Opinion
MMXCV136010891S
09-22-2016
John J. Kelley, Sr. et al. v. Town of Portland Zoning Board of Appeals et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward S. Domnarski, Judge.
The plaintiffs, John J. Kelley and Christina S. Kelley, have appealed the decision of the defendant Town of Portland Zoning Board of Appeals (ZBA). The decision upheld a notice of violation and cease and desist order of the Portland Zoning Enforcement Officer (ZEO) related to the paving of a 1200' driveway to a house located at 1 Rose Hill Road, Portland, Connecticut. The plaintiffs timely appealed the issuance of the cease and desist order to the ZBA and the ZBA conducted public hearings on September 26 and October 24, 2013. On October 24, 2013, after the conclusion of the public hearing, the ZBA voted unanimously to sustain the cease and desist order. During the pendency of this appeal Sharon Hoy and Melissa Gerrier-Satagaj, both self-represented, were permitted to intervene as defendants.
The plaintiffs timely filed this appeal of the ZBA decision and no party has raised any issues pertaining to procedural irregularities. From the evidence presented at a hearing held on July 27, 2016, the court finds that the plaintiffs are statutorily aggrieved.
On July 8, 2013, the plaintiffs began paving the driveway located at 1 Rose Hill Road. On that date the Zoning Enforcement Officer (ZEO) issued a notice of violation and order to abate. Record 2. On July 9, 2013, the ZEO issued a notice of violation and cease and desist order. Record 1. The driveway paving was completed on July 9, 2013. Both notices stated that the paving was " a violation of the approved site plan as conditioned in Permit #06-209" and included a citation to Zoning Regulation 11.1.1.C.2. The plaintiff appealed both notices and the parties have agreed that for the purposes of this appeal, both notices may be treated as one.
Permit #06-209 was the original zoning permit for the construction of a house on 1 Rose Hill Road and it was issued on October 24, 2006. The essential claims of the parties in this appeal can be distilled to the following: The ZBA maintains that the original zoning permit does not allow the subject driveway to be paved. The plaintiffs maintain that the original zoning permit, and the zoning regulations of the Town of Portland, do not prohibit the paving of the driveway.
Standard of Review
" 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. Toffolon v . Zoning Board of Appeals, 155 Conn. 558, 560-61, 236 A.2d 96 (1967); Connecticut Sand & Stone Co. v . Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 (1963). In doing so, the board is endowed with a liberal discretion . . . Id. Indeed, under appropriate circumstances, the board may act upon facts which are known to it even though they are not produced at the hearing. Parsons v . Board of Zoning Appeals, 140 Conn. 290, 99 A.2d 149 (1953). The principal procedural limitations on the hearing are that there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross examine witnesses produced by his adversary or to be fairly apprised of the facts upon which the board is asked to act. Id., 293. It would be inconsistent with these broad grants of power to the board, and with the concomitant procedural limitations thereon, to envision the board's function as anything less than a de novo determination of the issue before it, unfettered by deference to the decision of the zoning officer. It follows from the de novo nature of the board's consideration of the issues decided by the zoning enforcement officer that the trial court, upon a judicial appeal from the board pursuant to General Statutes § 8-8, must focus on the decision of the board and the record before it, because it is that decision and record that are the subject of the appeal under § 8-8." (Internal quotation marks omitted.) Caserta v . Zoning Board of Appeals, 226 Conn. 80, 90-91, 626 A.2d 744 (1993).
" 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 [a zoning 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 [board's] stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the [board] . . . 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; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004).
" In an administrative appeal, [i]t is not the function of the court to retry the case. Upon appeal the function of the court is to examine the record of the hearing before the board to determine whether the conclusions reached are supported by the evidence that was before it. The question is not whether the trial court would have reached the same conclusions but whether the record before the board supports the board's action. O'Donnell v . Police Commission, 174 Conn. 422, 426, 389 A.2d 739 (1978)." (Internal quotation marks omitted.) Ogden v . Zoning Bd. of Appeals, 157 Conn.App. 656, 680-81, 117 A.3d 986, cert. denied, 319 Conn. 927, 125 A.3d 202 (2015).
In accordance with the foregoing standard of review, the focus of the ZBA hearings and the court are the determinations of the zoning enforcement officer as it relates to the subject zoning permit; this case is not about addressing or correcting storm water issues.
