Opinion
LLICV156011780S
03-08-2016
Northfield Preserve Land Trust v. Zoning Board of Appeals of the Town of Litchfield
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John W. Pickard, J.
The plaintiff, Northfield Preserve Land Trust, is a general partnership which owns a parcel of land of approximately 43 acres located at 58 McBride Road in the Town of Litchfield (" the property"). This is an appeal from a decision of the defendant, Zoning Board of Appeals of the Town of Litchfield (" ZBA") reversing a decision of the Litchfield Zoning Enforcement Officer (" ZEO") which had permitted the plaintiff to continue a " pre-existing non-conforming use of the property as a " gun club" or " shooting range." The intervening defendants are William and Susan Deering, Margaret S. Deakin, and Christopher and Theresa O'Neill, all of whom own property on McBride Road near the plaintiff's property. The appeal was argued on January 13, 2016. Because there is substantial evidence in the record to support the ZBA's decision the appeal will be dismissed.
I. Aggrievement
The plaintiff is the applicant and owner of the property and it is statutorily aggrieved by the ZBA's decision. C.G.S. § 8-8(a)(1). As such, it may appeal to the Superior Court. C.G.S. § 8-8(b); see, Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn 303, 308, 592 A.2d 953 (1991).
II. Standard of Review
C.G.S. § 8-6 gives the ZBA the power to " hear and decide appeals where it is alleged there is an error in any order, requirement, or decision made by the official charged with the enforcement of this chapter, or any by-law, ordinance or regulation adopted under the provisions of this chapter." " Our case law further reinforces the de novo nature of the hearing conducted by the zoning board of appeals. 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. In doing so, the board is endowed with liberal discretion." (Citations omitted. Internal quotation marks are omitted.) Caserta v. Zoning Board of Appeals, 226 Conn. 80, 90, 626 A.2d 744 (1993). The ZBA acts administratively in a quasi-judicial capacity in applying the regulations in an appeal from an order of the zoning enforcement officer. Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 514, 264 A.2d 552 (1969).
" [F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board." Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 626 A.2d 744 (1993). " [U]pon appeal [from the ZBA's decision], the trial court reviews the record before the [ZBA] to determine whether it has acted fairly or with proper motives or upon valid reasons." Spero v. Zoning Bd. of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). (Internal quotation marks omitted.) The trial court's review of " [a]n administrative appeal shall be confined to the record." (Internal citations and quotation marks omitted.) Rider v. Planning & Zoning Commission, 219 Conn. 139, 146, 592 A.2d 155 (1991).
" The Superior Court's scope of review [of an appeal to the ZBA] is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal. Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations. It is well settled that a court in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Citations omitted; internal quotation marks omitted.) R& R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). Where the board does not formally state any reasons for its decision, the trial court is required to search the record for reasons supporting the board's decision. Connecticut Resources Recovery Auth. v. Planning & Zoning Commission, 225 Conn. 731, 743, 626 A.2d 705 (1993). " In challenging an administrative agency action, the plaintiff has the burden of proof. The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo; the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's discretion." Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587, 628 A.2d 1286 (1993). " This so-called substantial evidence rule is similar to the sufficiency of evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." Id., 588.
III. Procedural History and Facts
In 1970 the Town of Litchfield adopted Zoning Regulations (" regulations"). Pursuant to the regulations, the property is located in the R-80 Residence Zone. Since the early 1930s the property was owned by the Thomaston Rod and Gun Club, a private membership organization which engaged in trap and skeet shooting. The club had a clubhouse on the property where they held their meetings and had game dinners and parties. A newspaper article in 1981 stated that " the gun club use of the property had drifted away from its original purpose" and that the club had become more of a social club. In 1982 the club changed its name to the Northfield Rod and Gun Club.
In 2005 the club began exploring a possible sale of the property to a developer named Paul R. Simko. Simko commenced a Phase I Environmental Study of the property, the written report of which notes that the present use of the property is an " Abandoned rod and gun club facility" and that the proposed use was " Site redevelopment into residential subdivision." The Phase I report includes a map of the property which shows the location of the clubhouse and of two skeet launch buildings. Sometime after the report, Mr. Simko decided not to purchase the property.
In 2006 the club sold the property to SF Holdings LLC whose member was Feoddor J. Stack. Two months after the sale, the Northfield Rod and Gun Club dissolved. Following the sale, shooting at the property stopped. Thereafter, SF Holdings LLC filed an inland wetlands application which included a proposal for a five-lot subdivision on the property. Mr. Stack's engineer represented to the Inland Wetlands Commission that Mr. Stack wanted to create more fields and was going to build a barn so that his son could raise chickens and animals on the property. The proposal met with resistance, and Mr. Stack withdrew it.
