Opinion
No. CV 06 4019463 S
September 10, 2008
MEMORANDUM OF DECISION
This is an appeal by the owner of property at 944 Totoket Road in North Branford. The property is located in an R-40 zone which permits residential dwellings, their accessory uses and farming activities, see § 23.1 of town zoning regulations. A cease and desist order or as framed by the plaintiff a "Stop Work Order Zoning violation" was served on Mr. Kopylec on October 4, 2005 by the town zoning officer, Carol Zebb.
Pursuant to § 43 of the regulations, in particular § 43.1, 43.2.3, and 43.3.7 the plaintiff was ordered to stop "illegally filling and regrading being done on (the) property." In more detail the plaintiff was ordered to stop:
(1) grading and/or filling of land with materials, including, but not limited to, crushed concrete, rubble, railroad ties, utility poles, crushed bituminous concrete pavement, and other debris without benefit of a Temporary Special Use Permit as required by Section 43 ("Excavation, Grading, Removal of Filling") of the Zoning Regulations of the Town of North Branford;
(2) stockpiling in excess of 100 cubic yards of woodchips during the calendar year and/or using the aforesaid woodchips for landscaping work, including changes of the contours on a lot when no building permit as required, without benefit of a Zoning Permit as required by Section 43 of the Zoning Regulations of the Town of North Branford; and
(3) grading and/or filling of land with sundry debris material, stockpiling woodchips, and/or conducting landscaping activities, resulting in a change in the contours on a lot to alter the drainage pattern, particularly on that portion of the lot which functions as a natural stormwater detention area during seasonally large storm events and, thus, redirecting surface runoff to adjacent properties in derogation of the standard permitting conditions set forth in Section 43.4.7 of the Zoning Regulations of the Town of North Branford and, in addition, without benefit of a Temporary Special Use Permit and/or Zoning Permit as required by Section 43 of the aforesaid Zoning Regulations.
The plaintiff appealed from the stop work order requesting the defendant Board to overrule the Zoning Enforcement Officer (ZEO) on the grounds that the order was not supported by the published town regulations and that the plaintiff's actions did not violate those regulations.
The Board upheld the order of the ZEO. The plaintiff then filed this appeal. In its appeal brief the plaintiff has raised seven issues. The court will try to separate them out into issues which might be characterized as procedural in nature and those issues which relate directly to the application of the town regulations to the activities of Mr. Kopylec.
(1) Was the hearing marked by fundamental unfairness due to a conflict inherent in the close working relationship between the ZEO and the ZBA?
(2) Did the Board members have an obligation to disclose a claimed expertise at measuring the quantities of material?
(3) Was the record of the hearing before the Board properly returned to court?
(4) Are the plaintiff's claims relating to events predating May 13, 2002, November 22, 2004 barred by res judicata due to the judgment against Phyllis Kopylec and subsequent enforcement proceedings based on that judgment.
(5) Does § 43 of the town regulations prohibit the use of crushed concrete, utility poles, crushed bituminous paving and debris as fill?
(6) Is the town even authorized by § 8-2 of the general statutes to regulate fill?
(7) Does § 43 regulate stockpiling of woodchips? Does the town code prohibit or limit the use of woodchips? Does the town code prohibit or limit the use of woodchips as a fertilizer in connection with an agricultural use?
The court will try to address each one of these issues.
(1) (a) Relationship Between Zoning Enforcement Officer and Zoning Board; Return of Record to Court
The plaintiff's position is straight forward and well stated. Counsel points to the fact that the ZEO, Carol Zebb, because she was functioning as a staff person to the Board and sitting with the Board at the hearing. At the hearing before the Board plaintiff's counsel raised this "charge" and argued that the foregoing created a conflict and that the staff person of the board should not be the prosecuting authority. Zebb acted as the prosecuting authority for the claimed violation while simultaneously making a claim of a violation.
When counsel made these observations the chairman responded:
she is a town employee and has acted in this role for many months as the ZEO and advisor for town issues in past history and advises us and has given good counsel in the past
To the plaintiff this sets up "a fundamentally unfair conflict" — "an arresting officer cannot sit on the jury that tries the case."
The plaintiff notes that during the hearing the ZEO sat up on the dias with the Board in such a manner as to give the impression that she "Was a member of or part of the zoning board of appeals." The chairman's comments underline she is an advisor to the board "and therefore has a conflict of interest." The plaintiff argues that if § 62.1 of the town's regulations is examined it is "clear" that the ZEO is not to have any kind of adviser role to the Board.
The plaintiff also cites the return record as further indication of something amiss here. Connected to his argument of a lack of fundamental fairness the plaintiff maintains that instead of returning the zoning board's appeal record under § 8-8(i) what has been returned is the ZEO's record under § 8-7. The ZEO has advanced her prosecution, she has not followed statutory requirements.
The court will try to examine the case law as it applies to the issues raised by the plaintiff.
Our court has "recognized a common law right to fundamental fairness in administrative hearings," Grimes v. Conservation Commission, 243 Conn. 266, 273 (1997). Nazarko v. Conservation Comm., 50 Conn.App. 548, (1998) held that an ex-officio member of the commission who sat with it and had some participation in the proceedings created the appearance of impropriety where this individual had a "personal or pecuniary interest" in the outcome. The court held disqualification in such circumstances is a factual question. Id., p. 553. Judge Pickard in Barry v. Historic District Comm., 49 Conn.Sup. 498, 507 (2000) relying on Nazarko applied this rule generally on claims of violations of fundamental fairness when he said: "The decision as to whether the hearing in the present case afforded fundamental fairness is a factual one and depends on the particular circumstances."
In this case the plaintiff has presented no direct evidence through deposition testimony or otherwise that the ZEO participated in the Board's decisional process or that she even for example, conducted any questioning of witnesses. He relies on the chairman's characterization of Ms. Zebb as the Board's advisor, he states "she has a close working relationship" with the Board. His counsel claims "Mr. Kopylec did not receive fundamental fairness from a zoning board of appeals that works with Ms. Zebb as their staff person or advisor."