Discussion
After the October 24, 2013 public hearing concluded, motions were made to sustain the orders of the Zoning Enforcement Officer and deny the plaintiff's appeals. The motions were passed by the unanimous vote of five board members. Record 30, 29. The motions do not contain any reasons to sustain the orders. At the deliberation session, after discussion by several members to uphold the ZEO's order, the Chairman, Ben Srb stated, " [b]ut you're not basing this on water, you're going to base it on Bob [Bob Spencer, Zoning Enforcement Officer] reviewing the folder of what he had at the time." Implicit in the actions to sustain the Zoning Enforcement Officer's orders, is a decision by the ZBA that the paving of the subject driveway was " a violation of the approved site plan, as conditioned, in permit #06-209." See Zachs v . Zoning Board of Appeals, 218 Conn. 324, 589 A.2d 351 (1991) (board may be deemed to make implicit findings based upon statement in the record.) The task for the court is to determine if there is substantial evidence in the record to support the decision of the ZBA.
At the public hearings, the plaintiffs and zoning enforcement called witnesses and presented extensive testimony as to the circumstances surrounding the application and issuance of the zoning permit issued to the plaintiffs on October 24, 2006. Several of the individuals who were involved in the 2006 application and approval process testified at the public hearing. The following information is contained in the record of the proceedings before the ZBA.
The subject property is located at the top of a hill, in the vicinity of a golf course. Prior development in the area, and the topography in the vicinity of the property, gave rise to a concern about storm water runoff and its effect on downhill property owners. It is apparent that this storm water runoff issue overshadowed the zoning permit application process in 2006, and the ZBA proceedings conducted in 2013.
On August 30, 2006, Town Engineer Geoff Jacobson met at the site with one of the plaintiffs, John Kelley, to discuss development of 1 Rose Hill Road. On September 20, 2006, Mr. Kelley's engineer, Kenneth Smith, presented a two-page plot plan for the subject property dated September 15, 2006. That plan included a notation that stated " existing gravel drive to remain." Jacobson reviewed the plot plan and on September 21, 2006 sent a memorandum to Smith which included the following: " 4. The existing gravel driveway is identified on the drawings to 'remain gravel.' . . . In this regard, please indicate whether the existing driveway will remain as it is; if it will be regraded in any way; if additional gravel material will be placed on the surface; what measures will be employed to reduce the potential for surface erosion." Record 11.
In response, Smith wrote Jacobson on October 3, 2006 and in regard to comment 4 stated " [e]xcept for the repair of two small eroded areas, the existing driveway will remain in its natural state, including the grass. My recommendation is to use broken stone or trap rock to repair the eroded areas. This will create a stable drive, slow down any runoff and permit some infiltration." Record 21. In a response to Smith dated October 18, 2006, Jacobson stated " [y]our response to comment #4 should be transferred to the Construction Plot Plan." Record 14. On October 20, 2006, Smith wrote Jacobson and stated " [t]he 'note' regarding the status of the existing drive that is on sheet 1 has been modified per your fourth comment." Record 15.
Smith's October 20, 2006 letter to Jacobson included three sets of plans. The record of the proceedings before the ZBA contains the following maps as record exhibits. R-36 is sheet one of two of the September 15, 2006 Construction Plot Plan for 1 Rose Hill Road (September 15, 2006 Plot Plan). This exhibit has a last revision date of October 20, 2006, and it contains the following note: " Existing Gravel Drive-to remain in its natural state, including the grass. Repair two small eroded areas using broken stone or trap rock to create a stable drive, slow down any runoff and permit some infiltration." R-41 is sheet two of two of the September 15, 2006 Plot Plan and the last revision is dated October 17, 2006. This map sheet does not contain the aforementioned driveway note, but it does designate the subject driveway as " existing gravel drive."
The zoning enforcement officer stamped sheet two of the September 14, 2006 Plot Plan, R-41, with the following relevant notation: " Approved with conditions for zoning compliance #06-209, 10/24/06." The number 06-209 refers to zoning permit for the subject property, R-23, which was also approved with conditions on October 24, 2006. The permit contains the following relevant condition: " Adhere to all town engineer's comments & requirements." This approval obviously occurred after the extensive correspondence between Smith and Jacobson which resulted, in part, in the addition of the driveway notation on the October 20, 2006 revision to the first page of the September 15, 2006 Plot Plan, R-36.
At the hearing before the ZBA, and in their brief, the plaintiffs maintain that when the permit was applied for, the driveway was to remain in its existing unpaved state only for a limited period of time. The plaintiffs refer to the testimony of Mr. Kelley's engineer, Kenneth Smith, who said the driveway was to remain in its existing, unpaved, state only during the construction period, or until some tangential litigation was resolved. It is apparent that the ZBA did not accept the plaintiffs' version of events. As noted earlier " [t]he credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] . . ." Municipal Funding, LLC v . Zoning Board of Appeals, supra, 270 Conn. 453.
