Opinion
No. FST CV10 6004999 S
September 28, 2011
MEMORANDUM OF DECISION
In this administrative appeal, the plaintiff, in her official capacity as commissioner of environmental protection, appeals from a decision of the defendant, the planning and zoning commission of the town of Westport (the Commission), approving an application for a coastal site plan filed by the defendant Ronald S. Marsilio (Marsilio) pursuant to General Statutes § 22a-109. That application sought to "legalize" a seawall erected by Marsilio on his waterfront residential property located at 10 Bluff Point in Westport.
The plaintiff describes the structure erected by Marsilio as a "seawall." In his application to the Commission and in his answer to the plaintiff's complaint, Marsilio describes it as a "loose stone wall."
Marsilio's property is situated on a peninsula and enjoys approximately 200 feet of frontage on Long Island Sound. (ROR, Ex. 9.) The property was acquired by Marsilio in the late 1990s. At the time that Marsilio purchased the property, the southerly half of the property was improved with a residence and protected by a seawall and the northerly half was vacant and not protected by a seawall. (ROR, Exs. 56, 58, 67.) In 1997, Marsilio wished to remove the existing residence from the southerly half of his property and replace it with a larger residence that would be situated partly on both halves of the property. In order to achieve this plan, Marsilio filed an application with the Commission for a coastal site plan approval pursuant to General Statutes § 22a-109. The site plan originally submitted proposed to extend the existing seawall an additional 100 feet so as to protect the formerly vacant half of the property from flooding and erosion. After the plaintiff's predecessor in office filed an objection to the extension of the seawall; (ROR, Ex. 71); Marsilio revised his site plan to remove the proposed extension of the seawall. Thereafter, the Commission approved the revised site plan application and imposed certain conditions including one that required Marsilio to maintain a planting buffer between the beach in front of his property and his lawn. (ROR, Exs. 73, 74.) The location of the planting buffer was in the approximate location that Marsilio had originally proposed to place the extension of the existing seawall.
After the planting buffer was washed out several times during coastal storms, Marsilio, without seeking permission from any regulatory agency, caused rocks to be placed at the edge of his property for the purpose of preventing the erosion of the planting buffer and his lawn. The "loose stone wall" created by the rocks apparently had the desired effect and no further erosion was experienced at the site. In late 2009, Marsilio filed an application with the Commission for approval of a coastal site plan in order to "legalize" the stone wall that he had constructed.
The record before the Commission did not clearly establish when Marsilio constructed the wall. Marsilio concedes that he has no right to maintain the wall in its present location unless he obtains coastal site plan approval. The court does not find the date of construction of the wall to be relevant to this appeal.
In accordance with the provisions of General Statutes § 22a-109(d), the Commission gave notice of the application to the plaintiff who, in turn, provided the Commission with comments on the application. In her comments, the plaintiff took the position that the stone wall erected by the plaintiff was a "shoreline flood and erosion control structure" as defined by General Statutes § 22a-109(c), which was inconsistent with the goals of the Coastal Management Act (General Statutes § 22a-90 et seq.). General Statutes § 22a-109(c) defines "shoreline flood and erosion control structure" as "any structure the purpose or effect of which is to control flooding or erosion from tidal, coastal or navigable waters and includes breakwaters, bulkheads, groins, jetties, revetments, riprap, seawalls and the placement of concrete, rocks or other significant barriers to the flow of flood waters or the movement of sediments along the shoreline."
The Commission conducted a duly noticed public hearing on the plaintiff's application on April 8, 2010. On April 15, 2010, the Commission, by a vote of five in favor and two against, granted Marsilio's application. (ROR, Ex. 2T.) After receiving notice of the Commission's action, the plaintiff filed this appeal.
AGGRIEVEMENT
At a hearing before the court on September 7, 2011, the parties agreed that the court could take judicial notice of the official capacity of the plaintiff. Consequently, the court found that the plaintiff was statutorily aggrieved and had standing to maintain this action pursuant to General Statutes § 22a-110.
General Statutes § 22a-110 provides, in relevant part: "[The] commissioner may appeal . . . a municipal decision concerning such matters whether or not he has appeared as a party before the municipal board or commission."
STANDARD OF REVIEW
"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] commission 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 [commission] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citations omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453 (2004).
"The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings . . . [E]vidence 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." (Citation omitted; internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547-48, 684 A.2d 735 (1996).
General Statutes § 22a-109(f) requires that a zoning commission "shall set forth the reasons for any decision to deny, modify or condition a coastal site plan submitted under this section." The resolution adopted by the Commission sets forth eight recitations of facts (including the plaintiff's objection to the application) and nine conditions. However, the only statement in the resolution reflecting the reasons for the Commission's act is: "Members of the Commission find the reason the application should be approved is that it meets all the applicable zoning regulations."