First the court should say just as the cases seem to excuse in some cases failures of these local boards to follow procedural niceties on the grounds that they are lay persons just so these Boards have a great deal of power over people's day to day lives and those appearing before them are laypersons also rightfully sensitive about protecting their rights. Allowing the very ZEO officer who took action against this plaintiff to sit on the same dias as the Board is not necessary or appropriate and can give the appearance of bias. But as noted in CT Page 14892 Clisham v. Bd. of Police Commissioners, 223 Conn. 354, 362 (1992) speaking of due process standards, which are no less stringent than fundamental fairness requirements, in a disqualification claim context: "The applicable due process standards for disqualification of administrative adjudications (due to bias) do not rise to the heights of those prescribed for judicial disqualification . . . The mere appearance of bias that might disqualify a judge will not disqualify an arbitrator . . . Moreover, there is a presumption that administrative (officers) acting in an adjudicative capacity are not biased . . . To overcome the presumption, the plaintiff . . . must demonstrate actual bias, rather than mere potential bias, of the hearing officer challenged unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable," quoted in Elf v. Dept. of Public Health, 66 Conn.App. 410, 425 (2001).
Sitting on a dias during a hearing, the fact that Zebb worked closely with the Board, the chairman's remarks just do not seem enough. As to the latter comments by the chairman here, the court's observations in Couch v. Zoning Commission, 141 Conn. 349 (1954) make a relevant point. There the plaintiff argued the minutes of two meetings "conclusively show" that the commission members had made up their minds. The court noted that: "The phraseology of the minutes might be stretched to support that claim. It must be borne in mind, however, that we are dealing with a group of laymen (sic) who may not always express themselves with the nicety of a Philadelphia lawyer."
The zoning enforcement officer of these municipalities certainly has a right to file a cease and desist order. The fact that he or she may be on the Board's staff or advise the Board on certain matters does not, standing alone, call into question the validity of the Board's decision. How could it be otherwise in a jurisdiction which has held that: "it is not violative of due process for the same authority which initiated the subject of the hearing to listen to and determine its outcome as long as that authority gives the person appearing before it a fair, open and impartial hearing . . . an administrative agency can be the investigator, and adjudicator of the same matter without violating due process," New England Rehabilitation Hospital of Hartford v. Commission on Hospital and Healthcare, 226 Conn. 105, 151-52 (1993); quoted in Elf v. Dept. of Public Health, supra, 66 Conn.App. At page 425, also see Ghent v. Zoning Comm., 220 Conn. 584 (1991) where court said: "When the zoning commission acts to propose an amendment formulated by the commission, all of its members could be said to be similarly biased sponsors of the proposal, and, therefore disqualified from voting on it." Id., page 595.
Also the mere fact that someone in the ZEO's capacity gives advise to the Board cannot be used as a backdoor argument to say of course that the ZEO cannot file a cease and desist order or even advance the position that some generalized advice on a matter the ZEO initiated would result in a finding of impropriety. First it should be noted that apart from filing the order there is no evidence here that the ZEO gave "advice" during executive sessions or during the deliberative process. The cases make a sharp distinction between the giving of technical advice to the Board by staff which does not go to the merits of an issue before the Board and advocacy by the staff of an issue before the board during executive or deliberative sessions — if the latter occurs fundamental fairness and predetermination issues are clearly raised, see Fund for Animals v. Town Planning Zoning Comm., CV91-0396816S, Norko, J., (1993) [ 8 Conn. L. Rptr. 265], Turdin v. Town Planning Zoning Comm., 145 Conn. 416, 420-21 (1958). Again not only is the court unaware of whether any advice was given by the ZEO in those sessions but if so what the nature of that advice, if given, was.
(b)
Related to his lack of fundamental fairness argument, or perhaps better put supporting it, is the plaintiff's complaint about the record. He argues that the record returned to the court under § 8-8(i) "was the identical record as filed by the zoning enforcement under § 8-7." Ms. Zebb "advanced her prosecution rather than follow the dictates of the general statutes." The record before the court, it is argued, is the ZEO's record not the Board's.
It is true as Fuller notes in Vol. 9A of the Connecticut Practice Series, "Land Use Law and Planning," § 33.7, 262 that: "The zoning board of appeals holds a de novo hearing on an appeal under § 8-7 from a decision of the zoning enforcement officer, and the court reviews the decision of the zoning board of appeals based on the record before it, and not the ruling or record of the zoning enforcement officer." Caserta v. ZBA, 226 Conn. 80 (1993) is the basis of Fuller's statement and that case underlines the de novo nature of the hearing before the board and the principle "that the action of the zoning enforcement officer that is the subject of the appeal is entitled to no special deference by the court," id., pp. 88-89. But that is very different from saying the board cannot consider the ZEO's report or evidence or documents submitted to him or her, Cornetta v. ZBA, 43 Conn.App. 133, 138, (1990).
Section 8-7 says "the officer from whom the appeal has been taken shall forthwith transmit to said board all the papers constituting the record upon which the action appealed from was taken." Section 8-8 states "the board shall transmit the record to the court. The record shall include, without limitation (1) the original papers on by the board and appealed from or certified copies thereof . . ."
In the court's opinion it would be a denial of fundamental fairness if everything sent to the Board pursuant to § 8-7 were not made available to parties appealing to the board cf. Norovz v. Inland Wetland Agency, 26 Conn.App. 564, 569 1992. Because of the transfer of the ZEO record to the Board it should be made part of the record the board transmits to the court. How else is the context of the Board's decision to be examined. True § 8-8(i)(1) is not a model of clarity but its language, standing alone, certainly can be read as not barring the introduction of the ZEO record into the board record which is submitted to the court.
Ms. Zebb's introduction into the record of the record before her as ZEO, was done at an open hearing and no claim of subterfuge can be made. The Board could consider the ZEO record for what it was worth and the mere fact that Ms. Zebb introduced the record does not allow characterization of the hearings before the board as not being de novo. In fact the return of record is replete with exhibits post-dating Zebb's October 4, 2005 stop/work order.
From another perspective the mere fact that the ZEO record was introduced does not require this court to conclude the Board merely rubber stamped Zebb's decision. Lengthy hearings were held, and the Board made a site visit, and is even said to have committed error in not disclosing its expertise in measuring quantities of material — all of which have nothing to do with Ms. Zebb's own record.
What is not being claimed here and which in the court's opinion, thereby weakens the plaintiff's position can be gleaned from a comment in Fuller's work on Land Use Law and Practice, Vol. 9 of Conn. Practice Series, § 2011, page 577. There Fuller says:
Participants before land use agencies have the right to examine the agency's file before the public hearing, but if they fail to do so they cannot complain after the public hearing or the decision that the agency improperly considered material that was in its file merely because the evidence was not publicly disclosed or read into the record at the hearing.
Here there is no claim that the contents of the ZEO record were not known to the plaintiff, or that failure to be informed of some of the contents caused the plaintiff prejudice, or event that when the Zebb record was introduced into the Board record at the hearing the plaintiff did not have an opportunity to examine all or part of the record.