The court finds that correspondence between Jacobson and Smith, the driveway notation on the October 20, 2006 map, and the conditions of the approval of the zoning permit issued on October 24, 2006, amount to substantial evidence in the record. This substantial evidence supports the board's implicit determination that it was a condition of the zoning permit for 1 Rose Hill Road that the driveway shown on the September 15, 2006 Plot Plan would remain unpaved. This same substantial evidence also supports the ZBA's decision to uphold the orders issued by the zoning enforcement officer to cease and/or abate the paving of the driveway, which violated the conditions of the zoning permit.
As mentioned earlier, and discussed below, storm water runoff from the plaintiffs' property and the surrounding area, and its effect on down gradient land owners, was extensively discussed at the public hearings. The record establishes that when the members of the ZBA voted to uphold the decision of the ZEO, their focus was properly on the conditions of, and events connected with, the permit issued in 2006, not on the storm water issues. See Record 43, p. 154-56.
Plaintiffs' Arguments
The plaintiffs' first argument in their brief is that Section 11.1.1.C.2 of the current Portland Zoning Regulations, which is cited in the cease and desist orders, does not prohibit the paving of a residential driveway. Section 11.1.1.C.2. is a part of Section 11.1 of the current Portland Zoning Regulations which contains the requirements for obtaining a zoning permit. Specifically, Section 11.1.1.C.2. requires a certified A-2 plot plan to be submitted with an application for a Zoning Permit. Section 11.1.1. of the Zoning Regulations provides that " [p]rior to the . . . change in use of any land . . . or other structure . . . an application for a Zoning Permit shall be submitted to the Zoning Enforcement Officer." At the public hearing Bob Spencer, the ZEO, stated he cited this section because changes were being made to the property and no permit application had been filed. It is apparent from the record that the primary and stated violation was the paving of the driveway, in contravention of the approved zoning permit. As stated above, there is substantial evidence in the record to support the ZBA's decision to sustain the ZEO's determination that the conditions of the 2006 zoning permit had been violated.
In this first argument, the plaintiffs further assert that there are no Portland Zoning Regulations which prohibit the installation of a paved driveway. This assertion may be correct, however the plaintiffs' argument overlooks the import and consequences of the conditions attached to the approved zoning permit as discussed below.
In their second argument, the plaintiffs maintain that the ZBA lacked the authority to sustain the ZEO's orders because the zoning permit does not prohibit a paved driveway. As noted earlier, the evidence before the ZBA established that the plaintiffs' engineer, Smith, at the request of the town engineer, Jacobson, placed a note on sheet one of the September 15, 2006 Plot Plan stating that the driveway was to remain in its natural state. Although the note does not expressly prohibit the paving of the driveway on the plan, it was not unreasonable for the ZBA to find that the plan notation implied that the drive was not permitted to be paved. " 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." Caserta v . Zoning Board of Appeals, supra, 226 Conn. 90. In support of this argument, the plaintiffs point to the fact that the zoning permit does not expressly state a condition that the driveway remain unpaved. This argument conveniently overlooks the history of correspondence between the plaintiffs' engineer and the town engineer which brought about the " natural state" driveway notation placed on page one of the September 15, 2006 Plot Plan, Record 36. In addition, the permit itself requires the applicant to " [a]here to all town engineer's comments & requirements."
As an alternative argument, the plaintiffs maintain " [e]ven if a condition existed . . . prohibiting the future paving of the driveway . . . such condition is void." To the extent the plaintiffs challenge the validity of the driveway condition that their engineer placed on the September 15, 2006 plot plan, Record 41, the defendant relies on the holding of Upjohn Co. v . Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992). The Upjohn court stated that " we have ordinarily recognized that the failure of a party to appeal from the action of a zoning authority renders that action final so that the correctness of that action is no longer subject to review by a court. Haynes v. Power Facility Evaluation Council, 177 Conn. 623, 629-30, 419 A.2d 342 (1979); see Beit Havurah v . Zoning Board of Appeals, 177 Conn. 440, 418 A.2d 82 (1979). All of these rules rest in large part, at least in the zoning context, on the need for stability in land use planning and the need for justified reliance by all interested parties-the interested property owner, any interested neighbors and the town-on the decisions of the zoning authorities. It would be inconsistent with those needs to permit, in this case, a challenge to a condition imposed on a zoning permit when the town seeks to enforce it more than three years later. See Spectrum of Connecticut, Inc. v . Planning & Zoning Commission, 13 Conn.App. 159, 163, 535 A.2d 382, cert. denied, 207 Conn. 804, 540 A.2d 373 (1988) (permitting collateral attack on special permit condition would make land use regulation system impractical and unworkable)." Id., 102-03. The court agrees with the defendant that the plaintiffs may not now challenge a condition they participated in establishing in 2006.