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the [board's] decision . . . Rather the court should determine only whether the assigned grounds are reasonably supported by "the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420 (2002).
In this case, the court's review of the Commission's decision is therefore limited to reviewing the record to determine whether there is substantial evidence to support the Commission's determination that Marsilio's application met all applicable zoning standards.
DISCUSSION
In her appeal, the plaintiff claims that the evidence before the Commission clearly establishes that: (1) the wall constructed by Marsilio is a "shoreline flood and erosion control structure" and (2) the structure does not protect either "infrastructural facilities, a water dependant use, or existing inhabited structures" as mandated by General Statutes § 22a-92(b)(2)(J); and that, accordingly, the Commission could not have found that the wall met all applicable zoning regulations. The plaintiff asserts that, based on the record, the only action the Commission could have legally taken was to reject the coastal site plan application filed by Marsilio. The plaintiff requests the court to sustain her appeal and order the Commission to reject Marsilio's application.
In his brief, Marsilio claims that the Commission's approval of his application was supported by evidence in the record that showed that the wall he constructed had no adverse impacts on coastal resources and fully complied with the requirements of the Westport zoning regulations and the Coastal Management Act. In its brief, the Commission has adopted the arguments advanced by Marsilio.
COMPLIANCE WITH WESTPORT ZONING REGULATIONS
Section 31-10 of the zoning regulations of the town of Westport sets forth the regulations adopted by the Commission to further the goals and policies of the Coastal Management Act. (ROR, Ex. 87.) Section 31-10.7 of the regulations provides: "An application for approval of a Coastal Site Plan shall be filed with the Planning and Zoning Commission . . . and shall comply . . . with all applicable provisions of § 22a-105 through § 22a-109 of the CAM Act."
In connection with applications for approval of coastal site plans, Section 31-10.7.5 provides:
The Commission shall approve, with conditions, modify, or deny the application . . . In approving any activity proposed in a Coastal Site Plan, the Commission or Board shall make a written finding that the proposed activity, with any conditions or modifications imposed by the Board of Commission is:
(1) consistent with all applicable goals and policies of the CAM Act;
(2) incorporates as conditions or modifications all reasonable measures which would mitigate the adverse impacts on both coastal resources and future water dependent activities.
The only relevant finding set forth in the resolution adopted by the Commission is that: "Members of the Commission find the reason the application should be approved is that it meets all the applicable zoning regulations." General Statutes § 22a-109(f) only requires a zoning commission to state reasons for its decision "to deny, modify or condition a coastal site plan . . ." That statute does not require a commission to state any reasons for a decision to approve a coastal site plan without modifications or conditions.
However, the Commission failed to make the findings required by the Commission's own regulations. Our Supreme Court has held that the failure of a land use agency to give reasons for its decision requires the Superior Court hearing the appeal to "search the entire record to find a basis for the commission's decision." Moon v. Zoning Board of Appeals, 291 Conn. 16, 25 (2009); Parks v. Planning Zoning Commission, 178 Conn. 657, 661-62 (1979); Hovanesian v. Zoning Board of Appeals, 162 Conn. 43, 47 (1971). However, the reasoning of this line of cases does not apply to situations where a land use agency, instead of omitting reasons for its decision, fails to make factual findings required to be made under the applicable regulations.
"Where the regulations have a requirement for the board to make specific findings, such as the special circumstances amounting to hardship, the [agency] must make them." (Emphasis added.) R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3rd ed. 2007) § 9.5, p. 258. This proposition is derived from a line of cases in which the Supreme Court has strictly enforced local regulations that require written findings. See Gross v. Planning Zoning Board of Appeals, 171 Conn. 326, 327-28 (1976); Carlson v. Zoning Board of Appeals, 158 Conn. 86, 90 (1969); Gregorio v. Zoning Board of Appeals, 155 Conn. 422, 428-29 (1967).
In Gross, supra, 171 Conn. 326, the Supreme Court invalidated a variance granted by a zoning board of appeals where the zoning regulations required written findings, but the Board had failed to comply with this requirement. Id., 328. The court reviewed the requirements of the zoning regulations and emphasized: "It is difficult to conceive of more unequivocal language than that contained in § 28a (3) in setting forth a prerequisite of written findings before a variance can be granted. In the present case, the board made no specific finding that exceptional difficulty or unnecessary hardship would result to the owner of the property from the strict enforcement of the regulations. It described no special circumstances in detail which do not apply to other properties in the area and which constitute a hardship to the applicants, nor did it find that relief could be granted without detriment to the public welfare, or without impairment to the integrity of the regulations." Id., 327-28. The court held that the board's failure to follow the requirements of the regulations to make specific findings on the record, beyond those required by the General Statutes, was fatal to its decision.