(c) Board's Obligation to Disclose Expertise
The plaintiff argues that there is no regulation prohibiting the stockpiling of woodchips so that the quantity thereof is not relevant. But if it is relevant the rule is that "then the agency claiming some expertise at measuring those quantities should have disclosed that in the beginning of the meeting and given the appellant the opportunity to rebut whatever conclusion they came to." In a subsequent brief the plaintiff recognizes that administrative agencies can rely on their own expertise but says here it was inappropriate since it is "questionable" because "its jurisdiction does not create an expertise." Also the claim of expertise, as said by the plaintiff, does not come out in the record until the zoning board of appeals is deliberating, after the evidence phase is closed which is at the heart of the evil the rule seeks to address. The plaintiff cites no case law for the propositions it advances, however, as Fuller notes in Volume 9 of the Connecticut Practice Series, Land Use Law and Practice:
Where the agency chooses to rely upon special knowledge or expertise of some of its members, it must bring the matter up at an appropriate stage of the proceedings, generally at or prior to the public hearing, so that anyone adversely affected by that information has an opportunity to questions and rebut it.
As said in Feinson v. Conservation Commission, 180 Conn. 421, 428-29 (1980): "If an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience, to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative proceeding."
But is that what is involved here? In Palmisano v. Conservation Comm., 27 Conn.App. 543, 548 (1992) the court said that . . . "the commission is not required to provide an opportunity for rebuttal when it relies on the knowledge and experience of one of its members on nontechnical issues," citing Brookfield Plaza Limited Partnership v. Zoning Commission, 21 Conn.App. 489, 494 (1990), cf. United Jewish Center v. Brookfield, 78 Conn.App. 49, 57 (2003), referring to Feinson v. Conservation Commission, supra.
The determination of whether a certain quantity of any substance exceeds 100 cubic yards is not beyond the ken of the average layperson and does not involve highly technical information or the making of technical calculations. A yard is obviously 3 feet, a hundred cubic yards would be 10 yards by 10 yards. For example lay witnesses have been permitted to testify on a variety of matters such as size and weight, McCormick on Evidence, Vol. 1., § 11, page 59, footnote 23 at page 55.
Also the court understands the plaintiff's position is that the regulations do not prohibit stockpiling woodchips but he knew of course, that the ZEO took a contrary position and in the very stop work order itself there was a claim of stockpiling in excess of 100 cubic yards. Thus his is not a situation where because of the Board's reliance on special knowledge of some or all of its members he was deprived of an opportunity at the hearing before the board to know and rebut the facts the board was being asked to rely upon, cf. Grimes v. Conservation Comm., 243 Conn. 266, 274 (1997).
(d) Res Judicata (1)
There is another preliminary matter that should be discussed before the court addresses the merits. This issue is best stated in the plaintiff's own language at page 9 of the plaintiff's thorough brief. He states:
Are the plaintiff's claims relating to events pre-dating May 13, 2002 (ROR47D) and November 22, 2004 (ROR47G) barred by the doctrine of res judicata due to the judgment dated May 13, 2002 (ROR47D) ordering Phyllis Kopylec to cease filling and regrading 944 Totoket Road which judgment followed the issuance of a virtually identical stop work order issued to Phyllis Kopylec on March 27, 2002 claiming a grading and filling violation of Section 43 at 944 Totoket Road. This judgment was apparently subject to enforcement (proceedings) on 11/22/04 (ROR47G).
The name and docket number of that case is Labulis, ZEO v. Phyllis Kopylec, CV02-0463204S. The plaintiff's brief then goes on to list numerous photos, letters, reports etc. which are part of the record in this appeal from the October 4, 2005 work order. All of these record items precede the stop work order presently being appealed. They relate, according to the plaintiff to the May 13, 2002 judgment against Phyllis Kopylec regarding filling and regrading at the Totoket Road address. The plaintiff then argues that the October 4, 2005 stop work order "is the same section 43 violation claimed against Phyllis Kopylec. Thus, it is argued, "the evidence, the claim, the activities which produced the judgment in CV02-04632041 and the activities referenced above are outside of this court's jurisdiction by the operation of the doctrine of res judicata. That is so because the complaints made regarding filling and grading were finally litigated on the judgment in the Labulis v. Phyllis Kopylec case together with the enforcement action as to that judgment.
The basic position of the plaintiff as regards res judicata is that no attempt was made by Zebb to indicate a time delineation of whatever grading and filling she saw at the time the town took judgment against Phyllis Kopylec. That is, "the zoning officer's burden of proof was that Joseph Kopylec performed filling in violation of section 43 of the regulations which exceeded the annual 100 cubic yards permitted by section 43 after November 22, 2004 — the date of the last enforcement order under the previous Phyllis Kopylec file. The plaintiff contends that Ms. Zebb did not meet that burden. To be more exact the plaintiff notes that the October 4, 2005 order appealed from in this case is based upon Zebb's observations conducted on September 27, 2005. It is said the order contains no details of any personally made observations by Zebb on that day but it states certain conditions "presently exist." To the plaintiff "this statement indicates that whatever violation caused conditions to presently exist had occurred at some unspecified time in the past."
(2)
Understanding and applying res judicata and its subset, collateral estoppel can be difficult. In 47 Am.Jur.2d at § 464, page 21 it says: . . . "res judicata or `claim preclusion' refers to the effect of a prior judgment in preventing a litigant from reasserting or relitigating a claim that has already been decided on the merits by a court of competent jurisdiction, whether relitigation raises the same issues as the earlier suit. The article further notes that . . ." under `claim preclusion' a judgment forecloses litigation of a matter that should have been advanced in an earlier suit." "`Collateral estoppel' or `issue preclusion' on the other hand generally refers to the effect of a prior judgment in limiting or precluding relitigation of issue that were actually litigated in the previous action, whether the previous action was based on the same cause of action or not."
The defense made here is made under res judicata which implicates claim preclusion.
To apply res judicata claim preclusion must be addressed. Fink v. Golenbock, 238 Conn. 183 (1996) says that "the rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it," id., p. 191. Quoting from Orselet v. DeMatteo, 206 Conn. 542, 545-46 (1988) the Golenbock court offered the following test for determining claim preclusion:
We have adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata. [T]he claim [that is] extinguished [by the judgment in the first action] includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What factual grouping constitutes a "transaction," and what groupings constitute a "series," are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage . . . id., p. 191.
What can be confusing is the juxtaposition by the court in the next sentence which states that: "In applying the transactional test, we compare the complaint in the second action with the pleadings and judgment in the earlier action." Id., p. 192.
