Opinion
No. CV08-4008624-S
January 15, 2010
MEMORANDUM OF DECISION
This is the latest installment in an ongoing dispute between the plaintiffs Edward and Andrea Hills and their neighbors, the defendants Ronald and Stephanie Borrelli. Also a defendant in this action is the Middletown Zoning Board of Appeals ("ZBA") which upheld a cease and desist order issued by the Middletown Zoning Enforcement Officer ("ZEO") directing the Hills to cease the operation on their property of certain recreational activities including "horse roping, horse rodeo, team penning [and] barrel racing."
The procedural and factual background of this matter is largely undisputed. The plaintiffs are the owners of a parcel of land on both sides of Brooks Road in the City of Middletown, Connecticut. The plaintiffs' property was once operated as a dairy farm. It is located in a residential zone designated as R-60 in the Middletown Zoning Regulations. Agriculture is a permitted use in this zone. In 1999 the plaintiffs ceased operation of the dairy farm and in its place started a horse boarding facility in which they stable for a fee horses owned by others. As part of their new business and focus on horses, they constructed, with appropriate zoning approvals, an outdoor horse riding arena.
In October 2005, the Hills sought and were granted zoning approval to construct an "agricultural building to house animals." Their application indicated that the "use is customarily and commonly associated with the permitted use of the parcel which is agriculture." The zoning approval stated that permission was granted to "construct an agricultural building to house and exercise animals" on the plaintiffs' property. Following the construction of this structure the Borrelli's filed a series of complaints with the ZEO alleging that rather than using the newly constructed facility to house and exercise animals, the Hills instead were utilizing it as the locus of a commercial operation featuring horse shows, team penning, roping and other horse riding activities involving the payment of fees by both participants and observers. Following an investigation of the Borrelli's complaints, the ZEO found a violation of the Zoning Regulations of the City of Middletown, Article 5, Use Schedule, Section 60. Specifically, the ZEO determined that, in violation of the uses permitted in the R-60 zone, the Hills were "conducting recreational activities such as: horse roping, horse rodeo, team penning, barrel racing." Accordingly, the plaintiffs were ordered to cease all such activity.
The Hills then filed an appeal of the cease and desist order with the Middletown ZBA. Voluminous testimony and evidence was presented to the ZBA. Amongst the materials received by the ZBA were copies of promotional materials, including excerpts from their website, documenting the types of activities being conducted on Hills' property and the fees assessed participants and observers. This information reflects that the Hills advertised and used their property to conduct, for a fee charged to participants and spectators, various activities including "team penning and sorting, roping, cutting and other ranch activities that involve horses and cows." The plaintiffs also advertised that they had constructed an "indoor arena" for year round activities and also had available an "outdoor ring," as well as an on-site food service. Also included on their website are schedules and calendars announcing competitions, practices and lessons together with the costs for these activities. Plaintiffs acknowledge that they are conducting team penning, barrel racing and horse roping on their property, but insist that these activities are agricultural in nature and therefore permitted by the applicable regulations. The ZBA also received testimony from horse owners who testified as to the importance and value of the types of activities conducted on the Hills property and the importance of these activities to both the animals and their owners. The ZBA upheld the ZEO's cease and desist order, concluding that the Hills were conducting "recreational activity events" in violation of the requirements of the R-60 zone. This appeal followed.
I. Aggrievement
Because the Hills are the record owners of the property in question they have established that they are aggrieved by the ruling of the ZBA. Accordingly, they have standing to pursue this action. Jolly Inc., v. Zoning Board of Appeals, 237 Conn. 184 (1996).
II. Standard of Review A. Standard of Review and Burden of Proof.
The standard to be applied by a Superior Court in reviewing the actions of a zoning board is whether the board's action was arbitrary, illegal or an abuse of discretion. Bloom v. Zoning Board of Appeals, 233 Conn. 198 (1995). The burden of proof that a zoning board of appeals acted improperly is on the party seeking to overturn the board's decision. Francini v. Zoning Board of Appeals, 228 Conn. 785 (1994).