In Carberry v. Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0176766 (October 16, 2001, Adams, J.) ( 30 Conn. L. Rptr. 537), the court was confronted with the failure of an administrative agency to make findings mandated by its regulations. The court considered and rejected the agency's claim, that under the Hovanesian, supra, 162 Conn. 43, line of cases, the court was required to search the record to find substantial evidence supporting the missing findings. The court found that under Gross v. Planning Zoning Board of Appeals, supra, 171 Conn. 328, such a search was impermissible, stating: "While it may seem anomalous that the Supreme Court could treat the failure to give the written reasons required by state statute in one fashion and the failure to provide the written justification required by local regulations in another, that does seem to be the present state of the law." Id., 542. "In the final analysis, the short answer is that [an administrative agency] can abide by its own regulations or amend them. It cannot, as it has done here, ignore them." Id. See also Northern Heights, LLC. v. Inland Wetlands Conservation Commission, Superior Court, judicial district of Middlesex, Docket No. CV 09 5006609 (April 19, 2011, Morgan, J.) ( 51 Conn. L. Rptr. 786, 788); Ahlberg v. Inland Wetlands Watercourses Commission, Superior Court, judicial district of Fairfield, Docket No. CV 08 4024466 (July 6, 2010, Tobin, J.) ( 50 Conn. L. Rptr. 218, 221-22) (same).
In Benchmark GPT Windsor v. Inland Wetlands Agency/Conservation Commission, Superior Court, judicial district of Hartford, Docket No. CV 08 4034632 (February 11, 2009, Hale, J.T.R.), the court considered whether the absence of findings required under administrative regulations necessarily invalidated an administrative decision when the required findings were essentially duplicate requirements of the General Statutes. The court interpreted Gross, supra, 178 Conn. 328, as permitting, but not mandating, a court to search the record for substantial evidence supporting of the agency's decision.
Even if the court were to adopt the view of Gross, supra, 178 Conn. 328, suggested by the court in Benchmark GPT Windsor, supra, Superior Court, Docket No. CV 08 4043632, and search the record in an effort to make the findings required under § 31-10.7.5 of the Westport zoning regulations, the court would encounter great difficulty. In reaching the conclusion that Marsilio's wall meets all applicable zoning regulations, the Commission must have either determined that: (1) the wall was not a "flood and erosion control structure" as defined by General Statutes § 22a-109(c) or (2) that the wall protects either "infrastructural facilities, a water dependant use, or existing inhabited structures" as provided by General Statutes § 22a-92(b)(2)(J) and that there was no feasible, less environmentally damaging alternative. The record has little substantial evidence supporting any of these possibilities.
At oral argument, Marsilio's counsel advanced the argument that the wall did not constitute a "shoreline flood and erosion control structure." In support of that claim, Marsilio called the court's attention to the statements made by John C. Roberge, a professional engineer that Marsilio retained to present his coastal site plan application to the Commission. The transcript of the April 8, 2010 hearing reflects that, in commenting on the plaintiff's claim that the wall was serving as a flood and erosion control structure, Roberge commented: "I do deny that it is acting as a flood structure. It is a permeable structure. It does not retain any flood waters, it allows storm surge, high tides, and waves to over top. It does not retain any of the flood waters on the upper side as it's permeable and porous and it allows the water to freely drain back into Long Island Sound over the beach." (ROR, Ex. 1T, p. 5.) Marsilio claims that this testimony constitutes substantial evidence from which the Commission could have reasonably concluded that the wall was not a "shoreline flood and erosion control structure" and accordingly consistent with all applicable zoning requirements including those incorporating the provisions of the Coastal Management Act.
However, the transcript of the hearing shows that prior to making the above-quoted statement to the Commission, Roberge stated: "There has been some comment from Connecticut DEP and from Larry's staff that the wall is inconsistent with CAM policies, Coastal Area Management Policies, in that it is serving as a flood and erosion control structure. And I as a professional engineer with expertise in coastal engineering I cannot deny it." Id. Moreover, in his brief, Marsilio also called the court's attention to Roberge's statement to the Commission that the wall "is not causing erosion. In fact, it is preventing erosion of the required buffer strip. We think that it is a positive benefit." (ROR, Ex. 1T, p. 5.) As noted above, the statutory definition of "flood and erosion control structure" includes any structure the purpose of which is to control either flooding or erosion. The court finds little support in the record which might have led the Commission to conclude that the wall erected by Marsilio was not a "flood and erosion control structure."
Similarly, the record does not show that anything on the Marsilio property could be viewed as "infrastructural facilities, a water dependant use, or existing inhabited structures" as provided under General Statutes § 22a-92(b)(2)(J). Nor does the record show that there was any evidence presented to the Commission as to the feasibility of non-structural alternatives to the wall as required by that statute.
However, rather than engage in speculation as to the findings that the Commission might have made to support its decision, the court finds that the interests of justice will be best served by sustaining the appeal and remanding the matter to the Commission with instructions to comply with § 31-10.7.5 of the Westport zoning regulations. The court will retain jurisdiction.