The court did not mean to modify its just quoted evidential reference and imply a mere dry comparison of the pleadings in the current and earlier case meets the transactional test. Thus in the case before it the Golenbock court set that test was met because the factual underpinnings in a prior arbitration case were "the same" in the case before the court, id., p. 197.
An easier way perhaps of looking at it is to reference Section 24 of the Restatement (2d) Judgments which in part Golenbock relies upon. In the Restatement Section 24 refers first to Section 18, which says that "When a valid and final personal judgment is rendered in favor of the plaintiff: (1) the plaintiff cannot thereafter maintain an action on the original claim or any part thereon although he (she) may be able to maintain an action upon the judgment . . . This is entitled "General Rule of Merger." This is exactly what the defendant claims here. Then Section 24 says in subsection (1) when there has been merger "the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction or series of connected transactions out of which the action arose. Subsection (2) then gives on to define the transactional test as adopted by Golenbock.
Both sides do not directly address the issue of privity in the first set of briefs and there does not seem to be any dispute that it exists between Phyllis and Joseph Kopylec, respective litigants in the first and second action. This would be a prerequisite for considering the res judicata implications of these actions. But they are both owners of the property. Fritz, 204 Conn. 156, 173, (1987), Aboudi v. City of New Haven, 21 Conn. L. Rptr. 283 (Downey, J. 1988), also see canvass by Judge Munro where she canvasses Mr. Kopylec and he agrees to be bound by stipulated judgment in first file.
To sum up and simplify what can be a difficult doctrine the article in 47 Am.Jur.2d "Judgments" is helpful. There at § 474, page 31 it says:
In order for earlier proceedings to act as res judicata or a claim preclusive bar in relation to a subsequent suit:
(1) The parties or their privies in prior and present suits must be identical
(2) The cause of action in two suits must be identical or be based on the same set of operative facts; and
(3) There must have been a final judgment on the merits on a court of competent jurisdiction.
Commenting on the "transactional approach" the article notes some jurisdictions, like ours apply a transactional theory. Under this test . . . "two suits constitute a single cause of action if they both arise from the same transaction or nucleus of facts or from a single core of operative facts," § 479, pages 37-38.
Applying these general principals the court concludes there is no res judicata problem here.
The cease and desist order in CV02-0463204S Labulis v. Kopylec, was directed at the following alleged conditions:
1. Excessive filling exceeding 300 cubic yards in calendar year 2001 (Section 43.2.30 of the Town of North Branford Zoning Regulations.)
2. Filing and changing of contours on a lot in an area that acts as a natural storm detention area during seasonal high water table periods and during large storm events increasing the potential of water back up onto adjacent surrounding properties (Section 43.4.7 of the Town of North Branford Zoning Regulations).
A Stipulation for Judgment was entered in that case on May 13, 2002 and the relevant paragraph reads as follows:
1. Wholly to cease and desist from all filling and regrading of the aforesaid property without or until the issuance of a special use permit from the North Branford Planning and Zoning Commission.
The stipulation provided for a permanent injunction in regard to the just mentioned activities.
One answer to the res judicata argument is that paragraph 2 of the present stop work order at issue in this case related not just to "filling and grading" but to the "stock piling of woodchips" and/or using the aforesaid woodchips for landscaping work, including changes of the contours on a lot etc. (Emphasis by court). The underlined language indicates the stop work order envisaged a universe beyond "filling and grading" mentioned in § 43.1 of the regulations and its subset "landscaping and changing contours on a lot," referred to in § 43.2.3.
Leaving aside the woodchip question there appears to be a more complicated issue raised by the res judicata issue. Apparently relying on the transactional test set forth in Golenbock, the plaintiff cites numerous exhibits predating the present action and apparently relied upon by the previous zoning enforcement officer as at least part of the basis for the cease and desist order in the Labulis v. Phyllis Kopylec case. These exhibits were made part of the record in this case. Thus the crux of the plaintiff's res judicata argument appears to be set forth at pages 22 and 23 of its brief. It says that:
The evidence before the zoning board of appeals in January and February of 2006 stemming from activities occurring at 944 Totoket Road are and have been subject to the judgment in Docket No. CV02-0463204S and the subsequent contempt proceedings out to November 22, 2004 filed there under . . . are barred by the doctrine of res judicata.
The brief goes on to state
the Zoning Enforcement Officer's burden of proof was that Joseph Kopylec performed filling in violation of § 43 of the Regulations which exceeded the annual 100 cubic yards permitted by § 43 after November 22, 2004.
Thus it is said in her order Ms. Zebb made no attempt "to suggest a delineation of whatever grading and filling she observed . . ." — how do we know that Mr. Kopylec violated the 100-yard limitation after November 2004, or to put it another way how do we know that what was observed by Ms. Zebb in her September 2005 observations prior to the cease and desist order was grading and filling on the property prior to November 2004 or at least on the property at that date in such quantity to preclude an estimation that the 100-yard annual limitation in § 43 was not violated?
First it should be said for res judicata analysis, the court, at least, believes the appropriate "date to address the plaintiff's arguments is not the hearing dates before the Board in 2006 but the date of the stop work order in October 2005 — interestingly only eleven months from the last action in contempt in the Labulis case."
In fact the evidence before the Board in the January and February 2006 hearing was not confined to the pre 2004 photos introduced into this record, the letters, cease and desist order and the stipulated judgment in the Labulis case.
In an interesting letter the plaintiff's expert David Lord made two observations relevant to the issue at hand on page two. At the end of paragraph 3 he states:
CT Page 14902
The rapid breakdown of the woodchips does not create any permanent alteration to land contours or elevations.
Paragraph 4 says:
the existing stock pile of woodchips has been estimated at 250 to 300 cubic yards . . .
Numerous photos by a neighbor and testimony of the neighbor post date November 2004 and show large piles of woodchips and other relevant observations. One series of photos is entitled "start of piles" and that series shows piles which an ordinary intelligent lay person could arguably estimate woodchips were in excess of 100 cubic yards. There were statements by several people as to trucks unloading material; the neighbor Porter said woodchips are dropped off daily and on weekends.
None of this is conclusive on the merits of the appeal which require an examination of the whole record but in other contexts res judicata is a defense and the burden of establishing it is on the party who tries to rely on it, Commissioner of Environmental Protection v. Connecticut Building Wrecking, 227 Conn. 175, 195 (1993). There is no reason why that should not be true here since if the plaintiff were to prevail on this issue litigation would be terminated.
Or perhaps to put it another way, given the unusual facts of this case, if the plaintiff were to prevail on the merits of the appeal the same analysis leading to that conclusion would warrant application of a res judicata analysis. If he were not to so prevail, res judicata would not apply. So perhaps it is better to go directly to examine the underlying merits of the appeal. The court will not grant the res judicata claim.