Upon appeal the scope of judicial review of a decision of an administrative commission is limited. "It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determination on its own." Farrington v. Zoning Board of Appeals, 177 Conn. 186, 190 (1979). "In discharging this responsibility, a board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." Molic v. Zoning Board of Appeals, 18 Conn.App. 159, 165 (1989). On appeal, a reviewing court reviews the record of the administrative proceedings to determine whether the board "has acted fairly or with proper motives or upon valid reasons." Schwartz v. Planning Zoning Commission, 208 Conn. 146, 152 (1988).
Judicial review of the board's decision is narrowly circumscribed: It is well settled that courts are not to substitute their judgment for that of the board, and that decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . The court's function is to determine on the basis of the record whether substantial evidence as been presented to the board to support its findings . . . Evidence 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 . . .
Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 137-38 (1996).
"The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached." Primerica v. Planning and Zoning Commission, 211 Conn. 85, 96 (1989). "The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 540, 541 (1987).
It is axiomatic that there must be substantial evidence to support the Commission's decision. Feinson v. Conservation Commission, 180 Conn. 421 (1980).
III. Discussion A. Agriculture
The principal issue in this appeal is whether the ZBA correctly concluded that the activities conducted on the Hills' farm are not agricultural in nature, and therefore, in violation of the permitted use in an R-60 zone. It is undisputed that the Hills' property is located in an R-60 zone and that farming or agriculture are permitted uses in that zone. City of Middletown Zoning Code § 60.01.03 provides that "Farming or other agricultural uses" is a permitted use in an R-60 zone. § 16.01.02 of the Code in turns defines agriculture as the use of land for agricultural purposes, including farming, dairying, pasturage, agriculture, horticulture, floriculture, viticulture, and animal and poultry husbandry and the necessary accessory uses for packing, treating or storing the produce; provided, however that the operation of any such accessory uses shall be secondary to that of normal agricultural activities and provided further that the above uses shall not include the commercial feeding of garbage or offal to swine and other animals."
Resolution of this case, therefore, turns on the question of whether the activities which are the subject of the cease and desist order constitute a permitted agricultural use within the meaning of § 16.01.02 or are instead, as the ZEO and ZBA concluded, a commercial recreational use permitted in commercial and industrial zones, but not in an R-60 residential zone. Analysis of this question requires an interpretation of the relevant regulations. "[Z]oning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes (internal quotations and citations omitted). Borrelli v. Zoning Board of Appeals of the City of Middletown et al., 106 Conn.App. 266, 270 (2008). "Regulations must be viewed to form a cohesive body of law, and they must be construed as a whole and in such a way as to reconcile all their provisions as far as possible. This is true because particular words or sections of the regulations, considered separately, may be lacking in precision of meaning to afford a standard sufficient to sustain them. When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results." Id., at 270-71.
As the Appellate Court observed in Borrelli v. Zoning Board of Appeals, the definition of agriculture in § 16.01.02 is "circular, rather than restricted." Id. at 277. Agriculture is simply defined as, "[t]he use of land for agricultural purposes, including farming, dairying, pasturage, agriculture, horticulture, floriculture, viticulture, and animal and poultry husbandry and the necessary accessory uses for packing, treating or storing the produce . . ." In order to give more precision to the definition of agriculture in § 16.01.02 the Borrelli court referred to General Statutes § 1-1(q) which provides in relevant part that "except as otherwise specifically defined the words `agriculture' and `farming' shall include cultivation of the soil, dairying, forestry, raising or raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, including horses, bees, poultry, fur-bearing animals and wildlife, and the raising or harvesting of oysters, clams, mussels, other molluscan shellfish or fish (emphasis supplied)."
The plaintiffs argue that the activities conducted on their property, including team penning, barrel racing and horse roping constitute "training and management of livestock" within the definition of agriculture in General Statutes § 1-1(q) and therefore are permitted uses under Middletown Regulations § 16.01.02. By contrast, both the individual and municipal defendants insist that the predominant activities conducted on the Hills' property involve neither training nor management, but rather commercial recreational activities which are prohibited in an R-60 zone.
