ambiguity in legislature's use of the word including in the introduction to a statutory definition). Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 150, 285 A.2d 352 (1971) (stating that words " include" and " including" can be considered as words of limitation as well as enlargement).
" From the statutory context, a strong inference arises that the term means and includes . . . was intended to have a different meaning than the term includes. Logically, since the term means is universally understood to have an exclusive meaning, the term includes, which can have either a restrictive or an expansive meaning, should be read expansively, in this context, to embrace terms not explicitly listed in the statute." (Internal quotation marks omitted.) State v. Philip Morris, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X02-CV-96-0148414-S, (October 27, 1998, Sheldon, J.) (23 Conn.L.Rptr. 192, 196, ). " In short, the inference is powerful, as both legally and logically, that the term means and includes . . . [is] intended to have an expansive meaning, unlike the term means . . ." Id., 196, .
Moreover, Chapter 1 § 1C of the Meriden Municipal Code states: [a]ll general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the City Council may be fully carried out. Thus, in accordance with § 1C of the Meriden Municipal Code, the court may construe the meaning of the word " include" liberally, rather than a narrow interpretation, which would restrict the meaning of the word as used in Chapter 213 § 5A.
With regard to the term public use, both parties discuss the case Kelo v. New London, 268 Conn. 1, 31, 843 A.2d 500, 522 (2004), aff'd, Kelo v. New London, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005). The defendant cites Kelo for the proposition that Kelo squarely defines public use. In Kelo our Supreme Court addressed the issue of whether the public use clauses of the federal and state constitutions authorize the exercise of the eminent domain power in furtherance of a significant economic development plan. Id., 5. While the issue presented in Kelo is different from the present case, the court finds the Kelo decision helpful in determining what is considered public use or a public purpose.
In interpreting Connecticut's public use clause, our Supreme Court rejected a strict construction that " the term public use means possession, occupation, direct enjoyment, by the public." (Citation omitted; Internal quotation marks omitted.) Id., 31. Instead, it concluded that " such a limitation of the intent of this important clause would be entirely different from its accepted interpretation, and would prove as unfortunate as novel. One of the most common meanings of the word 'use' as defined by [Webster's Dictionary], is 'usefulness, utility, advantage, productive of benefit.' 'Public use' may therefore well mean public usefulness, utility or advantage, or what is productive of general benefit; so that any appropriating of private property by the state under its right of eminent domain for purposes of great advantage to the community, is a taking for public use. Such, it is believed, is the construction which has uniformly been put upon the language by courts, legislatures and legal authorities." Id.
" A public use defies absolute definition, for it changes with varying conditions of society, new appliances in the sciences, changing conceptions of the scope and functions of government, and other differing circumstances brought about by an increase in population and new modes of communication and transportation . . . Courts as a rule, instead of attempting judicially to define a public as distinguished from a private purpose, have left each case to be determined on its own peculiar circumstances. Promotion of the public safety and general welfare constitutes a recognized public purpose . . . The modern trend of authority is to expand and liberally construe the meaning of public purpose. The test of public use is not how the use is furnished but rather the right of the public to receive and enjoy its benefit." (Citations omitted; internal quotation marks omitted.) Katz v. Brandon, 156 Conn. 521, 532-33, 245 A.2d 579 (1968).
VI
CONCLUSION
This issue appears to the court to be one of first impression. As such, it is necessary to decide whether the word " including" in the regulation only covers public uses such as a park or a hospital or whether this term can be seen as an enhancement so that other uses can be entertained as public use or public purpose. Lacking any case or statutory law to the contrary, the court will consider the term as an enlargement, therefore agreeing with the defendants' argument that the billboard, in this particular and limited situation, falls within a definition of public use or public purpose.
For the foregoing reasons, the appeal is dismissed.