2. Merits of the Case
The court will now turn to the merits of the appeal. Was the stop work order justified under the Town's zoning regulations? First the court will set forth the general principles it will apply to its review of the record. The court will rely on Fuller's comments in § 33:7 of Volume 9A of the Connecticut Practice Series Land Use Law and Practice which is entitled appropriately enough "Appeal from decisions of the Zoning Enforcement Officer," pp. 260-64.
The following discussion generally relates to the final four of the seven issues raised by the plaintiff.
A zoning board of appeals decides appeals from the actions of zoning enforcement officers then they go by way of appeal to the Superior Court. Wood v. Zoning Board of Appeals, 258 Conn. 691 (2001) is such a case. The ZEO issued a cease and desist order which was appealed to the zoning board whose decision was then appealed to the Superior Court. That case pointed out that as regard interpretation of a particular regulation by the ZEO, which the board has then reviewed, the trial court decides whether the board correctly interpreted a regulation and "applied it with reasonable discretion to the facts." The Board is "endowed with . . . liberal discretion and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary, or illegal," id., page 697. The plaintiff bears the burden of proving the board acted improperly.
Although an agency's factual and discretionary decisions "are to be accorded considerable weight," the Wood court said "it is for the courts not administrative agencies to expound and apply governing principles of law" — this, as the court notes, applies "equally to regulations as to statutes." Id., pg. 698. If two "equally plausible interpretations of regulatory language present themselves, a court may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation." Like the interpretation of statutes the court's responsibility is "to determine the expressed legislative intent." Words in regulations must be given their ordinary meaning governed by the principle that "a reasonable and rational result was intended."
As to the actual review by the trial court Fuller states at pages 262-63:
Where the board gives reasons for its action, the question is whether the reasons given are supported by the record and pertinent to the decision. Where the zoning board of appeals has stated reasons for its decision the trial court should not search the record for additional reasons if those reasons are inadequate to uphold the board's decision because that would usurp the statutory powers and duties of the board. If the board fails to give reasons, the court searches the record to discover a sufficient reason to support the board's decision. If reasons are given, only the ones assigned are considered, and the board's decision must be upheld if even one reason is valid. The zoning board of appeals holds a de novo hearing on an appeal under § 8-7 from a decision of the zoning enforcement officer and the court reviews the decision of the zoning board of appeals based on the record before it; and not the ruling or record of the zoning enforcement officer. The trial court determines on the basis of the record whether substantial evidence has been presented to the zoning board of appeals to support its findings. The court decides whether the boards' findings are reasonably supported by the record and whether the reasons given were a pertinent reason for the board's action; the court cannot make its own determination of questions of fact and substitute its judgment for the agency. Where the trial court made conclusions of law, appellate review is plenary. The reasons of the board do not have to be meticulous and detailed, but they cannot be so conclusory as to give no indication as to the reason and basis for the board's decision. Only the collective reasons assigned by the board and not the statements of individual members can be considered. Where the board gives two or more reasons for terminating the use of the property, an appeal which does not challenge all the reasons assigned will be dismissed, since the decision must be upheld if even one reason is valid. Where there is a mixed question of fact and the legal interpretation of the ordinance, the question is whether the zoning board of appeals correctly interpreted the ordinance and applied it with reasonable discretion to the facts. The court cannot substitute its discretion for the agency's conclusion unless the decision was unreasonable.
The court will rely on the foregoing to decide the issue presented by this case. The starting point of any analysis has to be the stop work order issued by the Zoning Enforcement Officer which has been quoted earlier in this decision. As noted previously Ms. Zebb purported to act under § 43 of the town's regulations. Citing in particular §§ 43.1, 43.2.3 and 43.3.7.
Section 8-2 of the general statutes gives towns broad power to regulate the use of land; Section 43 of the town's regulations act under that grant. The state statute only requires that regulations as to land use be uniform in the districts the town divides its land into. Kopylec's land is located in an R-40 residential district. The statute goes on to say that certain "uses of land are permitted only after obtaining a special permit or special exception" from designated zoning bodies.
The court will discuss the town's regulations seeking to exercise the town's grant of authority under the statute as becomes necessary in the decision.
Before deciding how to apply the regulations to the activity allegedly violative of them it is necessary to characterize the operative nature of these regulations. Interestingly enough although it is said that:
"Because zoning regulations are in derogation of common law property rights, they must be strictly construed and not extended by implication," most town have what are called "permissive" regulations as opposed to "prohibitive" ones. Permissive regulations mean "that those matters not specifically permitted are prohibited,"
Gnaff v. Zoning Board of Appeals, 277 Conn. 643, 653 (2006).
With such regulations:
In addition to uses which are expressly allowed in the ordinance, the regulations for each district may contain provisions allowing uses only with special permits granted by the commission,
Vol. 9, Conn. Practice Series, Land Use Law and Practice, Fuller, § 4.10, page 81 ("commission" refers to town's Planning and Zoning Commission).
A reading of § 23 of this town's regulations and § 43 in particular indicate that North Branford treat their regulations as permissive. Section 43 bars a broad variety of activities which may be conducted only if an accordance with certain specific exclusions or upon, in certain instances securing a temporary special use permit.
Keeping in mind the foregoing general principles the court will try to examine each one of the articulated bases for the stop work order.
(1) (a)
The court will first discuss reason number 2 of the stop work order. The plaintiff was ordered to stop stockpiling woodchips in excess of 100 cubic yards and/or using this material for landscaping work including changes in the contours of the land when no building permit was required without a zoning permit as required by § 43 and evidently § 43.2.3 of the regulations.If one were to ignore § 43 as a basis for the stop work order and the court were free to roam through the regulations and rely on the permissive nature of those regulations, it could be said that no where is stockpiling or stockpiling of woodchips permitted therefore it is prohibited. Section 23 in general and § 43 do not mention stockpiling of woodchips as a permitted use thus it is prohibited.
The problem with this approach is that the zoning enforcement officer brought her action under § 43. The hearing before the Board was conducted on the premise that § 43 did or did not support her position, the plaintiff had a two fold argument — either § 43 did not apply since it was not fill under § 43.1 and was not used to grade the land under that subsection or (apparently) even if it was fill it did not exceed 100 cubic yards a year. No mention of permissive or prohibitive use was made during the hearing. When the Board convened to talk about the case it really concentrated on the wood stockpiling and concluded that application of § 43 supported the zoning officer's stop work order.