Principals of statutory construction require that analysis of this issue begin with the plain meaning of the regulations, in this case the word "training." Id. Merriam Webster's Collegiate Dictionary, 10th Ed., defines training as the act of `teach[ing] so as to make fit, qualified or proficient." It is also defined as "to undergo instruction, discipline or drill." The evidence before the ZBA indicates, generally, that the activities which it ruled illegal involve the participation by horses not stabled on the property in a variety of competitive activities. While the horses' and riders' success in the competition is likely a function of their prior training and management, the evidence does not support the claim that the competitive activities themselves principally involve training and management of the horses. Rather, the activities involve the entry of horses in various competitions in which they and their riders demonstrate their proficiency in the event. While the line is concededly blurry, and participation in the competitions necessarily may involve some training of the horses, such training, if at all, is incidental to the primary purpose of the event which is to participate in a competition for the purpose of demonstrating the horse's skill and rider's prowess in a particular event. Accordingly, the ZBA did not abuse its discretion in concluding that horse penning, barrel training and team roping do not constitute the "training of livestock" within the definition of agriculture as set forth in Middletown Zoning Regulations § 16.01.02 and General Statutes 1-1(q).
Both the members of the ZBA and counsel in their briefs discuss at length the issue of whether the fact that the activities sponsored by the Hills are commercial in nature, i.e., offered for a fee, is determinative of whether the activities are also agriculture within the meaning of the applicable Middletown Zoning Regulations. As the Appellate Court noted in Borrelli v. Zoning Board of Appeals, 106 Conn.App. 266, 276 n. 5 (2008), "The plaintiffs' argument that the individual defendants' operation is commercial in nature, and by extension somehow must fall under the commercial zone regulations, is irrelevant to our determination that it constitutes agriculture as defined in the regulations. With the exception of the plaintiffs' land, the area in question is a farming community. Agriculture and farming historically are commercial enterprises by which people make a living. That fact, however, has no bearing on the uses that constitute agriculture under the regulations." For the purposes of this appeal, the sole issue to be resolved is whether the activities sponsored by the Hills are agriculture within the meaning of the Regulations. The fact that there may be a commercial aspect to these activities is irrelevant to a determination of whether they constitute agriculture. Likewise, the court need not decide whether the penning, roping and barrel training activities for which fees are charged to both participants and observers constitute commercial recreation permitted only in commercial and industrial zones pursuant to Middletown Zoning Regulations § 61.02.27 and § 61.02.37 as claimed by the zoning enforcement officer. The only issue that need be decided in this appeal is whether the activities in question are permitted in an R-60 zone, not whether they are properly conducted in a commercial or industrial zone.
B. Municipal Estoppel
The plaintiffs also claim that the ZBA's action is barred by the doctrine of municipal estoppel.
"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." O'Connor v. City of Waterbury, 286 Conn. 732 (2008).
Plaintiffs allege that by virtue of the Middletown Planning and Zoning Commission's site plan approval to "construct an agricultural building to house and exercise animals" on Lot 2B the City of Middletown, including its ZEO, is estopped from alleging that the activities now conducted on the site be prohibited.
Plaintiffs have failed to satisfy the four-prong test of O'Connor. With respect to the first prong, the record does not support the claim that an "authorized agent of the municipality had done or said something calculated or intended to induce the party the believe that certain facts existed and to act on that belief." The most the record demonstrates is that a building permit was issued to construct a structure to "house and exercise" animals. There is nothing in the record to suggest the Planning and Zoning Commission, the ZBA, the ZEO or any other governmental official approved or otherwise validated the Hills' use of the barn as a site to conduct barrel racing, team penning or horse roping. The fact that the Hills mistakenly concluded that such activities are permitted does not translate into proof that they were authorized by the City or its agents.
The second element is that the party "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." Plaintiffs have also failed to demonstrate an evidentiary basis to support this prong. There is inadequate evidence in the record upon which a finding can be made that plaintiff exercised "due diligence" to ascertain the truth. The record fails to disclose any effort by the Hills to affirmatively determine whether the types of activities they conducted were in fact permissible. In fact, when members of the ZBA inquired as to whether rodeo type of activities would be held on the property, the Hills specifically disavowed such an intention.
Likewise, the plaintiffs have failed to provide an evidentiary basis supporting the third prong of municipal estoppel, namely that they "had changed [their] position in reliance on those facts." Finally, there is no factual basis in the record to conclude that, as to the fourth prong, the Hills "would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents." Id. Accordingly, the plaintiffs' claim that the City of Middletown is estopped from seeking to uphold the cease and desist order cannot be sustained.
For the foregoing reasons, the plaintiffs' appeal is dismissed.
SO ORDERED.