In their third argument the plaintiffs maintain that the ZBA acted illegally in denying their appeal because there are no regulations requiring approval to alter an existing driveway. Again, the plaintiffs have focused on the text of the regulations and ignored the effect of the conditions of the zoning permit they applied for in 2006. The Zoning Regulations in effect in 2006 contain section 03.02, Zoning Permits. Section 03.02.01(3) provides that an " [a]pplication for a Zoning Permit shall be accompanied by . . . a. A plot plan and building plan as specified in Section 03.02.02." Section 03.02.02, entitled Plot Plan, specifies the information to be included in the plot plan which includes " proposed and existing grades, " f. the" locations . . . of . . . driveways" and l. " [s]oil erosion and sedimentation control plan." The plot plan that was submitted by the plaintiffs' engineer, after discussions with the town engineer, included this information and also included the notation that the driveway would remain in its natural state. The second page of the plot plan contains the approval of the Zoning Enforcement Officer. As noted earlier, all pages of this approved plot plan were part of the record before the commission. See SSM Associates Ltd. Partnership v . Plan & Zoning Commission, 15 Conn.App. 561, 566, 545 A.2d 602 (1988), aff'd, 211 Conn. 331, 559 A.2d 196 (1989) (a plan for the proposed use of a particular site includes the entire package of documents submitted to a zoning official to determine conformity with the zoning regulations).
Article 11 of the current Portland Zoning Regulations (Zoning Regulations) describes administration and enforcement procedures. Section 11.3.2, Enforcement and Penalties, subsection A, states that " [t]hese regulations shall be enforced by the Zoning Enforcement Officer . . . who shall be empowered to . . . order, in writing, the remedying of any conditions found to exist . . . in violation of any provision of these Regulations, or any permit or approval issued hereunder ." (Emphasis added.) There was substantial evidence before the ZBA to support the decision that the paving of the driveway violated a condition of the approved plot plan. See Stephenson v . Stamford Zoning Board, Superior Court, judicial district of Stamford, Docket No. CV-95-01482390-S (April 27, 1998, Karazin, J.) (zoning enforcement officer may rely on plot plan in determining whether to issue a cease and desist order).
The Zoning Regulations have specific requirements for obtaining a zoning permit, including submission of a plot plan. The Zoning Regulations also specifically provide for enforcement of the conditions of an approved permit. The plaintiffs' appeal to the ZBA necessarily involved consideration of the statements made, and the materials submitted, when the zoning permit was obtained in 2006. The appeal also required the ZBA to consider whether, and how, the enforcement provisions of the regulations should be applied. " [Zoning] boards of appeal are necessarily entrusted with the function of deciding, within prescribed limits and consistent with the exercise of a legal discretion, whether a regulation applies to a given situation, and the manner of its application. Connecticut Sand & Stone Corp. v . Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 (1963). When evaluating the validity of a decision of a zoning board, we have also stated that '[t]he trial court [has] to decide whether the board correctly interpreted 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 . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly.' (Citations omitted; internal quotation marks omitted.) Wood v . Zoning Board of Appeals, [258 Conn. 691, 697-98, 784 A.2d 354 (2001)]." Graff v. Zoning Board of Appeals, 277 Conn. 645, 668-69, 894 A.2d 285 (2006).
There was substantial evidence presented at the hearing to establish that the paving of the subject driveway violated the provisions of the approved zoning permit. The decision of the ZBA sustaining the action of the ZEO was not illegal, arbitrary or contrary to law.
The Storm Water Issue and the Intervening Defendants
As noted earlier, when the plaintiffs applied for their zoning permit in 2006, there was a general concern about how water runoff from the plaintiffs' property would affect down gradient property owners. It is apparent from the record that storm water runoff from the plaintiffs' property, and the nearby golf course, has been a concern of down gradient property owners, including Sharon Hoy and Melissa Gerrier-Satagaj, before, and after, the paving of the subject driveway. The pleadings in this appeal contain references to the fact the ZBA and the plaintiffs were attempting to settle issues which were connected to this appeal. See Motion for Continuance #103, dated April 17, 2014. In order to be heard in any settlement proceedings held before the court, Hoy and Gerrier-Satagaj successfully moved to intervene as defendants.
The intervening defendants, Hoy and. Gerrier-Satagaj, filed briefs and were heard at the July 27, 2016 hearing. The briefs filed by Hoy and Gerrier-Satagaj, in part, refer to the events surrounding the zoning permit application and approval, reviewed by the court above. Understandably, the briefs of the intervening parties also contain extensive discussions of the storm water issues and the negative effects upon their respective properties. The briefs also contain references to the law pertaining to the liability of landowners for damages caused by excessive storm water runoff, and the rights of affected property owners. As noted earlier, these issues cannot be considered in this zoning appeal. Under these circumstances, the court need not engage in further discussion of the intervening defendants' briefs. The court does commend the selfrepresented defendants for their efforts and their well organized presentations.
Conclusion
For the foregoing reasons, the appeal is dismissed.