In First Hartford Realty Corp. v. Planning Zoning Comm., 165 Conn. 533, 543 (1973) the court said that: "Where a zoning authority has stated its reasons for a zone change, in accordance with general statutes § 8-3, the reviewing court ought only to determine 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," also see Gibbs v. Historic District Commission, 285 Conn. 755, 769 (2008). One stated reason for this rule is that any other position would "usurp the duties of the board," Fuller, Vol. 9A at § 33.7, page 262. Here the court believes that to go beyond the reasons on which the Board based its decision to uphold its, (i.e. § 23 of regulations and reflecting on the "permissive nature of the regulations, would violate principles of fundamental fairness, see Grimes v. Conservation Commission, supra. The case before the Board was prosecuted on the basis of a § 43 violation and the plaintiff had a right to assume (1) that the Board which acts in a quasi-judicial capacity would decide the case based on the applicability or non-applicability of that section (2) and that the Superior Court review would be based on that premise.
(b)
The issue then becomes is whether woodchip stockpiling can be said to be a violation of § 43 of the town's regulations. Section 43 says that "Filling of land" is only permitted "in accordance with the exclusions listed in 43.2 or upon securing a temporary use permit." Section 43.2.1 says such a permit is "not required in connection with the following . . . filing operation." Section 43.2.3 defines one of the non-permit situations.
43.2.3 work for landscaping and changing of contours on a lot, when no building permit is required, and then not to exceed 100 cubic yards in any calendar year . . .
The regulations do not define "fill" so using the characterization of "permissive" regulations any material including woodchips could theoretically constitute "fill" if the material can be otherwise defined as "fill." As discussed in the introductory part of this section, a court in reviewing a Board's interpretation of its regulations, can look to the ordinary meaning of words. Webster's Third New International Dictionary defines "fill" as material used to fill a receptacle, cavity, or passage (for a trench) it also defines the word as "(2) an embankment (as in railroad construction) to fill a hollow or ravine or the place filled by such an embankment." The Random House Dictionary in relevant definitions for "fill as a verb" states: "17. Building Trades to build up the level of (an area) with earth, stones, etc." As a noun the dictionary says "29. An amount of something sufficient for filling . . ." 30. Building Trades, a quantity of earth stones, etc. for building up the level of an area of ground." One of the derivations comes from the gothic word "fulljan" meaning "to make full."
The plaintiff argues that he was not using the material as fill, he farms and woodchips are used for fertilizer. Apart from the foregoing, the nature of woodchips is such that they degrade in such a way as to not meet any ordinary definition of "fill" as just discussed.
(i)
As to the question of farming, nothing in § 43 indicates its prohibitions and conditions do not apply to farming operations. In fact if § 44 is examined which is entitled "Additional Standards" it appears that § 43 specifically applies to farming operations. Section 44.5 sets forth various restrictions on farming operations and on the type of farming operation. But the introductory language to the whole section, including § 44.5 says "44.1 the requirements hereinafter specified are supplementary to and in addition to requirements and standards set forth elsewhere in these Regulations" — that must be a reference to § 43 so that "farms" and the other subcategories in § 44 must fall under the requirements of § 43.
The position that these woodchips were being used as fertilizer for farming advanced by the plaintiff and supported by his expert, David Lord, was an attempt to show they could not be "fill" under § 43. There are several problems with this position. The court has examined photos taken around the time of the stop work order. There is an enormous amount of woodchips on the property. Mr. Lord in his letter to plaintiff's counsel after conclusion of his field work in January 2006 says "The existing stock pile of woodchips has been estimated at 250 to 300 cubic yards." He then goes on to say that: "This amount of woodchips if spread over the lower portions of the subject property represents less than 1.5 inches of material over the approximately 80000 (square feet) of agricultural land." There is nothing in the record to indicate Mr. Kopylec intended to carry on a farming operation of this size and intensity. In his testimony before the Board, Lord does say "That the amount of woodchips that are present there, if you use the high figure of 300 cubic yards over 40,000 square feet which is considerably less than what appears to be used for agricultural purposes is still only a three inch layer of woodchips." But there is no indication as to how he arrived at the notion that at least 40,000 square feet was being used as agricultural land.
Before the Board Mr. Kopylec was asked by his lawyer what farming activities he did on his property. He said "I did plant corn; I did put pumpkins in it" but went on to add at the January 23, 2006 Board hearing "Now this last year was a wet year in the spring, I couldn't get down there because the water comes down from the center of town comes in there." Forty thousand square feet is an area of 200 by 200 feet or 400 by 100 feet. There is no testimony at least indicating this amount of land was used for farming or there was an intention to use this amount of land for farming in the future. At the February 27, 2006 Board meeting where the plaintiff's appeal was not approved by the Board, one Board member who along with his compatriots made a site visit after the January 2006 meeting said he saw no evidence of agricultural use of the land.
But none of the foregoing — whatever Mr. Kopylec's intentions or lack of intentions as to farming, and his stated desire to use the woodchips for fertilization — necessarily defeats his argument that the woodchips cannot be considered to be "fill." The court will now discuss this position.
However, the court finds several problems with the plaintiff's position even taking that perspective.
(ii)
It should be noted that nothing in the regulations precludes a conclusion that woodchips like any other substance can be fill. The plaintiff does not contest the town's right to regulate fill as it has done so in § 43. What is it then to do to define every possible material or substance as what it considers to be fill? The appropriate way to approach the question, in the court's opinion, is to re-examine the basic definitions of "fill" previously set forth. It does not appear to make sense to say that large amounts of material, even if woodchips and biodegradable, which are intended as an "amendment" to the soil as the plaintiff's expert said would not add to the bulk of the soil albeit that the chips were supposedly to be used as fertilizer.
Even Lord during the hearing indicated that in every large quantities woodchips could be considered fill but he felt there was not enough chips to meet his personal definition of that term. Interestingly in his letter to plaintiff's counsel when talking about water collection on the Kopylec property which is related to a neighbor's concerns about flooding on his land, Mr. Lord said:
(1) the filling of the area north of the existing driveway does not extend in to the area currently ponded. I observed no evidence of grading or filling activity that could alter the natural/existing pooling/ponded conditions on the low portions of the Kopylec property.
But, in an observation that will rebound to the plaintiff's benefit later in this opinion, after examining all the photos submitted to the record and the relevant later photos the only substance Lord could be talking about as "fill" would be the woodchips.