In December of 2011 the property was conveyed to the plaintiff, Northfield Preserve Land Trust, a general partnership of which Mr. Stack is the " trustee." Mr. Stack put up a sign at the street which identifies the property as " Happy Acres Farm." In April 2012 the plaintiff applied to the ZEO for a " Farm Permit" which requests a " permit change of 'Farm Use' from 'R-80.'" The letter concludes: " With the Town of Litchfield's Land Use Department this application respectfully requests to conform under 'Farm' zoning status. It is the belief and hope that the granting of this permit will further protect and maintain the rural farming heritage of the Town of Litchfield." There is no mention of a shooting range in the application. The application was approved. This approval enabled the plaintiff to obtain farm use real estate tax benefit for 32 of the 43-acre property. The application filed with the Litchfield Assessor's office notes that the 32 acres are: " Permanent Pasture--Grazing for Livestock, Not Tilled Land" and that farming done on the property is " dairy, vegetable." The two skeet shooting platforms have been converted to chicken coops.
The plaintiff filed for an open space designation for 9.35 acres at the same time that he applied for the farm land designation. The application lists the " current use" of the property as " Hay, chickens, poultry." Thus, the total acreage designated as farm land or open space land is 41.35 acres. This leaves a balance of less than 2 acres for the former club house which the plaintiff has converted to a residence for Mr. Stack's son.
Sometime in the spring or early summer of 2014, the plaintiff began leasing the property to private businesses to conduct shooting activities including forearms training classes. No longer was the shooting limited to trap and skeet shooting. The shooting included semi-automatic weapons training as well as pistol shooting. It took place at various times which included evenings, weekends, and holidays.
In June 2014, the ZEO began to receive complaints from other property owners in the neighborhood about the noise from the shooting range. The ZEO commenced an investigation. On August 26, 2014 the ZEO found that the use of the property as a shooting range was a preexisting non-conformity which had not been abandoned or expanded.
On September 24, 2014, William S. Deering, a property owner in the area, filed an appeal of the ZEO's decision to the ZBA. The ZBA held a public hearing lasting two nights at which the substantial record was created. On January 6, 2015, the ZBA passed a motion to reverse the decision made by the ZEO for the following reasons: (1) The Northfield Rod and Gun Club was dissolved in 2006; (2) In 1981 the gun club use of the property had drifted away from its original purpose and had become more of a social club; (3) A subdivision plan had been submitted for the property; (4) The clubhouse has been converted to a residence; (5) The skeet shooting platforms on the property were converted to chicken coops; (6) A farm use designation indicates that 32 acres have been converted to farm use. Also, 9.35 acres have been set aside for open space; (7) The letter from Mr. Stack accompanying the farm use application indicates an intent to use the property as a farm without any mention of using the property as a gun club or shooting range; (8) Based on all of these factors into account, the ZBA finds that the nonconforming use of the property as a gun club/shooting range has been abandoned in accordance with Article VI, Section 6.12 of the Litchfield Zoning Regulations. The plaintiff has taken this timely appeal.
Article VI, Section 6.12 provides: Abandonment of a Non-conforming Use. Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations. Such regulations shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to intent of the property owner to maintain that use. Whenever a nonconforming use of land, building or structure or any portion thereof, has been abandoned, such nonconforming use shall not thereafter be reestablished and all future use shall be in conformity with these Regulations.
IV. Discussion
" Abandonment is a question of fact which implies a voluntary and intentional renunciation. Nevertheless, the intent to abandon may be inferred as a fact from the circumstances . . . The mere discontinuance of a use where there is no intent to abandon is not enough . . . To establish abandonment, the intent on the part of the owner [must be] to relinquish permanently the nonconforming use . . . Because the conclusion as to the intention of the landowner is an inference of fact, it is not reviewable unless it was one which the trier could not reasonably make." (Citations omitted; emphasis in original; internal quotation marks omitted.) Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622, 631, 814 A.2d 396 (2003) citing Cummings v. Tripp, 204 Conn. 67, 93, 527 A.2d 230 (1987).
The trial court must be careful not to substitute its judgment for that of the ZBA. Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622, 814 A.2d 396 is an example of a case in which the trial court mistakenly substituted its judgment for that of the ZBA which had decided that the preexisting, nonconforming use of the property as a gasoline station had been abandoned. The trial court disagreed with the ZBA and determined that the evidence supported the conclusion that the nonconforming use had not been abandoned. On appeal, the Appellate Court pointed out that the evidence could have been viewed to support either side of the case. " Although we do not disagree with the predecessor's reasonable interpretation of the evidence [that the use had not been abandoned], we nonetheless conclude that substantial evidence existed in the record from which the board reasonably could have found that the Bongiorni estate had abandoned the gasoline station use." For this reason, the Appellate Court reversed the trial court and ordered that the plaintiff's appeal be dismissed.
Here, the ZBA reviewed the evidence in this substantial record and made an inference of fact that the plaintiff and prior owners of the property had the intent of relinquishing permanently the nonconforming use of the property as a " shooting range" or " gun club." The ZBA cited seven specific pieces of evidence to support this conclusion. The ZBA is the agency which is entitled to make this determination, not this court. This court's sole function is to determine if the plaintiff has met its burden of proving that the ZBA could not have reasonably made the decision it made. The plaintiff has failed to sustain its burden of proof. Although the extensive record in this case is subject to two equally reasonable interpretations, there is substantial evidence for a reasonable person to conclude that the Northfield Rod and Gun Club, S.F. Holdings, LLC and the plaintiff all intended to relinquish permanently the nonconforming use of the property.
For this reason, the appeal is dismissed.