The basic point is that Lord himself testified woodchips will degrade in about two years, then he says without connecting the two observations, the rate of degradation depends on the size of the chips and the type, pine or oak. But again what does degradation of material mean. "Bio" is defined in Webster's as referring to "living tissue" woodchips come from trees, once living. "Degrade" in one definition can mean reduction in amount of a material but this could result from runoff or erosion. Another definition means to break down into smaller parts or even dust — but can the material disappear without adding to the bulk of the substance of the item, here sand, on which it is located — what law of physics says that? And if the foregoing is true, to some extent at least spreading of large quantities of woodchips will tend to alter the contour of the land and are part of the "landscaping" of any land.
The court has examined the 2005 photos in this record and suffice it to say there are an enormous amount of woodchips on this property. At one point Mr. Lord himself made his 2006 observations based on an accumulation of 250-300 cubic yards. The plaintiff makes the point that § 43.2.3 permits a filling operation of up to one hundred cubic yards and Ms. Zebb made no attempt to delineate or allocate the quantities of woodchips — how can she say that more than 100 cubic yards were deposited in a calendar year? But a neighbor testified at the Board hearing that woodchips are delivered to the Kopylec property daily and even on weekends. Ms. Zebb confirmed the neighbor had brought this to their attention. Oddly enough Mr. Kopylec did not contest that they were being delivered but he said the chips were all pursuant to his farming operations. But the court has previously discussed its observation supported by some of Ms. Zebb's testimony before the Board, that the large quantity of woodchips could not be used for any practical farming operation or any farming operation that was testified to by Mr. Kopylec or anyone else in his behalf.
As the 100-cubic-yard language in the regulation the court has examined in § 39 of the record a black and white photo taken at 2 p.m. on November 9, 2005 by the neighbor and in § 40 a color photo of the same area at 7:15 a.m. on January 19, 2008.
It seems to the court that between the earlier and later date a large quantity of wood chip material was added and interestingly the latter photo shows more pointed mounds which seem to indicate more recent additions to the chips in the area. Furthermore, this picture represents woodchips in only one relatively small area of the property. Also on October 5, 6, 18, 27, November 8, 9 large trucks — not of the pickup variety — are on the property and on occasion appear to be dumping woodchips, see black and white photos in § 39.
Finally, it should be noted that Ms. Zebb testified she was not permitted to enter the property to do any measurements. Given this and the foregoing circumstances to say that a § 43 stop work order cannot issue would in effect mean the section cannot be effectively enforced.
Finally, let us remember what we have here — a stop work order. It is really analogous to a so-called a prohibitory or preventive injunction. Dobbs Law of Remedies, 2d ed Vol. 1 at § 2.9 pp. 224-25 has an excellent discussion in this topic. Dobbs says: "The prohibitory injunction forbids an act, `The defendant is hereby enjoined, from trespassing on Blackacre,' is a prohibitory injunction. The mandatory injunction orders an affirmative act or course of conduct. `The defendant is hereby ordered to remove all boulders he has previously deposition on Blackacre,' is a mandatory injunction, id. p. 224. Dobbs notes courts are "reluctant to award a mandatory injunction because it may be especially intrusive, or more difficult to supervise and enforce," id.
An interesting observation could be made as to the permissibility of any stockpiling under Section 3 and thus these regulations. Section 43.2 provides the various exceptions to the need for a Temporary Use Permit. Section 43.2.7 says such a permit is not required in connection with "the normal maintenance and repair of roads and driveways, and the construction of new Town roads." But Section 43.2.9 says no permit is needed regarding the "stockpiling of street maintenance material required by the Town of North Branford" — obviously referring to § 43.2.7 activities. Since these regulations are "permissive" in nature it can be said any other type of stockpiling is barred.
(2)
The court will now try to address the first paragraph of the stop work order which aims, pursuant to § 43, to bar "grading and/or filling of land with materials, including, but not limited to crushed concrete, rubble, railroad ties, utility poles, crushed bituminous concrete pavement, and other debris without benefit of a temporary special use permit." This order, in the court's opinion cannot apply to woodchips, paragraph 2 addresses that and woodchips cannot be defined as "other debris" or is not of the type of material listed — it is a biodegradable substance.
As regards the Board's apparent upholding of this order it is certainly true that, as noted in the introductory remarks a zoning agency's decision must be given great deference by the courts. It is also true that where a zoning authority gives no reasons for a particular action, the court must search the record to see if there is "sufficient reason" to support its decision.
In the February 2006 meeting where the Board decided this case its members indicated that they had made trips to the Kopylec property after the conclusion of the hearings in January. One board member mentioned observing some telephone poles. Another member said he saw "a lot of dumping" as reflected in the photos introduced into the record. He said that "the amount of items dumped on the property was beyond what is in the regulations as far as maximum to be dumped each year." He never described the material he saw as to whether it contained anything else but woodchips. The foregoing occurred in the first two single spaced transcript of the February meeting. The entire transcript is six pages and after the first two pages and the noted comments the entire conversation revolves around woodchips and the majority vote was to deny the appeals based substantively on a generic reference to § 43 of the regulations.
Section 43 itself talks of "grading or filling of land." As to fill it does not exclude any material — just as the court concluded woodchips can be fill there is nothing in the language of § 43 that precludes concrete, rubble, railroad ties, poles or crushed bituminous concrete pavement from being considered fill. It if can be so defined then the ambit of its use is governed by the language of subsection 43.2.3 which permits its use as fill is limited to 100 cubic yards without the necessary permit. What is confusing, to the court at least, is the separation out of woodchips and the other mentioned material as if they were a different part of the 100 cubic yard analysis.
The problem the court has is with any evidence that concrete, rubble etc., were present on the property in any large quantity. Photos taken by Zebb on August 29, 2005 show woodchips certainly but no concrete etc. that the court could see. An April 4, 2005 photo shows woodchips but it is difficult to make anything else out. Exhibit 39 of the record represents a series of photos taken by a neighbor and those taken in October 2005 show what appear to be woodchips. In the same exhibit a January 5, 2006 exhibit shows a pile of logs that from all appearances look like they could be used in a fireplace just as well as for use as fill. The quality of the photos is not good in some instances. Photos in Exhibit 32 were taken in May 2003 and one photo shows small pieces of rock, logs, and limbs, another photo shows one tire and pieces of wood; another photo shows small items of debris with logs. A February 2003 photo shows a pond area with logs and what appear to be utility poles. A January 19, 2006 photo shows what appears to be a utility pole lying across a body of water.
Several photos taken by the same neighbor and assembled in exhibit 48 do picture the debris referred to in the stop work order, concrete rubble, long logs, rubble utility poles but these pictures have dates ranging from November 2001 to May 2002 and only one incriminating photo dated May 2, 2003. None of these piles or piles with similar contents are shown in the numerous 2005-2006 photos except for the previously mentioned January 2006 photo showing a pile of logs.
The Zoning Enforcement Officer testified at the hearing. She makes general statements about grading and filling going on since a 2001 stop work order. As to concrete and other debris referenced in paragraph one of the 2005 stop work order she appears to base her testimony on 2001 photos and four 2003 photos, one of these taken in May shows the type of debris referenced in paragraph one of the stop work order.
Cliff Potter, the neighbor testified; at only one point did he testify through a photograph or photographs as to tires and rotten wood on the property but it is not clear from this record which photos or photo he was referring to and the date the picture was taken. He started taking pictures in 2001 and as far as the court could ascertain from this record the pictures just referred to go back to that date as noted in the previous discussion.
Given this sometimes confusing and scant record with reference to the issue at hand it is difficult for the court to find that "sufficient evidence has been presented to support the Board's decision." Again, the court will take refuge in Dobbs. The court analogizes this stop work order to the issuance of injunctive relief. Instead of the mandatory/prohibitive injunctive relief categorization, Dobbs believes a preventive/reparative dichotomy should be made. He then says the following at § 2.9, page 225.
The difference between reparative and preventive injunctions is important in presenting evidence and formulating decrees. The reparative injunction goes when the evidence shows that an existing right has been violated but can be repaired or restored effectively. The preventive injunction, on the other hand, is not proper unless the defendant is threatening to commit a wrong in the future. The defendant's past trespass upon the plaintiff's land by dumping boulders on it is not by that act alone threatening to wrong the plaintiff in the future. So a reparative injunction might go to require removal of the boulders, but not a preventive injunction to forbid future trespasses. On the other hand, when demonstrators show intransigent determination to continue trespassing indefinitely, an preventive injunction may be appropriate.
The court believes the same reasoning should apply to these stop work orders. The only clear evidence in the photos of any noticeable concrete, utility poles etc. date back to 2001 some four years before the present stop work order, Zebb relies it appears on these photos, and does nor date any personal observations that she made. The neighbor Potter's photos of this type of material dates back several years and his observations on this subject are limited to the point of being non-existent. Perhaps even more to the point as far Dobbs's reasoning is concerned there is, unlike the case with the woodchips, no indication as to when the concrete, utility poles etc. might have been placed on the property — it can only be said that they were placed there before he photos were taken. With the wood chips there was testimony as to their being unloaded very frequently on the premises. Some photos showed additions to the piles over a few month period, there was an enormous amount of them, large trucks were observed unloading the chips.
It might be said that stop work orders like this are only preventative or prohibitory. Mr. Kopylec is not even being ordered to remove the material. But he certainly has a right to appeal and a claimed violation of any order that is not invalidated could land him in further difficulties.
(3)
The third and final order the court will discuss has been quoted at the beginning of the opinion but the court will repeat its relevant part again. The plaintiff was ordered to stop: "(3) grading and/or filling of land with sundry debris material, stockpiling woodchips, and/or conducting landscaping activities, resulting in a change in the contours of the lot to alter the drainage pattern, particularly on that portion of the lot which functions as a natural stormwater detention area during seasonally large storm events and thus redirecting surface runoff to adjacent properties in derogation of the standard permitting conditions set forth in § 43.4.7 of the Zoning Regulations. (Emphasis by court.)
Section 43.3 sets forth the procedure for an application for a Temporary Special use Permit. It states the application shall be signed by the owner of the lot where "the evacuation, grading, removal or filling operation is proposed" accompanied by maps and plans. The application must show, pursuant to § 43.4.7 that "At all stages of the operation, and upon completion, proper drainage shall be provided to prevent collection and stagnation of water and the prevention of harmful effects upon surrounding properties through soil erosion or interference with national water courses."
Order number 3 may be looked on as a catch all provision in a somewhat confusing regulatory scheme. Orders one and two deal with general debris, concrete etc., two deals with woodchips. Three seems to be an attempt to combine both types of material, necessarily implies that more than 100 cubic yards of material is involved or the exceptions to the § 43.2 use permits would apply then avers that contours and drainage patterns have been changed causing runoff on a neighbor's property.
In other words order 3 does not merely alleged stockpiling or use of more than 100 cubic yards of material per annum but also alleges this activity altered drainage patterns and caused runoff on to a neighbor's property.
The question becomes is there sufficient evidence to support issuance of this order. The testimony at the hearing is somewhat confusing. The neighbor Potter testified who is understandably upset by the flooding on his land. He testified the flooding started in 1998 or 1999 and attributes the problem to the elimination of a pond and swale which had been on the Kopylec property. A swale is a fancy term for a depression in an area of land. Ms. Zebb testified the Kopylec property is at an elevation that is lower than some neighboring properties. Because of this it functions as "a natural storm water detention area during seasonally high storm events and during the spring when there is a high water table." Zebb goes on to say Kopylec "cleared and graded his rear land to be level without keeping the prior land depression that previously had accommodated the pond." Zebb testified U.S. Agriculture Department Aerial photos from 1975 though showed the existence of the pond and a visit she made to the property in 1999 also indicated the presence of a pond. But the court, from the record, can find nothing to indicate, the pond and rear yard depression were eliminated at some point after 2000, the neighbor Potter, as indicated, noticed flooding in his property two years before that and there is no indication it has gotten worse.
An apparently alternative view offered by Zebb seems to argue that changes in the contour or slope of the land is a factor causing drainage on to a neighbor's property. But she never explains why this is so although she does point to what the court agrees are large piles of woodchips on the land. From what the court could gather the problem here arises from the removal of the pond and depressed area — that causes the flooding and runoff. Even assuming a change in land contour if the pond and swale were still there what would the problem be? Change in land contour would not increase the amount of water falling on the land. But there is every reason to believe that that action occurred years before the October 2005 stop work order in this case. For the reasons indicated in the last section that would not permit the granting of the stop work order.
It should be noted that the foregoing discussion does not even take into account the letter and testimony of David Lord, the plaintiff's expert. He said application of woodchips would not significantly change land contours at least as that problem affects drainage. Woodchips are permeable and just from the court's own perhaps mistaken observation, given the nature of woodchips would they not in fact absorb water thus reducing runoff of any kind?
In conclusion the court believes there has not been sufficient evidence to justify stop work order paragraph 3; the removal of the pond and swale apparently antedated the stop work order and seems to have caused the runoff and although flooding occurred after the placing of large amounts of woodchips sufficient causative evidence has not been presented to show this contributed to the flooding — merely because B follow A does not mean and is no evidence that A caused B.
In any event the appeal is granted as to the first and third paragraphs of the October 2005 work order and denied as to the second paragraph.